legislative maps arizona

Like to draw? Get along well with others? Apply by June 10.

Looking for a unique opportunity to influence public policy in a state you care about?

On this Change of Venue Friday, I point you toward the fact that a new Redistricting Commissioner is being sought. There are a variety of qualifications to meet, and your deadline is Monday, June 10.

Below, I have included the language describing the position and including a link to the application.

If you read the newspaper, you know that the job is not without its, um, challenges, shall we say. The opening was created by the resignation of the Vice Chair. You could read more about that here.

Still interested, aren’t you? That’s what I like about attorneys: the dogged commitment to effective public policy!

Here’s the detail. Have a great weekend.

“Applications are currently being accepted by the Commission on Appellate Court Appointments for a vacancy on the Independent Redistricting Commission, which is charged with mapping Arizona’s congressional and legislative districts. This vacancy was created by the resignation of Commission Vice Chair Jose M. Herrera.”

“Residents of all Arizona counties are eligible to apply. To be eligible, applicants must be registered Arizona voters who have been continuously registered with the Democratic Party for the last three years. People who have held or run for a public office (other than a school board), served as an officer of a political party or a candidate’s campaign committee, or worked as a registered paid lobbyist during the past three years are not eligible.”

Application forms are available here, by calling (602) 452-3311, or at 1501 W. Washington, Suite 221, Phoenix, AZ.”

“Applications must be submitted by 5:00 p.m. on June 10, 2013.”

“Redistricting Commission members are barred from seeking or holding any public office in Arizona or for registration as a paid lobbyist during their term on the commission and for three years following.”

“The Commission on Appellate Court Appointments will review the applications and nominate a pool of three candidates. Representative Chad Campbell, Minority Leader in the Arizona House of Representatives, will appoint the new member of the Redistricting Commission.”

AZ Supreme Court logoI began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

The news story was penned by longtime reporter Howard Fischer, of Capitol Media Services, and it’s titled “Groups Campaign To Oust Supreme Court Judge.”

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

Really? REALLY?

For a treatment of the subject that is far more compelling and eloquent than my two-word screed, you should read Chief Justice Rebecca White Berch’s commentary in the Arizona Republic from this past Monday. She also is careful not to urge any particular vote, but she does point us all to some sources of actual data that might inform our ballot choice: The Arizona Commission on Judicial Performance Review, and the Arizona General Election Guide, which is mailed to each registered voter.

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

That takes us back to Howie’s article, which you can read here.

So let’s examine that “Top 2” primary issue, which is ostensibly the sole source of upset against a Supreme Court Justice. You may recall that it was just back on September 6 that the Court ruled that the item could be on the ballot.

Chief Justice Rebecca White Berch

Chief Justice Rebecca White Berch

I would urge the following for anyone “on the fence” due to this ruling: As the Chief says, review the data at the website of the Arizona Commission on Judicial Performance Review, and read your own voter pamphlet.

And then, go the extra step: Read the ruling itself.

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

Arizona, at a turning point.

Posted as reference to my 10/25/12 blog post here.

SUPREME COURT OF ARIZONA

SAVE OUR VOTE, OPPOSING C-03-2012, an unincorporated Arizona political committee, SAFEGUARD ARIZONA’S FUTURE, an unincorporated Arizona political committee, and LISA GRAY, a qualified elector and taxpayer of the State of Arizona, Plaintiffs/Appellants,

v.

KEN BENNETT, in his official capacity as Secretary of State of the State of Arizona, Defendant, and OPEN GOVERNMENT COMMITTEE SUPPORTING C-03-2012, an unincorporated Arizona political committee, Real Party in Interest.

Arizona Supreme Court

No. CV-12-0301-AP/EL

Maricopa County Superior Court

No. CV2012-013094

DECISION ORDER

FILED 09/06/2012

¶1 The Court, by a panel consisting of Chief Justice Berch, Vice Chief Justice Bales, and Justice Pelander, has considered the briefs of the parties and the record in this accelerated election appeal. After consideration, the Court rules as follows:

¶2 This appeal arises from a challenge by Plaintiffs/Appellants “Save Our Vote, Opposing C-03-2012,” “Safeguard Arizona’s Future,” and Lisa Gray (collectively “SOV”) to petition circulator affidavits on certain initiative petition sheets circulated by Real Party in Interest “Open Government Committee Supporting C-03-2012” (the “Committee”). The initiative proposes to amend Article 7 of Arizona’s Constitution to create a single open “top two” primary election followed by a general election between the two candidates who receive the highest vote totals for each office; if adopted by the electors, that system would replace Arizona’s current partisan primary and general elections in January 2014.

