Arizona Independent Redistricting Commission v. Brewer

SUPREME COURT OF ARIZONA
En Banc

ARIZONA INDEPENDENT ) Arizona Supreme Court
REDISTRICTING COMMISSION, an ) No. CV-11-0313-SA
Independent Constitutional Body, )
)
Petitioner, )
)
COLLEEN COYLE MATHIS, )
)
Intervenor, )
)
v. ) O P I N I O N
)
JANICE K. BREWER, in her )
official capacity as the )
Governor of the State of )
Arizona; ARIZONA STATE SENATE; )
RUSSELL PEARCE, in his official )
capacity as Senate President, )
)
Respondents. )
)
__________________________________)

Special Action

JURISDICTION ACCEPTED; RELIEF GRANTED
________________________________________________________________

OSBORN MALEDON PA Phoenix
By Mary R. O’Grady
Kristin L. Windtberg
Grace E. Campbell
Jean-Jacques Cabou
Joseph N. Roth
Attorneys for Arizona Independent Redistricting Commission

JONES SKELTON & HOCHULI PLC Phoenix
By A. Melvin McDonald, Jr.
Lori L. Voepel
Jonathan P. Barnes
Attorneys for Arizona State Senate and Russell K. Pearce

GAMMAGE & BURNHAM PLLC Phoenix
By Lisa T. Hauser
 Christopher Hering
Cameron C. Artigue

And

OFFICE OF THE GOVERNOR Phoenix
By Joseph Sciarrotta, Jr.
Christina Estes-Werther
Attorneys for Governor Janice K. Brewer

LAW OFFICES OF THOMAS A. ZLAKET PLLC Tucson
By Thomas A. Zlaket
Attorney for Colleen Coyle Mathis

COPPERSMITH SCHERMER & BROCKELMAN PLC Phoenix
By Andrew S. Gordon
Roopali Hardin Desai
Attorneys for Amicus Curiae Linda C. McNulty

TIM NELSON, PLLC Phoenix
By Timothy A. Nelson
Attorney for Amicus Curiae Jose Herrera

ARIZONA CENTER FOR LAW IN THE PUBLIC INTEREST Phoenix
By Timothy M. Hogan
Joy E. Herr-Cardillo
Attorneys for Amici Curiae Ann Eschinger, Dennis Michael
Burke, and Bart Turner

NAVAJO NATION, DEPARTMENT OF JUSTICE Window Rock
By Dana L. Bobroff
Michelle Begay

And

SACKS TIERNEY PA Scottsdale
By Judith M. Dworkin
Patricia Ferguson-Bohnee
Attorneys for Amicus Curiae Navajo Nation

ARIZONA HOUSE OF REPRESENTATIVES Phoenix
By Peter A. Gentala
Attorney for Amici Curiae Andrew M. Tobin, Alan L.
Krieger, Marlin Kuykendall, and John Moore

PERKINS COIE LLP Phoenix
By Paul F. Eckstein

2
 Amelia M. Gerlicher
Kirstin T. Eidenbach
Attorneys for Amici Curiae Common Cause, Susan Gerard,
Lucia Howard, Paul Johnson, and Roberta L. Voss

PEÑALOSA & ASSOCIATES Phoenix
By Jose L. Peñalosa, Jr.
Attorney for Amici Curiae Barbara L. Klein and Ken Clark

CANTELME & BROWN PLC Phoenix
By David J. Cantelme
Attorney for Amicus Curiae Speaker Andrew M. Tobin
________________________________________________________________

P E L A N D E R, Justice

¶1 This special action challenges the Governor’s removal

of Chairperson Colleen Mathis from the Arizona Independent

Redistricting Commission (“IRC”). On November 17, 2011, we

issued an order, clarified on November 23, accepting

jurisdiction and granting relief with a written opinion to

follow. This is that opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶2 The IRC consists of five citizen volunteers

constitutionally charged with drawing Arizona’s congressional

and state legislative districts every ten years. Ariz. Const.

art. 4, pt. 2, § 1(3). Commissioners are nominated by the

Commission on Appellate Court Appointments. Id. § 1(4)-(5).

The first four appointments are made by the highest ranking

officers and minority party leaders of the Arizona House of

Representatives and Senate. Id. § 1(6). Those four

commissioners then select a chairperson, the fifth commissioner,

3
from a pool of nominees not registered with any party already

represented on the IRC. Id. § 1(8).

¶3 The four partisan appointees on the present IRC are

Republicans Scott Freeman and Richard Stertz and Democrats Jose

Herrera and Linda McNulty. In early 2011, they unanimously

selected Colleen Mathis, a registered Independent, as the

Chairperson. The IRC then began holding meetings aimed at

accomplishing its core function – to prepare draft maps for

Arizona’s congressional and legislative districts, obtain public

comment, adjust and finalize the maps, and submit final maps to

the United States Department of Justice for approval. Ariz.

Const. art. 4, pt. 2, § 1; 42 U.S.C. § 1973c.

