Arizona State Senate Majority Leader Andy Biggs (R) speaks to Arizona Independent Redistricting Commission Chair Colleen Coyle Mathis on Wednesday, Dec 7, 2011, in Phoenix. (AP Photo/Matt York)

Matt York

Maricopa County Attorney Bill Montgomery said Wednesday the state Supreme Court needs to overturn a trial judge's decision that the Independent Redistricting Commission is not subject to the state's Open Meeting Law.

He said the ruling by Maricopa County Superior Court Judge Dean Fink means no state or county prosecutor can investigate allegations of impropriety by the five-member panel. Montgomery said that cannot be what voters had in mind.

But Joe Kanefield, one of the commission lawyers, said Fink's ruling was confined to the narrow issue of whether Montgomery or Attorney General Tom Horne has the power to prosecute commissioners for failing to meet in public. Kanefield said nothing in the ruling immunizes commissioners from any other investigation.

Montgomery, however, said the decision effectively precludes prosecutors from starting an investigation in the first place to get the evidence they need to pursue other charges.

The legal dispute started with efforts by Horne to force commissioners to answer questions about whether they had phone conversations about choosing a specific firm with Democratic ties to help draw the maps for the state's legislative and congressional districts.

Horne alleged those conversations violated the Open Meeting Law. And he suggested that interviews might lead to other charges, like bid rigging.

Montgomery pursued the case after Fink disqualified Horne because assistant attorneys general had at one time given advice to the commission about the law.

But Fink said the commission is instead subject to its own constitutional requirements to conduct business in the open. More to the point, he said that section has no enforcement provision for prosecutors to use.

That leaves only the remedy of any interested citizen filing suit afterwards asking a court to order the commission to meet in the open. Montgomery said that's no oversight at all.

"We now have the immune redistricting commission," he said. "Now there is no public accountability."

Kanefield said that is not true.

He said prosecutors are free to pursue investigations. But what they cannot do, Kanefield said, is simply demand that commission members answer their questions.

Kanefield said any prosecutor with any serious allegations of wrongdoing still can file a lawsuit in state court.

At that point, he explained, a judge would review the allegations and determine if the case can go forward. That, in turn, allows the court to order those who have been sued to submit to depositions.

Montgomery noted, though, that Fink said commissioners have some of the same immunity from prosecution for their decisions as do legislators. He said that could thwart any meaningful investigation.

But Fink, in his ruling last week, noted that prosecutors had suggested immunity "would open the door to evils like bribery and embezzlement." The judge, however, said he was unpersuaded.

"Legislative privilege does not shield those who misuse public office for personal gain," Fink wrote. Anyway, he continued, no such accusation has been made.

"The allegations against them are that they failed to perform their official legislative acts in the proper manner," Fink wrote. "That is fully within the scope of the privilege."

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