Arizona’s Constitution requires the Commission on Appellate Court Appointments to submit “not less than three” nominees for a judicial vacancy to the governor. Ariz. Const. art. 6, §§ 36-37. The legislature recently enacted H.B. 2600, which requires the Commission to submit “at least five” nominees to the governor, unless an applicant is rejected by a two-thirds vote.
Some members of the Commission filed a special action asking the Arizona Supreme Court to declare H.B. 2600 unconstitutional. The Court accepted special action review because the case requires resolving purely legal questions turning on interpreting Arizona’s Constitution and because the case requires an immediate and final resolution.
The Court held that H.B. 2600 directly conflicts with Arizona’s Constitution. The requirement to submit at least five nominees fundamentally changes the selection process set forth in the Constitution, which requires nomination of no fewer than three.
The Court rejected Arizona’s argument that the members of the Commission had no standing to sue. The members alleged particularized injury, including being required to act contrary to their constitutional obligations. The Court also concluded that the other provisions of H.B. 2600 are not severable.
Vice Chief Justice Bales wrote the unanimous opinion. Chief Justice Berch recused herself; Judge Norris from the Court of Appeals, Division One, sat by designation.
Posted by: Eric Fraser
DISCLOSURE: Osborn Maledon served as co-counsel in representing the petitioners.