¶4 In June 2011, the IRC retained a mapping consultant,

Strategic Telemetry, after a three-to-two vote in which Mathis,

Herrera, and McNulty were in the majority. Several weeks later,

the Attorney General’s Office began investigating the IRC’s

compliance with Arizona’s open meeting and procurement laws with

respect to the Strategic Telemetry contract. The investigation

raised questions of first impression regarding the scope of

Arizona’s statutory open meeting law and its applicability to

the IRC, which has a separate constitutionally mandated open

meeting requirement. See Ariz. Const. art. 4, pt. 2, § 1(12).

Litigation of those issues was pending in superior court when

this special action was filed in and decided by this Court.

4
¶5 In October 2011, the IRC approved draft maps for new

congressional and legislative districts by a three-to-two vote,

with Mathis and the two Democratic Commissioners again in the

majority. The IRC then advertised those maps and embarked on

statewide meetings to obtain public comment. See Ariz. Const.

art. 4, pt. 2, § 1(16).

¶6 On Wednesday, October 26, 2011, Governor Janice K.

Brewer notified all five Commissioners in writing of allegations

that they had committed substantial neglect of duty and gross

misconduct in office. Arizona’s Constitution permits a governor

to remove an IRC commissioner, with the concurrence of two-

thirds of the Senate, for “substantial neglect of duty, gross

misconduct in office, or inability to discharge the duties of

office.” Ariz. Const. art. 4, pt. 2, § 1(10). Before removal,

a commissioner must be served written notice and given an

opportunity to respond. Id.

¶7 In her October 26 letter, the Governor raised four

issues and listed seven IRC actions that allegedly

“contribut[ed] to” cause for removal.1 The Governor asked each

1
In her October 26 letter, the Governor charged the IRC with
violating constitutional requirements in the preparation of
draft maps; refusing to cooperate with the Attorney General’s
Office in its investigation of open meeting law issues; pre-
arranging votes in violation of open meeting requirements and
principles; and committing procurement improprieties to
manipulate selection of specific vendors.

5
Commissioner to respond by 8 a.m. on Monday, October 31, 2011.

The IRC and the five Commissioners separately responded to the

Governor’s letter by that deadline.

¶8 On November 1, Secretary of State Ken Bennett, in his

capacity as Acting Governor while Governor Brewer was out of

state,2 sent a letter to Commissioner Mathis removing her from

the IRC, effective upon concurrence of two-thirds of the Senate.

That letter stated in full:

Dear Ms. Mathis:

Thank you for your October 31, 2011 letter, in
response to my October 26, 2011 letter, in which you
were given written notice of allegations that you have
committed substantial neglect of duty and/or gross
misconduct in office. The Arizona Constitution is
designed to ensure that Arizona’s redistricting
process is undertaken by commissioners committed to
their constitutional duty to apply the provisions of
Arizona Constitution, Art. 4, Pt. 2, § 1 in an honest,
independent and impartial fashion, and to transact the
redistricting process in a way that upholds public
confidence in the integrity of the redistricting
process. To that end, the Constitution expressly
confers on me the authority to remove a commission
member when in my judgment, and with the concurrence
of two-thirds of the Arizona Senate, there has been
substantial neglect of duty, gross misconduct in
office, or an inability to discharge the duties of
office.

After careful review of your response and the
responses of the other commissioners, I have
determined that you have failed to conduct the Arizona
Independent Redistricting Commission’s business in
meetings open to the public, and failed to adjust the
grid map as necessary to accommodate all of the goals

2
Because Secretary of State Bennett acted on the Governor’s
behalf, we refer to them interchangeably.

6
 set forth in Arizona Constitution Art. 4, Pt. 2,
§ 1(14), including, but not limited to, the failure to
consider or determine whether the creation of a
competitive district is practicable or does not cause
significant detriment to the other goals. The result
is a failure to apply the Arizona Constitution’s
redistricting provisions in an honest, independent and
impartial fashion, and a failure to uphold public
confidence in the integrity of the redistricting
process. In my judgment, the foregoing constitutes
substantial neglect of duty or gross misconduct in
office.

Accordingly, I hereby remove you as the fifth
member of the Arizona Independent Redistricting
Commission and as its Chair. This removal will be
effective immediately upon concurrence of two-thirds
of the Arizona Senate.

Sincerely,
Ken Bennett
Acting Governor
on behalf of
Janice K. Brewer
Governor

¶9 Acting Governor Bennett called a special session of

the Legislature at 4:45 p.m. on November 1, 2011, to remove

Chairperson Mathis from the IRC. Two-thirds of the Senate

concurred in the removal, and the Senate adjourned sine die at

6:35 p.m. that day.

¶10 Three days later, the IRC petitioned this Court for

special action relief, claiming that the Governor exceeded her

limited removal authority and that the Governor and Senate

violated separation-of-powers principles by usurping powers of

the IRC and the judiciary. Mathis moved to intervene as a

petitioner. We granted that motion, obtained further briefing

7
from the parties and various amici, and held expedited oral

argument.3

II. JURISDICTION

¶11 In challenging whether the Governor acted within her

“legal authority” in removing Mathis, Petitioners raise a

question covered by our special action rules. See Ariz. R. P.

Spec. Act. 3(b). Those procedural rules combine the old common

law writs into a single form of action, but do not expand the

constitutional scope of this Court’s original jurisdiction. See

id. 1(a); cf. Ingram v. Shumway, 164 Ariz. 514, 516, 794 P.2d

147, 149 (1990) (finding original jurisdiction based on

applicable “constitutional provisions,” rather than on special

action procedure).

