A deputy Maricopa County attorney asked a judge Wednesday to order the Independent Redistricting Commission to stop "stonewalling" what he said is a legitimate investigation.
Tom Liddy said there is evidence that at least three of the five commissioners discussed by phone, outside the public view, who should get a key contract. But three of the commissioners have refused to answer questions, first from Attorney General Tom Horne and now from Liddy's boss, Bill Montgomery.
Liddy told Judge Dean Fink the only way there can be a full understanding whether there was a violation of the state's Open Meeting Law is if all the commissioners agree to answer questions.
But Jean-Jacques Cabou, an attorney representing the commission, said that law does not apply to the commission. And that means prosecutors cannot use their powers to demand that anyone testify.
Cabou acknowledged that there is a requirement in the constitutional provision which established the commission to conduct all business in public.
He said, though, if there were a violation of that requirement - and he is not conceding there was - the only remedy is for individual citizens to ask a court to intercede. Prosecutors, he argued, have no standing to demand testimony first without a court order.
Fink said, though, the issue is not that simple. He said there is a question of whether what was done is, in fact, illegal.
The investigation stems from claims by two Republican members of the commission that they had been called by Colleen Mathis, who chairs the panel, seeking to line up their votes to choose Strategic Telemetry as the consultant to help draw the maps.
Fink said it's one thing if three commissioners consulted together, even if that occurred in a conference call. But he said that's not what happened here.
In fact, he pointed out, the process of lining up votes occurs all the time at the Legislature.
"Isn't the job of a whip just to make sure you're counting the number of votes and that you have the votes lined up before you take something to vote?" he asked.
Deputy County Attorney Colleen Connor conceded the point. But she said the Legislature has a "special exemption" from the Open Meeting law and is allowed to create its own rules.
But Andy Gordon, who represents commissioner Linda McNulty, said there is case law which says the commission is the functional equivalent of the Legislature, at least when it comes to matters within its own purview. Anyway, he said, there is nothing in the law, or even in court rulings, which spells out that "serial communications" among members of a public body are illegal.
Wednesday's hearing comes just a day before the Arizona Supreme Court considers the legality of the decision two weeks ago by Gov. Jan Brewer to fire Mathis.
The issues are linked.
One of the charges the governor leveled against Mathis was violating the Open Meeting Law. If the commission is not subject to that law - or that law does not cover what Mathis is accused of doing - that undermines Brewer's action.
Liddy told Fink that makes it all the more important that he allow any investigation to go forward.
"How can the governor and how can the people's representatives in the Senate even approach their duties if the court finds that the IRC has the legal authority to stonewall any investigations?" he asked.
Fink responded that the fact Brewer felt it appropriate to go ahead with the firing, and the Senate giving its consent, seems to suggest that Montgomery's investigation is unnecessary.
But the judge said the Supreme Court fight raises another question.
He said the "ultimate penalty" for violating the Open Meeting Law is removal from office. The judge said if the Supreme Court upholds Mathis' ouster - and she is the main target of Montgomery's investigation - that may make the whole court fight legally moot.
The investigation actually started with Horne demanding the commissioners submit to questions. But Horne turned the inquiry - and the legal dispute of whether they have to respond - over to Montgomery last month after Fink pointed out the Attorney General's Office at one time actually gave legal advice to the commission on the Open Meeting Law.
In deciding whether to let Montgomery proceed with his investigation, Fink needs to address another question: Do commissioners, like lawmakers, have a constitutional privilege to not have their deliberations examined by outsiders.
"What they want to know about are conversations between commissioners," Gordon told Fink. "And those conversations are absolutely entitled to legislative privilege."
Fink said that is true - but only when the body is engaged in its core function.
That would preclude Montgomery from inquiring about how certain lines were drawn on maps. In this case, the judge noted, the discussions were about hiring a consultant.
Gordon said, though, this was not just any consultant but the firm that would actually help the commission in drawing the maps which is the central role of the commission. That, he argued, gave the decision on who to hire the same protection as any discussions about the maps themselves.