PHOENIX — Arizona’s redistricting commission generally must follow the
state’s open meeting law but prosecutors cannot resume an investigation into
whether the commission violated the sunshine-in-government law before it hired
mapping consultants, an appellate court ruled Tuesday.
A Court of Appeals panel’s unanimous ruling is the latest chapter in a series
of ongoing legal fights over the Independent Redistricting Commission’s
contentious work of drawing new congressional and legislative districts. Where
district lines are drawn is politically important because it influences which
party and its candidates can win in districts.
In trying to fend off a civil investigation on whether it complied with the
open meeting law, the commission said it is bound only to follow transparency
requirements in the voter-approved constitutional amendment that created it, not
the open meeting law.
The ruling said the constitutional provisions are supreme but said the
commission also must follow open meeting law requirements that don’t conflict.
The open law meeting generally requires that bodies do their work in the open
and provide advance notice of meetings. It also voids actions taken in violation
of the law.
“It’s hard to see” how compliance with the meeting law “restricts or unduly
burdens either the independence of the IRC or the performance of its mandate,
especially given that the Constitution also requires the IRC to hold open
meetings,” Judge Donn Kessler wrote for the panel.
The panel also rejected the commission’s argument that its internal
communications concerning the hiring of mapping consultants are legally shielded
from examination. Communications on actual drawing of maps are cloaked by a
legal doctrine called “legislative privilege,” but not communications dealing
with administrative matters like hiring consultants, the ruling said.
However, the judges upheld a trial judge’s ruling that there was no reasonable
cause to justify conducting an investigation. That issue was settled by the
trial judge and prosecutors can’t try again to extract information from the
commission on whether it complied with the open meeting law, the ruling said.
“The bottom line (is) we won. The trial court’s judgment was affirmed, and
that’s what matters,” commission lawyer Mary O’Grady said.
O’Grady said it’s also significant that the panel found that legislative
privilege applies to the commission’s mapping work.
The ruling that the commission is subject to the meeting law won’t change much
because the commission already tries to adhere to both the law and the
constitutional requirements, she said.
The Maricopa County Attorney’s Office welcomed the ruling that the commission
is subject to the open meeting law.
Arizona voters, the office said in a statement, “would otherwise have been
shocked to learn that a fourth branch of government had been created to affect
political representation with no accountability.”
The state Attorney General’s Office began investigating the five-member
commission because of questions about whether chairwoman Colleen Mathis, an
independent from Tucson, tried to prearrange the hiring of Democratic-leaning
mapping consultants in one-on-one phone calls with other commissioners before
the commission approved the hiring during a June 2011 public meeting.
The two Republican commission members objected to the choice, and tea party
activists and Republican politicians later said it was one of several steps
taken by the commission that indicated a partisan bias favoring Democrats.
Mathis has denied favoring either party and defended the selection of Strategic
Telemetry as the best qualified choice among the applicants.
The County Attorney’s Office took over the case after a judge ruled that the
Attorney General’s Office had a conflict of interest because one of its lawyers
briefly advised the commission after it was formed.
The case is one of at least four court cases related to the Arizona
redistricting commission. The other three are Republican-backed lawsuits
challenging the district maps that the commission approved last January. The
maps were used for the first time in the Aug. 28 primary election and Nov. 6
The 2000 constitutional amendment approved by voters took redistricting out of
the hands of the governor and the Legislature.