How They Do It In Maricopa County
Arizona judges ruled on 2020 and 2022 election-related cases in which they had a direct interest: Their own seats.
A recent ruling in a Maricopa County Superior Court lawsuit over access to public records exposed a pattern of misconduct among multiple judges, casting shadows over the legitimacy of practically every case or controversy these Maricopa County judges heard — and over which they now preside — concerning the 2020 and 2022 general elections in Arizona.
Accurate results in Arizona statewide and presidential elections depend on Maricopa County, the most populous county in Arizona. As of the 2020 census, about 62 percent of the state’s total population resides in Maricopa County, which is “the second largest voting jurisdiction in the United States” representing “more than 60 percent of Arizona’s registered voters,” according to the county’s website.
An election challenge impacts not just the candidates who file challenges and their direct opponents on the ballot. A court challenge to the results of an election, if successful, potentially affects the entire election, calling into question the legitimacy of every seat and every ballot initiative. This report examines cases before Maricopa County Superior Court concerning the 2020 and 2022 general elections in which the presiding judges’ own seats were up for retention in the elections at issue. Some cases appealed to the Arizona Court of Appeals are also examined. Due to time constraints this report does not examine cases heard in other Arizona counties, does not touch on every Court of Appeals case, and does not examine 2020 and 2022 elections cases heard by the Arizona Supreme Court.
Judge Bradley Astrowsky
On November 21, 2023, the Arizona Capitol Times reported on the case of We the People Arizona Alliance v. Runbeck Election Services, Inc. et al. (CV2023-051714), a special action seeking the production of security videos at the contracted facility where Maricopa County’s 2022 early ballot packets and other election-related materials were stored. Plaintiff cited as authority the case of Cyber Ninjas v. Hannah (1 CA-SA 21-0173) in which the Arizona Court of Appeals held that election-related materials in the custody of private corporation Cyber Ninjas were subject to disclosure under Arizona’s Public Records Law because the company had been contracted to perform “an important legislative function” — namely, conducting an audit on behalf of the state legislature.
Judge Bradley Astrowsky dismissed We the People’s action with prejudice, finding that the custodian of the records they sought — Runbeck — is situated differently from Cyber Ninjas because Runbeck does not perform “key election tasks” such as inspect ballots or count votes. Moreover, since Runbeck is under no statutory or contractual duty to perform video surveillance for the county, “Runbeck’s security-camera system and security-camera footage does not further any of Maricopa County’s duties.”
Previously, Judge Astrowsky presided over Golec v. Maricopa Board of Supervisors (CV2022-015516) which alleged maladministration and sought an emergency order enjoining defendants from certifying the results of the November 2022 election. Judge Astrowsky denied the motion on the grounds that Plaintiff’s motion was “premature,” since “the canvass and declaration of the results in Maricopa County for the November 8, 2022, election have not been completed.”
Judge Astrowsky was up for retention on the November 8, 2022 Maricopa County ballot. His own name appeared on the very ballots for which defendant Runbeck was responsible. His own seat on the Maricopa County Superior Court bench depended on the election’s certification.
Let me be clear. We are witnessing a judge presiding in Maricopa County Superior Court, whose seat is subject to the approval of the voters, ruling on cases that directly impact his own retention and the very ballots upon which his own name is printed.
Judicial Elections and “Retention” in Arizona
The people of Maricopa County hold their Superior Court judges accountable through the mechanism of retention election — an up-or-down vote of confidence that gives voters the power to retain or remove judges. Appointed to the bench by the governor, a Superior Court judge serves an initial two-year term of office before appearing on the ballot for retention. A successfully retained judge then serves a four-year term before coming up on the ballot for retention again. According to the Arizona Judicial Performance Review (JPR) “Frequently Asked Questions” webpage:
Unlike the federal system, merit selection in Arizona is not a system that grants lifetime judgeships. Once Arizona judges are appointed, they must periodically stand for retention election, when voters decide whether to keep or remove them. Performance review is a way of evaluating the judges who seek to remain on the bench. A commission reviews the judges’ job performances to determine if they are meeting judicial performance standards. The public uses the information provided from the performance reviews at the retention election to decide if the judges should remain in office.
In addition to Judge Astrowsky, a number of other Maricopa County Superior Court judges retained in the Arizona 2020 general election and 2022 general election have likewise ruled on election challenges and related matters concerning the very elections upon which their own seats depended.
