Ted Simons: Good evening and welcome to "Horizon." I'm Ted Simons. Joining me tonight are Mary Jo Pitzl of "The Arizona Republic." Howard Fischer of Capitol Media Services. And Jeremy Duda of "The Arizona Capitol Times." Arizona attorney general Tom Horne filed a special action against the state's redistricting commission this week. Mary Jo, basically he says, cooperate or else.
Mary Jo Pitzl: Exactly. Horne is going after commission chairwoman who is an independent and the two Democrats on the panel. And they have so far not testified in his investigation of the commission and, by the way, this week, he said I'm only investigating at this moment, the open meetings violation. Last month and the first of this months, he got blues with the two Republican commissioners and that provided juicy tidbits to help bolster his case why the other three should be made to talk.
Howard Fischer: His theory of what the open meetings law covers is most fascinating about this. As a journalist, I'm for it. Anything that opens it up. The argument is that Colleen Mathis, as the chair of the five-member panel, if she calls one other member, that's ok. You call a second member, now you've got three people. Even though they're not together in a room or on the phone together, somehow lining up votes violating the open meetings law. Has he ever seen a city council? This is a man who served in the legislature when lawmakers were called individually to the speaker's office to say how are you going to vote. And the question of the depth and breadth is going to lead to great case law.
Ted Simons: What about legislative immunity for this particular commission? That was brought up and there's a conflict of interest charge because the attorneys not when they made the district selection, but prior to that, gave guidance to the commission.
Jeremy Duda: There's so much unestablished case law. This is only the second redistricting commission and there are plenty of lawsuits and allegations with the last one too. But no one is sure how far that goes, regarding the immunity they have.
Mary Jo Pitzl: Legislative immunity, but you're not immune from improper acts and breaking open meetings law is an improper act. And goes back to the point that Howie was making, the legislature routinely lines up votes behind closed doors and Tom Horne was also on the school board and lots of experience where crucial votes have been before a public body and can't prove it, but you've got to believe there were some off-camera discussions about votes.
Howard Fischer: You mean arm twisting. Let's call it what it is. He contends that you can't take the fifth. You can't refuse to talk. He says the fifth amendment applies if you're a subject of a criminal probe. If you're the subject of a probe that could result in you being thrown off the commission for malfeasance, says you don't have the right not to talk to me, even if the penalty is loss of your office. That too will be a fascinating discussion.
Ted Simons: What about the allegations of document shredding? They came and disappeared and back again.
Jeremy Duda: Those are allegations that the Republican commissioners are making and Horne isn't investigating so he let it slip that that's what the Republicans had said. They had indicated that there was an earlier round of scoring, for the mapping consultant. And we've been trying to get this for a long time at the "The Arizona Capitol Times," but it's a damning allegation if it were true.
Mary Jo Pitzl: What we're hearing, and I'm having a hard time pinning this down, is that these documents might not have been of the type that have to be preserved for a public record.
Howard Fischer: Now, we're down -- again, as a journalist, I believe in broad public records law. That's anything that's done in your capacity as a public official, done to immortalize what you've done, even if it's just a first round. Tell me why that's not a public document that the commissioners can take it home and tear it up.
Ted Simons: I know Terry Goddard along with Terry Johnson criticized Horne for basically doing an investigation without getting a lawsuit first or going to a grand jury and getting an indictment first and not doing it confidentially at all. All of this business. We had Tom Horne on the program a couple nights ago and he says he's entirely non-partisan in his office and Terry Goddard is trying to intimidate him. How is this planned?
Jeremy Duda; Well, the Democrats are claiming this is wholly partisan and it -- it looks bad when -- the Republicans are publicly furious about this, but, UM --
Howard Fischer: What's fun now is that the Democrats are saying, remember the Republicans -- certain Republicans try to have Colleen thrown off the commission because her husband didn't disclose he had worked for a Democrat candidate in Tucson. You want to play that game, we've got things about what commissioner sterns did not do – you want to play nuclear, we can do that.
Mary Jo Pitzl: Mathis was not guilty of not disclosing her husband's political affiliation. The problem was she didn't disclose his employment. You might be able to argue as an extension, he did get a stipend for being the accountant or treasurer but that wasn't his full-time employment. And apparently, that might be something that was attorney general is looking at now. Because questions have been raised about commissioner Richard -- Richard Sterz, an Russell Pearce appointee.
