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Michael K. Jeanes, Clerk of Court *** Electronically Filed *** 03/15/2016 8:00 AM

SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2012-007344 03/14/2016 Docket Code 926

Form V000A

Page 1 CLERK OF THE COURT HON. ROGER E. BRODMAN S. LaFontaine Deputy VINCE LEACH, et al. BRETT W JOHNSON v. ARIZONA INDEPENDENT REDISTRICTING COMMISSION, et al. MARY R O'GRADY BRIAN M BERGIN PAULA S BICKETT JOSHUA CARDEN PAUL K CHARLTON BROCK J HEATHCOTTE ADRIANE J HOFMEYR KRISTIN L WINDTBERG

UNDER ADVISEMENT RULINGS CONCERNING DISQUALIFICATION

The Court is faced with two motions. First, defendant Arizona Independent Redistricting Commission (IRC) has moved to enjoin the defendant Secretary of State from functioning as a plaintiff. Second, the IRC has moved to disqualify the Attorney General from representing the Secretary of State. The Court has reviewed the motions, the responses and replies. The Court held oral argument on February 29, 2016.

1. Should the Secretary of State be Enjoined from Functioning as a Plaintiff?

Plaintiffs filed the original Complaint on April 27, 2012. In addition to naming the IRC as a defendant, the lawsuit named Secretary of State Ken Bennett, in his official capacity, as a

defendant due to his role as the filing office for the IRC’s final certified maps. The Attorney

General filed an answer in which the Secretary of State took no position on the allegation that the


Form V000A

Page 2 IRC failed to comply with the Arizona Constitution with respect to the redistricting process. In other words, the Secretary of State was a nominal defendant. The Secretary of State remained a nominal defendant when he answered the First Amended Complaint and when he answered the Second Amended Complaint. The case remained in hibernation while relevant issues were resolved before the United States Supreme Court. On January 5, 2015, Michelle Reagan replaced Mr. Bennett as the Secretary of State and also replaced Secretary Bennett as the nominal defendant in this litigation. After the litigation was reinvigorated after the Supreme C

ourt’s decision in

Arizona State Legislature v. Arizona Independent Redistricting Commission, -- U.S

. -- (June 29, 2015), plaintiffs filed a Third Amended Complaint. In her answer to the Third Amended Complaint, Secretary Reagan -- still represented by the Attorney General -- took a substantive position that aligned herself with the

plaintiffs against the IRC. The Secretary’s Answer states that she “believes the allegations

contained in [the Third Amended Complaint] to be accurate with regard to the violation of the equal population grid, the abandonment of the grid map, the failure to engage in the required deliberative process, and the violation of the constitutional requirements to consider the

Legislature’s recommendations.” Secretary Answer at ¶ 24. As noted by the IRC, the

Secret

ary’s Answer now admits all or part of 90 of the 128 paragraphs of the Third Amended

Complaint. The Secretary takes no position with regard to any Open Meeting Law (OML) allegations.

The IRC argues that Secretary Reagan has “jettisoned her role as a nom

inal defendant in

Plaintiffs’ dispute with the Commission and, instead, now effectively functions as an additional plaintiff seeking to invalidate the State’s congressional districts. This is permitted neither by the

Rules of Civil Procedure nor the statu

tes and constitutional provisions governing her authority.”

Motion at 3:25-4:1. The Secretary responds by arguing that she has the primary responsibility for regulating the nomination and election of congressional candidates. As such, the Secretary claims that she has a significant interest in this case and has a right to participate when she believes the districts created by the IRC are constitutionally infirm. Neither party presented the Court with any authority directly on point. The Court notes that this is not a case where the Secretary brought a direct complaint to challenge another

governmental entity’s action or challenge a statute.

Cf. State ex rel. Woods v. Block,

189 Ariz. 269(1997) (Arizona Constitution does not itself give the Attorney General standing to maintain an action). Rather, the Secretary is already a party in the litigation as a nominal defendant. Some of the cases cited by the parties address the case or controversy requirement.

See, e.g.,


Form V000A

Page 3

Golden Gate Bridge and Highway Dist. v. Felt

, 5 P.2d 585, 589-90 (Cal. 1931). This is not a problem in the instant case, because there is no shortage of lawyers on board to challenge the

plaintiffs’ (or the Secretary’s) position. As a separate entity, the Secretary’s admissions are not

binding on the IRC and no one has suggested that they should be. T

he Secretary’s presence does not affect or inhibit the IRC’s ability to defend its case.

The Court finds no persuasive authority to prevent the Secretary from actively participating in this partisan-driven litigation. Since she is already a party, the Court was not persuaded that the Secretary should be prevented from taking a position that she feels directly impacts her ability to administer elections in Commission-drawn districts.

See People ex rel. Salazar v. Davidson

, 79 P.3d 1221, 1231 (Colo. 2003) (Colorado allows public officials to request original jurisdiction in matters of great public importance; Attorney General allowed to sue Secretary of State in redistricting dispute). Arizona case law anticipates that, on occasion, a nominal party may become actively involved in the underlying litigation.

Kadish v. Ariz. State Land Dept

., 177 Ariz. 322, 330 (App. 1993). In

Kadish

the court stated: An agency whose functions are affected by a challenged statute which it is responsible for administering and upholding is not a nominal party in litigation involving the statute, even if the agency elects to allow private parties to take the lead in asserting the validity of the statute.

Id

. at 331. The court in

Kadish

held that the land department was charged with administering all

laws related to lands owned by and under the control of the state, and, as a result, the “land

department and commissioner have more than a nominal or passive interest in litigation to

determine whether the state lands mineral lease royalty rate applied by the department is valid.”

In similar fashion, the Secretary has an interest in this litigation. In fact, the United States Supreme Court recently provided time for the Attorney General to argue against the constitutionality of the IRC in the

Harris

case, with the late Justice Scalia wryly observing that election results must have caused the Attorney General to argue a different position on appeal than at the trial court. Elections have consequences, and no one should be

surprised that the last election apparently caused the Secretary of State’s office to pull a flip turn

in this litigation.

More importantly, the Court sees no prejudice arising from the Secretary’s active role.

The instant case is a declaratory judgment action that will be tried to the Court. This case will be