The Arizona Code of Judicial Conduct
This disturbing, too-often-repeated fact pattern in Maricopa County Superior Court implicates Canons 1, 2 and 4 of the Arizona Code of Judicial Conduct which “establishes standards for the ethical conduct of judges and judicial candidates” [Preamble]. Rule 1.2 “Promoting Confidence in the Judiciary” reads in part: “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety…. Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.” The test for “appearance of impropriety,” laid out in the rule’s Comment 5, “is whether the conduct would create in reasonable minds a perception that the judge violated this code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”
Every elected official has inherent professional and financial interests in preserving the legitimacy of his or her own election. Judges who sit for retention election are no different. These interests give rise to the appearance of partiality when ruling in cases that touch on the very ballots upon which their names are printed. As articulated in the Code’s Preamble, judges “should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity and competence.” For an elected judge who is up for retention to preside over a case challenging the election upon which his own seat depends, or to rule in matters pertaining to the disclosure of records related to his own retention ballot, creates in reasonable minds the objective appearance of impropriety.
Rule 2.11 on Disqualification states a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned….” Specifically, circumstances where the judge knows that he or she “has more than a de minimis interest that could be substantially affected by the proceeding” [Rule 2.11 (A)(2)(c)], or where the judge “has an economic interest, as defined by this code or Arizona law, in the subject matter in controversy” [Rule 2.11 (A)(3)] are instances where disqualification is mandatory. A judge’s seat is clearly a more-than-de-minimis pecuniary interest. According to the court’s website, Maricopa County Superior Court judges receive an annual salary of $148,220.80.
The onus to raise the matter of disqualification is upon the judge, not the litigants: “a judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” [Rule 2.11, Comment 2]. Even if the judge does not believe disqualification is warranted, he or she is nevertheless obligated to “disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification.” [Rule 2.11, Comment 5].
Rulings in election-related matters may also implicate Rule 2.3 (B) which specifies, “A judge shall not … manifest bias or prejudice … based upon … political affiliation.” Although the comments to this rule provide examples of harassment, participation in adjudicating election-related cases in 2020 and 2022, viewed collectively, could be perceived as organized political discrimination since rulings in nearly every case reviewed came down against those who challenged Democrats or government officials.
Because a judge standing for retention is a candidate for office, Canon 4 is also implicated: “A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity or impartiality of the judiciary.” The mandate that a judge “shall not … use court staff, facilities, or other court resources in a campaign for judicial office” [Rule 4.1 (A)(8)] is particularly troubling and illustrates the absurdity of the behavior of these Maricopa County judges. Ruling in cases that have a direct impact on an election’s outcome when one’s own seat depends on that outcome is an outrageous abuse of court resources to further that judge’s campaign for office.
Because the people of Arizona rightly demand transparency and accountability from their elected officials — particularly when the proper administration of elections is at issue — the people of Arizona deserve a thorough review of the actions of the court officers named herein and of any others who have taken it upon themselves to enter orders and make rulings in cases touching on their own ballots and their own elections.
Maricopa County Superior Court Judge John R. Hannah, Jr., who was on the ballot for retention in the 2020 general election, presided over Arizona Republican Party v. Fontes et al. (CV2020-014553), in which the Arizona GOP requested a second hand-count audit of a random sample of ballots because, they argued, the first hand-count audit had not been performed in accordance with Arizona law. Judge Hannah ruled for the defense and imposed sanctions on the plaintiffs because he felt the suit was politically motivated. The Arizona Republican Party appealed the dismissal and the award of sanctions in the Arizona Court of Appeals, and the case was recaptioned after Maricopa County Recorder Stephen Richer was substituted for defendant Adrien Fontes, the previous county recorder who now serves as Secretary of State. Arizona Republican Party v. Richer, (1 CA-CV 21-0201). The Court of Appeals affirmed the dismissal and sanctions. One of the three judges on the panel, Presiding Judge Randall M. Howe, was retained in the 2020 general election.
Judge Hannah also presided over Phoenix Newspapers, Inc. v. Arizona State Senate (LC2021-000180), a special action seeking public records production from the Senate’s investigation of the 2020 general election. On 12 January 2022 Cyber Ninjas, Inc., a real party in interest in the case, filed a 50-page Motion to Disqualify Judicial Officer for Cause (Plaintiffs’ second such motion in the case) citing extensive and detailed concerns (but not citing the judge’s interest in the outcome). The motion, after several recusals, was rendered moot on 19 January 2022 when Judge Kemp, on his own initiative, consolidated the Phoenix Newspapers action with American Oversight v. Fann (CV2021-008265).