Jeremy Duda: He was.
Ted Simons: You're going to do this, we're going to do that.
Howard Fischer: Even the last commission when things went smoother, wasn't quite like this. You are never going to remove partisanship from drawing districts. The commissioners, two of them are picked by the top two Democrats and two by the top Republicans and pick an independent party. The commissioners know who they're there to represent. Josh Hall the last time was there to preserve a safe district for Jack brown. That was it. And he didn't care about the rest of it. This is all partisan, it's just become upfront this time.
Mary Jo Pitzl: This is happening, the commission is in the process of trying to come up with a preliminary map where the legislative and congressional boundaries should be and hope to have it done by the end of the month and take it around the state for public hearings. If they stick to the timetable while doing that, then Horne will be going to court in early October to see if he can get the order to compel the commissioners to testify.
Jeremy Duda: That's the question, where does this all end. You can't METE out criminal penalty, but the punishment could be some verbal public flogging for violating the rules to the legislature and governor trying to remove them. But if do you that, there's not enough time to put people back in place and restart and get the process done in time.
Howard Fischer: But also leads to the possibility of the next step. If, in fact, there was an illegal non-public meeting, now you have questions of not, if not rigging -- that's the next step, you get into a criminal probe.
Ted Simons: We'll see how far it goes. We mentioned commissioner STERTZ appointed by Russell Pearce. And he's the one who told Tom Horne about the document shredding.
Mary Jo PitzL: I asked the commissioner about the document shredding and he didn't want to talk about it, but he can talk about what he said in sworn testimony. But Horne said he didn't tell me that before in testimony. So trying to unwind this thing is a hornet's nest.
Jeremy Duda: Horne said the best chance of success was to go after the open meetings things.
Ted Simons: All right. We mentioned he was a Russell Pearce appointee, Mr. Pearce facing recall. Who is he going to face? Do we have a final list, roster?
Howard Fischer: After -- a three-way race. A head-to-head between he and Jerry Lewis. Lewis was in the race early. Republican LDS, conservative. Views like Russell's but saying I'm not Russell. Shortly before 5:00, a supporter of Olivia Cortez showed up to also file. Now she's been the stealth candidate. Doesn't do interviews or respond to email requests and raised a lot of questions, is she just there to split the anti-Pearce vote? The guy who showed up, Greg Western, who is trying to manage her campaign -- no, no, no, she's interested in running. But he didn't seem convinced. I asked, are you going to vote for her? I wouldn't tell people I would vote for her, would you? And I said I'm not on the campaign committee. And after I pushed him, he said, yes, I'd vote for Olivia.
Ted Simons: If it's found out and it’s the general consensus that Olivia Cortez is there to split the vote, I mean, how much can a Jerry Lewis side make hay of that? How many votes could she possibly take?
Mary Jo Pitzl: Given there's somewhat hefty Hispanic component to the district 18 voters, she could pull a lot of votes just on the strength of name I.D. Sadly, people -- a lot of people vote based on name. And could have the effect of forcing Lewis on not only just promoting himself, and divides his resources.
Ted Simons: We have a court case coming up Tuesday, correct?
Howard Fischer: The Supreme Court will decide without oral arguments, the question -- we're all assuming there's going to be an election. There are a couple of interesting legal questions that attorney Lisa Houser who represents Pearce's supporters has raised. One, would invalidate the recall. If you're circulating recall petitions that you sign a affidavit swearing that the signatures are genuine. Well, the oath does not use the word "genuine." Well, the judge said look, you signing a note saying it's genuine. There's no specific words. Lisa believes otherwise. And if the people were mislead. And one of the things it said, we hereby withdraw our support for Russell Pearce and Lisa argued they could say they were signing a petition to say we're unhappy with Russ.
Ted Simons: Didn't the petitions at the top of the petition say recall. Wasn't the word "recall" up there?
Howard Fischer: Bingo! Exactly. And that's exactly what the judge said. The judge said nobody was fooled by this. It said recall on every page. We seek the recall of Russell Pearce. It's an interesting legal theory and Lisa is good on -- Lisa is good on election law. This is the first ever actual election of a state official.
