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Michael K.

Jeanes, Clerk of Court


*** Electronically Filed ***
03/15/2016 8:00 AM

SUPERIOR COURT OF ARIZONA


MARICOPA COUNTY
CV 2012-007344

03/14/2016

CLERK OF THE COURT


S. LaFontaine
Deputy

HON. ROGER E. BRODMAN

VINCE LEACH, et al.

BRETT W JOHNSON

v.
ARIZONA INDEPENDENT REDISTRICTING
COMMISSION, et al.

MARY R O'GRADY

BRIAN M BERGIN
PAULA S BICKETT
JOSHUA CARDEN
PAUL K CHARLTON
BROCK J HEATHCOTTE
ADRIANE J HOFMEYR
KRISTIN L WINDTBERG

UNDER ADVISEMENT RULINGS CONCERNING DISQUALIFICATION


The Court is faced with two motions. First, defendant Arizona Independent Redistricting
Commission (IRC) has moved to enjoin the defendant Secretary of State from functioning as a
plaintiff. Second, the IRC has moved to disqualify the Attorney General from representing the
Secretary of State. The Court has reviewed the motions, the responses and replies. The Court
held oral argument on February 29, 2016.
1. Should the Secretary of State be Enjoined from Functioning as a Plaintiff?
Plaintiffs filed the original Complaint on April 27, 2012. In addition to naming the IRC
as a defendant, the lawsuit named Secretary of State Ken Bennett, in his official capacity, as a
defendant due to his role as the filing office for the IRCs final certified maps. The Attorney
General filed an answer in which the Secretary of State took no position on the allegation that the
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CV 2012-007344

03/14/2016

IRC failed to comply with the Arizona Constitution with respect to the redistricting process. In
other words, the Secretary of State was a nominal defendant. The Secretary of State remained a
nominal defendant when he answered the First Amended Complaint and when he answered the
Second Amended Complaint.
The case remained in hibernation while relevant issues were resolved before the United
States Supreme Court.
On January 5, 2015, Michelle Reagan replaced Mr. Bennett as the Secretary of State and
also replaced Secretary Bennett as the nominal defendant in this litigation. After the litigation
was reinvigorated after the Supreme Courts decision in Arizona State Legislature v. Arizona
Independent Redistricting Commission, -- U.S. -- (June 29, 2015), plaintiffs filed a Third
Amended Complaint. In her answer to the Third Amended Complaint, Secretary Reagan -- still
represented by the Attorney General -- took a substantive position that aligned herself with the
plaintiffs against the IRC. The Secretarys Answer states that she believes the allegations
contained in [the Third Amended Complaint] to be accurate with regard to the violation of the
equal population grid, the abandonment of the grid map, the failure to engage in the required
deliberative process, and the violation of the constitutional requirements to consider the
Legislatures recommendations. Secretary Answer at 24. As noted by the IRC, the
Secretarys Answer now admits all or part of 90 of the 128 paragraphs of the Third Amended
Complaint. The Secretary takes no position with regard to any Open Meeting Law (OML)
allegations.
The IRC argues that Secretary Reagan has jettisoned her role as a nominal defendant in
Plaintiffs dispute with the Commission and, instead, now effectively functions as an additional
plaintiff seeking to invalidate the States congressional districts. This is permitted neither by the
Rules of Civil Procedure nor the statutes and constitutional provisions governing her authority.
Motion at 3:25-4:1.
The Secretary responds by arguing that she has the primary responsibility for regulating
the nomination and election of congressional candidates. As such, the Secretary claims that she
has a significant interest in this case and has a right to participate when she believes the districts
created by the IRC are constitutionally infirm.
Neither party presented the Court with any authority directly on point. The Court notes
that this is not a case where the Secretary brought a direct complaint to challenge another
governmental entitys action or challenge a statute. Cf. State ex rel. Woods v. Block, 189 Ariz.
269(1997) (Arizona Constitution does not itself give the Attorney General standing to maintain
an action). Rather, the Secretary is already a party in the litigation as a nominal defendant.
Some of the cases cited by the parties address the case or controversy requirement. See, e.g.,
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CV 2012-007344