¶3 Following the Secretary of State’s initial culling of initiative petition sheets pursuant to A.R.S. § 19-121.01, SOV discovered possible defects in some circulator affidavits. It filed this action on August 24, 2012, and requested an expedited hearing pursuant to A.R.S. § 19-122(C), which provides that such actions be “heard and decided by the court as soon as possible.” The matter was set for a four-hour hearing on August 30 before Judge John Rea in Maricopa County Superior Court. The printing deadline to place initiative measures on the general election ballot was August 31, 2012; the deadline for removing items from the ballot is September 7, 2012.

¶4 At the hearing, without objection, the trial court allocated two hours to SOV and two hours to the Committee. After calling three witnesses and introducing some of the petitions it had hoped to have admitted into evidence, SOV rested ten minutes short of its two hours, without then proffering additional exhibits for admission. The Committee rested well short of its two hours. When SOV asked if it could “admit some more exhibits” at that point, the trial court responded that “exhibits which are rebuttal to the defense case” would be permissible, but “something new” that is “beyond the scope of rebuttal” would not. SOV neither identified what additional exhibits it might seek to introduce nor made an offer or proof. SOV then stated there was no need for rebuttal and the parties made closing arguments.

¶5 The next day, August 31, the trial court ruled that although SOV had proved 2,056 signatures should be removed for fatally flawed affidavits, that number was insufficient to disqualify the measure in light of the court’s ruling in the companion case, Open Government Committee v. Purcell, CV 2012-013089. In that matter, the Committee had successfully rehabilitated 577 signatures the Maricopa County Recorder had struck as invalid in its certification of the random sample pursuant to A.R.S. § 19-121.02. When the total number of valid signatures was recalculated, the ruling in Purcell resulted in the Committee having 6,372 more valid signatures than required; and even after deducting the 2,056 signatures invalidated in this case, the Committee had 4,316 more valid signatures than required. The trial court therefore dismissed SOV’s complaint with prejudice in a signed minute entry.

¶6 On appeal, SOV argues the trial court abused its discretion by “requiring [it] to introduce signature sheets individually by circulator,” rather than admitting, en masse, four boxes containing some 6,000 signature sheets and by allowing SOV only two hours in which to present its evidence “and not granting [its] request for additional time.” SOV also argues that the trial court erred by dismissing the complaint while the companion case was subject to appeal.

¶7 We affirm the trial court’s rulings. The court did not require SOV to introduce signature sheets individually by circulator. When the Committee declined to stipulate that the contents of the four boxes were true and correct copies of the actual petitions, and SOV’s witness testified that the documents were “not necessarily in the same form as how [the Secretary of State’s office] provided them,” the trial court indicated that SOV could lay further foundation, at which point a determination on admissibility could be made. The trial court did not abuse its discretion in refusing to admit the boxes when first offered. Although SOV laid additional foundation through its next witness, and successfully moved to admit certain signature sheets, it did not again move to admit the four boxes. When SOV asked during its case-in-chief if there was a simpler or faster way to proceed, the trial court appropriately responded that each party should determine how to prove its case. The trial court did not unduly limit the manner in which evidence was presented.

¶8 Nor did the trial court abuse its discretion in limiting the time for presenting evidence. SOV did not object to the court’s allocating four hours for the hearing or dividing the time equally, perhaps because experienced election counsel on each side understood that the printing schedule required the court to issue a ruling the next day. During the hearing itself, when SOV requested additional time to present more evidence, it neither made an offer of proof regarding the proposed evidence nor argued that adhering to the previously established schedule would be unfairly prejudicial. The trial court did not deny SOV due process under the circumstances of this expedited election litigation.

¶9 Finally, the trial court did not err in dismissing SOV’s complaint while the companion case was subject to appeal. This issue is moot because the defendants in that case chose not to appeal and, in any event, SOV did not ask the trial court to defer entering judgment pending any appeal of the companion case.

CONCLUSION

¶10 SOV has not shown that the trial court abused its discretion with respect to any evidentiary rulings or in adhering to the previously established hearing schedule; nor did the trial court err in dismissing SOV’s complaint. Because the issues raised by the Committee on cross-appeal will not affect our disposition of this case, we do not address them. We affirm the decision of the trial court denying the injunctive relief requested by SOV and dismissing its amended complaint with prejudice.

DATED this ____________ day of September, 2012.

