Year in Review: High court puts spotlight on AZ in 2011
Published: December 30, 2011 at 7:52 am
This is the first in a series of stories from our Year in Review special edition looking at 2011’s top political news, memorable quotes and photos. Plus, new this year, we are introducing our top “say what” moments, which features lawmakers’ outrageous, engaging and head-scratching statements. Check back later today for more stories from our look back at 2011.
Robes and gavels were a large part of Arizona’s political scene in 2011.
The U.S. Supreme Court ruled on a landmark election law case that came out of the state and agreed to hear SB1070.
The state Supreme Court resolved conflicts involving the Independent Redistricting Commission and trial courts were busy with lawsuits contesting cuts to Medicaid and the candidacy of a Mesa woman in the recall election of former Senate President Russell Pearce.
Lawmakers passed a ballot measure that will make changes to how three counties choose their judges while a U.S. attorney resigned amid a homegrown national scandal, and a former county attorney went on trial to save his professional life.
The legal saga over SB1070, Arizona’s landmark illegal immigration law, may be nearing its end.
The U.S. Supreme Court in December agreed to hear the case over the controversial law. A federal District Court and the U.S. 9th Circuit Court of Appeals sided with the U.S. Department of Justice, which argued that SB1070 was unconstitutional and sued to keep it off the books. But the high court, seen by many Republicans as friendly to conservative causes, may not take the same view.
The case will decide whether Arizona can implement provisions of SB1070 requiring police officers to check immigration status if they have a “reasonable suspicion” that someone is in the country illegally and effectively making it a state crime to be an illegal immigrant in Arizona. While other portions of the law have gone into effect, those provisions are the crux of SB1070.
The Supreme Court’s decision will also determine whether states such as Alabama, Georgia, Indiana, South Carolina and Utah can implement similar laws they’ve passed as well. And if a pro-SB1070 ruling comes down, it may open the door for other states that sat on the fence while they wait for the legal battle to play out.
The case will likely come down to Justice Anthony Kennedy, the perpetual swing vote. If he sides with the court’s conservatives, as he did in upholding Arizona’s employer sanctions law in 2011, SB1070 will be the law of the land.
When the case finally goes to court, which is expected to be in April, Arizona will have an all-star attorney in its corner. Gov. Jan Brewer hired former Solicitor General Paul Clement, who argued more than 50 cases before the Supreme Court.
Arizona’s decade-long policy of providing a dollar-for-dollar match to publicly funded candidates to offset money raised by their privately funded competitors came to an expected end in 2011.
It was no surprise when the U.S. Supreme Court found matching funds to be unconstitutional on June 27 in a 5-4 vote, since the court seemed to telegraph its intentions a year before by blocking the practice while the case was pending.
“We hold that Arizona’s matching funds scheme substantially burdens protected political speech without serving a compelling state interest and therefore violates the First Amendment,” Chief Justice John Roberts wrote on behalf of the majority.
The court split on ideological lines with Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas joining Roberts.
Political operatives and consultants disagree on how impactful the loss of matching funds will be on Arizona’s political landscape.
The prevailing wisdom is that fewer candidates will seek public funding since there will be no match, and those who do will be more moderate.
The wars that former Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio waged against fellow county office-holders, county managers and the judiciary for five years were put under scrutiny in
2011 in a 26-day attorney disciplinary hearing that had many hallmarks of a courtroom drama.
“To the legal community here it really was the same level of interest as the O.J. Simpson trial,” said Chandler attorney Tom Ryan.
Thomas and one of his former deputies, Lisa Aubuchon, fought to keep their law licenses while former deputy Rachel Alexander fought a suspension. A decision by a panel consisting of Presiding Disciplinary Judge William O’Neil, a lawyer and a layman isn’t expected until late February or early March.
For critics of Thomas, who served from January 2005 until April 2010, the hearing presented an opportunity to prove what they had been saying for years: the prosecutor abused his power by going after his and Arpaio’s enemies with unlawful criminal prosecutions, lawsuits and criminal investigations that amounted to nothing more than fishing expeditions.
Thomas, Aubuchon and Alexander maintained their assertion that they violated no ethical canons as they rooted out corruption in Maricopa County.
And while individual prosecutors have been disbarred for ethical violations in individual cases, Thomas’ case involved several lawsuits, indictments of County Supervisors Don Stapley and Mary Rose Wilcox, and a criminal complaint against retired Judge Gary Donahoe.