03/14/2016

Golden Gate Bridge and Highway Dist. v. Felt, 5 P.2d 585, 589-90 (Cal. 1931). This is not a
problem in the instant case, because there is no shortage of lawyers on board to challenge the
plaintiffs (or the Secretarys) position. As a separate entity, the Secretarys admissions are not
binding on the IRC and no one has suggested that they should be. The Secretarys presence does
not affect or inhibit the IRCs ability to defend its case.
The Court finds no persuasive authority to prevent the Secretary from actively
participating in this partisan-driven litigation. Since she is already a party, the Court was not
persuaded that the Secretary should be prevented from taking a position that she feels directly
impacts her ability to administer elections in Commission-drawn districts. See People ex rel.
Salazar v. Davidson, 79 P.3d 1221, 1231 (Colo. 2003) (Colorado allows public officials to
request original jurisdiction in matters of great public importance; Attorney General allowed to
sue Secretary of State in redistricting dispute).
Arizona case law anticipates that, on occasion, a nominal party may become actively
involved in the underlying litigation. Kadish v. Ariz. State Land Dept., 177 Ariz. 322, 330 (App.
1993). In Kadish the court stated:
An agency whose functions are affected by a challenged statute which it is responsible
for administering and upholding is not a nominal party in litigation involving the statute,
even if the agency elects to allow private parties to take the lead in asserting the validity
of the statute.
Id. at 331. The court in Kadish held that the land department was charged with administering all
laws related to lands owned by and under the control of the state, and, as a result, the land
department and commissioner have more than a nominal or passive interest in litigation to
determine whether the state lands mineral lease royalty rate applied by the department is valid.
In similar fashion, the Secretary has an interest in this litigation.
In fact, the United States Supreme Court recently provided time for the Attorney General
to argue against the constitutionality of the IRC in the Harris case, with the late Justice Scalia
wryly observing that election results must have caused the Attorney General to argue a different
position on appeal than at the trial court. Elections have consequences, and no one should be
surprised that the last election apparently caused the Secretary of States office to pull a flip turn
in this litigation.
More importantly, the Court sees no prejudice arising from the Secretarys active role.
The instant case is a declaratory judgment action that will be tried to the Court. This case will be

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decided on the law and on the evidence presented in the courtroom at the time of trial. It will not
be decided on political posturing of any of the participants in this case.1
IT IS ORDERED that the motion to enjoin Secretary Reagan from actively functioning
as a plaintiff is denied.
2. Should the Attorney General be Disqualified?
The IRC notes that the Attorney General once represented it on OML issues. The IRC
also argues that Judge Fink granted Commissioner McNultys motion to disqualify counsel, and
prevented the Attorney General from representing the State in an OML investigation. See
Minute Entry dated October 27, 2011. The IRC correctly notes that the Third Amended
Complaint contains OML issues, and that the Attorney General should be disqualified under ER
1.9(a) because it has taken an adverse position to its former client in the substantially related
current litigation.
The Attorney General responds that the Attorney General only provided eleven weeks of
legal advice to the Commission regarding compliance with open meeting laws, public records
requests, and procurement. The IRC then hired its own lawyers, and more than six weeks passed
between the end of the Attorney Generals representation and the authorization to begin
negotiations for mapping services. The Attorney General claims that it has fully screened any
lawyers initially involved in doing work for the IRC and that the Attorney General is not
providing any advice on or active representation related to allegations that the IRC
committed OML violations. The Attorney General now represents the Secretary in challenging
the manner in which the IRC drew the congressional maps, a process that did not begin until
months after the Attorney Generals representation of the IRC had ended.
As a starting point, disqualification is an exceptional remedy and disqualifications are
disfavored. Only in extreme circumstances should a party to a lawsuit be allowed to interfere
with the attorney-client relationship of his opponent. Alexander v. Superior Court, 141 Ariz.
157, 161 (1984). Because disqualification interferes with a partys attorney-client relationship,
disqualification motions are subject to tactical abuse, and viewed with suspicion. Simms v.
Rayes, 234 Ariz. 47, 50 8 (App. 2014).
The most recent case from the Arizona appellate courts on ER 1.9(a) is Amparano v.
ASARCO, Inc., 208 Ariz. 370 (App. 2004). In that case, the court refused to disqualify plaintiffs

When this case goes to trial, there will be time limits. The time limits will be equally divided between those
challenging the IRCs actions and those defending them. Time used by the Secretary will be assessed against the plaintiffs time.

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counsel because the lead counsel previously had an attorney-client relationship with the
defendant. The court stated:
The rules of professional responsibility are for ethical enforcement and are not designed
to be used as a means to disqualify counsel. The courts have, of course, looked to the
ethical rules for guidance on disqualification issues.
Id. at 37 22. The court addressed ER 1.9(a) and the issue of whether the current case was
substantially related to the attorneys former work.
In Amparano, plaintiffs attorney had worked on environmental issues for ASARCO,
including water quality issues, which was a partial basis for plaintiffs complaint. The court
noted, however, that the case at issue was based on state tort law and toxicology, while the
attorneys work for ASARCO was centered on permitting and compliance issues. The court
ruled that, even though the trial court gave no explanation for denying ASARCOs motion, the
trial court could have properly found that matters on which the attorney had worked and the
matters raised in the complaint were not substantially related. Id. at. 377, 28.
Amparano makes clear that an attorney can sue a former client provided the instant
litigation is not substantially related to the former work. Matters are substantially related if they
involve the same transaction or legal dispute or if there otherwise is a substantial risk that
confidential factual information as would normally have been obtained in the prior representation
would materially advance the clients position in the subsequent matter. Ariz. R. Sup. Ct. 42, ER
1.9 cmt. 3. The Attorney General would not be prohibited from participating in this case if the
constitutional issues were the only issues being litigated. The Attorney General is not
participating in OML issues and, as an added precaution, has screened any lawyers who worked
with the IRC from this case. Thus, the Court was not persuaded that confidential factual
information from the prior representation could be used to materially advance the Secretarys
position.
The Court believes the issue of disqualification under ER 1.9(a) is a close and debatable
issue. Men and women of good faith could reasonably argue both sides of the issue. The Court
would be disinclined to find that the IRC met its burden to show sufficient reason why the
Attorney General should be disqualified. The Court does not believe that the Attorney Generals
representation of the Secretary causes the IRC any substantial or irreparable injury. But the
Court need not address the ER 1.9(a) issue, because the IRCs request to disqualify was not
timely made.
The Attorney General has represented the Secretary in this matter and in the related
federal case since May 11, 2012. The Court has no quarrel with the IRCs failure to ask for
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CV 2012-007344