Scott Bales

Vice Chief Justice

TO:

Michael T. Liburdi

Joshua Alan Kredit

Michele L. Forney

Thomas M. Collins

Kimberly A. Demarchi

William G. Voit

Hon. John Christian Rea

Michael K. Jeanes

jrs

Related Documents:

Top 2 Primary CV120301 Decision Order (same as above, but in PDF)

Order filed in Trial Court Exhibit A

Appellants’ Opening Brief

Opening Brief of Real Party in Interest Open Government Committee

CV120301 Appellants’ Response Brief

CV120301 Response Brief Open Govt

If you are a lawyer residing in District 6 (Maricopa County), it is time to exercise your right to select a representative to the State Bar of Arizona Board of Governors. Ballots are open May 9 through May 23.

You should already have received a link to the ballot in your email. As we explained in Arizona Attorney Magazine:

“The Board of Governors elections will again be conducted online. Does the State Bar have your email address of record? (Rule 32(c)(3), Ariz.R.S.Ct.)

“A special election will be held this year to elect one member from District 6 (Maricopa County) to serve a two-year term. The newly elected member will fill the District 6 seat held by President Joe Kanefield after he completes his term as President. At that time, Joe will become the immediate past president and will serve one more year on the Board in an ex-officio capacity.”

Here is a link to descriptions of all the candidates.

Do you have any questions? Contact Carrie Sherman at 602.340.7201 or carrie.sherman@staff.azbar.org. She’s managing the election process and could answer most any question you could come up with. I guess you could say Carrie is in charge of democracy here at the State Bar (well, somebody’s got to do it!).

Let’s get voting!

Texas Gov. Rick Perry

Happy Leap Day!

One way I remember what year has a Leap Day is to think, Is this a Presidential election year?

Well, it is, so what could be more appropriate today than to post some images from last week’s Arizona Republican Party debate, put on by CNN?

I was pleased to be able to attend and cover the debate. (Well, “attend” may be putting it strongly: Media were all corralled into a tent outside, but we did get to mingle with and inquire of the candidates and newsmakers after the debate.)

Ariz. Gov. Jan Brewer

Want to see some of what I said about the debate, as it occurred? Search for the hashtag #GOPDebate on Twitter. And while you’re there, feel free to follow me (@azatty).

So now that Arizona’s Republican primary is over, and there is no way my poorly shot photos could accidentally influence the election’s outcome (which we discovered last night was won by Mitt Romney), here are a few of my pics. The complete set is online at the magazine’s Facebook page.

Debate sign directing media

From the State Bar of Arizona:

A special election will be held this spring in District 6 (Maricopa County) to elect an attorney who will complete the last two years of Joe Kanefield’s term. For a candidate nomination package for the 2012 Board of Governors election, click here.

Elections will be conducted online.

Requirements to run:

  • You must be an active member in good standing with the State Bar of Arizona who has been admitted to practice law before the Arizona Supreme Court for not less than five years;
  • You must submit a nominating petition, a brief biographical sketch or candidate’s statement, a discipline disclosure statement, and a photograph;
  • Your nominating petition and materials must be received no later than 5 p.m., Monday, March 5, 2012, at either of the State Bar’s offices:

4201 N. 24th Street, Suite 200

Phoenix, Arizona 85016-6288

270 N. Church Avenue

Tucson, Arizona 85701-1113

To see who is currently on the State Bar Board of Governors, click here.

Ariz. Senate President Russell Pearce

As I write this, Election Day is ticking away its last minutes. Among all the results, both surprises and their opposite, it’s looking very much like we won’t have Russell Pearce to kick around anymore.

As the Arizona Daily Star reported late last night:

“Arizona Senate President Russell Pearce—architect of some of the nation’s toughest state laws against illegal immigration—was ousted by voters Tuesday in an unprecedented recall.

“Results late Tuesday showed challenger Jerry Lewis, a political newcomer, with a 53-to-45 percent margin over Pearce in his east Mesa district. Both are Republicans. A small percentage also cast ballots for Olivia Cortes, although she withdrew from the race.

“Pearce conceded defeat, saying he is disappointed and will spend some time ‘with my family and my God’ before deciding what to do next. He has not ruled out another run—including to get his seat back.”

God wasn’t available for comment. But you can read the whole story here.

There were many twists and turns in this race, but at its heart, there was no more “legal” election battle this year. The Senate President may have disputed it, but SB1070 and its fellow immigration laws were all over this race.

The ouster of Russell Pearce likely pleases or dismays many Arizona lawyers, whose opinions on immigration and a great many other things are very diverse. But for me, the surprise in the race was farther down the tote board.

252 votes for Olivia Cortes.