Maricopa County Superior Court Judge (now retired) Margaret R. Mahoney, who won retention in the 2020 general election, presided over Aguilera et al. v. Fontes et al. (CV2020–014083) (Aguilera I) and (CV2020-014562) (Aguilera II), in which plaintiffs asserted they were denied the opportunity to vote due to malfunctioning electronic tabulators. In Aguilera II Judge Mahoney ruled for defendants, rejecting what she framed as the “core premise” of the plaintiffs’ Complaint, “that machines are always infallible and perfect.”
On 13 November 2020 a case reassignment notice was filed in Aguilera II indicating that the case “was previously assigned to Judge Christopher Coury, who has disqualified himself.” (The reason for disqualification is not stated, but Judge Coury’s seat had been up for retention on the 2020 ballot). The Associate Civil Presiding Judge, Daniel J. Kiley, ordered the case reassigned to Judge James Smith for all further proceedings. (Judge Smith’s seat was NOT up for retention on the 2020 ballot; he retired from the bench in 2022). However, on the same date, defendants moved to reassign Aguilera II from the courtroom of Judge Smith to Judge Mahoney on the grounds that Judge Mahoney was familiar with the facts from Aguilera I. Plaintiff did not object, and Judge Kiley reassigned the case from Judge Smith to Judge Mahoney.
Maricopa County Superior Court Judge Daniel J. Kiley, who was on the ballot for retention in the 2020 general election, was the presiding judge in Trump v. Hobbs (CV2020-014248) which sought a recount on the basis of evidence of votes potentially disqualified by malfunctioning electronic tabulators. Judge Kiley dismissed the case as moot, reasoning that the affected votes would not have changed the election’s outcome. Subsequently, Judge Kiley was appointed to Division One of the Arizona Court of Appeals by Arizona Governor Doug Ducey.
Maricopa County Superior Court Judge David J. Palmer, who won retention in the 2020 general election, entered rulings in Stevenson et al. v. Ducey et al. (CV2020-096490). This case was an election contest alleging such serious mismanagement of the election process that, Plaintiff alleged, “no one can have faith that one of their most sacred rights under the United States and Arizona Constitutions, voting, is being protected.” According to a Capitol Media Services report:
The case […] included charges that Facebook billionaire Mark Zuckerberg funneled money to election officials in nine Arizona counties through the Center for Tech and Civil Life in a way designed to deliberately skew the vote [in Arizona] for Biden. […]
[T]he people bringing the lawsuit [] decided not to pursue the matter.
Andy Gaona, an attorney for Secretary of State Katie Hobbs, wrote a letter to [Plaintiffs’ counsel] […] describing the case as “the very definition of a groundless action brought in bad faith, and without legal justification.”
On plaintiff’s motion the case was dismissed without prejudice “hours later,” according to the news report.
Maricopa County Superior Court Judge Timothy Thomason, who was on the ballot for retention in the 2020 general election, presided in Maricopa County v. Fann et al. (CV2020-016840) in which Maricopa County sought a declaratory ruling on the lawfulness of subpoenas issued by the state legislature seeking “documents necessary to perform a ‘Full Forensic Audit’ of the Maricopa County 2020 election” (Complaint for Declaratory Relief Part 1). In a thoughtful, thorough 16-page Minute Entry Judge Thomason found the subpoenas legal and enforceable. Judge Thomason successfully retained his seat on the 2020 ballot and retired from public office on October 31, 2023.
Maricopa County Superior Court Judge Joseph P. Mikitish, who successfully retained his seat in the 2020 general election, presided in Maricopa County Libertarian Party v. Maricopa County et al. (CV2021-002205). According to a press release on the plaintiff’s website, azlp.org, the suit “protests the Libertarian Party’s exclusion from the county’s ‘forensic audit’ of election equipment used in the 2020 general election.” Judge Mikitish ruled in favor of the county, holding that political parties have no legal right to observe extra audits that counties perform on election equipment beyond those audits required by state law.
Judge Mikitish also presided over AUDIT USA v. Maricopa County (LC2021-000074), an action seeking production of digital images of voted ballots from the 2020 general election. Judge Mikitish granted the county’s Motion to Dismiss, and his order was affirmed in the Arizona Court of Appeals (1 CA-CV 22-0254). (Two of the three judges on the panel, Judge Jennifer M. Perkins and Judge James B. Morse Jr., had been retained on the 2020 ballot.)
Maricopa County Superior Court Judge Michael W. Kemp, who was on the ballot for retention in the 2020 general election, presided over hearings and entered rulings in American Oversight v. Fann et al. (CV2021-008265), for nearly a full year before the plaintiff moved for change of judge for cause, citing ex parte communications. The case concerned production of documents related to the Arizona Senate’s audit of the 2020 general election. According to a Minute Entry dated 10 May 2022, Presiding Judge Pamela Gates recused herself from ruling on the motion and referred the motion to Judge Thomason, who likewise recused himself and ordered the motion for Change of Judge for Cause be referred to Judge Randall Warner for resolution. On 16 May 2022 Judge Warner granted the motion and reassigned the case to Judge Bradley Astrowsky.