Ted Simons: The idea of no oral arguments. Written only. What's that about? How does it change the dynamic here?
Jeremy Duda: If I were on the pro-Pearce side, I wouldn't take that as a good side and the perception this isn't a serious complaint. We knew they were going to file a legal challenge to the recall pretty much whatever happened. They’ve been saying that for months.
Howard Fischer: The purpose of oral arguments is not to repeat what's in the file. When a judge asks a question, Your Honor, I don't think you see it quite right and a chance to answer the court's questions. Your point is correct. I don't think the judges have any questions. I think they know as we're sitting here Friday night how they're going to vote on this.
Ted Simons: Is it time for signs now in Mesa? Are they allowed? The 60 days, are we there yet for that? The 60 days. Mesa sent a press release with guidelines with a contact on them there. Or we'll take them down and throw them in the yard.
Howard Fischer: It's recycling.
Ted Simons: The ninth circuit court ruled on same-sex benefits. Talk to us about this. Every time it goes to a court, the court says what Arizona is trying to do, you can't do.
Mary Jo Pitzl: Right, the courts, both the lower and the ninth circuit found to deny benefits to the partners of same-sex couples is discriminatory. You can't craft it so that it's so narrow that you're excluding one group and the state disagreed when the ruling came down last year and took it to the ninth circuit and the ninth agreed with the lower court.
Howard Fischer: A couple of things to recognize. This is only on the injunctive relief. The trial court issued an injunction saying keep the benefits in place. The argument is an interesting one. The state is saying, well, look, we are promoting couples. The challengers are saying, well, this is great. You just passed a constitutional amendment saying we can't marry, and then right on the heels of that -- heels of that you rescind the benefits that we have for the domestic partnership.
Ted Simons: If you're going to extend these benefits extend them to all, if you're not going to extend these benfits-- you can't go halfway, you got to go the full way.
Jeremy Duda: As the ninth circuit ruling stands and the state has to reinstate them for gay couples, but they don’t have to do them for heterosexual couples.
Ted Simons: The governor's office brought this out and it's a strong response saying that it flies in the face of logic and reason. It sets up an unequal system because you've got opposite sex couples that can't get the benefit but same-sex couples can because of the injunction.
Howard Fischer: Here's the funny part. The original change in the rules, applied to opposite sex couples if they met standards. No financial tie, some statement that they're on each other's wills.
Ted Simons: That was taken away.
Howard Fischer: The legal defense fund was only interested in the gay couples. Someone else who represented heterosexual couples could have filed suit. They can get married. They may not want to get married but that's a remedy that doesn't exist for the gay couples. That's what the ninth circuit noticed.
Ted Simons: Arizona going to stay ninth circuit or Supreme Court?
Howard Fischer: I think they'll recognize it makes little sense, the governor's press aide to be a broad slap at the ninth circuit saying they just want to legalize gay marriage. Excuse me. Once you -- you're all biased judges, why bother?
Ted Simons: As Howie composes himself there, we talk about -- what do we know about the fast and furious case, the cases being reassigned to --
Jeremy Duda: San Diego.
Ted Simons: And Los Angeles here. Talk to us about this. This story seems to be growing and growing.
Jeremy Duda: New allegations this week, uncovered another gun, found at a crime scene here in the U.S. A guy smuggling grenade parts, also part of that operation. They can't stand any more bad press. The perception that something might get bungled again or that the U.S. attorney's office for Arizona -- they've got to get that out of here.
Ted Simons: The whole thing was, if the Arizona office was responsible for the grenade guy and fast and furious and all of these things, you can't have them investigating what went on.
Mary Jo Pitzl: Even though there's a change at the attorney general's office and the probe just widens and congress saying they're going to take a look at the White House and determine its level of involvement.
Howard Fischer: We're talking about congress, two Republicans leading this thing, from Iowa and from California, who are pushing this. Politics, I know you're shocked it could be happening with this thing. An idea that looked good on paper -- track the guns to the ultimate buyers, but no one sat down and said what happens if we lose it? It was an idea that should have stayed on the table.
