Justices of the Arizona Supreme Court heard oral arguments this week on a two-year-old lawsuit filed by a Sierra Vista resident against two current Cochise County supervisors.
David Welch sued the Cochise County Board of Supervisors in February 2019 after current supervisors Ann English and Peggy Judd appointed the third member of the board — Pat Call — as justice of the peace for the Sierra Vista Justice Court.
Welch claims the appointment violated state open meeting laws and that Call — who is no longer justice of the peace — transgressed the state’s conflict of interest law leading up to the vote. Welch’s complaint also claims Call participated in a discussion earlier in the Board of Supervisors’ meeting to forego an application process for filling the vacancy, and then participated in a closed meeting prior to English making the motion to appoint him to the position.
The Board of Supervisors filed for dismissal of Welch’s complaint in March 2019, arguing, among other things, that a citizen doesn’t have standing to bring the court action challenging Call’s appointment because that citizen was not directly affected by that action; and that any claims they violated the open meetings law was remedied when they ratified Call’s appointment in an open meeting.
A Greenlee County superior court judge granted the county’s motion to dismiss Welch’s claim, saying that Welch “failed to show distinct and palpable injury or particularized harm.” The judge, Monica Stauffer, also agreed that the county’s public ratification meeting, “cured any issue of open meeting laws improprieties at the March 14, 2019 ratification meeting.”
When Welch appealed Stauffer’s decision, he won at the Arizona Court of Appeals level and the latter remanded the case back to Stauffer’s courtroom. The case was heard by Stauffer after Cochise County court officials said they wanted to avoid a conflict of interest.
In essence, the Court of Appeals stated that Welch does have a right to sue because he is a citizen and a taxpayer, and, the fact that the county supervisors ratified Call’s appointment publicly does not negate that the actual appointment of Call was made in a closed meeting.
After the Court of Appeals issued its decision, the Board of Supervisors filed a motion asking the Arizona Supreme Court to review the matter.
Thursday morning the two issues argued before the seven Supreme Court justices were: 1) “Is citizen or taxpayer status, alone, sufficient for a private claimant to be ‘affected by’ an alleged statutory conflict of interest or open meeting law violation such that standing to sue is conferred?”; and, 2) “Does statutory ratification moot a private claimant’s open meeting law challenge to a governmental decision that was effectively ratified in accordance with Arizona’s open meeting laws?”
Attorneys for both sides — Cochise County and Welch — each had 20 minutes to argue their cases. Attorney Jim Jellison represented the county and David Abney represented Welch. Abney shared some of his time with Mike Catlett, the deputy solicitor general and chief counsel of special litigation at the Arizona Attorney General’s Office.
Jellison posited that Welch was not directly affected by Call’s appointment, an argument that has been made since the lawsuit was filed. He mentioned that Welch was never present at the county Board of Supervisor meetings where the issue was discussed.
But Abney said who better than Welch— a taxpayer and resident of Cochise County and Sierra Vista — would have the right to challenge the Board of Supervisors?
Questions posed by at least two of the Supreme Court justices seemed to take the same view.
“If not Mr. Welch, then who gets to come forward and say ‘What happened here is wrong’? “ asked Justice William G. Montgomery.
Vice Chief Justice Ann A. Scott Timmer went further, asking Abney if an 18-year-old unemployed resident of the county could file such a complaint.
Abney did not answer that question, but said he is wondering what the remedy in the case will be since Call is no longer justice of the peace. Call did not run in the November election for the position. Kenneth Curfman is the current justice of the peace.
The justices did not issue a ruling in the case. Arizona Supreme Court spokesman Aaron Nash said there is no set timeline for a decision.