In a special action filed in the Arizona Court of Appeals June 18, Gov. Katie Hobbs Hobbs challenged a Superior Court ruling that deemed her appointment of executive deputy directors in lieu of sending nominees through the Senate confirmation committee to be illegal.
Maricopa County Superior Court judge Scott Blaney previously found Hobbs’ workaround illegally circumvented the Senate’s Committee on Director Nominations, or DINO committee, and Senate confirmation as a whole.
In the petition to the Court of Appeals, attorneys for the governor claimed the ruling must be reversed given the lack of any statutory violations and no evidence Hobbs’ actions were for an improper purpose, given alleged obstruction by the DINO committee.
Austin Yost wrote, if allowed to stand, the finding that Hobbs’ current deputy director appointments are invalid could “create a massive cloud of uncertainty around everything that the Executive Deputy Directors in state agencies have done.”
Over the course of the 2023 legislative session, the Senate approved and confirmed six of Hobbs’ 22 agency director nominations, rejected three, held one in committee and failed to vote on another that had received committee approval.
Hobbs, who called the committee a “political circus,” said chairman Sen. Jake Hoffman, R-Queen Creek, stalled consideration and improperly rejected her nominees. She then withdrew her remaining nominees and later worked to install the nominees as “executive deputy directors” of their respective agencies.
The Senate then filed suit, alleging Hobbs actions violated state laws governing director nominations. Hobbs claimed each action she took was legal and necessary given the “slow walk” of her nominees through the Senate.
But Blaney found Hobbs “improperly, unilaterally appointed de facto directors.” And though he acknowledged each step the Governor’s Office took was lawful, he ruled Hobbs “took those actions for an improper purpose culminating in an improper result” in violation of state law.
In a special action to the Arizona Court of Appeals, Yost and Hobbs’ in-house counsel, Bo Dul, claimed the Superior Court erred in ruling that statute mandates the governor make nominations for vacant director positions and upholding the ruling would expand “the Senate’s role in the Governor’s executive appointments so broadly that the Senate could shackle executive operations at its want and whim.”
Yost claimed the statute does not place a deadline on when the governor needs to submit nominations and interpreting it to do so would “place the Governor’s ‘supervision of the executive department’ at the Senate’s mercy.”
He further argued the Superior Court’s ruling conflated laws governing director and deputy director appointments, noting statute does not require deputy directors to receive Senate confirmation.
“The superior court cannot reverse engineer a statutory violation from actions that all complied with relevant statutes. Nor is there any interpretive principle that would allow a court to ground a statutory violation in an actor’s purported ‘improper purpose’ rather than an action that actually violates a statute’s terms,” Yost wrote.
Hobbs’ counsel rejected any allegation of improper purpose and again turned to the conduct of the DINO committee. Her attorneys claimed the committee has “never taken its responsibilities seriously,” and said the committee’s “whole existence” was designed to “slow-walk” nominees.
“To the contrary, the undisputed facts prove that the Senate’s bad-faith conduct impeded the Governor’s ability to fulfill her constitutional and statutory duties Given that the Governor alone is responsible for the ‘supervision of the executive department,’ this is as proper of a purpose as it gets,” Yost wrote.
A response from the Senate is due in seven days, per a notice from the Clerk of the Court of Appeals.
In a statement, Senate President Warren Petersen said, “We’re confident the appeal is going to have the same outcome. Clearly, she is trying to buy time and is hoping for a change at the Legislature so that she can avoid following the law.”
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