Judge Denies Senator Scott Bundgaard's Request to Halt Ethics Hearing Over Fight With Former Gal-Pal
A Maricopa County Superior Court judge has denied state Senator Scott Bundgaard's request to put a stop to the State Senate ethics hearing over the fight the senator got into with his former gal-pal on the side of a Valley highway last year.
See our coverage of the scuffle the senator had with former flame Aubry Ballard here.
In his ruling, Judge John Buttrick explains that -- among other reasons for denying Bundgaard's request -- the court has no authority over how the Legislature polices itself.
"The doctrine of separation of powers is rooted in the Arizona Constitution which directly prohibits the judicial branch from 'exercise[ing] the powers properly belonging to either' the legislative or executive branches. Ariz. Const. art. III. Among those powers granted to the legislative branch is that of judging the 'qualification of its own members' and determining "its own rules of procedure,'" Buttrick writes, citing Arizona's constitution.
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Bundgaard and his attorneys have argued that the hearing is unfair to the senator because members of the Ethics Committee have a bias against him -- which, he claims, is evident in comments certain members have made to the media about the February scuffle.
The senator's attorneys say the committee is "determined to convene a kangaroo court to expel Senator Bundgaard from the Senate."
Regardless, Buttrick says the hearing is a "political question as to which [the court] does not have jurisdiction."
Bundgaard didn't immediately respond to New Times request for comment. We'll let you know if we hear back from him.
In the meantime, see Buttrick's entire ruling below.
UNDER ADVISEMENT RULING
Courtroom 704 - Central Court Building.
8:47 a.m. This is the time set for oral argument on Plaintiff's Application for Temporary Restraining Order, filed December 12, 2011, and Defendants' Motion to Dismiss, filed December 19, 2011. Plaintiff Scott Bundgaard is present with counsel, Andre H. Merrett and Shawn K. Aiken. Defendants are represented by counsel, Kory A. Langhofer and Michael T. Liburdi Jr.
A record of the proceedings is made by audio and/or videotape in lieu of a court reporter.
Oral argument is presented.
IT IS ORDERED taking these matters under advisement.
9:44 a.m. Matter concludes.
Plaintiff Senator Scott Bundgaard ("Bundgaard") has moved for the entry of a temporary restraining order enjoining the Defendants, the Arizona State Senate Ethics Committee and all five of its members, from conducting any hearings in connection with the August 26, 2011 ethics complaint filed against Bundgaard.1
The essence of Bundgaard's claims as set forth in the First Amended Verified Complaint, filed December 19, 2011, and amplified in the filings on the pending motions, is that the Defendants' scheduling of the hearing violates the ethics committee's own procedural rules and that certain actions of some of the Defendants, including public statements allegedly indicating their disapproval of Bundgaard, ensure that the contemplated disciplinary hearing would be illegal, unfair and arbitrary.
In short, Bundgaard asserts that the Defendants are "determined to convene a kangaroo court to expel Senator Bundgaard from the senate." [Plaintiff's Reply on TRO at 10]
Defendants dispute Bundgaard's claims on the merits, but also argue in the first instance that the First Amended Complaint must be dismissed in its entirety as nonjusticiable because it involves a purely political question beyond the jurisdiction of this Court. That issue is raised by Defendants' Motion to Dismiss and will be addressed first.
The doctrine of separation of powers is rooted in the Arizona Constitution which directly prohibits the judicial branch from "exercise[ing] the powers properly belonging to either" the legislative or executive branches. Ariz. Const. art. III. Among those powers granted to the legislative branch is that of judging the "qualification of its own members" and determining "its own rules of procedure." Ariz. Const. art. IV, pt. 2, §8. Specifically, each chamber may "punish its members for disorderly behavior." Ariz. Const. art. IV, pt. 2, §11. Here the state senate is engaged in exercising those very powers which the legislature alone among the three branches is privileged to exercise.
The Courts are bound not to interfere with the exercise of such powers where there is "a texturally demonstrable constitutional commitment of the issue to a coordinate political department." Kromko v. Arizona Bd. of Regents, 216 Ariz. 190, 192 (2007) ("Kromko") (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)). This test forms the basis of the "political question" doctrine which flows directly from "the basic principle of separation of powers." Kromko at 192.
Here the legislature has been expressly granted the power to conduct the hearing in question and to implement its own procedural rules to do so.2
Therefore, under Kromko, the Court finds this to be a political question as to which it does not have jurisdiction.3
The Motion to Dismiss is granted pursuant to Ariz. R. Civ. P. 12(b)(1).
The Motion for Temporary Restraining Order is denied as moot.
A formal Order to Dismiss With Prejudice is signed by the Court on January 3, 2012, and filed (entered) by the Clerk on January 3, 2012.
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