Attempt fails to change how Arizona voters retain appellate judges

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

Maricopa County Superior Court Judge Frank Moskowitz said the fact that 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 and every judge on the appellate court.

The judge took a swat at the Goldwater Institute for bringing the claim 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 the current system is a violation of equal rights for voters was made on a mere “conclusory allegation,’’ unsupported by facts. Moskowitz said that falls short of what’s needed for a lawsuit in Arizona.

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

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

The judges’ names then appear on the ballot every six years, with voters deciding whether to retain them in office or oust them.

What’s at issue here 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 covering eight counties and one covering seven. The voting system is complex.

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.

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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 attorney Andrew Gould is that’s not fair, given that appellate court rulings have precedence statewide.

On a more granular level, it could mean that someone from Yuma who is pursing an appeal could have their case decided by a three-judge panel that does not include anyone that person 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, that 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. He pointed out that Goldwater isn’t claiming that is illegal.

Among other points, Moskowitz also pointed out that Superior Court judges have “statewide jurisdiction.’’ 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.