¶12 The IRC invoked our subject matter jurisdiction under

Article 6, Section 5 of the Arizona Constitution. That

provision grants this Court original jurisdiction to issue

“mandamus, injunction and other extraordinary writs to state

officers” and extends “[s]uch other jurisdiction as may be

provided by law.” Ariz. Const. art. 6, § 5(1), (6); see also

A.R.S. § 12-2021 (empowering this Court to issue a writ of

mandamus “to any person . . . to compel the admission of a party

to the use and enjoyment of a right or office to which he is

3
“Petitioners” in this opinion includes the IRC and Mathis
unless otherwise indicated.

8
entitled and from which he is unlawfully precluded by such . . .

person”).

¶13 The Governor argues that we lack jurisdiction because

this special action does not fall within any of the categories

specified in Article 6, Section 5. But, regardless of whether

the relief requested is characterized as mandamus, certiorari,

or some other “extraordinary writ,” we find original subject

matter jurisdiction here. See Forty-Seventh Legislature v.

Napolitano, 213 Ariz. 482, 485 ¶ 10, 143 P.3d 1023, 1026 (2006)

(finding that “[t]his Court has original jurisdiction to issue

extraordinary writs against state officers,” including the

governor); Rios v. Symington, 172 Ariz. 3, 5, 833 P.2d 20, 22

(1992) (same); see also Holmes v. Osborn, 57 Ariz. 522, 527,

540-41, 115 P.2d 775, 778, 783-84 (1941) (reviewing in

certiorari proceeding gubernatorial removal of Industrial

Commissioners and noting that the governor acted in quasi-

judicial capacity in exercising removal power).

¶14 We exercised our discretion to accept special action

jurisdiction because the legal issues raised required prompt

resolution and are of first impression and statewide importance.

See Rios, 172 Ariz. at 5, 833 P.2d at 22 (“In limited

circumstances, a judicial proceeding by way of special action

may be appropriate to test the constitutionality of executive

conduct.”); see also Adams v. Comm'n on Appellate Court

9
Appointments, 227 Ariz. 128, 131 ¶ 9, 254 P.3d 367, 370 (2011);

Brewer v. Burns, 222 Ariz. 234, 237 ¶ 8, 213 P.3d 671, 674

(2009).

III. JUSTICIABILITY

A. Standing

¶15 Respondents argue that the IRC is not a jural entity

and therefore lacks standing to sue except in certain

constitutionally specified areas. See Ariz. Const. art. 4, pt.

2, § 1(20). Respondents also contend that the IRC suffered no

distinct and palpable injury. See Brewer, 222 Ariz. at 237

¶ 12, 213 P.3d at 674 (“To have standing, a party generally must

allege a particularized injury that would be remediable by

judicial decision.”). But Mathis, who was displaced from

office, unquestionably has standing to challenge the legality of

the Governor’s removal action. Therefore, we need not decide

whether the IRC also has standing. See Crawford v. Marion Cnty.

Election Bd., 553 U.S. 181, 189 n.7 (2008).

B. Political Question

¶16 Respondents also argue that this case presents non-

justiciable political questions. The Arizona Constitution

entrusts some matters solely to the political branches of

government, not the judiciary. See Ariz. Const. art. 3

(providing that the three departments of Arizona government

“shall be separate and distinct, and no one of such departments

10
shall exercise the powers properly belonging to either of the

others”); Kromko v. Ariz. Bd. of Regents, 216 Ariz. 190, 192-93

¶ 12, 165 P.3d 168, 170-71 (2007). That a lawsuit involves

“constitutional issues with significant political overtones,”

however, “does not automatically invoke the political question

doctrine.” INS v. Chadha, 462 U.S. 919, 942-43 (1983); see also

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1428

(2012) (noting that “courts cannot avoid their responsibility”

to resolve “litigation challenging the constitutional authority

of one of the three branches . . . merely because the issues

have political implications” (internal quotation marks

omitted)).

¶17 Under separation-of-powers principles, a non-

justiciable political question is presented when “there is ‘a

textually demonstrable constitutional commitment of the issue to

a coordinate political department; or a lack of judicially

discoverable and manageable standards for resolving it.’”

Kromko, 216 Ariz. at 192 ¶ 11, 165 P.3d at 170 (quoting Nixon v.

United States, 506 U.S. 224, 228 (1993)). Although this test is

generally framed in the disjunctive, the fact that the

Constitution assigns a power to another branch only begins the

inquiry. Kromko, 216 Ariz. at 193 ¶ 13, 165 P.3d at 171; see

also Forty-Seventh Legislature, 213 Ariz. at 485 ¶ 7, 143 P.3d

at 1026 (“‘Political questions,’ broadly defined, involve

11
decisions that the constitution commits to one of the political

branches of government and raise issues not susceptible to

judicial resolution according to discoverable and manageable

standards.” (emphasis added)).

¶18 A conclusion that there is a textually demonstrable

commitment to a coordinate branch is strengthened when the

Constitution does not provide judicially manageable standards

for review. Kromko, 216 Ariz. at 193 ¶ 14, 165 P.3d at 171

(citing Nixon, 506 U.S. at 228-29). Conversely, the

significance of a textually demonstrable commitment to another

branch is weakened when the Constitution expressly provides

discernible and manageable standards for judicial review. In

other words, the two aspects of the test are interdependent.

