Friday, December 9, 2011
Attorney General Tom Horne suffered another big defeat in Maricopa County Superior Court today. Judge Dean M. Fink ruled that the Independent Redistricting Commission is not subject to Arizona's Open Meeting law, which eliminates an entire line of prosecution that Horne had hoped to use to remove members of the commission.
From Fink's ruling:
Applying the Open Meeting Law to the IRC would subject it to political influence from two sources. The first source, obviously, is the legislature. If the legislature can, through its plenary legislative power, dictate how the IRC is to conduct its business and impose penalties for non-compliance, that power cannot be limited to open meetings; it can be used to harass and hamstring the IRC. The second source is the executive, specifically prosecutors such as the Attorney General and the various county attorneys, all of whom are empowered to investigate alleged Open Meeting Law violations. The threat of prosecution, even a baseless one, can be reasonably expected to intimidate its target.
The Court therefore concludes that the Open Meeting Law, A.R.S. § 38-431 et seq., cannot be applied to the Independent Redistricting Commission.
Also from Fink's ruling:
The State’s argument that immunity would open the door to evils like bribery and embezzlement is not persuasive. Legislative privilege does not shield those who misuse public office for personal gain. But no such accusation has been made against any of the IRC commissioners. The allegations against them are that they failed to perform their official legislative acts in the proper manner. This is fully within the scope of the privilege.
Therefore, the Court finds that the Open Meeting Law, A.R.S. § 38-431 et seq., does not apply to the IRC, which is governed instead by the open meetings language of Article IV Pt. 2 § 1(12) (the Open Meetings Clause). It further finds that neither the Attorney General nor the Maricopa County Attorney may proceed in their investigation, except as provided by the Rules of Procedure for Special Actions.
While appeals are still possible, this is a major setback to Horne's efforts to find a way to remove chairwoman Colleen Mathis from the IRC. Horne had already been removed from the case for ethical reasons; it was being handled by the Maricopa County Attorney's Office.
These allegations that Mathis had violated the Open Meeting law formed much of case against Mathis lodged by Gov. Jan Brewer when she attempted to remove Mathis last month, only to have the Arizona Supreme Court reinstate Mathis because Brewer acted illegally.