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AG Mayes, GOP Legislators clash over proposed change to appellate judge elections

Attorney General Kris Mayes details Tuesday what she says has been massive fraud in billing to the Arizona Health Care Cost Containment System, the state's Medicaid program.
Capitol Media Services photo by Howard Fischer.
File photo - May 2023. Arizona Attorney General Kris Mayes.

By Howard Fischer
Capitol Media Services

PHOENIX -- Attorney General Kris Mayes is accusing top Republican legislators of trying to do an end-run around the lawmaking process by asking the state Supreme Court to make a change in how appellate judges are elected.

In a new court filing, lawyers for Mayes pointed out that House Speaker Ben Toma pushed a measure through the Legislature earlier this year, on a party-line vote, to allow all Arizonans, regardless of where they live, to vote on all judges for the state Court of Appeals. That ended up being vetoed by Democratic Gov. Katie Hobbs who said she believed the move "would unfairly dilute'' the votes of some Arizonans by having the choice of appellate judges from their area decided by voters from the entire state.

Now Toma and Senate President Warren Petersen have joined with the Goldwater Institute, which supported his proposal, to claim that the system they sought unsuccessfully to overturn is unconstitutional. Mayes told the justices they should spurn their effort.

"(They) now turn to those court to achieve what they could not in the political arena,'' Mayes said. "Policy disagreement with the governor is no basis for a constitutional claim.''

And if nothing else, the attorney general said there is no reason they should be able to skip having to make their arguments to a trial judge who can hear evidence and witnesses and instead go directly to the state's high court. And she derided claims by Goldwater, which lobbies against government regulation, often on behalf of business, that there is a need for immediate Supreme Court action, bypassing the traditional process.

"Petitioners try to concoct an emergency where none exists,'' Mayes told the justices through lawyers for her office. "The laws and procedures petitioners challenge have been in place for decades.''

The system being challenged goes back to 1964 when the Legislature set up the Court of Appeals into two divisions.

Division One consists of Maricopa, Yuma, Mohave, Coconino, Yavapai, La Paz, Navajo and Apache counties. Division two has Pima, Pinal, Cochise, Santa Cruz, Greenlee, Graham and Gila counties.

Appellate judges are now chosen by the governor who has to fill vacancies according to formulas on how many come from each area. And the chosen judges stand for "reelection'' every four years on a retain-or-reject basis; if turned out of office, the process of gubernatorial appointment starts over.

But the system is even more complex than that.

For example, someone who lives in Pima County can vote to retain or reject only appellate judges who were selected from that county by the governor. 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 Arizona law actually allows judges from either division to hear cases that started in the other one. So someone appealing a case that began in Maricopa County could end up having to argue it in front of a panel of judges, none of whom came from that county.

Jonathan Riches, the attorney for the Goldwater Institute, said that's not fair. He said it means that litigants "will frequently be subject to appellate decisions where they never voted for a (ITALICS) single (ROMAN) judge on the panel.''

"It comes down to a really simple principle: Every Arizonan should have the right to vote on judges that affect them,'' said Riches who is representing four individuals from various counties who can't vote for each and every appellate judge.

"And the current system doesn't allow that.''

One problem with all that, said Mayes, is that it was the Legislature that created the dual-division system and set it up that way in 1964. And she said lawmakers have kept it in place despite numerous changes to the whole appellate process.

But she said there are specific legal reasons for the Supreme Court to send the challengers packing.

It starts, Mayes said, with a requirement that anyone seeking judicial relief has to have "standing to sue.'' And what that requires, she said, is some "distinct and palpable injury.''

Mayes told the justices that does not exist here.

"The alleged injury -- being subject to decisions by judges whom petitions did not get to for to retain (or not retain) -- is not only abstract, but entirely novel,'' she said.

And then there's the idea of having the Supreme Court implement something that Toma and supporters of the change could not achieve politically.

"This court is not well-suited to craft a remedy like the one urged here, which essentially involves the writing of a new law,''
Mayes told the justices.

She also said that the whole argument about who gets to vote on which judges is fundamentally flawed.

"Judges do not represent people, they serve people,'' the attorney general said.

"When a person comes under the jurisdiction of an Arizona court, her rights are protected by our state's robust due process protections and high standards of judicial professionalism,'' Mayes continued. "Concerns about representation are therefore simply not relevant to the makeup of the judiciary.''

Mayes also said there would be far-reaching implications if the Supreme Court accepted the arguments by Goldwater, Toma and Petersen about people being entitled to have cases heard in a court where they had a chance to vote for a judge.

Consider, she said, a state law which says that when someone from any county sues the state, the case can be transferred to Maricopa County.

"Such cases, by their nature, are likely to have statewide effect, and (the law on change of venue) virtually ensures that a disproportionate number of them will be heard in Maricopa County (Superior Court), even though only Maricopa County residents may vote in Maricopa County retention elections,'' Mayes said. Following the argument by challengers to the current appellate system, she said would appear to say that only trial judges who are elected on a statewide basis could hear such lawsuits.

And what it also ignores, the attorney general said, is that the Arizona Constitution allows any retired judge from any county to hear any case anywhere in the state, a move that helps deal with judicial workload.

The bottom line, said Mayes, is there is no evidence that anyone's rights have been violated requiring a judicial remedy.

"It is, instead, one in which petitioners started by identifying their desired remedy and then went searching for a right that might fit,'' she said, yet failed to find one. "As their lack of authority indicates, no such right is to be found in Arizona's Constitution.''

In her veto of Toma's measure earlier this year, Hobbs said she is open to some changes.

She noted, though, that the bill sent to her would have required a vote of all residents throughout the state, even though it would retain the two divisions, complete with the requirements for judges to be selected according to where they live. That, she said, is not an answer.

"I urge the Legislature next session to take a more holistic look at the organization of the Court of Appeals ... and craft a more comprehensive improvements for Arizonans,'' the governor wrote.

On X and Threads: @azcapmedia

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