The people who crafted the measure creating the Independent Redistricting Commission say Gov. Jan Brewer is legally off base in her firing of the chairwoman of the panel.
Attorney Tim Hogan, who represents the trio, said the language allowing a governor to remove a commissioner for gross misconduct or substantial neglect of duty clearly does not cover the allegations that Brewer made against Colleen Mathis, even assuming they are true.
More to the point, Hogan told the justices of the Arizona Supreme Court there was an earlier, draft version of the 2000 initiative, one that actually would have given the governor greater latitude to dismiss any member of the commission. But that language was scrapped before the measure was sent to the voters.
“To me, that makes it absolutely clear that ... process and bad maps were not a reason for removal,’’ said Ann Eschinger. She was the president of the Arizona League of Women Voters and one of the people who drafted the initiative.
That’s also the assessment of Dennis M. Burke, who was director of Arizona Common Cause, and Bart Turner, who held a similar position with Valley Citizens League.
But gubernatorial press aide Matthew Benson said what the drafters considered and rejected is irrelevant.
“What is controlling in this is the actual verbiage that voters approved,’’ he said. “And the actual language never called for judicial review and doesn’t define ‘gross misconduct’ or ‘substantial neglect of duty,’ leaving it to the governor’s discretion.’’
In firing Mathis, the governor said she was guilty of violating the state’s Open Meeting Law through private conversations with other commissioners about awarding a bid. Brewer also said Mathis crafted maps for the state’s nine congressional districts that do not comply with requirements in the ballot measure to protect “communities of interest.’’
Generally speaking, courts look to the “black letter’’ of the law when interpreting what it means. Hogan told the justices that should be enough to conclude that whatever Mathis did does not rise to that level.
“The adjectives ‘substantial’ and ‘gross’ were used in order to clearly convey that the offense leading to removal had to be extremely serious,’’ he wrote in his legal brief.
If, however, there are questions about exactly what words mean, judges often will try to discern the intent of those who crafted the measure.
Hogan gave the justices an early draft of the initiative, which took the power to draw legislative and congressional district lines away from lawmakers and gave it to the five-member commission. That draft would have allowed the governor to fire a commissioner for “a violation of this section.’’
That language was removed before it went to the ballot.
“(The crafters) can definitively state that the removal provision was never to provide a basis to subvert the redistricting process in the event that some politicians were unhappy with the mapping process,’’ he wrote.
Hogan said the drafters “were not naive.’’
“They realized that delegating the redistricting to an impartial commission would result in maps that in all likelihood would make some incumbent politicians unhappy,’’ he continued. “And that is why there is no provision in the constitutional amendment for removal of commissioners because they produced ‘bad maps.’ ’’
Hogan also noted that the congressional map that has specifically made Brewer unhappy — the one she cited in her dismissal letter — is only a draft. He said the commission has not yet adopted final maps that would be subject to court challenge by anyone who believes they do not comply with what the constitution requires.
“Removing the commissioner because you do not like the draft maps is the functional equivalent of removing a judge for a draft decision,’’ Hogan wrote.