Katie Hobbs wants intervention in director nomination dispute

On the one hand, a lawyer for Petersen, the Senate president, says the governor will finally be able to appeal the ruling that she broke the law by entrusting management of state agencies to “deputy executive directors.”

Thomas Basile noted, 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 appellate judges, can Hobbs seek a special appellate action.

But Andrew Gaona, representing Hobbs, said the case is so important — as are the precedents it will set for future governors — that immediate action is necessary.

Most importantly, Gaona added that there is no time to wait for the process to go through as normal.

He said Blaney’s ruling last month against Hobbs has created confusion about whether deputy executive directors actually have the authority to run the agencies to which the governor assigns them. In fact, he said, there are already some who are using that uncertainty to challenge state agency decisions.

Gaona stated that all this could not wait.

“The problem is that appealing a final judgment months from now will not repair the widespread harm to the future operations of Arizona government,” he told the appellate judges. “This court should adopt a special action to quickly resolve this legal uncertainty.”

In other words, Gaona wants to quickly end the debate over whether 13 people who were not legally confirmed by the Senate as agency directors can continue to do the same work as deputy directors.

In a ruling last month, Blaney said Hobbs certainly had the right to withdraw the nominations of those whom the Senate Directors Nominations Committee rejected as her nominees or simply refused to give them interviews.

The judge found she broke the law by turning around and using a procedure that appointed the same people to “deputy executive director” positions – positions that do not require approval – and gave them exactly the same duties and powers.

Perhaps more significantly, the governor never submitted new names for confirmation to the directorships, leaving them vacant and deputy directors in charge. Hobbs said she would return to work only after being convinced the Senate was willing to give them proper consideration.

Petersen sued, arguing that she could not avoid the law’s requirement that those who effectively run state agencies be subject to Senate review and confirmation. Blaney agreed.

“This process requires oversight by the Legislature,” the judge said. “Here, the governor has deliberately bypassed that statutory process and eliminated the Legislature from its executive role.”

Complicating matters is the fact that Blaney has yet to order Hobbs to do anything. Instead, he has scheduled a hearing for next month to give both sides a chance to resolve the matter.

But Hobbs rejected that suggestion, insisting last month that it was “not possible at this point” to work something out with Petersen. Then she turned around and told Gaona to immediately seek intervention from the Court of Appeals.

Basile, in new papers filed on Petersen’s behalf, told appellate judges they should ignore the motion.

He doesn’t dispute Gaona’s contention that the issue raises critical questions. But that, Basile said, isn’t enough to bypass the normal process, which would require Hobbs to wait for a final order from Blaney and then seek appellate review.

“The undoubted importance of the legal issues underlying this case does not, in and of itself, establish the existence of extraordinary circumstances that would be necessary for the case to be tried under standard appellate proceedings,” he wrote.

And there is something else.

Basile said he believes — and the judge ruled — that the law clearly spells out what a governor must do when agency directorships become vacant. He also said Hobbs herself created the legal problem she now wants the appeals court to immediately address by refusing to submit new names for the 13 positions that remain vacant.

This means that “there are no reasonable grounds for applying for relief under special measures.”

In any case, Basile said, Blaney was right to find that Hobbs had violated the law requiring her to submit to the Senate for consideration the names of individuals to run state agencies.

Gaona told the appellate judges that the arguments urging them to reject the governor’s request for immediate special relief miss the point about the unusual nature of this case and why they should hear her arguments now.

One is that the issue is purely a matter of law. That is, there is no factual dispute between Hobbs and the Senate, allowing appellate judges to simply rule on what the governor must or must not do under the law regarding director appointments.

It is also true, as Gaona said, that there is no legal precedent, meaning the appellate judges’ ruling will be the first of its kind.

Gaona also said that intervening now is appropriate, given the “statewide importance” of resolving the issue. He also said that the fact that this is a dispute between the executive and legislative branches is also why the appellate judges should speak out now.

Blaney, in his ruling, acknowledged that Hobbs took action because the governor is unhappy that the Senate committee will not act on her nomination. But he said that is no excuse.

“The governor’s frustration with a coequal branch of government — even if that frustration was justified — did not exempt her director nominees from Senate oversight,” he wrote.

“Each of these de facto directors retains control of their agencies, violating applicable laws but with all the authority of a duly appointed director,” Blaney continued. “These agencies wield enormous power—they issue regulations that have the force of law and decide when and where to enforce those laws.”

And the judge noted that, for all intents and purposes, even Hobbs saw them as directors.

“Their reporting lines are the same as an appropriately appointed director who reports directly to the governor or chief of staff as head of their respective agencies,” he said.

“They serve as leaders of their agencies for indefinite terms at the discretion of the governor,” Blaney continued. “Their indefinite term without Senate consent violates (state law), which says, ‘In no case shall an appointee serve more than one year after appointment without Senate consent.’”

The appeals court judges did not set a date for considering the governor’s motion.