PHOENIX — When it comes to being a fair judge, does it matter what your brother thinks of the parties and their claim?
Well, what if he’s an attorney, who made social media posts calling the plaintiffs “Yahoos,” described their lawsuit a “cow pie” and predicted the case is so flawed it would be thrown out?
That’s the issue raised by the attorneys for Senate President Warren Petersen and House Speaker Ben Toma who wants Maricopa County Superior Court Judge Tim Ryan to disqualify himself from hearing their claim against Secretary of State Adrian Fontes. They said the posts on X, formerly Twitter, by Ryan’s older brother, Tom, suggest that they cannot get “a fair and impartial trial” in Judge Ryan’s court.
Tom Ryan, also an attorney, does not deny the various posts on social media. And he told Capitol Media Services he stands by his comments about both the Republican legislative leaders and the merits of their lawsuit.
In fact, he doubled down on them.
“I haven’t lost my right to comment on stupid lawsuits and call politicians chucklenuts and yahoos, as far as I can tell,” he said.
But he said he made those posts before the case was assigned to his brother on Feb. 1. And the elder Ryan said the judge doesn’t even have a social media account, much less follow his posts.
Doesn’t matter, said Kory Langhofer, one of the attorneys for Petersen and Toma.
“The plaintiffs are not alleging that Judge Ryan has communicated with his brother about any aspect of this proceeding, or even that he is subjectively aware of the social media postings,” the legal team for the GOP lawmakers wrote in the pleading, which is likely to go to another judge to decide whether to move the case from Ryan’s court. But they said that the “unique circumstances of this case” create a perception that the judge’s ability to carry out judicial responsibilities with impartiality is “impaired.”
Judge Ryan, who will get first crack at the question of whether he should step aside, declined comment. Langhofer said if he does not, the case will go to the court’s presiding judge.
The underlying lawsuit challenges various items in the new Elections Procedures Manual. It is designed to provide more specific guidance for local officials than state law.
Petersen and Toma contend there are items in the manual that do not conform to state law.
Some are technical, like what happens when a county recorder gets notified that someone has moved. The lawsuit says the only option is to cancel someone’s registration; the manual says it is placed on inactive status and may later be canceled.
Then there’s the question of a state law that requires counties to conduct monthly checks of registered voters if there is “reason to believe” someone is not a citizen.
The lawsuit says the “plain language” of the statute requires such check, even on mere allegations by an outsider, that someone is not a citizen. Fontes, however, says that “third-party allegations of non-citizenship are not enough to initiate the process.”
Potentially most serious is the certification of elections.
The manual says that if county officials do not get official results to his office by the deadline, “the secretary of state must proceed with the state canvass without including the votes of the missing county.”
Petersen and Toma, however, contend the county supervisors are not mere rubber stamps of the results reported to them. They say the law requiring a county canvass says the supervisors, on their own, must “determine the vote,” something that might take extra time.
Further, they say what Fontes put in the manual would allow him to “disenfranchise the voters of an entire county,” something they say is illegal.
All this led to a series of social media posts by Tom Ryan after the case was filed Jan. 31. The elder Ryan has himself handled various cases involving elections and election officials and, in many more cases, commented on new and pending lawsuits.
In this case, it started with him calling the litigation “frivolous” and “performance litigation to destroy and undermine Arizona citizens’ confidence in Arizona elections.”
He then went on to explain how, from a legal perspective, he believes it is flawed, saying Petersen and Toma lack legal standing, using as precedent a court ruling from a fight years earlier between then-Gov. Janet Napolitano and Ken Bennett, who was at the time the Senate president.
“No matter how much whipped cream you put on a cowpie, it’s never going to be delectable,” he wrote. And he then asked where is the proof that the Senate and House “authorized these two Yahoos to sue on their behalf.”
All those comments, the GOP leaders, require their case be moved to another judge.
“Whether they embody or influence his brother’s views or not, Mr. Ryan’s public tirade has justifiably undermined plaintiffs’ confidence in the court’s impartiality,” their lawsuit says.
It might be one thing, they say, if Tom Ryan had opined on the general subject matter of the case or expressed some political preference. That, by itself, they concede, would not provide grounds to disqualify Judge Ryan.
But that, they say, is not the case here.
“He advanced what is functionally equivalent to public legal advocacy with respect to the merits of specific claims and issues pending in a specific proceeding over which his brother is presiding,” Petersen and Toma argue. And they said Tom Ryan’s online prediction that their lawsuit would be thrown out “suggest foreknowledge of the proceeding’s disposition, including his admonition that then plaintiffs ‘are about to go through some things. Stay tuned!’ “
No date has been set to consider their petition.