Who? Oh, yes, that Olivia Cortes. The one caught up in allegations that she was a sham candidate whose sole purpose was to draw votes away from Jerry Lewis and therefore to help Russell Pearce.

The tale of the tape

Well, if that was the plan, it didn’t work very well. But her inclusion on the ballot still garnered some support, long after interminable news stories documented her lack of genuine commitment to public service and to this race.

Who are those 252 people, you have to wonder?

I will grant her this: Her family probably supported her with their votes. I mean, even if my mom were a sham candidate running for town council back in Poughquag, N.Y., I’d still be inclined to cast my vote her way. Sham or not, family’s family.

So let’s give Olivia the credit of 10, no, 20, hell, let’s say 50 family votes.

Given that, who are those 202 other people who voted for a woman who had formally withdrawn after having barely been in the race to start with? A woman with no positions, no record, no political accomplishments? Someone whose withdrawal opportunely came immediately before a scheduled candidate debate and a court hearing that would have put her “supporters” on record under oath?

I am inclined to search out those 200 or so voters and to ask them to leave the state. Just leave.

At the very least, those voters should be included in a list of potential jurors who are unaware of and unswayed by news stories.

Happy Election Day-after.

The Arizona Secretary of State’s Office has just confirmed that Olivia Cortes has withdrawn from the recall election that has been called in regard to State Senate President Russell Pearce.

According to an email sent from that Office, “Mrs. Cortes will still be on the ballot, but there will be signs posted at the polls and posted on the Secretary of State’s site.”

Here is a news story about her withdrawal and some history of this race.

And here is the withdrawal form that Cortes signed:

 

Lawyers may not be tea-leaf-reading kind of folks, but even those famously left-brained professionals must see the signs.

Oddity is all about us, people. And that is nowhere more clear than in the signs that line our roads. Let me share.

First, the depressingly inaccurate.

We have witnessed a Mesa battle this week over signs that contain inaccurate information—but it will apparently take a court to have them removed. The recall election of Russell Pearce already occupied too much of the time of newsfolk. Now, we are confronted with signs that operate simply through misdirection.

Here’s the story.

And here is the sign making all the hubbub. (Oddly enough, the Arizona Republic didn’t include the photo with its news story. I had to head over to the Phoenix New Times, that visual bunch, to find it. You can read the NT story here.)

To counterbalance the tawdry signs of politics we see all around us, I direct you northward. There, drivers came across a (we hope) playful warning—about an escaped panda bear.

The story, not nearly as good as the photo below, is here.

Enjoy.

Ariz. Senate President Russell Pearce

Mistakes are made in the heat of battle. And that is never more true than in lawsuits regarding pending elections (see Bush v. Gore).

That may be the most generous analysis we can make in the latest turn in the battle over a recall election for State Senate President Russell Pearce.

You may recall (get it?) that sufficient petition signatures were gathered to force a recall election of the engineer of the immigration law dubbed SB1070. But a lawsuit was filed immediately by Pearce backers to disallow the signatures, the petitions and the entire election.

Last week, an Arizona court in Maricopa County ruled against the suit, which would allow the recall to proceed. An appeal was expected.

What wasn’t expected was that the Pearce supporters filed the appeal directly to the Arizona Supreme Court. On Tuesday, the Court—ever so kindly—pointed out that the appeal came to the wrong bench.

As Justice Scott Bales wrote:

“The Court has received Appellant’s Rule 8.1 Statement in Expedited Election Matter, filed August 15, 2011. Because pursuant to Rule 8.1(h), Arizona Rules of Civil Appellate Procedure (ARCAP), ‘[e]xpedited election appeals involving recalls … shall be filed in the Court of Appeals’ rather than this Court, IT IS ORDERED transferring this matter to the Arizona Court of Appeals, Division One.”

Every lawyer may make an error, Justice Bales seemed to acknowledge. And so he concluded, “IT IS FURTHER ORDERED that Appellant not be charged a second initial filing fee.”

Other coverage of the matter made the event seem like a technicality. As FOX10 News reported:

“The Arizona Supreme Court is sidestepping an appeal of a judge’s ruling to keep a scheduled recall election for state Sen. Russell Pearce on track, but it may be only a temporary move.”

Here is their complete story.

True, I suppose, that all court rules are “technicalities.” But those are technicalities that lawyers live with every day. It’s nice that the Court won’t levy a second fee on the plaintiff when the matter is inevitably filed in the proper court. But given the very public nature of this Court order, I suppose the lawyers involved have already paid enough.

Below you’ll find the two-page order from the Supreme Court.

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