The Maricopa County Democratic Party is leading an effort to remove the trial-court judge who ruled against putting an education initiative on the ballot.
In August, Maricopa County Superior Court Judge Christopher Coury threw off the Invest in Education Act from the ballot for the second time in two years, but this time the Arizona Supreme Court unanimously disagreed with his ruling.
Edder Diaz-Martinez, spokesman for the Maricopa County Democratic Party, said the effort is within the will of the voters to share their voice on judges –– especially ones with whom they disagree.
“We’re trying to hold this judge accountable for clearly being really partisan on an issue that created consensus,” said Diaz-Martinez. “The Supreme Court basically called BS on him, and said, ‘You can’t do this kind of thing.’”
He also cited Coury’s willingness to receive an appointment to a higher court. Coury applied to the Court of Appeals to no avail and it took him eight tries to land on the Superior Court.
“We think that this is a way for him to ingratiate himself with those folks, and make him seem like a better option for a promotion, so to speak,” Diaz-Martinez said.
Proposition 208 seeks to place a 3.5% surcharge on the state’s highest earners on top of the 4.5% tax rate they already pay.
Coury, in his 20-page August ruling, said the measure could not go on the ballot because of what he concluded were both misleading statements and full-blown omissions in the legally required 100-word description that is placed on the petitions.
Any one of these, he said, would have been enough to disqualify the initiative. And taken together, Coury said, the description creates “the substantial risk of confusion for a reasonable Arizona voter.”
And then there was what some initiative supporters considered Coury’s particularly hostile conclusion that “Invest in Education circulated an opaque ‘Trojan horse’ of a 100-word description, concealing principal provisions of the initiative.”
Coury was overruled by the state’s high court, with Chief Justice Robert Brutinel concluding that the summary “did not create a significant danger of confusion or unfairness.”
The county Democrats are working alongside Save Our Schools Arizona, Planned Parenthood Arizona and backers of Prop. 208 – Invest in Ed – to reject Coury for retention.
Rather than electing judges or direct gubernatorial appointments, Arizona uses a merit selection process to appoint judges in the state’s largest counties, to the Court of Appeals and Supreme Court justices. This allows voters a say every time a term ends. Coury is up for retention this year, which means voters in Maricopa County will get the opportunity to vote “yes” or “no” on whether he should get another four-year term as a judge.
Losing retention is rare, and has only happened three times since 1978, the latest in 2014 when voters showed Benjamin Norris the door. But Norris was also seen as somebody who his peers agreed was unfit as a judge. Coury received unanimous support from the Commission on Judicial Performance Review, which scores the judges on several categories and gives voters it’s assessment on whether judges are fit for the bench.
When Coury, a Republican who Gov. Jan Brewer, also a Republican, appointed to the court in 2010, came out with his Invest in Ed ruling, backers of the effort thought his opinion was not only wrong, but also belittling. Several election attorneys agreed.
This is the first effort from a political party to have voters remove a judge using the retention election, but it isn’t the first effort overall.
In 2012, Russell Pearce, a Republican former state lawmaker who was recalled months earlier, tried to have Justice John Pelander, a Republican on the Supreme Court, removed.
Pearce failed, given his lack of support within his own party and Pelander’s decision to launch a campaign to fight off Pearce’s effort.
In 2018, Pelander and Justice Clint Bolick faced some wrath from education folks for voting to remove that year’s edition of the Invest in Education initiative from the ballot in a 5-2 vote. The two justices were the only ones up for retention that election and both overwhelmingly won. Pelander has since retired.
Republican consultant Barrett Marson was tasked in 2012 with keeping Pelander on the bench given that members of the judiciary cannot campaign or solicit campaign contributions. This only applies to the appellate courts and courts in Maricopa, Pima, Pinal and Coconino counties.
Marson told Arizona Capitol Times that the 2012 effort was winnable for Pelander because of who Pearce was.
“At the time, Russell Pearce was a very polarizing figure disliked by media types throughout,” Marson said.
But Marson at least agreed in principle that this is the will of the voters to launch a “vote no” effort.
“That is sort of what the retention election of judges is about. If people disagree with the opinion, then this is the recourse for the voters to take out their frustrations,” he said.
Marson added that the Commission on Judicial Performance Review scores reflect how good the jurist is at their job, despite any controversial decisions.
“I think that a lot of times we overlook a person’s qualifications because they’ve done something we personally do not like,” Marson said. He said Coury didn’t do anything illegal or unethical, just that voters did not like his ruling.
Coury declined to comment for this story.
Timothy La Sota, a Republican election attorney, said he will vote “yes” to retain Coury, but understands why there is an effort to have him removed.
“If I were a big supporter of Red for Ed, I would be upset. … As far as I’m concerned, it’s their right [to vote no] – it’s why [the retention election] exists,” La Sota said.
Some might say it’s there for ethical character issues, but “I disagree with that,” he said. “I think it’s there to inject a certain accountability from the electorate, even on matters that one might view as political.”
Although La Sota said he disagreed with Coury’s ruling, he is opposed to Prop. 208, but recognizes the frustration from the Maricopa County Democrats and the education community.
He said if the effort is not planning to spend a lot of money then it makes sense to begin the campaign now right as ballots are mailed to voters.
Diaz-Martinez did not provide a dollar amount for the campaign, but said campaign mailers will be sent out to voters and digital ads as well as a website: “No on Coury dot com.”
He also would not directly say if he supports the idea of a Republican Party launching an effort to remove a Democratic judge for disagreeing with an opinion, but said running a retention campaign depends solely on what the ruling was.
“This was an egregious attempt to try and really take away the rights – the very words from people. And anytime that that happens, I think it is the duty of the voters and it’s the duty of institutions like the Democratic Party to step up and say, ‘You know what, we’re standing up for the voters,’” he said.
The whole point, according to Diaz-Martinez, is that Coury would not allow the voters a say on the initiative. But of course the voters will not only get their say on Invest in Ed, but also now on Coury.
“We want to send a message to folks that if you’re a judge, you have to not take sides. You are being watched. And the voters will come after you,” Diaz-Martinez said.
Howard Fischer of Capitol Media Services contributed to this article.