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Dobson v. State ex rel. Commission on Appellate Court Appointments

Supreme Court of Arizona

September 13, 2013

Carey D. Dobson, William Ekstrom, Ted A. Schmidt and John Thomas Taylor III, Petitioners,
v.
State Of Arizona, ex rel., Commission On Appellate Court Appointments, Respondent.

Paul F. Eckstein, Joel W. Nomkin, D. Andrew Gaona, Perkins Coie LLP, Phoenix; Stanley G. Feldman, Haralson, Miller, Pitt, Feldman & McAnally, PLC, Tucson; Frank X. Gordon, Jr., Roush McCracken Guerrero & Miller, Phoenix; Mark I. Harrison, Osborn Maledon PA, Phoenix; Charles E. Jones, Phoenix; Ruth McGregor, Phoenix; James Moeller, Phoenix; and Thomas A. Zlaket, Thomas A. Zlaket PLLC, Tucson, for Dobson, et al.

Thomas C. Horne, Arizona Attorney General, G. Michael Tryon, Assistant Attorney General, Evan Hiller, Assistant Attorney General, Phoenix, for State of Arizona

Timothy M. Hogan, Joy Herr-Cardillo, Phoenix, for Amicus Curiae Arizona Center for Law in the Public Interest

Lawrence A. Kasten, Lewis and Roca LLP, Phoenix; and Matthew Menendez, New York, for Amici Curiae Brennan Center for Justice at N.Y.U. Law School and Justice at Stake

VICE CHIEF JUSTICE BALES authored the opinion of the Court, in which JUSTICE PELANDER, JUSTICE BRUTINEL, JUSTICE TIMMER and JUDGE NORRIS [*] joined.

OPINION

BALES, VICE CHIEF JUSTICE

¶1 Arizona's Constitution establishes the Commission on Appellate Court Appointments and requires the Commission to submit "not less than three" nominees to the governor for her appointment to fill an appellate judicial vacancy. Ariz. Const. art. 6, §§ 36-37. Recently enacted House Bill (H.B.) 2600 directs the Commission to submit "the names of at least five persons" to the governor, unless an applicant is rejected by a two-thirds vote of the Commission, in which case it may submit fewer than five names. 2013 Ariz. Sess. Laws, ch. 23, § 1 (1st Reg. Sess.). Because H.B. 2600 directly conflicts with Arizona's Constitution, we hold that the statute is unconstitutional.

I.

¶2 In 1974, Arizona voters approved Proposition 108, which amended the Arizona Constitution and introduced merit selection into Arizona's judicial selection process. Ariz. Sec'y of State, 1974 Publicity Pamphlet 29 (1974). Before the adoption of Proposition 108, all of Arizona's state judges were elected by popular vote. Proposition 108 created the Commission on Appellate Court Appointments, which now consists of ten non-attorney and five attorney members - all appointed by the governor and confirmed by the Senate - and is chaired by the chief justice. Ariz. Const. art. 6, § 36(A). The Commission is charged with evaluating applicants for appointment to Arizona appellate courts in "an impartial and objective manner, " id. § 36(D), and is directed to "consider the diversity of the state's population" but its "primary consideration shall be merit." Id.

¶3 Based on its review, which includes public hearings, public interviews, and public comment, the Commission must recommend "not less than three" nominees to the governor. Ariz. Const. art. 6, §§ 36-37. The Commission's "[v]oting shall be in a public hearing." Id. § 36(D). No more than two nominees can be from the same political party, unless there are more than four nominees, in which case no more than sixty percent can be from the same political party. Id. § 37(A). The governor is required to appoint one of the nominees to fill the judicial vacancy. Id. § 37(C); cf. id. § 41 (establishing a similar merit selection process for superior court judges in counties "having a population of two hundred fifty thousand persons or more").

¶4 In April 2013, the legislature passed and the governor approved H.B. 2600, which would alter Arizona's judicial nomination process by requiring the Commission to submit at least five nominees to the governor, unless the Commission rejects an applicant by a two-thirds vote, in which case the Commission may submit fewer than five nominees. A similar ballot proposition was rejected by the voters in 2012. That proposition would have amended the constitution to require the Commission to submit eight candidates to the governor for each judicial vacancy, unless two-thirds of the Commission voted to reject a candidate and to submit fewer than eight names. Ariz. Sec'y of State, 2012 Publicity Pamphlet 21-22 (2012), available at http: //www. azsos. gov/election/2012/Info/ PubPamphlet/english/e-book.pdf.

¶5 Four members of the Commission on Appellate Court Appointments filed this special action asking the Court to declare H.B. 2600 unconstitutional and to enjoin the Commission from applying the statute. They bring the action as individual commissioners and not on behalf of the Commission as a whole. The Commission is a nominal defendant and takes no position in this litigation.

II.

¶6 This Court has original jurisdiction over "mandamus, injunction and other extraordinary writs to state officers." Ariz. Const. art. 6, § 5(1). Such jurisdiction is discretionary and granted through a special action petition. Randolph v. Groscost, 195 ...


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