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Judge: Hobbs acted illegally in appointing Arizona agency deputy directors

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.

Judge won't force resubmission, for now

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.

Withdrawn nominations

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 said it 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.

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Mark Brodie is a co-host of The Show, KJZZ’s locally produced news magazine. Since starting at KJZZ in 2002, Brodie has been a host, reporter and producer, including several years covering the Arizona Legislature, based at the Capitol.