Adams v. Commission on Appellate Court Appointments (7/8/2011)

July 13, 2011

In a Split Decision, The Arizona Supreme Court Holds That Holders of Tribal Office Do Not Hold “Public Office” Within The Meaning of Article 4, Part 2, Section 1 of The Arizona Constitution And Are Thus Not Prohibited From Serving As Commissioners on the Independent Redistricting Commission.

The Arizona Constitution requires a five-member Independent Redistricting Commission (“IRC”) to draw boundaries for congressional and state legislative districts after every decennial census.  To be appointed a member of the IRC, the member cannot have held “any other public office” during the preceding three years. 

To select members for the IRC, the Commission on Appellate Court Appointments nominates twenty-five candidates for membership in the IRC.  From those nominees, four of the IRC members are chosen by the majority and minority leadership in the legislature. 

Among the nominees for the post-2010-census IRC were Mark Schnepf, Stephen Sossaman, and Paul Bender.  Soon after the nominations, Kirk Adams (as speaker of the House of Representatives) and Russell Pearce (as President of the Senate) asked the Commission to reconsider the nominations of Schnepf, Sossaman, and Bender, arguing that they were ineligible because they held public office.  Schnepf and Sossaman both serve as directors for irrigation districts.  Bender serves as the Chief Justice of the Supreme Court of the Fort McDowell Yavapai Nation and the Chief Judge of the Court of Appeals of the San Carlos Apache Tribe. 

The Commission declined to reconsider their nominations and submitted the list of twenty-five nominees to Adams, the first of the legislative leadership who would appoint the members of the IRC.  Adams and Pearce petitioned the Supreme Court for special action, arguing that the three were ineligible.  The Court accepted jurisdiction.

The Court first examined the text of the constitution, which prohibits an IRC commissioner from having been “appointed to, elected to, or a candidate for any other public office.”  Ariz. Const. art 4, pt. 2, § 1(3).  The constitution likewise makes a commissioner “ineligible for Arizona public office” during the commissioner’s appointment “and for three years thereafter.”  Id. § 1(13).  Although the term “public office” is not separately defined, the constitutional provision plainly included “offices of the state or any of its political subdivisions.” 

Applying that definition, the Court held that Schnepf’s and Sossaman’s service on irrigation districts was “public service.”  The Arizona Constitution defines irrigation districts as “political subdivisions of the state.”  In addition, the officers of the districts include elected boards of directors who must take the same oath of office as other county officials, and who face the same recall procedures as other elected county officials.  Because their service as directors on irrigation districts was “public service,” Schnepf and Sossaman were ineligible to serve as IRC commissioners.

With respect to Bender, petitioners argued that Bender’s service on tribal courts must fit within the definition of “public office.”  In their view, “public office” “refers to a position in which a person exercises a government’s sovereign powers.”  Adams pointed to a provision in Section 1(13) which disqualifies commissioners who serve in “Arizona public office,” contending that other uses of the term “public office” must therefore include non-Arizona offices.  In addition, Adams argued that a narrow, Arizona-only interpretation of “public office,” would mean that members of Congress would be eligible to take part in the drawing of their own electoral districts. 

The Court agreed that members of Congress hold “public office” under Section 1(3).  The constitution has long used the term “public office” – long before the IRC provisions were enacted – and the term has usually been interpreted to include members of Congress.  The Court disagreed, however, that Section 1(3)’s use of “public office” includes holders of tribal office.  Tribes have a “distinctive status” and Arizona’s laws “generally do not include tribes within the meaning of the word public.”  For instance, the Arizona Constitution refers to “public lands” and lands “owned or held by . . . tribes.”  Ariz. Const. art. 20, § 4.  Moreover, none of the other uses of “public office” or “public officers” in the constitution have ever been interpreted to include tribal officers.  The Court thus held that Bender was eligible to serve on the IRC because his position as a tribal judge is not a “public office” under Section 1(3). 

In a partial dissent joined by Justice Pelander, Justice Brutinel argued that the term “public office” is intended to have broad application with the goal of removing “the politically entrenched and politically ambitious” from the IRC’s redistricting work.  Section 1(3), the dissent stressed, prohibits a commissioner from having served in “any” other office during the three years prior.  In the dissent’s view, the constitutional language permitted no exception for tribal offices, and dictionary definitions of the term “public office” are in no way limited to a “specific type of sovereign.”  The dissent thus agreed with the petitioners that Bender should be ineligible: because a tribal judge exercises the “governmental powers of a sovereign,” Bender’s service as a justice in tribal courts was service in a “public office.”

Justice Bales authored the opinion in which Justices Hurwitz and Ryan joined.  Justice Brutinel dissented in part, joined by Justice Pelander.