Hourly Update

Redistricting case stays with judge after challenge fails

PHOENIX — The state's redistricting commission is questioning how it can get a fair shake from a trial judge who the commission suggests could be resentful, partly because his rulings on key issues on the legality of Arizona's map of legislative districts were overturned on appeal. However, both the state Court of Appeals and the Arizona Supreme Court have turned aside efforts by the Independent Redistricting Commission and a Republican group which supports the map to have the case reassigned from Judge Kenneth Fields of Maricopa County Superior Court. That leaves Fields presiding over Democrats' challenge that the commission didn't create enough competitive legislative districts - ones winnable by either major party _ when it drew the map used in the past two elections. Everybody involved now acknowledges that the case won't be resolved in time to affect this year's election, but the eventual outcome could determine which districts are used in 2008 and 2010. After that, new census results will be used to draw new districts. The current map favors Republicans, and the high stakes involved in controlling the Legislature prompted Democrats to sue in 2002. Several cities in Coconino and Mohave counties also are involved in the case, arguing over how the lines affect their communities' representation at the state level. Fields ruled in the Democrats' favor in 2004 but the Court of Appeals in 2005 issued a sweeping ruling that rejected his legal reasoning. The Court of Appeals sent the case back to trial court for reconsideration under different legal criteria. However, the appellate court left it up to Fields to decide whether to conduct an entirely new trial or reconsider the case in a more limited fashion. Fields chose the latter route. Under state court rules, a new trial would have given the commission a right to demand a new judge. The commission argued that the Court of Appeals' order amounted to that and that a different judge would be appropriate under the circumstances. Apart from being reversed in the 2005 ruling, Fields also was overturned in two other matters in the case and made a "stunning accusation" when he said the volunteer commissioners intentionally violated the Arizona Constitution, the commission argued. The commission cited a 1972 ruling in which the state high court said a case should go to a different judge if there's the "mere possibility" that a judge might subconsciously resent a lawyer or defendant after being overturned on appeal. "Petitioners face more than the 'mere possibility' of Judge Fields' subconscious resentment. The trial judge has been reversed not once but three times," the commission's petition stated. "He has made the gratuitous accusation that the IRC "intentionally violated the (Arizona) Constitution. He now must completely re-decide the merits of the case." The Democrats challenging the map opposed the commission's request for a different judge. Court rules don't require a new judge and it makes sense to have Fields stay on because of his knowledge of the evidence, they argued. "Petitioners simply are unhappy with Judge Fields and want to shop for another judge," the Democrats stated. "Petitioners are not pleased that Judge Fields concluded that the commission acted arbitrarily and capriciously in adopting the legislative redistricting plan, and so they are striving mightily to find a new judge." The Court of Appeals rejected the commission's petition last month and the Supreme Court did likewise Thursday without comment, leaving the case with Fields, who declined to comment when contacted Friday. Commission Chairman Steve Lynn on Friday deflected a question when asked whether he believes Fields will handle the case fairly. "It appears as though ... that question will be answered by the judge himself," said Lynn, a Tucson utility executive. However, Lynn acknowledged he was offended that Fields said commissioners intentionally violated the Arizona Constitution. Some of the judge's comments went "well beyond some of the evidence presented," Lynn said. Because the Court of Appeals has stated criteria for Fields to use in deciding the case, "if those rules are not followed, you can rest assured that we will again ask the Court of Appeals to make those judgments known," he said.