See id. at 193 ¶¶ 13-14, 165 P.3d at 171.

¶19 The Constitution provides for removal of an IRC

Commissioner as follows:

After having been served written notice and provided
with an opportunity for a response, a member of the
independent redistricting commission may be removed by
the governor, with the concurrence of two-thirds of
the senate, for substantial neglect of duty, gross
misconduct in office, or inability to discharge the
duties of office.

Ariz. Const. art. 4, pt. 2, § 1(10). That provision expressly

assigns removal power to the governor, subject to a

supermajority concurrence of the Senate. This textual

commitment, Respondents assert, makes Petitioners’ challenge to

12
Mathis’s removal a non-reviewable political question. But we

must also consider whether Section 1(10) identifies judicially

manageable standards for review.

¶20 Respondents contend that this provision vests the

political branches alone with the power to determine whether

constitutional cause exists for removal, a determination not

subject to judicial review under any circumstances. Section

1(10)’s removal provision, Respondents argue, is akin to the

legislature’s constitutional impeachment power and, therefore,

this case is controlled by Mecham v. Gordon, 156 Ariz. 297, 751

P.2d 957 (1988) (Mecham I), and Mecham v. Arizona House of

Representatives, 162 Ariz. 267, 782 P.2d 1160 (1989) (Mecham II)

(collectively “Mecham Cases”). In Mecham I, we held that “the

Constitution gives the Senate, rather than this Court, the power

to determine what rules and procedures should be followed in the

impeachment trial.” 156 Ariz. at 303, 751 P.2d at 963. In

Mecham II, we declined to review impeachment proceedings that

culminated in removal of the governor from office and stated

that, when all constitutional requirements undisputedly were

met, “this Court has no jurisdiction to review the proceedings

in the legislature, to examine for error of fact or law, . . .

to prescribe or reject rules to be followed by the Senate during

the trial,” or to determine whether a governor committed

impeachable acts. 162 Ariz. at 268, 782 P.2d at 1161.

13
¶21 The impeachment issues addressed in the Mecham Cases,

however, are sui generis; for several reasons, those decisions

do not categorically apply to other constitutional removal

provisions such as Section 1(10). First, the constitutional

commitment of impeachment powers to the legislature is textually

exclusive. This Court determined in Mecham I that Arizona’s

impeachment provisions are structurally similar to and

correspond with those in the federal Constitution.4 156 Ariz. at

301, 751 P.2d at 961. In construing the federal clause, which

provides “[t]he Senate shall have the sole Power to try all

Impeachments,” the Supreme Court concluded that use of the word

“sole” described an authority reposed in the legislative branch

and nowhere else. Nixon, 506 U.S. at 229 (citing U.S. Const.

art. 1, § 3, cl. 6). In Mecham I, we found Arizona’s similar

constitutional text — granting “sole power of impeachment” to

the House of Representatives and mandating the Senate to try

“[a]ll impeachments” — similarly demonstrated authority reposed

exclusively in the legislative branch. 156 Ariz. at 301, 751

P.2d at 961 (quoting Ariz. Const. art. 8, pt. 2, § 1). In

contrast, Section 1(10) has no such exclusionary or mandatory

language.

4
See U.S. Const. art. 1, § 2, cl. 5 (“The House of
Representatives . . . shall have the sole Power of
Impeachment.”); art. 1, § 3, cl. 6 (“The Senate shall have the
sole Power to try all Impeachments.”).

14
¶22 Second, impeachment under Article 8 of Arizona’s

Constitution includes four important procedural checks to ensure

a Senate trial’s just outcome. Article 8 requires the Senate to

try all impeachments; when sitting for trial, senators must be

on oath or affirmation to do justice according to law and

evidence; the chief justice must preside over the trial; and

two-thirds of the Senate must concur in the impeachment. Ariz.

Const. art. 8, pt. 2, §§ 1, 2.

¶23 Section 1(10), on the other hand, does not require a

trial; an oath, affirmation, or a just determination based on

law and evidence; or representative oversight by another

governmental department. The requirement of two-thirds Senate

concurrence is a significant check on the governor’s removal

power and poses a potentially formidable hurdle to curb abuse of

executive discretion. But the absence in Section 1(10) of the

other procedural and substantive safeguards found in Article 8

distinguishes the Senate’s role under Section 1(10) from its

role in an impeachment.

¶24 Third, impeachment was uniquely designed by the

framers of the federal Constitution to be a political process.

THE FEDERALIST, No. 65 (A. Hamilton). The framers considered and

rejected a judicial role in the process, deciding instead that

impeachment should be a legislative “inquest into the conduct of

public men.” Id. Arizona’s impeachment framework is no

15
different. See Ingram, 164 Ariz. at 519, 794 P.2d at 152

(“Impeachment, essentially a political process, is not subject

to judicial review.”). In contrast, the constitutional

provisions creating and governing the IRC, which include Section

1(10), were designed to remove redistricting from the political

process by extracting this authority from the legislature and

governor and instead granting it to “an independent commission

of balanced appointments.” Ariz. Sec’y of State 2000 Publicity

Pamphlet 60 (2000) (providing the title and text of Proposition

106, which established the IRC as a constitutional body); see

also Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep.