Maricopa County Superior Court Judge Christopher A. Coury, who retained his seat in the 2020 general election, is the presiding judge in We the People of Arizona Alliance v. Arizona Secretary of State et al. (CV2023-051596) a special action under Arizona’s Public Records Law seeking communications between Defendants specifically pertaining to the 2020 general election. According to documents available on the Clerk of Court’s website, as of this writing, Judge Coury has entered one Order in the case, granting an ex parte application to substitute counsel.
Alison Bachus was a Maricopa County Superior Court judge who retained her seat in the 2022 election. Judge Bachus presided over Barnett v. Hobbs (CV2022-053785), a lawsuit filed under Arizona’s Uniform Declaratory Judgment Act naming Secretary of State Hobbs and every member of the Maricopa Board of Supervisors, alleging that the “General Election in Maricopa County was rendered incurably uncertain due to official misconduct, and it must be annulled.” Plaintiff Josh Barnett alleged the misconduct of the Election Boards and officers performing the canvass created “incurable uncertainty” serious enough to require the election to be rendered null and void. According to AZ Central:
Barnett, who represented himself, said Friday: “The heart of the case is exactly that I cannot tolerate seeing another election run illegally where everything is broken. And all we ask for, as the people … is that we have a legally run election. I don’t think that’s asking too much where rules aren’t broken, procedures not broken, forms broken. Everything, statutes, you name it, have been broken in this election.”
Andy Gaona, the lawyer representing the Secretary of State’s (Katie Hobbs’) Office, responded: “We’re also in a court of law and not an election conspiracy Twitter thread, so I won’t respond to most of what Mr. Barnett just said.”
Judge Bachus denied Plaintiff’s motion to extend pro hac vice status to out-of-state attorney Leo Donofrio. After oral arguments, she granted Defendants’ Motion to Dismiss on the grounds that because the heart of the Complaint “is that the election was improperly conducted,” the proper remedy is an election contest prescribed by statute, and not an action for Declaratory Judgment. Plaintiff filed an Emergency Motion to Set Aside the Dismissal for Fraud on the Court, alleging Defense counsel’s representations about the unavailability of injunctive relief were fraudulent. In denying the Emergency Motion, Judge Bachus raised the question of whether the out-of-state attorney, Mr. Donofrio, who was not authorized to practice law in Arizona, assisted in preparing the Motion and warned Mr. Donofrio against drafting or reviewing legal documents or rendering legal assistance or advice.
Judge Bachus knows how to file a Notice of Disclosure and how to recuse or disqualify when there is a conflict or apparent conflict of interests. In 2021, Judge Bachus recused herself in a case in which one of the plaintiff’s witnesses was best man at her wedding. In 2022 she removed herself from a lawsuit filed by business and property owners over a Phoenix homeless encampment “after an emotional hearing” without giving a reason. When she presided over We the People Arizona Alliance v. Stephen Richer, et al. (CV2022-053499), she filed a Notice of Disclosure stating that she had been a law school classmate with counsel for Plaintiff, Bryan Blehm. “This judicial officer was acquaintances [sic] with counsel during law school but had no social relationship with counsel,” she wrote. “If the parties feel recusal is needed, they shall file a request for recusal….” The parties declined to request recusal, but Judge Bachus made no further rulings in the matter because she resigned from the Superior Court following her appointment as a federal magistrate for the United States District Court for the District of Arizona on April 12, 2023.
Maricopa County Superior Court Judge Randall H. Warner, who was on the ballot for retention in the November 8, 2022 general election, entered rulings in Hamadeh v. Mayes et al. (CV2022-015455), a direct challenge of the 2022 election. On the date Judge Warner filed a Minute Entry granting defendants’ motion to dismiss, 29 November 2022, the official results of the election had not yet been declared. Judges Moskowitz and Viola, also on the 2022 retention ballot, both disqualified themselves in this matter.
Maricopa County Superior Court Judge Katherine Cooper, who retained her seat in the November 2022 general election, presided over Republican National Committee v. Richer et al. (CV2022-013185), which alleged that Maricopa County had violated Arizona’s Equal Access Statutes concerning administration of the 2022 election. After a bench trial, Judge Cooper dismissed the plaintiffs’ complaint on the grounds that “as to the 2022 election cycle, the allegations are moot,” “as to the hiring of election workers for future elections, the action is not ripe,” and the plaintiffs lacked standing to seek mandamus or declaratory relief.
