Just Thinking

Commission’s Independence Rests on a . . . Purple Dress

by Richard Gilman

A purple dress may end up defining the reign of this Independent Redistricting Commission as much as the maps it has just completed.

This is not to underestimate the importance of the maps. Not only do they lay out the boundaries of the state’s congressional and legislative districts, they set up an intriguing political landscape for the coming decade. (See related article.) 

Nonetheless, history will look back upon this commission primarily for the effect it will have on redistricting efforts many decades into the future.

Enter a purple dress that was never worn. In fact, doesn’t even exist.

Yet it turned the Supreme Court hearing on the dismissal of commission chairperson Colleen Coyle Mathis into a constitutional showdown between the branches of state government. The potential consequences got missed in all the hoopla over the court’s reinstatement of Mathis, but they will be draped around the state for a long time.

In the end, the dress symbolizes a dispute that could secure the independence of the commission, or scuttle it.

Sole Judge and Jury?

The state’s executive and legislative branches – in this case, the governor and the state Senate – contended in their arguments before the court in November that they had the exclusive authority to dismiss Mathis. By their reading of the constitutional amendment that created the commission, they were the sole judge and jury. No one else, including the courts, was permitted a say.

When the governor’s attorney, Lisa Hauser, arose to make her case, acting chief justice Andrew Hurwitz cut right to the chase. He posed several outlandish examples to tease out the governor’s view on what circumstances would merit judicial review.

Hauser replied by volunteering her own scenario of the absurd: A governor who dislikes purple dismisses a commissioner simply because she wore a purple dress.

Better than his own examples, Hurwitz said. Would that dismissal merit court review?

The dress might be purple, but Hauser’s answer was black and white. Even in a ridiculous case such as that, she said, the answer was no.

By her argument, the governor was accountable only to two-thirds concurrence of the Senate. She said one had to believe the Senate would have the good sense to prevent a wrongful termination. If it didn’t, voters eventually would toss the offending legislators out of office.

But as for the court, it could go packing.

Well, Now That You Put It That Way

This in-your-face challenge did not sit well. The five justices took exception in ways that looked beyond the Mathis case. The basic points of dispute:

 The letter of the law.

Each justice took a shot at reconciling how the purple dress holds up against the standard provided by voters in the amendment, which spells out that a commissioner may be dismissed for “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office.”

Justice W. Scott Bales asked: “So why did they stick that phrase in there? Why didn’t they just say that the governor can remove (a commissioner) with the concurrence of two-thirds of the Senate? Surely that phrase means something.”

The logic in that question continues a pattern in which the courts have taken the amendment’s words at face value. For instance in a 2009 ruling on an entirely different redistricting issue, the Supreme Court wrote: “The constitutional language means what it says . . .”

That’s not to say the language is so clear as to prevent conflicting interpretations. Those who believe one thing emphasize one phrase. Those who want something else emphasize a different phrase.

In this case, for instance, there is an implicit division of opinion. The governor and Senate Republicans see the dismissal clause as providing permission to do just that. Opponents maintain the language is limiting, intentionally placed there to protect the commission’s independence by preventing the wanton removal of its members.

 The spirit of the law.

Indeed, some portion of the court seemed to take the commission’s name at face value. The purpose of the commission must be, ipso facto, to redistrict independently.

Hauser demurred on this point as well. The goal, she said, was not so much independence as openness. But Michael Ryan, the retired justice who was sitting in for the hearing, persisted.

Ryan questioned how the commission could be considered independent if the governor and, as he characterized it, a “compliant” Senate could dismiss a commissioner for little or no reason. In circumstances such as that, Ryan noted, no commission member or chairman who runs afoul of the governor “ever would be safe.”

Hauser was not suggesting the purple dress justified a dismissal. She was merely arguing the job of preventing such a thing belongs solely to the Senate.

Even so, the prospect of being brought up on specious charges – no matter how farcical – would by itself be chilling to commissioners.

And if the Senate were designated as the final arbiter, and chose as a political body not to intervene, nothing would prevent open season on commissioners. A compliant Senate would quickly lead to a compliant commission.

 The responsibility for interpreting the law.

If the Senate is the final jury, then where does that leave the courts? Isn’t it the job of the judicial branch to be the final arbiter of the Constitution?

The principle of judicial review has been in place since the U.S. Supreme Court established in a landmark case way back in 1803 that it is “emphatically the province and duty of the Judicial Department to say what the law is.”

This presumptive authority has its limitations, however. One qualification, called the “political question doctrine,” prevents the courts from reviewing certain actions that by their nature or by law are clearly committed to the discretion of the political branches – no matter how egregious the actions may seem.

But when there is disagreement as to what a particular statute or constitutional provision means, the courts are called upon to “say what the law is.” In doing so, judges often ask lawyers how the law would apply to hypothetical situations – like the purple dress.

Hurwitz asked again when Hauser handed off to Mel McDonald, the attorney for the Senate. McDonald tried to reply: “If you someday got that hypothetical case of the purple dress . . .”

Hurwitz interrupted. The attorneys for Mathis and the commission, he asserted, are “saying that’s this case . . . They’re saying this is the purple dress case.”

Focusing on the Enduring Principles

Mathis, of course, was never accused of wearing a purple dress.  The court session was convened to consider charges regarding the open meeting law and the mapping process, but those allegations got scant if any attention in the oral arguments. Rather the dress stood as the symbol of the more enduring principles at stake.

Those principles may or may not be addressed in the full opinion the court will issue. Perhaps the justices, whose political philosophies run the gamut, are still weighing how to craft an opinion that is acceptable to the biggest possible majority. Maybe they will end up choosing, simply and narrowly, to reiterate their reasons for reinstating Mathis.

But the Case of the Purple Dress may well produce two other far-reaching outcomes.

One would secure the independence of the commission. The Supreme Court’s opinion could respond, perhaps more starkly than it would have done otherwise, to the unbending example of the purple dress. Such a ruling would give comfort to commissioners, present and future, that the constitution grants them some level of independence beyond the color of their dress.

The other could scuttle it. Those angered by the redistricting process and the court’s action have the option, by a vote of the Legislature or a petition of 15 percent of voters, of going back to the electorate with a measure that revises or even repeals the amendment that created the commission. In that case, voters will end up being the court of last resort.

 

DISCUSSION THREADS:

Is the wording of removal clause in the constitutional amendment intended to permit or restrict the dismissal of commissioners?

Is this a case of the governor/Senate trying to take away authority that rightfully belongs with the courts, or of the court possibly taking away authority that rightfully belongs with the governor/Senate?

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