Goldwater Institute lawsuit seeks to let all Arizona voters decide on appeals court judges

The conservative-leaning Goldwater Institute filed a lawsuit in the state Supreme Court this week on behalf of four clients who are calling on the secretary of state to include Arizona Court of Appeals judges in statewide retention elections.

They say the existing system disenfranchises some voters because it dilutes the relative weight of votes in certain places but concentrates power in others.

Appeals Court judges weigh issues of statewide importance, but, as the complaint states, "they sit for retention elections in limited geographic areas based on the judge’s county of residence."

Arizona's appeals courts are divided into two regional divisions and each bench considers appeals to verdicts in lawsuits and prosecutions, sentencing and other matters.

Goldwater Institute special counsel and former Arizona Supreme Court Justice Andrew Gould submitted a petition for special action on Wednesday asking his former colleagues to declare the current retention mechanism in state law for appeals court judges to be unconstitutional.

"Specifically, the statute excluding participation in retention elections … prevents equal elections in the state by denying all Arizona voters the right to vote on the retention of many Court of Appeals judges withjurisdiction over them, and who issue binding statewide decisions," Gould wrote. The result, he argued, is a disenfranchisement of electors.

Gould noted that all Arizona voters participate in retention votes for State Supreme Court justices, regardless of their county of residence.

Voters in each county are also asked to retain judges from their respective superior courts, the main trial courts in Arizona. Last November, Maricopa County voters removed an unprecedented three superior court judges.

In the Goldwater Institute case, one of the named plaintiffs, Bonnie Knight of Yuma County, said she wished to vote on the retention of Court of Appeals judges on a statewide basis.

"Even though judges from Maricopa, Pima, Pinal, Cochise, Gila, Santa Cruz, Graham, and Greenlee Counties issue decisions that have binding precedential value throughout the state," Knight wrote, "I cannot vote on the retention of those judges."

The Secretary of State's Office did not immediately return a request for comment Tuesday evening.

Erin Scharff, Professor of Law at the ASU Sandra Day O'Connor College of Law, said the judicial retention system allows for a balanced approach to the selection of judges.

"We want some degree of judges not being in the political fray, the way you might see if they were directly elected, and some accountability to the people," Scharff said. "And a system in which there is both appointment and retention offers that path."

Scharff said the next step in the process will be for the state supreme court to decide whether to take the case.

"If they do," Scharff said, "the state Supreme Court's going to have to figure out whether this statute that the legislature designed for judicial elections comports with the state constitution."

This article originally appeared on Arizona Republic: Lawsuit aims to put court judge retention votes to all Arizona