Dobson v. State

• Decision Date: 13 September 2013
• Docket Number: No. CV–13–0225–SA.,CV–13–0225–SA.
• Citation: 233 Ariz. 119,669 Ariz. Adv. Rep. 22,309 P.3d 1289
• Parties: 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.
• Court: Arizona Supreme Court

233 Ariz. 119

309 P.3d 1289

669 Ariz. Adv. Rep. 22

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.

No. CV–13–0225–SA.

Supreme Court of Arizona.

Sept. 13, 2013.

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, opinion of the Court.

¶ 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/ Pub Pamphlet/ 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 Ariz. 423, 425 ¶ 6, 989 P.2d 751, 753 (1999).

¶ 7 The State concedes that this Court could grant mandamus relief by directing the Commission to comply with a ruling on the merits, but it argues the case should be refiled in superior court for the development of a factual record. Resolving this case, however, does not involve disputed facts. Special action jurisdiction is appropriate here because the petition presents purely legal questions of statewide importance that turn on interpreting Arizona's Constitution. See id. (accepting jurisdiction when the “dispute involves a matter of substantial public importance, raises only issues of law, and requires the interpretation of a provision of the Arizona Constitution”).

¶ 8 Additionally, special action jurisdiction is appropriate because the case requires an immediate and final resolution. See Ingram v. Shumway, 164 Ariz. 514, 516, 794 P.2d 147, 149 (1990) (accepting special action jurisdiction when the case required “final resolution in a prompt manner”). Petitioners have no power to resolve the constitutionality of H.B. 2600 on their own, and beginning September 13, 2013, they will be subject to its directives. Accordingly, we accept jurisdiction.

III.

¶ 9 The State argues that even if we accept jurisdiction, Petitioners have no standing to sue. We disagree. Under Arizona's Constitution, standing is not jurisdictional, but instead is a prudential doctrine requiring “a litigant seeking relief in the Arizona courts [to] first establish standing to sue.” Bennett v. Napolitano, 206 Ariz. 520, 525 ¶ 19, 81 P.3d 311, 316 (2003). By contrast, in federal court, standing requirements are rooted in Article III of the United States Constitution, which limits jurisdiction to “cases or controversies.” Id. at 524–25 ¶¶ 17–18, 81 P.3d at 315–16. Arizona's Constitution has no counterpart “case or controversy” requirement. It follows that this Court is informed, but not bound, by federal standing jurisprudence. See id. at 525 ¶ 22, 81 P.3d at 316. Our decision to recognize standing turns on “questions of prudential or judicial restraint.” Armory Park Neighborhood Ass'n v. Episcopal Cmty. Servs. in Ariz., 148 Ariz. 1, 6, 712 P.2d 914, 919 (1985).

¶ 10 The State asserts that Petitioners have no standing because they are attempting to bring organizational claims without authorization from their “organization,” something we barred individual legislators from doing in Bennett.206 Ariz. at 527 ¶ 29, 81 P.3d at 318. In that case, we held that four state legislators lacked standing to bring a special action challenging the governor's exercise of line-item vetoes because the legislators had not alleged a particularized injury and had not been authorized to act on behalf of their respective chambers. Id. Although the legislators supported the items vetoed by the governor, we held that the injury was “wholly abstract and widely dispersed” and not sufficiently particularized to give rise to individual standing. Id. at 526–27 ¶ 28, 81 P.3d at 317–18 (quoting Raines v. Byrd, 521 U.S. 811, 829, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)).

¶ 11 Bennett is distinguishable. Here, Petitioners have identified a particularized injury and do not purport to bring claims on behalf of the Commission as a whole. H.B. 2600 requires Petitioners, as individuals, to execute directives they believe run afoul of their constitutional obligations as Commission members. SeeA.R.S. § 38–231(A), (E) (requiring “all officers ... of all ... commissions” to “solemnly swear (or affirm)” an oath that he or she “will support the Constitution of the United States and the Constitution and laws of the State of Arizona....”); see alsoA.R.S. § 38–101(3) (defining “public officer” to include a “member of any board or commission”). Without standing to raise the constitutional question in court, Petitioners would have no means of redress. That standing exists under these circumstances is implicitly recognized by Arizona's declaratory judgment statute, which provides that a person whose “rights, status or other legal relations” are affected by a statute may seek declaratory relief regarding the statute's validity. A.R.S. § 12–1832; cf. Merrill v. Phelps, 52 Ariz. 526, 529, 84 P.2d 74, 76 (1938) (noting that action under the declaratory judgment statute was “simplest and the best way” of resolving conflicting claims regarding statutory and constitutional authority of public officials).

¶ 12 Petitioners also allege individual injury based on H.B. 2600's requirement of a supermajority vote to send fewer than five nominees to the governor. Before H.B. 2600, commissioners by a mere majority vote could block a fourth and fifth nominee from being submitted to the governor. H.B. 2600 renders a commissioner's opposition to a candidate ineffective unless the commissioner can secure the support of a two-thirds majority. This material change further supports a finding that Petitioners have standing. Unlike the situation in Bennett, H.B. 2600 does not concern the impact of another branch of government on...