One of the lawsuits alleged that a cabal of Maricopa County Superior Court judges was locked in a conspiracy with the County Board of Supervisors to obstruct Thomas’ investigation of Stapley and the financing of a planned court tower in downtown Phoenix.
“This was a whole series of cases over a whole series of years involving a whole parade of judges and lawyers and politicians,” said Karen Clark, a private attorney who specializes in attorney discipline cases. “Also, it was live-streamed on the web. I don’t think it would have gotten the attention it got without that immediacy of people being able to see what was going on in the courtroom.”
On Jan. 25, U.S. Attorney for Arizona Dennis Burke announced a throng of indictments in a gun-smuggling operation involving straw purchasers, or people who legally purchase firearms and then turn them over to crime syndicates.
Eight months later he resigned. Those indictments involved Operation Fast and Furious, a Bureau of Alcohol, Tobacco, Firearms and Explosives operation that allowed thousands of high-powered firearms purchased from Arizona gun dealers to get into the hands of Mexican drug cartels. Two guns from the operation ended up at the crime scene where Border Patrol Agent Brian Terry was gunned down in a Dec. 14, 2010, shootout.
Fast and Furious followed a technique used in drug investigations:
allow the purchased guns to get into the hands of crime syndicates as a way to track them to high-ranking members.
The congressional investigation of the operation has turned up evidence that ATF lost track of many of the more than 2,000 guns linked to it.
Although Burke offered no reason for his sudden resignation on Aug.
30, it came a few weeks after he testified in secret before a congressional committee investigating Fast and Furious and as the committee blasted his office for having a “striking” role in the gun- running scandal.
His resignation also came amid an increasingly loud chorus of demands that U.S. Attorney Eric Holder step down and questions about what he knew about the fiasco and when he knew it, leaving observers to theorize that Burke became the fall guy for the Obama administration.
U.S. Rep. Darrell Issa and Sen. Charles Grassley, both Republicans, alleged in a letter that Assistant U.S. Attorney Emory Hurley effectively allowed firearms to get into the hands of criminals by obstructing ATF agents. The congressmen then went on to suggest that Burke and other federal officials were trying to cover up the connection between Fast and Furious and guns found at Terry’s murder scene.
Burke’s resignation didn’t just affect the legal landscape of Arizona.
Democrats, whose ranks are thin, had eyed him as a strong candidate for statewide office such as governor or attorney general. If he were to run, the scandal will almost certainly be used against him by his opponents.
Opponents of the merit selection process of choosing judges finally had some success at the Legislature in 2011.
They were able to force some change after being energized by how a judicial screening commission handled applicants for the Independent Redistricting Commission and having the benefit of a greater-than- usual number of lawmakers on their side.
The result was a 2012 ballot measure, SCR1001, that gives the governor more choices in appointing judges, eliminates political affiliation in choosing judicial nominees, and diminishes the influence of the State Bar of Arizona in appointing members to the state’s three judicial screening commissions.
There has been an annual attempt at the Legislature to either change merit selection or do away with it completely, but proponents of the system have always been able to beat back the efforts.
Chief Justice Rebecca Berch said the judiciary either had to compromise or be stuck with a measure that was completely unacceptable because there was a formidable force at work this year.
“It’s clear from this Legislature that there will be some form of change to merit selection,” Berch said April 7 as the Arizona Judicial Council met to affirm its support for SCR1001.
Maricopa and Pima counties use merit selection, and Pinal County, by virtue of its population growth, will join them starting with the 2012 election.
Under the current system, screening commissions vet superior and appellate court applicants and pass a slate of nominees on to the governor, who chooses. Once chosen, the judges have to go before the voters every four years for retention.
Cathi Herrod, president of Center for Arizona Policy, a conservative group that was instrumental in negotiating SCR1001, said lawmakers took notice of the Commission on Appellate Court Appointments during the selection process of the Independent Redistricting Commission.
The commission usually screens applicants for the Court of Appeals and Supreme Court, but is also charged with vetting applicants for the IRC. One of the commission members, Luis Araneta, angered Republican lawmakers when he took exception to religious references in the application of a Republican IRC applicant. Araneta ended up resigning.