Redistricting Comm’n, 220 Ariz. 587, 591 ¶ 2, 208 P.3d 676, 680

(2009).

¶25 The intent to distance IRC redistricting from the

political process is also reflected in the constitutional

prohibitions against commissioners having held a political

appointment or office for three years before IRC service, and

against their working as a state public officer or paid lobbyist

for three years after such service. Ariz. Const. art. 4, pt. 2,

§ 1(3), (13); see also Adams, 227 Ariz. at 131-32 ¶ 10, 135

¶ 30, 254 P.3d at 370-71, 374. The legislature’s role in

redistricting is limited to submitting recommendations by

memorial or minority report, which the IRC considers before

establishing final district boundaries. Ariz. Const. art. 4,

16
pt. 2, § 1(16). And, other than Section 1(10)’s removal

provision, the Constitution provides no role for the governor in

the redistricting process. These factors suggest that Section

1(10) removal is not exclusively political or beyond judicial

review.

¶26 Finally, impeachment is a political question because

it serves in part as an “‘important constitutional check’” on

the judiciary. Nixon, 506 U.S. at 235 (quoting THE FEDERALIST,

No. 81 (A. Hamilton)); see also Ariz. Const. art. 8, pt. 2, § 2

(making judicial officers subject to impeachment). Judicial

review of impeachment proceedings would “eviscerate” this check

by placing final review authority “in the hands of the same body

that the impeachment process is meant to regulate.” Nixon, 506

U.S. at 235. Judicial review of a governor’s exercise of

Section 1(10) removal power gives rise to no such concerns.

¶27 For these reasons, the Mecham Cases do not control the

justiciability of a challenge to gubernatorial removal of a

commissioner under Section 1(10). See Holmes, 57 Ariz. at 537,

115 P.2d at 782 (finding that impeachment cases “lend very

little aid” in determining whether the governor legally removed

Industrial Commissioners). Accordingly, we turn to whether

judicially discoverable and manageable standards exist to allow

and guide review of such removal for constitutional compliance.

¶28 Removal under Section 1(10) requires a finding by the

17
governor of substantial neglect of duty, gross misconduct in

office, or inability to discharge the duties of office. The

question of justiciability here turns on whether the

constitutionally prescribed causes for removal can be discovered

and managed by the courts.

¶29 The Governor argues that the finding of cause for

removal is a subjective policy determination, and a court cannot

define or construe Section 1(10)’s terms without substituting

its judgment for hers. To be sure, this Court cannot

subjectively determine whether a commissioner found to have

committed one of the stated grounds for removal should be

removed under Section 1(10) — that judgment belongs to the

governor, subject only to concurrence of two-thirds of the

Senate. It is plainly within the courts’ ambit, however, to

determine whether the stated grounds for removal constitute

legal cause when, as here, the Constitution provides clear,

comprehensible standards.

¶30 In Kromko, we concluded the question presented was

nonjusticiable under the political question doctrine because the

constitutional mandate at issue — that university tuition be “as

nearly free as possible” — could not be assessed without first

making policy determinations clearly reserved to the legislature

and Board of Regents, such as proper class size and facility

maintenance. 216 Ariz. at 194 ¶¶ 18-21, 165 P.3d at 172.

18
Kromko, however, does not support the Governor’s position here.

Courts, both in this state and elsewhere, routinely construe

such standards as “written notice,” “opportunity to respond,”

“neglect of duty,” and “gross misconduct.” See, e.g., Holmes,

57 Ariz. at 539-40, 115 P.2d at 783 (neglect of duty); Sims v.

Moeur, 41 Ariz. 486, 489, 19 P.2d 679, 680 (1933) (same); In re

Zawada, 208 Ariz. 232, 234 ¶ 4, 239 ¶ 25, 92 P.3d 862, 864, 869

(2004) (gross misconduct); Jones v. Kan. State Univ., 106 P.3d

10, 25-26, 28 (Kan. 2005) (same); cf. Brewer, 222 Ariz. at 239

¶¶ 20-22, 213 P.3d at 676 (finding the term “reasonable” to be

judicially discoverable and manageable because “[c]ourts

regularly assess the reasonableness of actions in many

contexts”). Here, unlike Kromko, well-established legal

principles exist to guide us in determining whether the

Governor’s removal of Mathis meets constitutional requirements,

without “substituting our subjective judgment” on facts or on

the nature and severity of Mathis’s alleged wrongs. Kromko, 216

Ariz. at 194 ¶ 21, 165 P.3d at 172.

