Commission chair Colleen Mathis, middle, pours over possible congressional redistricting maps as she is flanked by commissioners Linda McNulty, left, and commission vice chair, Scott Freeman during an Arizona Independent Redistricting Commission meeting Monday, Oct. 3, 2011, in Tempe, Ariz. (AP Photo/Ross D. Franklin)

Ross D. Franklin

The Arizona Supreme Court late Thursday ruled that Gov. Jan Brewer acted illegally in firing Colleen Mathis from the Independent Redistricting Commission.

In a brief order, the justices brushed aside arguments by Lisa Hauser, the governor's attorney,that Brewer's decision was not subject to court review.

More to the point, they said that Brewer's power to oust a commissioner is limited to situations of substantial neglect of duty or gross misconduct. The justices said that nothing the governor alleged in her letter firing Mathis rises to that level.

Commission spokesman Stuart Robinson said the order means Mathis is once again chairing the five-member panel. And that frees her up to call a meeting to decide what to do next with the draft congressional and legislative maps the commission had approved before her firing -- maps that Brewer and Republicans want changed.

Gubernatorial spokesman Matthew Benson blasted the ruling. He said the voter-approved constitutional provision creating the commission empowered his boss to remove any member who "in the governor's judgment" had committed gross misconduct or substantial neglect of duty.

"What we have seen is the court substitute its own judgment and authority for that which the voters specifically assigned to the governor," Benson said. "It's deeply troubling."

He said Brewer is considering what to do next.

Technically speaking, one possibility would be to try again to fire Mathis. In fact, Benson left the door open for exactly that, saying Brewer, currently in Washington, will be discussing the issue very soon with legislative leaders.

But the governor's options may be limited.

In their order late Thursday, the justices said only that the letter Brewer sent to Mathis on Nov. 1 does not "demonstrate" that she was guilty of gross misconduct or substantial neglect of duty.

On one hand, that could mean the governor needs to be more specific in spelling out the allegations against Mathis. One is that she violated the Open Meeting Law; the other said Mathis prepared congressional district maps that did not meet constitutional requirements.

But it also could mean that the justices do not believe Mathis can be fired for either offense, even if she did what the governor claims.

Retired Justice Michael Ryan, sitting in for the hearing, pointed out that another court is still considering the question of whether the commission is even subject to the Open Meeting Law. He also noted that the maps Brewer contends are unconstitutional are simply drafts.

"They're not the final maps," he said. "And they can be changed to satisfy the governor and the people that are complaining. So isn't all of this really premature for her to act?"

Hauser countered that Brewer was entitled to protect what the governor sees as the integrity of the process.

But Brewer's position is even broader than that. Hauser told the justices that the governor, alone, gets to decide what constitutes a firing offense. And she said that decision stands if Brewer can get the consent of two-thirds of the Senate.

That claim brought raised eyebrows from the justices.

Acting Chief Justice Andrew Hurwitz asked Hauser if that means Brewer could remove a commission member solely because the governor did not like that person's hair style. Hauser said she could -- and the decision could not be appealed to the court.

In fact, Hauser told the justices that they were powerless to do anything, even if there actually was evidence that the facts cited by the governor in firing a commissioner turned out to be false.

"Even if the governor were to be a rogue sort of individual who might do something that would be very off the wall, we have to assume that the Senate will function correctly," Hauser said. "They are all elected officials who are accountable to the voters through a number of processes," she continued, pointing out that Mesa voters just proved that point with the recall of Senate President Russell Pearce.

Ryan, however, said he's not convinced that the involvement of the Senate, where Republicans control 21 of the 30 seats, is a meaningful check. He said Hauser's arguments seem to run afoul of the whole concept of voters creating an Independent Redistricting Commission.

"How can this commission ever be considered independent?" he asked. Ryan said what Brewer wants means that "any governor could come in, for any reason -- and has a compliant Senate -- no commission member or commission chair would ever be safe."

"How is that commission member ever going to consider him or herself to be independent?" Ryan continued.

Hauser said that removing a commissioner does not interfere with the core function of the commission, which is to draw the maps.

But Thomas Zlaket, Mathis' attorney, reminded the justices that one of the reasons Brewer gave for ousting Mathis was the governor's conclusion that the draft congressional maps do not meet the legal requirement to consider "communities of interest."

He said if Mathis can be fired over that, it also means that Brewer could fire whoever replaces her if the governor is unhappy with those maps. And that process, he said, could be repeated over again and again until the governor gets the kind of maps she wants.

"You ought to prevent it from happening again," Zlaket said.

Benson, however, said the justices had no right to conclude that what Brewer said Mathis did wrong did not rise to the level of an offense for which she could be fired.

He acknowledged that those grounds for removal are part of the Arizona Constitution. And Benson said it is "absolutely" the job of the court to interpret that document.

"It is not the job of the court to, out of whole cloth, insert things that are not in the Constitution," he said.

"There is nothing in the Constitution that says that the court has preapproval of any removals from the IRC," Benson continued. "And there's nothing in the Constitution that defines 'neglect of duty' or 'misconduct in office' in the way the court has defined."

What that means, Benson said, is that Brewer gets to make that decision.

In agreeing to reinstate Mathis, the justices also rejected the arguments of Melvin McDonald, attorney for the Senate.

He argued that the 2000 initiative which created the commission put only one check on the governor's power: the requirement for Senate ratification of her action. McDonald said if those who crafted the ballot measure wanted the court to be able to second-guess the grounds cited by the governor in removing a commissioner, they should have put that requirement into the initiative.



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