By Howard Fischer
Capitol Media Services
PHOENIX -- A series of complaints against more than a dozen Arizona judges by an out-of-state lawyer could forever change how future election challenges are handled.
Amy Martin contends it was a violation of the Code of Judicial Conduct for any of the 16 judges to have participated in -- much less rendered a decision -- in cases they were assigned dealing with the 2020 and 2022 elections.
In her complaints to the Commission on Judicial Conduct, Martin points out that each of the judges also was on the ballot that same year. More to the point, she noted that the judges in each case were being asked to decide whether there were sufficient irregularities in the election to void the results of the challenged race.
The fact that each of the judge's own elections were not contested, Martin argues, is irrelevant. She contends the simple fact that their own names were on the same ballot gives them a vested interest in ruling that the election was properly run.
And that, she said, is the kind of an appearance of impropriety that the code governing the conduct of judges is designed to address.
Martin wants the Commission on Judicial Conduct to investigate and punish what she says are the offending judges, though she does not spell out what she believes is the appropriate penalty.
Whether any judge will face any sort of punishment for what already has occurred is questionable at best.
April Elliott, the commission's executive director, said she knows of no similar complaint that ever has been brought against a judge. Nor can she think of any finding by the commission that a judge in a similar situation has violated any rules by not disqualifying himself or herself, meaning there is no precedent a judge could have looked to to make a decision on recusal.
That means none of the judges were on notice that it was wrong to refuse to disqualify themselves in an election case that did not involve their own race. In fact, none of the litigants in the cases even raised the issue.
But that leaves the possibility that the commission, even if it decides that discipline is not merited in the earlier cases cited by Martin, could essentially reach the conclusion that recusal in these cases, going forward, would be appropriate.
That could pave the way for the Arizona Supreme Court to insert a formal comment into rules, essentially formal advice to judges who find themselves in similar circumstances. And that would put judges on the ballot in 2024 on notice to step aside when the challenges eventually emerge over that race.
Judge Randall Warner, one of the judges named in a complaint because he had handled a challenge by failed Republican candidate for attorney general Abe Hamadeh, said he had not seen the complaint.
But Warner, who said judges are assigned cases based by a computer algorithm, said there's a practical problem with all that.
He pointed out that Superior Court judges serve four-year terms. That means half of all judges are on the ballot at every election -- and would be barred from hearing challenges to elections that year.
He said that is true in both the urban counties, where judges on on the ballot on a retain-or-reject basis, and in rural counties where judges continue to be elected in partisan races.
It even would mean up to a third of the seven justices of the Supreme Court, on the ballot every six years, would have to step away from election cases.
At the heart of the complaint is a key provision of the Code of Judicial Conduct. It says judges must act at all times in a manner "that promotes public confidence in the independence, integrity and impartiality of the judiciary.
Conversely, it says that judges "shall avoid impropriety and the appearance of impropriety.''
And there even is a note in the code that says that "appearance of impropriety''
includes any conduct that would create in reasonable minds the perception that the judge engaged in conduct "that reflects adversely on the judge's honest, impartiality, temperament, or fitness to serve as a judge.''
That, Martin alleges, comes into play here.
"Every elected official has inherent professional and financial interests in preserving the legitimacy of his or her own office,'' she said in her complaints. "These interests give rise to the appearance of partiality when ruling in cases that touch on the very ballots upon which their names are printed.''
What has happened in many challenges to the 2020 and 2022 elections is that losers have alleged more than just some question about how their own races were run. They have challenged the entire process, including claims of purposely sabotaged voting equipment and even that fake ballots were illegally injected into the system.
And if any of those were the case -- none has ever been found by any judge handling any case -- Martin said it could change the outcome of all the races on the ballot.
One involves that claim by Hamadeh who sought to nullify the election of Democrat Kris Mayes. Among the GOP contender's claims was that Maricopa County had wrongfully denied some people the right to cast a ballot.
That had to do with claims that some people had been listed as voting at one polling place but had never actually been able to cast a ballot due to long lines. And when they showed up at another location they were denied a ballot because records showed they had voted elsewhere .
But Warner tossed the case, saying it was "premature'' because the vote had not yet been formally canvassed. Martin, in her complaint about Warner to the Commission on Judicial Conduct, said the failure of Warner, being on the same 2022 ballot, violated rules that would create in reasonable minds a perception that the judge engaged in conduct that reflects adversely on the judge's honesty, impartiality, temperament or fitness to serve a judge.
While Warner won't discuss the specific charges against him -- he was the only judge named in the complaints to respond to a request by Capitol Media Services -- he said there are flaws in Martin's argument that any judge on the ballot should have automatically stepped aside.
"Did the lawyers raise a concern?'' Warner asked. He said that could be an informal request or, if not happy with a judge's answer, can be decided by another judge.
Martin said that's not the way the procedure should work.
"The onus is on the judge to disclose, on the record, if there is a conflict, potential conflict, or appearance of conflict,'' she told Capitol Media Services. "Once disclosed, the parties can request recusal -- or not.''
Warner said there's another issue.
He said in election cases the losing candidate seeks a specific ruling: to set aside the results of that specific race.
"Now, it may be that the ruling, if it goes up through the appellate courts, affects other elections,'' Warner said. But he said if the relief sought is to invalidate every result, then the attorneys for the challengers not only need to say that, up front when they sue, but also need to name every other winning candidate up and down the ballot as a party so each can defend the results.
None of that occurred in any of the cases before any of the judges who are the subject of the complaints.
Martin sidestepped questions about whether she believes the GOP contender, still challenging her loss, actually won the race.
"Based on the evidence I've seen, maladministration was severe enough to call the results into question,'' said Martin, a no-longer-practicing attorney who lives in Florida.
"We may never know who actually won.''
Martin isn't the only one still making an issue of whether judges should have stepped aside.
Consider the challenge that Mark Finchem made after he came up more than 120,000 votes short in his 2022 bid for secretary of state. He alleged everything from improperly certified election equipment and malfunctioning tallying machines in Maricopa County to interference by then-Secretary of State Katie Hobbs for telling supervisors they had to complete the formal canvass of the votes by a specific deadline.
Maricopa County Superior Court Judge Melissa Julian ruled that Finchem failed to present any evidence that showed the outcome of the fact was in any way affected by fraud by anyone. And he and his attorney were ordered to pay $48,000 in legal fees and penalties for what the judge called a "groundless'' lawsuit.
Finchem is still smarting. And he is supporting Martin's complaint.
"Imagine ruling on election decisions when you're in the election,'' Finchem posted in a fundraising email just days ago. "Was she just ... forgetful? Or is that a case of a severe lack of election integrity?''
Commission members themselves have the power, if they find a violation of the rules that govern how judges act, to issue a formal reprimand.
But if they believe the offense is more serious, they can make a recommendation to the Arizona Supreme Court. And the justices, assuming they find fault, can impose a censure, suspension or even removal from the bench.
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