03/14/2016

disqualification as long as the IRC believed the Secretary was acting as a nominal defendant.
Things changed, however, on September 4, 2015. At the hearing in open court, the Secretary
(through the Attorney General) made clear that the Secretary and the Attorney General were now
aligned with the plaintiffs. The Attorney Generals position in this litigation was certainly clear
by October 22, 2015, when the Secretarys answer was filed. The parties agreed to a stipulated
scheduling order on September 10, 2015. The IRC did not file its own motion to disqualify and
did not document its desire to disqualify the Attorney General until it filed its one page joinder in
Commissioner Mathis motion on December 16, 2015, after the depositions of the Republican
Commissioners. In fact, as recently as December 7, 2015, the IRC indicated it has no present
plans to seek to disqualify the Attorney General. Mathis Emergency Motion to Intervene at 10.
This case is well past the pleading stage. Plaintiffs state that approximately 80% of the
discovery has been completed. Defendants allege a lower number, but acknowledge that over
half of the discovery has been completed.
In Foulke v. Knuck, 162 Ariz. 517, 523 (App. 1989), the court ordered disqualification,
but found that the party seeking disqualification acted promptly. The court observed that [t]his
is not a situation where disqualification is sought after months or years of representation in a
complicated litigation. In Hrudka v. Hrudka, 186 Ariz. 84, 90 (App. 1996), the court found that
disqualification would be an excessive penalty after parties had actively litigated the case for a
year and a half before the issue of disqualification was raised. The court observed that
[d]isqualification may be avoided if the hardship to the new client far outweighs the injustice to
the former client who requests disqualification. Id. at 89. In Amparano, supra, 208 Ariz. at
378, the court found that disqualification was not appropriate because the party requesting
disqualification had failed to show why it had not waived the conflict.
In the instant case disqualification was sought after two to three months of representation
in complicated litigation. Over half of the discovery has been completed. The disqualification
of the Attorney General would require the Secretary of State to find new counsel after most of
the discovery has been completed and only a few months before the discovery cutoff. Requiring
the Secretary to find new counsel during the middle of this case would be prejudicial. The Court
finds that the hardship to the Secretary outweighs any injustice to the IRC.
This case is distinguishable from Roosevelt Irr. Dist. v. Salt River Project Agr. Imp. &
Power Dist., 810 F.Supp.2d 929, 984 (D.Ariz. 2011), where disqualification was ordered in the
pleading stage and the court concluded that it is hard to conceive of how, actually, Moving
Defendants could have raised their concerns with this Court any earlier. In the instant case, the
Court finds that the IRC could have and should have raised its concerns much earlier. Similarly,
Paul E. Iancono Structural Engr, Inc. v. Humphrey, 722 F.2d 435, 442 (9th Cir. 1983), is not
persuasive. The issue of waiver is barely discussed and the disqualification was based on the
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employment of an attorney who never did any legal work on the case and did not make an
appearance in the action. The Ninth Circuit understandably found no waiver since the
circumstances made it difficult for the moving party to determine whether disqualification was
appropriate.
The Court believes that the IRCs delay in moving to disqualify the Attorney General is a
tacit acknowledgment that the IRC was not concerned with any alleged breaches of the attorney
client privilege until the issue was raised by Commissioner Mathis pleadings. Moreover, this is
not, in the Courts mind, a case where the Attorney General is without question violating ER 1.9.
At worst, the issue is fairly debatable. In short, the Court declines to disqualify the Attorney
General on debatable grounds after the IRC delayed in bringing the motion.
Finally, the Court rejects the IRCs appearance of impropriety argument as it relates to
this highly publicized and political matter. Reply at 8:7. As noted in Amparano, the
appearance of impropriety does not necessarily require disqualification in every case. 208
Ariz. at 378, 29. See also Sellers v. Superior Court, 154 Ariz. 281, 289 (App. 1987)
(appearance of impropriety is too slender a reed upon which to rest disqualification of
counsel). Anyone with more than a passing interest in these proceedings would not be surprised
by the Attorney Generals position: the Attorney General has already argued against the IRC
before the United States Supreme Court. Other than typical partisan politics which are already
widely known, this Court sees little risk of the appearance of impropriety by the Attorney
General once again staking out a position of opposition to the IRC in this case.
IT IS ORDERED that the motion to disqualify the Attorney General is denied.

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