Maricopa County Superior Court Judge Melissa Iyer Julian, who kept her seat in the 2022 retention election, presided over Finchem v. Fontes (CV2022-053927), a contest of that same election. The Complaint alleges four acts of misconduct committed by Katie Hobbs, including failing to recuse herself from her duties as Secretary of State in overseeing and certifying the election.
After hearing oral arguments, Judge Julian filed an Under Advisement Ruling dated December 16, 2022 granting Defendants’ Motion to Dismiss. Addressing the argument of Plaintiff Mark Finchem, the unsuccessful 2022 Republican candidate for Secretary of State, concerning allegations of misconduct by then-Secretary of State Hobbs in failing to recuse herself after her gubernatorial opponent Kari Lake “perceived a conflict of interest [sic]”, Judge Julian writes: “there is no ‘presumption’ under Arizona law that the Secretary committed misconduct in the election canvass merely because her opponent ‘perceived’ an earlier conflict of interest” (p. 10).
Judge Julian writes, “the only authority cited in the Amended Statement is to A.R.S. § 38-503, which prohibits self-dealing by public employees” and which requires recusal “only when a public officer or employee has a ‘non-speculative pecuniary or proprietary interest, either direct or indirect, other than a remote interest’” (p. 9).
In declining to recognize Hobbs’ obvious pecuniary and professional interest in the outcome of the election, Judge Julian erroneously conflates the “pecuniary interest” that gives rise to a requirement to recuse under A.R.S. § 38-503 with case law holding that a public office is not a “property or contract right” that can be protected by the court. Judge Julian writes:
Seeking or holding public office does not grant elected officials a financial or ownership interest in the job they hold or seek. To the contrary, “the nature of the relation of a public officer to the public is inconsistent with either a property or a contract right. Every public office is created in the interest and for the benefit of the people, and belongs to them.” Ahearn v. Bailey, 104 Ariz. 250, 254 (1969) (citation omitted).
Ahearn involved members of the Industrial Commission of Arizona, appointed by the Governor, whose six-year terms were prematurely shortened by an act of the legislature. They argued the legislature’s actions exceeded its authority and violated the state constitution. The Arizona Supreme Court in Ahearn cited cases from other jurisdictions for the principle that “there is no vested right in the office holder to compel the continuation of an office.” Ahearn at 254.
In the Finchem case, however, the issue was not an office-holder’s interest in continuing her term of office after that term was cut short. On the contrary, Hobbs had a direct pecuniary interest in the outcome of the election, as it granted her a new office and a new four-year term as Governor. According to Ballotpedia, the governor’s annual base salary is $95,000.
By conflating two very different “interests” of an office holder and misapplying case law, Judge Julian’s reasoning leads to the absurd result that elected officials in Arizona need not be recused on conflict of interests grounds where their own elected office is at issue. Finding that the action was “groundless” and “filed in bad faith,” Judge Julian awarded attorney fees and costs to the Defendant. The case was appealed (1CA-CV 23-0383) with oral argument scheduled for January 31, 2024. CORRECTION: After “a series of decisions in the Arizona appellate courts related to the 2022 statewide election, specifically Lake v. Hobbs and Hamadeh v. Hayes,” Plaintiff Mark Finchem moved the Court of Appeals on July 30, 2023 to dismiss his appeal.
Maricopa County Superior Court Judge Joan Sinclair, who retained her seat in the 2022 general election, is the presiding judge in We the People of Arizona Alliance v. Richer et al. (CV2023–051479), an action seeking production under Arizona’s Public Records Law of main-in ballot envelopes. Trial is set for February 2, 2024.
Maricopa County Superior Court Judge Dewain D. Fox, who retained his seat in the 2022 general election, is the presiding judge in We the People Arizona Alliance v. Arizona Secretary of State et al. (CV2023-051597), an action seeking production under Arizona’s Public Records Law of the Early Ballot List for Maricopa County, to include “all early returns, early in-person returns, and ‘late early’ envelopes returned on November 8, 2022” related to the 2022 general election. Judge Fox held a status conference on October 3, 2023 and entered orders in the case. A ruling on Defendants’ Motion to Dismiss is pending.
These allegations are being referred to the Arizona Commission on Judicial Conduct, which reviews and acts on violations of the Arizona Code of Judicial Conduct. Allegations against Alison Bachus, who is now a federal magistrate, will be referred to the Ninth Circuit Judicial Council.
Further examination of other election-related cases filed in other Arizona county courts and the appellate courts may reveal additional instances of this practice.
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