By Howard Fischer
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PHOENIX — A bid by the Goldwater Institute to change how judges on the Court of Appeals are elected drew a skeptical response Monday from a trial judge who is hearing the case.

Maricopa County Superior Court Judge Frank Moskowitz acknowledged the current system means only residents of certain counties get to decide on whether appellate judges, all appointed by the governor, get to continue to serve. But he said that does not mean that residents of other counties are somehow disenfranchised by their rulings, which have statewide effect.

In fact, Moskowitz said, any ruling he issues in this case, even as a judge elected only by Maricopa County residents, would have statewide effect in the sense that, unless appealed, his decision would determine exactly who will and will not be on the Nov. 5 ballot statewide.

All that left attorney Andrew Gould, arguing for the Goldwater Institute, trying to convince Moskowitz not only that he doesn’t have statewide authority — even as Gould argued he does have the power to order Secretary of State Adrian Fontes to put the names of all appellate judges up for election this year on the ballots of voters in all 15 counties.

At the same time, Assistant Attorney General Emma Mark, defending the current system, accused Goldwater of trying to get Moskowitz to do something that the organization’s Republican allies at the Legislature could not: change the election system.

Moskowitz indicated he was leaning toward tossing the claim but reserved final judgment.

That, however, would not be the end of the issue. Gould said the case ultimately would go to the Supreme Court.

A quick final ruling is necessary.

Counties will start printing ballots around the third week of August. They need to know what names and races will go to which voters.
At the heart of the claim is the fact appellate judges, appointed by the governor, must stand for reelection on a retain-reject basis every six years.

But the appellate court is set up by state law as two divisions. And the voting is more complex than that.

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.

But all appellate court rulings are binding on all of the state. That is especially true given only a small percentage of those cases ever wind up before the state Supreme Court, meaning that appellate ruling is the last word.

That, Gould told Moskowitz, means someone’s case could ultimately be decided by judges whom that person never had a right to vote for — or against.

By contrast, every Arizonan votes whether to retain or reject every justice on the Arizona Supreme Court.

“Voters are disenfranchised because they can’t vote for certain judges,” Gould said.

Mark told Moskowitz all that is legally irrelevant.

“Judges don’t represent people,” she said, in comparison to state lawmakers. “They serve people.”

The judge himself said there are flaws to Gould’s argument about ensuring all voters get a say.

Consider, he said, the fact the Supreme Court is entitled to call back judges from retirement to hear cases, not only in trial courts but also appellate courts.

“No Arizonan is ever going to vote for those pro-tem judges,” Moskowitz said. “They’re never going to be in a retention election that somebody can necessarily all vote for.”

And those decisions, the judge said, are binding.

Moskowitz also noted superior court judges from one county can be called upon to hear cases in other counties.

That, for example, is what happened when there was a lawsuit in Cochise County after the 2022 election over the failure of the supervisors to certify the election results. The case was assigned to Pima County Superior Court Judge Casey McGinley, who ordered the board to act.

This isn’t the first bid by the Goldwater Institute, which in its role of arguing for limited government is involved in many lawsuits to overturn legislative or local government decisions, to nullify the system.

On a party-line vote in 2023, the Republican-controlled Legislature approved a proposal by House Speaker Ben Toma, backed by Goldwater, 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 was 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.
Mark told Moskowitz that’s critical to what the Goldwater Institute now wants him to do.

“They are asking this court to rewrite the judicial retention election statutes to achieve what they could not achieve legislatively,” she said.
Moskowitz said even if he agreed with Goldwater, the only thing he could do is declare the current system illegal.

All that would do, he said, is mean there would be no retention election for appellate judges this year, saying it would then be up to lawmakers to make a fix — and somehow do it before that August deadline. The judge said he’s not going to create a new system from the bench.

“That’s for the Legislature and other powers, not for this court,” he said.
Moskowitz said he will try to expedite a ruling.