Governor Brewer’s General Counsel Joe Sciarrotta, Jr. explains why the Governor removed Colleen Mathis from the Independent Redistricting Commission and the Governor’s position on an IRC lawsuit challenging Mathis’ ouster.
Ted Simons: Good evening, and welcome to "Horizon." I'm Ted Simons.
Ted Simons: The Arizona Supreme Court was asked to decide if ousted independent redistricting commission chairwoman Colleen Mathis should remain on the IRC while her removal is challenged in court. Today the high court ruled she cannot remain on the commission while the legal process moves forward. Here to talk about all this is governor Jan Brewer's general counsel, Joe Sciarrotta. Thoughts on today's ruling?
Joe Sciarrotta: We're pleased, but it's a step in the process, our response to the petition for special action to the Supreme Court will be filed by Friday at 5:00 p.m., and the court has scheduled oral argument for next Thursday the 17th at 2:00 p.m. We still have a lot of work to do this week.
Ted Simons: You, correct me if I'm wrong, you don't think the high court should have been involved in the first place.
Joe Sciarrotta: Respectfully yes. That is the case. There's a legal term for it, it's called -- this is a nonjusticiable matter. What that means, the Supreme Court has said is the strongest in the United States of America, this decision was entrusted to the governor, and then there is an important but exclusive check on the governor's authority and that is a two-thirds concurrence with the state senate. The governor removed Ms. mathis, the state senate has concurred, that's where the decision begins and ends.
Ted Simons: As far as the governor wanting to remove Colleen Mathis and a senate going ahead with the process, why was it so important to get that woman off that commission?
Joe Sciarrotta: Well, this was a saga that did not just happen in the past few weeks. This has been going on for months. There have been a lot of people protesting, upset from the very beginning. Each commissioner has a constitutional duty. They're to operate independently, honestly, and impartially, and the duty also says they have an obligation to conduct the IRC business in a way that upholds the integrity, upholds public confidence and the integrity of the redistricting process. Throughout a lot of questions have come up, the process wasn't being followed. Things were being done in secret. Votes were being lined up behind the scenes before vendors were even interviewed for positions. And then a map came out that seemed to be gerrymandered, and people were complaining the process, the constitution requirements weren't followed. So the governor had a constitutional duty and responsibility to enquire as to these allegations that have been gathering for months. And according to the constitution, she has to provide written notice and give an opportunity to respond. And she did that on October 26th. She listed out concerns to all of the commissioners, because perhaps all of the commissioner were implicated, and asked for specific responses to specific questions, and she got that response from all the commissioners on October 31st. And in receiving that, it was clear that based on inconsistency and some of their responses, the fact that two of the commissioners had testified under oath before the attorney general previously where other commissioners refused to answer questions, it was the governor's judgment that substantial neglect of duty and gross misconduct had occurred.
Ted Simons: Critics are looking at this and saying, there were rumors, there were questions, there were people upset, there were concerns. It seems as if, it looks as if that, but there was no conclusive proof. What was the evidence of gross misconduct and substantial neglect of duty to warrant the removal of not only this commissioner, but an attempt to remove two others.
Joe Sciarrotta: Sure. Again, you're imposing courtroom and legal standards of evidence and procedure which don't apply. This is a constitutional removal process that is committed to the governor, and then to the senate. And the procedure is very limited in the constitution, and that's only what the court can look at. Did the governor and the senate follow procedure. The governor gave notice, got a response and decided to remove. And in those responses, some -- one, which was an inch thick, based on various testimony that was provided, there was evidence that the obligation to conduct meetings in public, to be transparent, to be honest and impartial and independent, wasn't occurring. Votes were being lined up, I think an important fact is the mapping consultant that was hired, some say very left leaning, very partisan, in a process that is supposed to not be partisan, Ms. Mathis was lining up votes before other vendors were even interviewed. So there was no public confidence that the governor believed in the integrity of the redistricting process at this time.
Ted Simons: And yet those on the other side are saying that she never had due process, she was never presented with the evidence, she was never allowed to test the evidence, the evidence was never presented for the public to see. That again, there was no due process, and I understand this is political process, so maybe that doesn't necessarily apply, should it apply? When you're removing a commission head?
Joe Sciarrotta: The Arizona Supreme Court has addressed this, and it came up in governor Mecham's impeachment proceedings. The Arizona Supreme Court twice specifically said in removal proceedings, constitutional removing proceedings, life, liberty, and property, which is the due process standard, is not implicated, and office holder does not have a vested right in an office, it belongs to the public, it's the public trust, and it's not a criminal proceeding. So they clearly said the state and federal due process provisions of the constitutions do not apply.
