Each decade, the Constitution requires the Arizona Independent Redistricting Commission (“IRC”) to redraw the maps of Arizona’s legislative and congressional districts. The IRC is made up of five commissioners: the legislature selects four and the four appointees select the chairperson. The Constitution allows the governor to remove an IRC commissioner, with concurrence of two-thirds of the Senate, for “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.” Ariz. Const. art. 4, pt. 2, § 1(10) (“Section 1(10)”).
For the 2010 redistricting cycle, the first four commissioners unanimously selected Colleen Mathis to serve as the IRC’s chairperson. The Commission approved draft maps in October 2011. After the IRC advertised the maps and began a series of meetings to obtain public comment, Governor Brewer gave written notice to each commissioner “of allegations that they had committed substantial neglect of duty and gross misconduct in office.” Each commissioner responded in writing.
On November 1, the Governor’s office sent a letter to Mathis removing her from the IRC. The letter stated that the office had concluded that Mathis “failed to conduct the [IRC’s] business in meetings open to the public, and failed to adjust the grid map as necessary to accommodate all of the goals set forth in the” Arizona Constitution. The same day, two-thirds of the Senate concurred in Mathis’s removal during a special session.
The IRC petitioned the Supreme Court for special action relief to nullify the removal, and Mathis intervened. After expedited briefing and oral argument, the Supreme Court accepted jurisdiction and granted relief, ordering the reinstatement of Mathis. This opinion followed.
The Court rejected the argument that the case presented non-justiciable political questions. Although the Constitution gives the choice to remove to the Governor (with Senate concurrence), the judiciary still retained power to determine whether “the stated grounds for removal constitute legal cause when, as here, the Constitution provides clear, comprehensible standards.” The legal causes for removal – “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” – are standards that courts “routinely construe.” And the Arizona Supreme Court has long recognized the power to review “executive for-cause removals,” a power that is “particularly appropriate when an executive seeks to remove a commissioner from an independent body such as the IRC.” Furthermore, the fact that the Senate must concur in an IRC removal does not “immunize the action from judicial review.” After all, the fact that a statute is subject to the governor’s veto does not immunize it from judicial review.
In so holding, the Court explained that the IRC removal provision was not akin to the legislature’s constitutional impeachment power, a power that is subject to almost no judicial review as set forth in Mecham v. Gordon, 156 Ariz. 297 (1988) and Mecham v. Arizona House of Representatives, 162 Ariz. 267 (1989).
First, the assignment of impeachment power to the legislature is “textually exclusive” because the Constitution states that the House shall have “sole power of impeachment” and that the Senate shall try “[a]ll impeachments.” Ariz. Const. art. 8, pt. 2, § 1. Section 1(10) does not contain similar language. Second, impeachment includes “important procedural checks” not present in Section 1(10), including that the Senate must “try” all impeachments, that senators take a separate oath to “do justice according to the law and evidence” in impeachment trials, and the chief justice of the Supreme Court presides over the trial. Third, the framers of the similar federal impeachment provision “considered and rejected” a role for the judiciary. The IRC, in contrast, was created to “remove redistricting from the political process.” Finally, one of the purposes of impeachment is to provide a check on judges, who may themselves be impeached. Judicial review of that power would undermine the check on the judiciary, a concern that is not present with judicial review of an IRC removal.
Satisfied that it could consider the merits, the Court held that the “Governor’s stated grounds for removing Mathis were constitutionally deficient.” “Neglect of duty” means a “substantial failure to perform a duty” in a way that “implies wrongdoing.” Holmes v. Osborn, 57 Ariz. 522, 540 (1941). And because Section 1(10) requires “substantial neglect of duty” to justify removal, “the commissioner’s failure must be categorical and egregious.” Furthermore, “gross misconduct in office” requires “a willful act or omission that the commissioner knew or should have known was wrong or unlawful.”
Applying these standards, the Court concluded that nothing in the November 1 removal letter stated legal cause for removal. The first ground – that Mathis “failed to conduct . . . business in meetings open to the public” – failed because the Governor never alleged or found that there was a “non-public meeting of a quorum of the IRC.” At a minimum, such an allegation was required to state a violation of an open meeting law. Moreover, the Governor’s allegation fell short because it “did not allege or purport to find that Mathis’s conduct was in willful derogation of clearly established and ascertainable law.”
The second ground – that Mathis “failed to adjust the grid map” as the Governor believed the Constitution required – also failed because the redistricting maps were merely drafts subject to revision and, in any event, if there were flaws in the maps, the “recourse is judicial.” Thus, a failure to satisfy “map-adjusting criteria” is not a valid basis for removal as a matter of law.
Justice Pelander authored the unanimous opinion. Justice Berch recused and was replaced by the late Justice Ryan. Justice Ryan concurred in the orders granting relief and reinstating Mathis.
Posted by: Joseph Roth