Dems seek removal of judge who nixed education measure

Judge Christopher Coury in Maricopa County Superior Court in 2017. (Photo courtesy Maricopa County Superior Court)

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.

Edder Diaz-Martinez

“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.

Barrett Marson
Barrett Marson

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
Timothy La Sota

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. 

Education advocates push for removal of 2 Supreme Court justices

(Photo by Katie Campbell/Arizona Capitol Times)
Teachers, students and Red for Ed supporters gathered at Chase Field on April 26 before marching to the Arizona Capitol. Teachers and other education advocates now are trying to remove Supreme Court justices for their decision to strike a tax hike for education off the ballot. (Photo by Katie Campbell/Arizona Capitol Times)

Upset with a ruling that knocked a tax hike for education off the ballot, some education advocates are trying to get voters to turn one or two Supreme Court justices out of office in November.

Teresa Ratti said the conclusion by the justices that the wording of the Invest in Ed initiative was misleading was “the exact same statement” that came from the Republican-controlled Legislative Council which was tasked with writing an explanation of the proposal.

“Do we really have a separate judiciary branch or is our judicial branch being controlled or influenced by the executive and the Legislature,” she asked.

So Ratti, a high school government teacher, is using a constitutional provision on how judges are chosen in Arizona to urge people to oust Clint Bolick and John Pelander. They are the two of the seven justices whose terms are up this year.

Jennifer Hilsbos, who has been involved in this year’s spate of education advocacy at the Capitol, is focusing solely on Bolick.

Ideally, Hilsbos said, she would like to get rid of the two newest justices who Gov. Doug Ducey got to name after the Republican-controlled Legislature agreed to expand the court from five to seven members. She said Ducey effectively was packing the court with his choices.

But neither John Lopez nor Andrew Gould are up for election this year. So that leaves her to take out her wrath on Bolick, who Ducey named to the high court in 2016.

Anyway, she notes, Pelander was tapped for the court by Jan Brewer, Ducey’s predecessor. But if Pelander is removed and Ducey gets reelected, that gives the current governor a chance to name yet another member of the court.

The system, approved by voters in 1974, sets up a process where the judges of the Supreme Court, Court of Appeals and superior courts of Pima, Pinal and Maricopa counties are named through what is known as a “merit selection” process.

A special panel reviews applicants and forwards the names of nominees to the governor who must choose from that list. Then, as terms expire, the judges stand for reelection on a retain-or-reject basis. If they are turned out, the process starts all over.

In the entire history of the system, only three judges have been removed, one from the Court of Appeals and two from the Maricopa bench. No Supreme Court justice has ever lost an election, though a group that did not like one of his rulings did try to deny Pelander another six-year term in 2012.

The initiative at issue would have increased state income taxes on individual earnings above $250,000. The idea was to create a dedicated revenue stream of about $690 million a year for education.

Backers got more than enough signatures to put the issue on the November ballot.

But in a brief order late last month, Chief Justice Scott Bales said the description provided to petition signers did not inform them of all the implications of the measure, saying “that creates a significant danger of confusion or unfairness.”

It’s not just that conclusion that angered education supporters. There was also the fact that Daniel Scarpinato, a campaign aide to Ducey, confirmed that he had told some reporters that the decision was a 5-2 split in a bid to show that the governor’s two new appointments didn’t make a difference, even though that information is not public.

From the perspective of those seeking to oust the justices, that just confirms their belief there is a pipeline between the high court and the governor’s office, one they contend suggests that information also flows the other way.

That “leak” — no one from the court will confirm the vote until a formal ruling comes out — has caused some concern.

Jerry Landau, an aide to the court, said there already is an inquiry into how any information got out.

“I am completely confident that none of the justices communicated that information,” Bolick told Capitol Media Services. “The notion that any of us would ever divulge a vote breakdown before it was official is flabbergasting.”

Pelander said he knows nothing about it and does not believe it came from any of the justices.

“But if there was any kind of leak it’s extremely disappointing and disconcerting to me,” he said.

The larger question goes to the beliefs of those who want to oust one or two of the justices that the decision to bar a vote on the Invest in Ed measure was political.

Bolick said this isn’t like the U.S. Supreme Court where the split on many decisions can be predicted based on the political leanings of the justices. In fact, he said, in those ruling where the Arizona court has been split, the justices do not line up along predictable lines.

For example, a decision last month to allow a developer to use groundwater in Cochise County drew two separate dissents, one from Bolick and one from Bales who was appointed to the high court by Democratic Gov. Janet Napolitano.

Bolick also pointed out that he voted two years ago to overturn a trial court judge and allow a vote on a plan to raise the state minimum wage to $12 an hour by 2020, something that probably did not fit his pre-appointment political philosophy at the Goldwater Institute.

Pelander, on the high court for nine years and an appellate judge for 14 before that, said none of the discussions he has had with colleagues about a pending case has ever been based on politics. And he took particular offense at the idea that he would be opposed to funding public education, pointing out his own background going through public schools, his mother as a teacher and his father serving on a local school board.