¶31 Indeed, review of executive for-cause removals has

long been recognized as within the judiciary’s sphere. See

Holmes, 57 Ariz. at 527-28, 558, 115 P.2d at 778, 790 (annulling

the governor’s removal of Industrial Commissioners for

“inefficiency, neglect of duty, malfeasance, misfeasance and

nonfeasance in office”). Judicial review is particularly

19
appropriate when an executive seeks to remove a commissioner

from an independent body such as the IRC. See Humphrey’s Ex’r

v. United States, 295 U.S. 602, 629-32 (1935) (holding that the

President could only remove Federal Trade Commissioner during

prescribed term for identified statutory grounds, and noting

that “it is quite evident that one who holds his office only

during the pleasure of another cannot be depended upon to

maintain an attitude of independence against the latter’s

will”); Lunding v. Walker, 359 N.E.2d 96, 101 (Ill. 1976)

(finding “properly reviewable by the courts” the governor’s for-

cause removal of a member of the State Board of Elections, and

noting “the independent nature of the Board” and that “public

interest demands[] that Board members not be amenable to

political influence or discipline in the discharge of their

official duties”); Hall v. Tirey, 501 P.2d 496, 501 (Okla. 1972)

(concluding that a member of an independent board who acts in a

quasi-legislative capacity “is entitled to have the courts

decide whether his removal [for cause] complied with the

standards established by the Legislature”); Bowers v. Penn.

Labor Relations Bd., 167 A.2d 480, 484 (Pa. 1961) (rejecting

governor’s claim that he could remove at his pleasure a member

of the Labor Relations Board, whose “members were not to be made

amenable to political influence or discipline in the discharge

of their official duties”).

20
¶32 The gubernatorial removal power derives from the

Constitution, not statute. That fact, however, does not alter

or lessen a court’s power to review whether removal of an

independent commissioner meets constitutional requirements. See

Holmes, 57 Ariz. at 541, 115 P.2d at 784 (stating this Court may

inquire “into the existence of jurisdictional facts,” that is,

whether the charges constitute “legal cause for removal,” when

“removal is authorized only for cause or for causes specified in

the Constitution or statutes” (citing People ex rel. Emerson v.

Shawver, 222 P. 11, 30 (Wyo. 1924))); Lunding, 359 N.E.2d at 97,

101 (reviewing governor’s removal of independent board member

who was constitutionally removable for neglect of duty).

¶33 The Senate argues that the above-cited removal cases

are inapposite because each involved judicial review of a

governor’s decision not subject to the legislative check

provided for in Section 1(10). But ratification by one

political branch of an action taken by another does not

necessarily immunize the action from judicial review. To

conclude otherwise would deprive the judiciary of its authority,

and indeed its obligation, to interpret and apply constitutional

law. Cf. Chadha, 462 U.S. at 942 n.13 (“The assent of the

Executive to a [legislative] bill which contains a provision

contrary to the Constitution does not shield it from judicial

review.”).

21
¶34 Taken to its logical conclusion, the Senate’s argument

would preclude courts from reviewing any law promulgated under

the legislature’s Article 4 power because the enactment was

subject to an executive check under the governor’s Article 5

power to veto or approve legislation. But it is well settled

that when one with standing challenges a duly enacted law on

constitutional grounds, the judiciary is the department to

resolve the issue even though promulgation and approval of

statutes are constitutionally committed to the other two

political branches. See Forty-Seventh Legislature, 213 Ariz. at

485 ¶ 8, 143 P.3d at 1026 (“To determine whether a branch of

state government has exceeded the powers granted by the Arizona

Constitution requires that we construe the language of the

constitution and declare what the constitution requires.”); THE

FEDERALIST, No. 78 (A. Hamilton) (“The interpretation of the

laws is the proper and peculiar province of the courts” and “[a]

constitution is . . . and must be regarded by the judges[] as

fundamental law.”); Marbury v. Madison, 5 U.S. (1 Cranch) 137,

177 (1803) (“It is emphatically the province and duty of the

judicial department to say what the law is.”).

¶35 Likewise, when removal of an IRC commissioner is

challenged on constitutional grounds, it is our duty to

interpret and apply the constitutional limits even though the

power and decision to remove and concur reside with the Governor

22
and Senate respectively. We are aware of the delicate balance

our constitutional framework requires among the branches of

government. This Court understands the importance of not

overstepping its bounds. We are also mindful of the tension

that results when courts are asked to judge the conduct of other

branches. See, e.g., Zivotofsky, 132 S. Ct. at 1427 (“[T]he

Judiciary has a responsibility to decide cases properly before

it, even those it ‘would gladly avoid.’” (quoting Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821))). For the reasons

stated above, however, we conclude that our review of whether

the Governor complied with Section 1(10)’s legal standards in

removing Commissioner Mathis is not barred by the political

question doctrine. See Zivotofsky, 132 S. Ct. at 1430 (finding

that “[t]he political question doctrine poses no bar to judicial

review” when issues raised “sound in familiar principles of

constitutional interpretation”).

IV. MERITS

¶36 Petitioners argue that the Governor exceeded her

authority under Section 1(10) by removing Mathis without legal

cause, unconstitutionally usurping the IRC’s legislative power

to draw congressional and legislative districts, and violating

Mathis’s due process rights. Because we conclude that the

Governor’s stated grounds for removing Mathis were

constitutionally deficient, we do not address Petitioners’ other

23
arguments.

¶37 Section 1(10) limits the legal cause for removal to

“substantial neglect of duty, gross misconduct in office, or

inability to discharge the duties of office.” Ariz. Const. art.

4, pt. 2, § 1(10). Only the first two grounds are at issue

here. The Governor neither alleged nor found that Mathis was

unable to discharge the duties of her office.

