By Howard Fischer
Capitol Media Services
PHOENIX -- Gov. Katie Hobbs acted illegally in naming 13 individuals as deputy directors to run state agencies after the Senate would not confirm her picks, Maricopa County Superior Court Judge Scott Blaney ruled Wednesday.
In a 17-page decision, the judge acknowledged that Hobbs was "arguably'' within her powers to withdraw the names of those she tapped as directors after she could not get them confirmed. The governor then used a maneuver to have them named deputy directors of the same agency.
Where she broke the law, said Blaney, is in giving those deputies the exact same duties and powers they would have had as Senate-confirmed directors.
"The governor ... took those actions for an improper purpose, culminating in an improper results -- one that violates Arizona law,'' he wrote.
Blaney also took a slap at Hobbs for arguing that state law allow the appointment of deputy directors, even without directors who are subject to Senate confirmation over them.
"That argument improperly elevates form over substance,'' the judge said.
He said under Arizona law, directors run their respective agencies and are appointed to their positions through a statutorily defined process.
"That process requires oversight by the legislative branch,'' Blaney said. "Here, the governor willfully circumvented that statutory process and eliminated the legislative branch from its executive role.''
And the judge said if he were to agree with her arguments it would "render meaningless'' a host of other state laws dealing with state agencies.
But Blaney stopped short of ordering Hobbs to submit nominations to the Senate -- at least for now -- saying he will hear arguments later this summer.
"This will give these co-equal branches of government an opportunity to meet and confer in an attempt to reach a mutually agreeable resolution of this dispute,'' he said. But the judge said if they can't agree he will bring them back to court.
Gubernatorial press aide Christian Slater made no promises.
"Gov. Hobbs stands ready to work with anybody in the Senate who is serious about putting the political games aside and delivering for everyday Arizonans,'' he said, saying she "remains open to a fair and timely process for confirmation of nominees.''
But he also said Hobbs plans to appeal. That, however, cannot occur until after that future hearing Blaney scheduled to see if the two sides can work something out without further court orders.
The ruling is a clear victory for both Senate President Warren Petersen and Sen. Jake Hoffman, R-Queen Creek, whom he had tapped after Hobbs' election to head a special "Director Nominations Committee'' to review the governor's nominations. Both had made it clear they wanted the legally required process to be more intense than what in the past has often been a cursory review of the qualifications of the gubernatorial nominees.
Several of the governor's picks were confirmed and a few were rejected. But that still left 13 by last September who were in a governmental limbo, allowed to serve as directors for up to a year. If they were not confirmed in that time, the governor would have to name someone else.
But Hobbs, rather than waiting, then withdrew those 13 names.
In a letter to Petersen, she accused Hoffman of being not just "disrespectful'' to her choices but trying to "leverage the confirmation of qualified nominees for the implementation of his policy preferences within the executive branch.''
"He has contacted nominees to imply that their confirmation hinged on the rescission of long-standing agency policies over which he has no authority,'' the governor told Petersen. "He has held up the confirmation of a nomination simply for identifying as pro-choice.''
But it is what happened next that resulted in the litigation.
Hobbs, in withdrawing the names, left each agency without a director. And she then named Ben Henderson, her director of operations -- a non-confirmation position -- to temporarily head an agency.
Henderson then named the nominated-but-unconfirmed director as "executive deputy director.'' He then quit that agency, leaving that person in charge -- and moved on to the next agency where he repeated the process for all 13 spurned Hobbs nominees.
Petersen contends this "scheme'' -- his word -- was an illegal effort to bypass what is required by state law. Kory Langhofer, his attorney, said once Hobbs withdrew the names of the original nominees she had an obligation to submit new ones.
Blaney agreed.
He said the statutes lay out a schedule for when a governor has to submit a nomination.
If a vacancy occurs while the Legislature is in session, a name has to be offered during that session and the governor must "promptly transmit'' the nomination to the Senate president.
But if lawmakers are not in session, the statutes require transmitting a name within the first week of the next regular session. That did not occur.
And the judge said that Hobbs' political fight with the Senate does not change anything.
"The governor's frustration with a co-equal 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 remains in control of their respective agencies in violation of applicable statutes, but with all the authority of a properly appointed director,'' Blaney continued. "These agencies wield tremendous power -- they issue rules that have the effect of law and decide when and where to enforce those laws.''
And the judge pointed out that, for all intents and purposes, even Hobbs sees them as directors.
"Their 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,'' he said.
"They serve as the leaders of their respective agencies indefinitely at the pleasure of the governor,'' Blaney continued. "Their indefinite tenure without Senate consent violates (state law) which says, 'In no event shall a nominee serve longer than one year after nomination without Senate consent.' ''
And he took special notice of the fact that these executive deputy directors are the same people who Hobbs had nominated but withdrew after she couldn't get the full Senate to act on their nominations. That list includes Joan Serviss who was the governor's pick to head the Arizona Department of Housing.
Hoffman's committee gave her a hearing but voted along party lines to reject her to head the agency largely due to accusations of serial plagiarism. Yet as of right now she still heads the agency as its executive deputy director.
Slater, in the governor's response, took a specific swat at Hoffman.
"Arizonans want sanity, not the chaos of indicted fake elector Jake Hoffman's sham committee that he abuses to force his radical political agenda on Arizonans,'' he said.
That refers to the fact that Hoffman was one of 11 Republicans who signed statements saying that Donald Trump had won the 2020 presidential race and was entitled to the state's 11 electoral votes despite the fact that the race was won by Joe Biden. All 11 are charged with conspiracy, fraudulent schemes and artifices, and forgery in connection with the submission, as are seven other allies of the former president.
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