Ted Simons: Should they apply?
Joe Sciarrotta: I think there was due process. The process is put forth in the constitution. The process that is due, the commissioner was to receive written notice, she got that. She was given an opportunity to respond. That happened. And the governor put forth a letter explaining that decision. So it did happen.
Ted Simons: But --
Joe Sciarrotta: Based on the constitutional provision that simply indicated here.
Ted Simons: That would be different, though, with actually presenting evidence and allowing that evidence to be tested in some way.
Joe Sciarrotta: That's why this matter is what's called nonjusticiable. It's not for the court to second guess or put courtroom procedures in place. It is left to the governor and the state senate based on the provisions in the constitution. Same arguments were made by governor meekham. My due process rights, I don't have enough time, I don't know what the charges are, and the Arizona Supreme Court said that just does not apply.
Ted Simons: There are some concerns coming from those who support the commissioner and oppose the move by the governor and the senate that this is a lot of hubbub over draft maps. That this isn't even the final process in this process. That these things aren't even finalized yet and already a commissioner head is being removed and a couple of other commissioners are being targeted. Why not wait until a final map is approved and then go to court, why not go to court first to get her removed as opposed to a process that seems to have a lot of folks upset?
Joe Sciarrotta: I want to take issue with your question, nobody's -- no additional commissioners are being targeted. The governor has made her decision, there will continue to make sure the process is followed. But the commissioner that has been removed, that's the decision the governor made. I don't want there to be some --
Ted Simons: But she did target the other democrats. She said the report were she wanted the other democrats on the commission removed.
Joe Sciarrotta: She sent letters to all of the commissioner and got responses, and I think she was a bit concerned they were involved in some of the actions that led to Ms. Mathis's removal. But the governor decided the buck stops with the leader, the chair. The person in control. Because what happened is, redistricting has devolved into really an independent redistricting czar. One person controls the process and that is independent, or the alleged independent. And that's why it's so important. The hubbub is not hubbub, the constitution specifically says the process has to be followed, here's the process. And the duty of the commissioner is to uphold confidence in the integrity of the system. If you go around the state, people were saying that wasn't happening. Maps were taken home over the weekend, holes were put in the middle of it, districts were put back in place with competitiveness as the sole criteria were some of the allegations. The process is very important. It happens once a decade, it affects electoral rights for a decade. And if the process isn't properly followed, people don't have confidence. That's not hubbub, that is a serious constitutional standard.
Ted Simons: Often when the process isn't properly followed there will be nullification of whatever the process result the in, and you go back and essentially have a do-over. That seems to be often the case with open meeting law violations. Why not that situation here?
Joe Sciarrotta: This wasn't just open meeting violations. The argument is the process wasn't done in open, things were done in secret, the constitutional requirements to create maps weren't followed. But it misses a key point. It goes back to why this is a non-justiciable matter. This is a check and balance in our constitutional democracy, and the governor is given responsibility to step in when she finds the process is not being followed, such that substantial neglect of duty or gross misconduct is taking place that. Is a constitutional decision and authority given to the governor. And it's an important part of the process.
Ted Simons: Last question, you mentioned checks and balances. The original authors of the initiative which wound up being the independent redistricting commission, the law, said it was not their intent for this to be in their words a back doorway to remove a commissioner. It was very serious, very serious gross neglect, someone taking bribes, someone acting memory unstable, something along these lines. You mention add one-person czar. Critics say the governor is acting like a one-person czar because the original intent was not to have a one-party system deciding with a two-third vote and the governor sending the troops on the way to have this kind of removal process unless it was extremely serious. How do you respond to that?
Joe Sciarrotta: The Constitution is clear. And the authors of that provision knew the legal standard that was in place under the meekham case law. And the process is there. And it's not back door, it was actually very up front, the governor was very measured, this is not an action she wanted to take. This is something that based on months of allegations, and concerns, and problems, rose to the level and finally after sending a letter and getting a response in her determination, which is constitutionally invested in her, she made the decision, substantial neglect of duty and gross misconduct had occurred.
Ted Simons: Oral arguments November 17th?
Joe Sciarrotta: November 17th at 2:00 p.m.
Ted Simons: That's the next step. Good to have you here. Thanks for joining us.
Joe Sciarrotta: I appreciate it.
Joe Sciarrotta, Jr.:General Counsel, Governor Brewer;