Republican lawmakers also took the screening commission to court to challenge the slate of nominees, which included an independent who leaned left and two Republicans who weren’t eligible.
Independent Redistricting Commission
The Independent Redistricting Commission spent considerable time in court in 2011.
The year started with a Supreme Court decision and ended with Superior Court decision.
On Dec. 9, Judge Dean Fink of Maricopa County Superior Court declared that the commission isn’t bound by open meeting laws and isn’t subject to investigations into the hiring of mapping consultants.
The commission sued to stop an investigation into whether it violated open meeting laws in June when hiring a mapping firm, Strategic Telemetry, with strong ties to Democratic candidates and interests. A few weeks before that lawsuit, Attorney General Tom Horne filed suit to force the commission’s two Democrats, José Herrera and Linda McNulty, and independent Chairwoman Colleen Mathis, to cooperate in his investigation.
Fink disqualified Horne from the case after finding he had a conflict of interest because his office represented the commission early on in the process. Horne transferred the investigation to Maricopa County Attorney Bill Montgomery.
Fink’s decision ended Montgomery’s investigation.
Horne initiated the investigation in July after the Arizona Capitol Times raised questions about how the commission hired Strategic Telemetry. The Capitol Times reported how the commissioners emerged from executive session making statements indicating they knew who they were going to hire, despite laws barring votes or polls in the secret sessions.
It was only a few weeks before Fink’s decision that the Arizona Supreme Court also handed the commission a legal victory.
On Nov. 17, the court reinstated Mathis as chairwoman after the commission and she challenged Gov. Jan Brewer’s and the Senate’s removal of her on grounds she violated the state’s open meeting law and ignored constitutional criteria for drawing districts.
The court took only three hours to rule after hearing oral arguments and reinstated Mathis without any explanation.
The Senate had voted 21-6 to remove Mathis. Secretary of State Ken Bennett, acting in Brewer’s place while she was out of state, served Mathis with a letter Nov. 1 informing her of the special session action to remove her from office.
In a Nov. 23 order, Vice Chief Justice Andrew Hurwitz provided some insight into its ruling, saying the letter did not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.”
Until Hurwitz’ ruling, Republicans believed they could simply re-write the letter in a more acceptable form and remove Mathis again, but Hurwitz made it clear she couldn’t be impeached for the offenses for which she stood accused.
The first lawsuit involving the commission actually began at the end of 2010, but the Supreme Court didn’t rule on until Jan. 19.
Legislative leaders sued the Commission on Appellate Court Appointments, the screening panel for IRC applicants, alleging that the panel failed to give them a slate of nominees who are qualified to serve. Former House Speaker Kirk Adams and former Senate President Russell Pearce asserted that two Republicans and an independent were ineligible because they held public office as it is defined by the state Constitution.
The court said the two Republicans, Mark Schnepf and Stephen Sossaman, both of whom served on water district boards, held public office “just as officers of a city or a county hold public office.” But the court found that ASU law professor Paul Bender was still eligible to serve on the IRC even though he served as a tribal judge in his spare time.
Justice W. Scott Bales wrote for the majority in the 3-2 decision, saying that the definition of public office doesn’t extend to Indian tribes.
When it came time for the two Republicans and two Democrats on the IRC to choose an independent to chair the panel, they passed on Bender and other independents and chose Mathis.
Lawmakers’ decision to cut hundreds of millions of dollars from the state’s health care budget was effectively an invitation to a lawsuit, and the challenge promptly came.
In fact, two lawsuits were filed. One challenged the enrollment freeze on adults without dependent children, and another challenged cuts to the Medicaid reimbursement rate to hospitals and health care providers.
The stakes are high. If either challenge succeeds, it would unbalance the state budget and compel lawmakers to restore health care funding.
It would also likely preclude them from resorting to these budget- balancing options in fiscal 2014, when the state is expected to be in the red again.
The lawsuit against the enrollment freeze argued that the state violated Prop. 204, the initiative that required health coverage for all residents whose income falls below 100 percent of the federal poverty level. The challenge hinged on the interpretation that the Legislature is required to fund the program if money from a tobacco settlement, which is its other source of revenue, proved insufficient.
So far, the state has won two rounds in this legal challenge. A trial court upheld the enrollment freeze, and the Arizona Court of Appeals also sided with the state, ruling that while it agreed that Prop. 204 mandates the Legislature to provide supplemental funding from “any other available sources,” whether lawmakers have complied with this directive is a political question that is not appropriate for the courts to resolve.
