By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The current method of retaining and rejecting judges to the Arizona Court of Appeals is unconstitutional and should be struck down, according to a new lawsuit filed Wednesday by the Goldwater Institute.

The organization, which lobbies and litigates against government regulation, contends the current system under which people from only certain counties get to vote on certain appellate judges illegally disenfranchises some voters. So now attorneys from Goldwater want the Arizona Supreme Court to void the process ahead of the 2024 election, allowing all voters to decide on all judges.

“It comes down to a really simple principle: Every Arizonan should have the right to vote on judges that affect them,” attorney Jonathan Riches told Capitol Media Services. “And the current system doesn’t allow that.”

More to the point, Riches said decisions of both divisions of the Court of Appeals are legally binding on the entire state, regardless of where issued.

But the Supreme Court won’t take up the issue just yet.

The lawsuit names Secretary of State Adrian Fontes as the defendant, mainly because he is the one who administers all statewide elections, including those for appellate-level judges. And he is the one who would have to implement whatever the Supreme Court decides.

But in a brief order late Wednesday, Justice Ann Scott Timmer dismissed the case, telling the Goldwater Institute to refile the lawsuit, this time including “all persons who have or claim any interest that would be affected by the relief sought.”

Timmer did not say, however, who would need to be jointed in the lawsuit to have it heard. And there was no immediate response from Riches.

Strictly speaking, Arizona does not elect appellate judges.

Under a system approved by voters in 1974, they are chosen by the governor who has to select from a list submitted by a screening panel.

But that still requires sitting judges to stand for reelection on a retain-reject basis every four years. If turned out of office by voters, the selection process starts over.

At the heart of the issue is that governors are required to select appellate judges based on county of residence. Riches said the Goldwater Institute is not challenging that, saying it promotes diversity.

What is a problem, he said, is the law says the list of who can vote to retain or reject them is based on the residence of the voter.

“Voters cannot vote on the retention of judges who reside outside their geographic area,” the lawsuit says.

This isn’t the first bid to nullify the system.

On a party-line vote earlier this year, the Republican-controlled Legislature approve a proposal by House Speaker Ben Toma to require all Court of Appeals judges to stand for retention on a statewide basis. No one testified against it.

But Gov. Katie Hobbs vetoed the proposal by the Peoria Republican, saying the proposed cure of House Bill 2757 — and, by extension, what the Goldwater Institute is seeking to do through the lawsuit — is worse than the current situation.

“Allowing voters statewide to vote on whether to retain all of Court of Appeals judges regardless of the judge’s division assignment, while retaining the division structure, would unfairly dilute the votes of those Arizonans most directly impacted by each division’s judges,” she wrote.

But Riches said that ignores the reality of how the system really works.

“There is no guarantee that any judge they vote for will sit on any given case,” the lawsuit states.

It starts with the fact that cases can — and are — transferred between divisions. So what that can mean is that the review of a decision of a Maricopa County Superior Court judge in a dispute between Maricopa County residents can be handled by appellate judges, none of whom are from Maricopa County.

It’s all the result of the somewhat complex system that now exists due to the two-division system.

For example, someone who lives in Pima County, in Division II of the Court of Appeals, can vote to retain or reject only appellate judges who were selected by the governor from that county. Residents of the other counties in Division II — Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties — can cast ballots only for judges who were picked from among those six counties.

The same situation exists in Division I, with Maricopa residents entitled to vote on the future of appellate judges only from their county, and residents of Yuma, La Paz, Mohave, Coconino, Yavapai. Navajo or Apache counties entitled to weigh in only on appellate judges from those seven counties.

All that, Riches said, means that litigants “will frequently be subject to appellate decisions where they never voted for a single judge on the panel.”

On a practical level, the Goldwater Institute says about 60% of Arizona voters get to cast a ballot in retention elections for appellate court judges residing the the state’s largest county. But only about 10% of registered voters can participate in retention elections for Court of Appeals judges in Pinal, Cochise, Santa Cruz, Greenlee, Graham or Gila counties.

All that, the lawsuit says, violates state constitutional provisions requiring equal protection of all voters.

Riches noted, by contrast, voters in the entire state get to decide on retaining or rejecting the members of the Arizona Supreme Court, regardless of the residence of the justices.

He said, though, that doesn’t fix the problem as most cases make it no farther than the Court of Appeals.

That is because, unlike the appellate court, the Supreme Court does not have to take every case that comes to it. And a decision not to review an appellate court ruling leaves that as the binding precedent for the whole state.

The lawsuit is being backed by — and with the legal help — of Republican Andrew Gould, who was a Yuma County Superior Court judge before being tapped for the appellate court in 2011 by Gov. Jan Brewer.

He became a justice of the Supreme Court in 2016 after the Republican-controlled Legislature expanded the size of the high court from five to seven, giving Gov. Doug Ducey two new appointments.

Now he is listed as “special counsel” on this lawsuit.

In a prepared statement, Gould called the current system “arbitrary.”

“If a judge’s decision will affect the whole state, it shouldn’t matter where in the state he or she lives,” he said. “The current system is unfair to the millions of Arizona voters who are bound by the decisions of the judges on the Arizona Court of Appeals, and its raises serious constitutional questions.”

The has been no word from the Supreme Court whether it will consider the lawsuit.