Sunday, July 9, 2023

UPDATE: Doug Ducey's 2022 Court Expansion Behind Tucson Transfer Of Kari Lake's 2022 Election Contest (READ source documents)

When Arizona's Law reported Sunday (below) on the transfer of Kari Lake's 2022 Election Contest appeal (#2) to Division 2 of the Arizona Court of Appeals, Lake, Mike Lindell and others erupted into renewed accusations of corruption. Although the article made it clear that the intra-court transfer was random, a more in-depth explanation of the transfer process is needed. We questioned the courts for details and documentation, and they responded last night. Here is the truth behind the transfer.

The genesis is last year's law (HB2859, below) permitting Governor Doug Ducey to appoint six new Court of Appeals judges on his way out the door. (It was Ducey's second court expansion, the first in 2016 allowing him to place two new Supreme Court justices on the bench.)

The Court of Appeals has two divisions, one covering cases from seven southern counties and the other, larger division covering the eight northern counties. Because more people live - and, more cases originate - in the northern division, that "Division 1" already had more judges (16 to 6). 

The  2022 law added an equal number (3) of judges to each Division. That changed the proportion, so the statute also added a sentence permitting the two divisions to transfer cases to equalize the workloads.

After Ducey signed the bill (and before he appointed the new judges), the Clerks of the two divisions got to work coming up with a plan to randomly transfer cases to balance the caseloads. They formalized the plan in January of this year, but had already begun to implement in the last quarter of 2022. The Transfer Policy/Agreement is published below.

The agreement even took into account the different amount of work prompted by different types of appeals. Thus, for example, every  7th civil appeal is being transferred from Division 1 to Division 2, but only every 9th criminal appeal and every 6th family court appeal is being moved.

The Clerk explains that the random transfer for civil appeals (such as Lake's) takes place once the Superior Court Clerk transmits the trial court record to Division 1. In Lake's second Election Contest appeal, this happened on June 29. The transfer order is dated the following week, July 7.

The Clerk says that "in 2023, Division One has transferred about 80 cases to achieve equalization." (Rough math shows that that is about right, considering that some 693 civil and criminal appeals have been filed in Division 1 so far this year. Not all have reached the transfer point.)

As we noted below, the statute also permits Division 2 judges to simply come up to Phoenix to hear Division 1 cases (and vice-versa), which could also help equalize the judges' caseloads. The Clerk's Office tells Arizona's Law that the two different methods are unrelated and that the 2022 change prompted the case transfer process to equalize.

Also as we noted below, the same Governor appoints the judges to both Divisions of the Court of Appeals. While the pool of applicants may be different, the Governor still picks his or her favorite, and 7 of the 9 Division 2 judges were chosen by Ducey. There is also no evidence that either division has had a political bias, or has been overturned by the Arizona Supreme Court at a higher rate.

As of last night, Lake's attorneys have not contested the transfer. And, they have not asked the Arizona Supreme Court to yank the appeal from the entire Court of Appeals. That expediting move has been available to them under both rules for normal cases and the rule for expedited election cases.


ORIGINAL ARTICLE, 7/9: "Kari Lake's Election Appeal Transferred... To Tucson (READ Order)"

Kari Lake's slow-moving Election Contest appeal was transferred to the Tucson-based Division 2 of the Arizona Court of Appeals. 

The lateral transfer was one of seven cases randomly selected on Friday to be sent from the much larger Division 1 (Phoenix) down the information superhighway to southern Arizona, as a way to "equalize caseloads".

The transfer order cites a statute (A.R.S. §12-120(E)) that "(a) matter may be transferred between divisions in order to equalize caseloads and for the best use of judicial resources." The divisions' jurisdictions and number of judges are also set by (that) statute - Division 2 has nine judges and draws appeals from the state's seven southernmost counties, while Division 1 has 18 judges for the other eight counties.

(For recent updates and analysis for the other two Arizona Election Contests still active in the courts - Finchem's and Hamadeh's - please click here.)

Identical transfer orders were sent out Friday in six other cases. It is not clear how often appeals get transferred between the divisions, but this is the first time Arizona's Law has seen a higher-profile case moved. 

The Governor appoints the judges for both divisions.

(LATER: One of the first questions we received about this transfer was whether it makes it more or less likely that Lake would succeed in her appeal. Our answer was that the best indicator would be to see what the parties say or do. We received the 1st answer this afternoon, when Lake tweeted that the transfer to "the most Marxist part of the state" is an effort to "bury the truth" and that she "won't let them." Her tweet ends with a fundraising appeal.)

In either court, Lake's attorneys appear to already be delinquent in moving the appeal forward. Not only did they not push to expedite the appeal - as permitted in a special court rule for election matters (Rule 10) - and not try to transfer the case to the Arizona Supreme Court (as they had indicated they might), but they are apparently delinquent in filing their Rule 11 statement. That entails designating what part of the trial transcripts they have ordered and giving the other parties the opportunity to order other parts.

Lake has not filed anything since filing the Notice of Appeal on May 31. The Maricopa County Superior Court Clerk's Office submitted the trial record to the Appeals Court on June 29, the last statutory day for them to do so. (It is likely they were waiting to see which court Lake was trying to choose.)

This is Lake's 2nd appeal. After the 1st trial in December resulted in dismissal, she took the appeal through Division 1 and the Arizona Supreme Court. The latter upheld the results of the trial, but found that the court should not have dismissed one of the other claims before trial. The May trial was for that remaining count, and again resulted in dismissal.

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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  1. That's a rather unusual system for transferring cases to another jurisdiction you have there in Arizona.

    1. It’s one court of appeals. The divisions don’t have jurisdictional significance.

  2. About 1 in 7 cases gets randomly transferred to Division 2 to equalize the case loads. Started happening after they expanded both divisions, though in the past, Division 1 sent a portion of its post-conviction relief cases to Division 2 to help clear a backlog.

  3. I take that back, the formula is a little more complicated than 1 in 7. The latest court report from Division One says it depends on the type of case, ranging from 1 in 6 to 1 in 27.


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