¶38 The Governor removed Mathis because she “failed to

conduct the Arizona Independent Redistricting Commission’s

business in meetings open to the public, and failed to adjust

the grid map as necessary to accommodate all of the goals set

forth in Arizona Constitution Art. 4, Pt. 2, § 14,” concluding

that these failures “constitute[] substantial neglect of duty or

gross misconduct in office.” The Governor had made additional,

broader allegations of IRC improprieties in her October 26

letter to all five Commissioners. But, after soliciting,

receiving, and considering the Commissioners’ responses to those

charges, the Governor memorialized her findings in the November

1 letter and articulated only the two aforementioned grounds for

removing Mathis. The November 1 letter did not include other

bases for removal or incorporate by reference any of the various

charges made in the October 26 letter. Cf. Sims, 41 Ariz. at

488-89, 19 P.2d at 680 (after serving Industrial Commissioners

with written charges alleging grounds for removal and conducting

24
an evidentiary hearing, the governor made findings that all of

the previously specified charges were sustained). Therefore, in

analyzing the constitutionality of the removal, we consider only

the two grounds expressly specified in the November 1 letter.5

¶39 We do not today find, assess, or weigh facts.6 Our

task is to interpret the language in Section 1(10) to determine

whether the stated grounds for removal meet the constitutional

standards.

¶40 Neglect of duty is the substantial failure to perform

a duty. Holmes, 57 Ariz. at 540, 115 P.2d at 783. It

“impl[ies] wrongdoing, some act of omission or commission in

5
The November 1 letter also stated that “[t]he result” of
Mathis’s two specified missteps “is a failure to apply the
Arizona Constitution’s redistricting provisions in an honest,
independent and impartial fashion, and a failure to uphold
public confidence in the integrity of the redistricting
process.” (Emphasis added). The italicized language is not
found in Section 1(10), but rather in Section 1(3), which
addresses appointment qualifications and sets forth aspirational
goals and expectations for commissioners. Those provisions do
not constitute separate legal grounds for removal under Section
1(10) and cannot be considered apart from the two grounds for
Mathis’s removal set forth in the November 1 letter.
6
As a general rule, the weight and sufficiency of evidence
will not be reviewed on certiorari unless it is necessary to
determine jurisdictional facts. Hunt v. Norton, 68 Ariz. 1, 6,
198 P.2d 124, 127 (1948); see also Johnson v. Mofford, 193 Ariz.
540, 543 ¶ 14, 544 ¶ 16, 975 P.2d 130, 133-134 (App. 1998) (when
the governor has power to remove an official, the court’s role
in judicial review is “narrow and restrained,” not to determine
whether evidence warrants the removal, but rather “merely to
ensure that the executive branch complies with the constitutions
of Arizona and the United States” (citing Farish v. Young, 18
Ariz. 298, 307-08, 158 P. 845, 849 (1916))).

25
office the law required to be done which was not done or if done

was done in an unlawful manner.” Id. at 539-40, 115 P.2d at

783. Section 1(10)’s express use of the term “substantial” to

describe the type of “neglect of duty” allowing removal

emphasizes that a commissioner’s failure must be categorical and

egregious. Cf. Holmes, 57 Ariz. at 551-52, 115 P.2d at 788

(finding that an Industrial Commissioner’s maintenance of

excessive reserves and failure to revise rates did not violate

statutory requirements, and that his failure to collect premiums

was de minimis and without harm, and thus his conduct did not

rise to neglect of duty); Sims, 41 Ariz. at 503, 19 P.2d at 685

(finding an Industrial Commissioner’s failure to strictly comply

with statutory requirements for annual reports did not rise to

“such neglect of duty . . . as to be cause for removal”).

¶41 Misconduct in office consists of a public officer’s

corrupt violation of assigned duties by malfeasance,

misfeasance, or nonfeasance. Bryan A. Garner, A Dictionary of

Modern Legal Usage 564 (2d ed. 1995); see also Black’s Law

Dictionary 1089 (9th ed. 2009) (defining “official misconduct”

and recognizing it is also termed “misconduct in office”).

“Malfeasance is doing that which [an] officer has no authority

to do, and is positively wrong or unlawful.” Holmes, 57 Ariz.

at 540, 115 P.2d at 783. “Misfeasance . . . is doing in a

wrongful manner that which law authorizes or requires [an

26
officer] to do.” Id. Nonfeasance is synonymous with neglect of

duty, defined above. Id.

¶42 Gross misconduct is different in kind as well as

degree, requiring a knowing and willful violation of a legal

duty. See, e.g., Jones, 106 P.3d at 25-26, 28; John v. John,

450 N.W.2d 795, 801-02 (Wis. App. 1989); Geeslin v. McElhenney,

788 S.W.2d 683, 685 (Tex. App. 1990); cf. In re Zawada, 208

Ariz. at 234 ¶ 4, 237 ¶¶ 15, 17, 239 ¶ 25, 92 P.3d at 864, 867,

869 (finding a prosecutor’s appeals to the jury’s fear;

disrespect for, prejudice against, and harassment of expert

witnesses; and improper arguments were knowing, deliberate, and

“clearly gross misconduct”); Scott v. Scott, 75 Ariz. 116, 122,

252 P.2d 571, 575 (1953) (gross or wanton negligence “is highly

potent, . . . flagrant and evinces a lawless and destructive

spirit”). Thus, gross misconduct requires a willful act or

omission that the commissioner knew or should have known was

wrong or unlawful.