Ted Simons: Not only the guns but the grenade guy, see where he was manufacturing these things in Mexico and they lost track of him as well. Poorly planned and executed.
Howard Fischer: A lot of -- we've got the case against the guy who was tracked back to the guns found at the scene of Brian Terry's murder in southern Arizona, a border patrol office. You've got the office prosecuting this guy and questions raised: How interested are they at finding what else was at the scene, because then we'll expose further problems with fast and furious.
Ted Simons: Mary Jo, we asked this question last week. Dennis Burke, does he have a political future in Arizona? He was considered a shining light for a while.
Mary Jo Pitzl: And rumored to run for state attorney general before this appointment. Who knows? Things change, but you do know that what will follow Dennis Burke probably for the rest of his life on his résumé, he resigned under a belief he was made to resign and it's more how time will treat that. Was he seen as a scapegoat or involved and responsible for this.
Howard Fischer: Remember, Paul Charlton was also forced out by a certain Republican administration and people recognized palm was being made a scapegoat for something else.
Mary Jo Pitzl: But Paul didn't fall on his sword like Dennis did.
Howard Fischer: 3:00 in the morning, somebody called and said, clean out your desk. But Dennis is going to need to speak up. Look, folks, this thing was blessed by Eric holder and I ain't taking the blame.
Ted Simons: So far not.
Jeremy Duda: The problem is we -- there's so many unknown details, who was involved in what and who made what decisions. If it turns out that Dennis Burke was just responding from pressure from the top. You know, that's pretty much it.
Ted Simons: Highway revenue funds -- bonds, I should say, downgraded. Boy, oh, boy, this could be a -- boy oh, boy, this could be a big deal.
Howard Fischer: It's not like the Standard & Poor's telling the U.S. treasury, don't bother. This is important. The state using all its gas money and vehicle license fees in a highway revenue fund and the constitution says it has to be used for transportation purposes. That fund then is pledged to pay off the borrowing. We don't keep the money aside until we're ready to build the next stretch of the 202. We borrow against it and pledge the funds. The legislature has been stretching the definition of what is transportation. The past year, they took another $80 million off that to pay for the motor vehicle division and moody's isn't saying it's legal or not. Just that it's less money to pay off the bonds and we're going to take them down a bit.
Mary Jo Pitzl: This is one of the consequences of the budget as the legislature tried to bring the budget into balance, shaking the coins out of the seat cushions and this is one of the negative consequences of that, which will hurt ADOT’s ability to borrow down the road.
Ted Simons: And at the same time, fewer people driving.
Howard Fischer: And the friend across the table here brought another hybrid -- bought another hybrid and denying us the money we need to pave the roads.
Mary Jo Pitzl: I paid the higher sales tax. The one cent increase.
Howard Fischer: As cars become more efficient, you know, several years ago they talked about the idea of making the gas tax a percentage. We have a flat basically 18 cent a gallon gas tax and so as the -- even as the price of gas increases, the usage is not growing as fast as the population.
Ted Simons: Jeremy, how much traction does the public have that it's more expensive to do business because of the raid in funds? Is that something that the legislature will have to pay for, answer to, or flies under the radar?
Jeremy Duda: Probably ultimately flies under the radar. There's so many fund sweeps and cutting corners and finding ways to pluck a few cents here and there. It seems unlikely that people will be in an uproar over this.
Ted Simons: The idea of a budget surplus has people wandering. A lot of people want it to go to education. What is the governor's office saying?
Mary Jo Pitzl: She was at a education-related press conference and said she couldn't guarantee it would go to education. But previously, said any surplus, wants it to pay down the state's debt. A lot of Republicans in the legislature are on the same page with the governor on that. But Senator Kyrsten Sinema says any extra should go to education because it's one of the things that cuts across all kinds of ideologies.
Howard Fischer: But the problem is some of surplus is temporary. May 31st, 2013, $59 million goes away, and the argument is you're better off using the one-time money to pay off the debt.
Ted Simons: Good discussion. Thanks for joining us.
Ted Simons: Monday on "Horizon" -- We'll take a look at the new banner M.D. Anderson cancer center opening soon in Gilbert. Monday, on "Horizon." "Washington week" is next. That's it for now. I'm Ted Simons. Thank you so much for joining us. You have a great weekend!