The effort to deny Pelander a new six-year term in 2012 was pushed by those who did not like the fact he agreed to allow a public vote creating an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election. Two of the other five judges also agreed with that conclusion but Pelander was the only one on the ballot that year.

Despite the campaign against him he still got nearly 1.1 million votes with fewer than 378,000 against him.

Since the retain-or-reject system was adopted, only three judges have been turned out of office.

In 1978, Gary Nelson lost his post on the Court of Appeals. That same year, Maricopa County voters removed Superior Court Judge Fred Hyder and in 2014 voters ousted Benjamin Norris from the bench Maricopa County.

In rare outcome, Maricopa County voters fire judge

JVoters in Maricopa County fired the first judge in decades and only the third one since the inception of the merit and retention system.

With 92 percent of precincts reporting, 57 percent have voted against keeping Judge Benjamin Norris on the bench while 43 percent say he deserves to stay.   The decision will take effect at the end of the year.

Judge Benjamin Norris, Maricopa County Superior Court, family court
Judge Benjamin Norris, Maricopa County Superior Court, family court

Norris, a family-court judge, got this year’s worst  job performance evaluation in Maricopa County from the Commission on Judicial Performance Review, a 30-member commission that rates judges and passes along its evaluation of whether a judge is fit for the bench to voters.

The commission also deemed Judge Catherine Woods of Pima County Superior Court unfit for the job, but voters in that county kept her, 59 percent to 41 percent.

Voters have removed only two judges, Maricopa County Superior Court Judge Fred Hyder and Division One Court of Appeals Judge Gary Nelson, since 1974 when the state started using a system of merit selection and judicial retention elections in Maricopa and Pima counties. Pinal County joined the system in 2012 after reaching a large enough population.

This year, there were 69 judges up for retention. No other judge under the system was close to being removed.

Judge takes flak for decision against school tax measure

Voting ballot box isometric vector icon with paper sheet

Backers of a measure to tax the rich for public education called Judge Christopher Coury’s decision to strike it from the ballot “politically motivated” and are calling for his removal in November’s retention election. 

Arizona uses a merit selection process to appoint judges to four county superior courts and three appellate branches (two divisions of the Court of Appeals and the Supreme Court) and allow voters to retain them. 

In 2018, there was an effort to oust Arizona Supreme Court Justice John Pelander and Justice Clint Bolick since they were the only justices on the ballot after voting in a 5-2 decision to toss out that year’s attempt at taxing the rich to fund public schools. Pelander and Bolick survived and Pelander retired in 2019. 

Losing retention is rare, and has only happened once since 1978, when Benjamin Norris lost in 2014, but that won’t stop backers from trying.

Progressive lobbyist Geoff Esposito and Sen. Martin Quezada, D-Glendale were among those who tweeted about Coury being up for retention. 

“Judge Coury and his #INVESTinED decision was the reason why the ‘NO’ option was created on the ballots for the retention of Superior Court judges. Vote accordingly this November,” Quezada wrote. 

Norris, a judge in Maricopa County, was voted out largely in part due to his judicial performance review from his peers who said he was unfit to serve. Coury, on the other hand, received a perfect score from 33 of his peers. 

Coury’s Invest in Ed decision, depending on what the Supreme Court ultimately decides, could be the biggest decision he made that will motivate Maricopa County voters to try to oust him.  

Coury recently applied for a position on the Court of Appeals, but Gov. Doug Ducey chose Cynthia Bailey instead. Coury has been relentless in his career for court appointments, so it’s likely he will try again. It took him eight tries to land on the Superior Court after Gov. Janet  Napolitano turned him down six times and Gov. Jan Brewer appointed him on his second attempt during her term. 

He has served on the court since 2010 and has heard many cases, but recently he has come under fire in legal and education circles for his “political” decision that kicked Invest in Ed off the ballot, but it’s far from his first controversial decision of late.

In June, he sided with Gov. Doug Ducey and the Arizona Department of Health Services against media organizations in a lawsuit seeking information about the scope of outbreaks in nursing homes.

In July, Coury ruled in Ducey’s favor, blocking the eviction of tenants who weren’t paying rent during the pandemic, which is now up for appeal. He also settled a heated election challenge in 2018 over the petition of Mark Syms, husband of former lawmaker Maria Syms, who was trying to unseat Sen. Kate Brophy McGee in the Senate. 

Former Arizona Attorney General Grant Woods, who supports Invest in Ed and wrote an amicus brief on its behalf, said he has known Coury and his family his “whole life,” but still believes he made the wrong call over the initiative ruling. 

But Woods said he didn’t think the decision was politically-motivated, it was just wrong. He said Arizona’s founders didn’t set up the laws and the Constitution to say, “If you collect enough signatures the petition becomes a law,” instead that “if you collect enough signatures voters can decide on the ballot.”

“So the idea that you could stifle all of that because you didn’t feel that the 100 word summary at the top of the petition was adequate is to me nonsense,” Woods said.