PHOENIX โ The question of whether the Court of Appeals will immediately intercede in the fight between Katie Hobbs and Warren Petersen over the appointment of state department directors depends on whether the judges believe they need to step into the political spat right now.
On one side, an attorney for Petersen, the Senate president, says the governor will be free eventually to appeal a ruling that she is breaking the law by having โexecutive deputy directorsโโ run state agencies.
Thomas Basile pointed out, however, that Maricopa County Superior Court Judge Scott Blaney, who issued the ruling, has not yet ordered her to do anything about the violation. Only if and when that happens, he told the appellate judges, can Hobbs seek special action appellate review.
But Andrew Gaona, who represents Hobbs, said the case is so important โ as are the precedents it will set for future governors โ that there is need for immediate intervention.
And if nothing else, Gaona said there just isnโt the time to wait for the process to play out under normal procedure.
He said that Blaneyโs ruling last month against Hobbs has created confusion about whether the executive deputy directors really have the authority to run the agencies to which the governor has assigned them. In fact, he said, there already are those who are using that uncertainty to challenge decisions of state agencies.
All that, said Gaona, canโt wait.
โThe problem is that an appeal from a final judgment many months from now will not remedy the widespread harm to Arizona state government operations in the future,โโ he told the appellate judges. โThis court should accept special action to promptly settle this uncertainty of law.โโ
Put another way, Gaona wants to bring a quick end to the debate about whether 13 people whom the Senate has not confirmed as agency directors legally can continue to do the same job in their positions as deputies.
In that ruling last month, Blaney said Hobbs was certainly within her power to withdraw the nominations of those who the Senate Director Nominations Committee either rejected as her picks outright or simply refused to give them a hearing.
Where she broke the law, the judge said, was then turning around and using a procedure to instead name these exact same people โexecutive deputy directorsโโ โ positions that do not need confirmation โ and giving them the exact same duties and powers.
Potentially more significant, the governor never submitted new names for confirmation for director positions. leaving them vacant and those deputy directors in charge. Hobbs said she would resume only after she is convinced that the Senate is willing to give them proper consideration.
Petersen sued, arguing she canโt avoid the legal requirement that those actually running state agencies be subject to Senate review and confirmation. Blaney agreed.
โThat process requires oversight by the legislative branch,โโ the judge said. โHere, the governor willfully circumvented that statutory process and eliminated the legislative branch from its executive role.โโ
Whatโs complicating matters is that Blaney has not yet ordered Hobbs to do anything. Instead, he scheduled a hearing for next month to give the two sides a chance to work something out.
Hobbs, however, chose to spurn that suggestion, insisting last month โit is not possible at this pointโโ to work out something with Petersen. And then she turned around and directed Gaona to seek immediate Court of Appeal intervention.
Basile, in new filings for Petersen, told the appellate judges they should ignore that request.
He does not dispute Gaonaโs contention that the issue raises critical questions. But that, said Basile, isnโt enough to bypass the normal process that would require Hobbs to await a final order from Blaney and then seek appellate review.
โThe undisputed importance of the legal questions animating this case does not, by itself, evince the extraordinary circumstancesโโ necessary to have the case play out through a regular appeal,โโ he wrote.
And thereโs something else.
Basile said he believes โ and the judge has ruled โ that the law is clear about what the governor has to do when agency director positions become vacant. Further, he said it was Hobbs herself who created the current legal problem she now wants the appellate court to immediately review by refusing to submit new names for the 13 posts that still remain vacant.
That, he said, means there is โno viable claim for special action relief.โโ
In any event, Basile said, Blaney got it right in finding Hobbs in violation of the law requiring her to submit the names of those she wants to run state agencies to the Senate for review.
Gaona told the appellate judges that those arguments urging them to dismiss the governorโs request for immediate special action relief miss the point of how unusual the case is and why they should hear her arguments now.
One is that the issue raises strictly a legal question. That means there is no factual dispute between Hobbs and the Senate, allowing the appellate judges to simply rule what the governor is and is not required to do under the laws on director nominations.
What also is true, Gaona said, is that there is no legal precedent, meaning what the appellate judges decide will be the first ruling of its kind.
Gaona also said that intervention now is appropriate given the โstatewide importanceโโ of getting the issue resolved. And he said the fact that this is a dispute between the executive and legislative branches is also a reason for the appellate judges to weigh in now.
Blaney, in his ruling, acknowledged that Hobbs took the actions she did because the governor is unhappy that the Senate panel wonโt act on her nominations. But he said thatโs no excuse.
โThe governorโs frustration with a co-equal branch of government โ even if that frustration was justified โ did not exempt her director nominees from Senate oversight,โโ he wrote.
โEach of these de facto directors remains in control of their respective agencies in violation of applicable statutes, but with all the authority of a properly appointed director,โโ Blaney continued. โThese agencies wield tremendous power โ they issue rules that have the effect of law and decide when and where to enforce those laws.โโ
And the judge pointed out that, for all intents and purposes, even Hobbs sees them as directors.
โTheir reporting chains are identical to that of a properly appointed director, reporting directly to the governor or a chief of staff as the heads of their respective agencies,โโ he said.
โThey serve as the leaders of their respective agencies indefinitely at the pleasure of the governor,โโ Blaney continued. โTheir indefinite tenure without Senate consent violates (state law) which says, โIn no event shall a nominee serve longer than one year after nomination without Senate consent.โ โโ
The appellate judges have not set a date to consider the governorโs request.