The Arizona Center for Law in the Public Interest, which filed the suit, has appealed the ruling to the Arizona Supreme Court, which will decide in February whether to take up the case.
Meanwhile, the Arizona Hospital and Healthcare Association sued the state and the federal health department over cuts to hospitals’
reimbursement rate, arguing that federal law says Medicaid payments to hospitals must be “consistent with efficiency, economy, and quality of care, and sufficient to ensure that beneficiaries have equal access to services.”
The group said federal courts have interpreted this to mean reimbursement rates must be reasonable as it relates to costs, but the recent cut, along with four previous years of rate freezes and payment reductions, means payments to hospitals will fall by 33 percent below actual costs.
That would force hospitals to shift costs to Arizonans who pay for private insurance, a spokesman for the hospital group said, describing it as a “hidden health care tax on all consumers.”
Perhaps more than anything, the lawsuit seeking to disqualify Olivia Cortes in the Nov. 8 recall election targeting former Senate President Russell Pearce solidified the perception that she ran in order to siphon off votes from the incumbent’s most serious challenger.
The legal challenge was meant to prove one thing — that Cortes was a “sham” candidate who was put up by Pearce’s allies. And while a trial judge ruled that it’s not the court’s job to examine candidates’
motives, even he agreed she was recruited to divert votes from Jerry Lewis, the Republican who eventually won the election.
In his October ruling, Maricopa County Judge Edward Burke denied a request seeking to boot Cortes off the ballot, though he said it is “clear that those who have assisted Cortes have done so to divert votes from Lewis for Pearce’s benefit.”
With a month to go before the election, Cortes voluntarily withdrew from the race as part of a deal. In exchange, the lawsuit against her was dropped.
The trial exposed Cortes as politically naïve. She had little control over her campaign and she didn’t even know who paid circulators to gather many of the signatures that helped her qualify for the ballot.
She also had no idea who paid for campaign signs with her name that were placed across her district.
More significantly, the lawsuit, filed by attorney Tom Ryan, showed that Pearce’s allies — including high-ranking Maricopa County Republican Party officers — worked to help Cortes get on the ballot.
A petition circulator also testified she was instructed by her employer to tell Pearce’s supporters that signing Cortes’ nominating petition would help him keep his Senate seat.
Meanwhile, media reports confirmed that Pearce’s relatives helped to gather signatures for Cortes.
Cortes maintained that she was a legitimate candidate and was offering her views as a naturalized American citizen. She said she wanted to serve Latinos in her community.
Her lawyer, Anthony Tsontakis, hammered on one main point — that the government has no business inquiring into people’s political associations and motivations.
Even today, it remains a mystery who paid for Cortes’ signatures and who produced her campaign signs.
After voters passed Proposition 203 by a razor-thin margin, it looked like medical marijuana had overcome its biggest obstacle and was about to become a reality in Arizona.
But Gov. Jan Brewer and Attorney General Tom Horne had other ideas.
Citing concerns that state employees could face federal prosecution, a concern they say was based on a letter from then-U.S. Attorney Dennis Burke, Brewer and Horne filed suit asking a federal judge to force federal authorities to clarify their position on medical marijuana, and ordered the Arizona Department of Health Services not to license any marijuana dispensaries.
Critics said the lawsuit and the fretting over state employees was nothing more than a flimsy excuse by Brewer and Horne to once again derail a voter-approved medical marijuana initiative, which both opposed during the campaign.
Burke himself said the pair was twisting his memo and distorting its intention, which reminded state officials that medical marijuana was still illegal under federal law and that people were not immune from federal prosecution simply because they abided by state law.
Brewer and Horne insisted that they were only trying to clarify the issue and weren’t trying to usurp the will of the voters. But U.S.
District Judge Susan Bolton said they couldn’t simply sit on the fence and said the lawsuit couldn’t stand unless they took a position on the issue.
Faced with a choice between seeing the case dismissed and asking the feds to overturn the voters’ mandate, Brewer got off the fence and asked the court to overturn Proposition 203. She argued that the medical marijuana law is preempted by federal law, specifically by the Controlled Substances Act. The case is pending.
— Reporters Gary Grado, Luige del Puerto and Jeremy Duda contributed to this report.