By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A trial judge has rejected a bid by the Goldwater Institute to change how judges on the state Court of Appeals are elected.

In a new ruling, Maricopa County Superior Court Judge Frank Moskowitz said the fact only residents of certain counties get to vote for certain appellate judges does not violate state constitutional provisions guaranteeing free and equal elections. He said each resident has the same rights to vote — even if they don’t get to decide whether to retain each judge on the appellate court.

The judge also took a swat at the Goldwater Institute for even bringing the claim under that free and elections clause to court.

“There are no allegations about votes not being properly counted, ballot access restrictions, intimidation or threats of violence, or any other influence that would deter a voter from exercising free will, or that each vote is not given the same weight as every other ballot,” Moskowitz wrote.
Instead, he said Goldwater’s claim of the current system is a violation of equal rights for voters was made on a mere “conclusory allegation” — unsupported by facts — that the system used to determine whether appellate judges get a new term is unconstitutional. And Moskowitz said that falls short of what is needed for a lawsuit in Arizona.

Goldwater spokesman Joe Seyton said his organization disagrees with the ruling and plans to appeal.

Appellate judges, like those on the Supreme Court, are chosen by the governor who has to select from the nominations of a special screening panel.

Their names then appear on the ballot every six years, with voters deciding whether to retain them in office or oust them.
At issue is who gets to vote for which judges.

At the Supreme Court, all voters get to decide the fate of all justices. Not so at the appellate level.

There are two divisions of the court, one which covers eight counties and one which covers seven.

But the voting procedure is more complex than that.

In Division 1, of the 19 judges, 10 are residents of Maricopa County and it is only residents of that county who decide their future. Five are from the remaining counties in the division — Yuma, La Paz, Mohave, Coconino, Yavapai. Navajo or Apache — and voted on only by residents of those counties, with four elected at large from all nine counties.

A similar situation exists in Division 2, with four judges elected from Pima County, two from Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties, and three at large.

The essence of the argument put forward for Goldwater by Andrew Gould is that’s not fair, given that appellate court rulings have precedent statewide.

On a more granular level, it could mean that someone from Yuma who is pursing an appeal could have his or her case decided by a three-judge panel that does not include anyone who that person has had a chance to vote for or against.

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

Moskowitz said that’s half true.

Yes, he said, all Arizonans can’t vote for all appellate judges. But he said that’s hardly a constitutional violation.

Consider, he said, the Arizona Constitution allows any retired justice or judge of the Supreme Court, Court of Appeals or any county superior court who is drawing retirement pay “may serve as a justice or judge in any court.”

“And no voter will ever vote for them,” Moskowitz wrote. And he pointed out that Goldwater isn’t claiming that is illegal.

Moskowitz also noted the Arizona Constitution allows the chief justice of the Supreme Court to assign appellate and trial judges to serve in other courts or counties. So, for example, the chief justice could assign a Pima County Superior Court judge to serve on pending cases in Division 1 of the Court of Appeals.

“When that Pima County Superior Court judge subsequently comes up for a retention election in Pima County, all the voters in the Division 1 counties ... would be treated equally — none would be able to vote in the retention election of that Pima County Superior Court judge who had decided a case as a judge on Division 1 of the Court of Appeals,” Moskowitz wrote, regardless of who that case affected and where they live.

Moskowitz pointed out that superior court judges have “statewide jurisdiction.” He said the fact they may be chosen from — and subject to retention in — specific counties does not counter the fact the Arizona Constitution says the superior courts in each county “constitute a single court.”

In fact, he said, the decisions of a trial judge in just one county can have statewide effects.

Take the case of a challenge to a ballot measure.

These lawsuits all are filed in Maricopa County Superior Court. And the decision of that trial judge of whether an initiative appears on a ballot is final — and binding on the votes in all 15 counties — unless overruled by the Supreme Court, even though only Maricopa County voters can decide whether to retain her or him.

Part of the reason Goldwater is focused on the appellate court is pure numbers.

Gould said the Supreme Court gets anywhere from 1,200 to 1,600 petitions to review appellate court decisions each year. But the justices typically accept only between 50 and 75 for review, meaning those appellate court decisions become the last word for litigants — and often set legal precedents for the state.

This isn’t the first effort by Goldwater, which regularly takes cases to court over what it argues are individual and property rights, to alter who gets to vote on the appellate judges who are deciding their cases.

House Speaker Ben Toma, R-Peoria, agreed to sponsor legislation last year to create a statewide right to vote on appellate judges. But Gov. Katie Hobbs vetoed the plan, saying having all Arizonans vote on all such judges “would unfairly dilute the votes of those Arizonans most directly impacted by each division’s judges.”