¶43 The Governor’s first stated ground, that Mathis

“failed to conduct the Arizona Independent Redistricting

Commission’s business in meetings open to the public,” is not

legal cause for removal. That charge expressly tracks Article

4, Part 2, Section 1(12) of the Arizona Constitution, which

directs that “[w]here a quorum is present, the independent

redistricting commission shall conduct business in meetings open

27
to the public, with 48 or more hours public notice provided.” A

failure to conduct the IRC’s business in meetings open to the

public must at least involve a violation of that constitutional

provision to constitute “substantial neglect of duty” or “gross

misconduct.” At no point, however, did the Governor allege or

find that a non-public meeting of a quorum of the IRC occurred.

¶44 In removing Mathis, the Governor did not refer to

Arizona’s open meeting statutes, A.R.S. §§ 38-431 to -431.09.

Indeed, the question of whether those statutes apply to the IRC

was the subject of pending litigation and unresolved when Mathis

was removed. See supra ¶ 4.7 But, in any event, those statutes

define “meeting” as a gathering of a quorum, A.R.S. § 38-431(4),

and direct that all meetings of public bodies shall be public

meetings and that legal action of public bodies shall occur in

public meetings. Id. § 38-431.01(A). Thus, even if the open

meeting statutes apply to the IRC, a question we do not decide,

it would not change the result because the statutes also require

a quorum.

7
On December 9, 2011, the superior court granted the IRC’s
motion for summary judgment, finding “the Open Meeting Law,
A.R.S. § 38-431 et seq., does not apply to the IRC, which is
governed instead by the open meeting laws of Article IV Pt. 2
§ 1(12).” State v. Mathis, Under Advisement Ruling, CV 2011-
016442. The court further found that “neither the Attorney
General nor the Maricopa County Attorney may proceed in their
investigation, except as provided by Rules of Procedure for
Special Actions.” Id. The state’s appeal from the superior
court’s order is pending in the court of appeals.

28
¶45 Because the Governor neither alleged nor purported to

find that Mathis caused or participated in a nonpublic meeting

of a quorum of the IRC, we conclude that the first ground for

removal cannot and does not constitute substantial neglect of

duty. And because the Governor did not allege or purport to

find that Mathis’s conduct was in willful derogation of clearly

established and ascertainable law, we conclude that any alleged

open-meeting failures could not rise to gross misconduct.

¶46 The Governor’s second stated ground, that Mathis

“failed to adjust the grid map as necessary to accommodate all

of the goals set forth in Arizona Constitution Art. 4, Pt. 2,

§ 1(14),” also is not legal cause for removal. Section 1(14)

sets forth six goals to be accommodated by making adjustments to

the grid map. The first goal, mandating that districts must

comply with the United States Constitution and Voting Rights

Act, is unqualified. § 1(14)(A). The next five goals —

mandating equal population, geographic compactness and

contiguity, respect for communities of interest, use of certain

recognized boundaries, and competitive districts where

competitiveness is not significantly detrimental to other goals

— are required “to the extent practicable.” § 1(14)(B)-(F).

¶47 To the extent any Commissioner might have disregarded

or failed to meet any of those requirements, the Governor’s

objection is premature. When the Governor removed Mathis, the

29
congressional and legislative district maps were still in draft

stages, subject to further discussion, revision, and ongoing

public comment. A legal inquiry to test the IRC’s compliance

with Section 1(14) requirements is timely and appropriate after

Commissioners have adopted the final plan. See Ariz. Minority

Coal., 220 Ariz. at 596-97 ¶¶ 25-28, 208 P.3d at 685-86

(recognizing that the IRC must “balance competing concerns” and

“exercise discretion in choosing among potential adjustments to

the grid map”). Moreover, if procedural flaws are alleged after

adoption of the final maps, the recourse is judicial. Id. As a

matter of law, the Governor cannot base a removal decision on a

commissioner’s alleged failure to comply with constitutional

map-adjusting criteria before completion and review of the final

maps. Accordingly, the Governor’s second stated ground for

removing Mathis did not constitute substantial neglect of duty

or gross misconduct.

V. CONCLUSION

¶48 For the reasons stated, we accepted special action

jurisdiction and found this matter to be justiciable. We

conclude, as a matter of law, that neither of the Governor’s two

stated grounds for removing Mathis constitutes substantial

neglect of duty or gross misconduct in office, as required under

Article 4, Part 2, Section 1(10) of the Arizona Constitution.

Accordingly, we granted the relief requested by Mathis and

30
ordered that she be reinstated as chair of the IRC.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
W. Scott Bales, Justice

_____________________________________
Robert M. Brutinel, Justice

_____________________________________
*

*
Chief Justice Rebecca White Berch has recused herself from
this case. Pursuant to Article 6, Section 3 of the Arizona
Constitution, the Honorable Michael D. Ryan, Retired Justice of
the Arizona Supreme Court, was designated to sit in this matter.
Before his untimely death on January 30, 2012, Justice Ryan
fully participated in this case, including oral argument, and
concurred in the orders issued by this Court on November 17 and
November 23, 2011.

31