Cochise County Board of Supervisors

A photo of the Cochise County Board of Supervisors when Pat Call was still on the panel. From left, Call, Peggy Judd and Ann English.

The state’s highest tribunal said Thursday that a lawsuit filed by a Sierra Vista resident against two current Cochise County Board of Supervisors for their controversial appointment of a third member of the board as justice of the peace will proceed at the Superior Court level.

The 16-page decision by the Arizona Supreme Court, issued by Chief Justice Robert Brutinel, sides with the Arizona Court of Appeals’ decision in October to remand the case to Greenlee County Superior Court Judge Monica Stauffer for a resolution. The Supreme Court also sided with the Court of Appeals’ prior ruling that Sierra Vista resident David Welch has standing to file such a complaint.

Welch’s complaint was initially heard in Greenlee County because it would have been a conflict of interest for a Cochise County judge to handle it.

The case, however, may proceed in Cochise County Superior Court under a different judge from a different county, said Chris Russell, one of the attorneys representing the plaintiff.

“We hold that these provisions broadly confer standing based upon a claimant’s interest in preserving the values of transparency and accountability that these laws enshrine, not because of a claimant’s equitable ownership of tax revenues,” the Supreme Court’s ruling shows.

“The open-meeting law also provides that “(a)ll legal action” taken in violation thereof is “null and void” unless the public body later takes the proper steps to “ratify” that action. A.R.S. § 38-431.05(A)–(B). We hold that ratification only validates the initially void action; it does not moot an open-meeting claim based upon the underlying violation.

“Accordingly, we vacate those portions of the court of appeals’ opinion analyzing the laws’ enforcement provisions through the lens of taxpayer standing, affirm its reversal of the trial court, and remand to the trial court for further proceedings.”

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 that they violated the open meetings law was remedied when they ratified Call’s appointment in an open meeting.

Stauffer granted the county’s motion to dismiss Welch’s claim, saying that Welch “failed to show distinct and palpable injury or particularized harm.” 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.

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.

The Supreme Court heard the case in early June, saying the two main points were whether taxpayer standing suffices to enforce Arizona’s public accountability laws and whether statutory ratification moots an open-meeting claim.

As part of the decision issued Thursday, the Supreme Court justices also cast doubt on Call’s involvement in his own nomination as justice of the peace.

“ ... The circumstances preceding Call’s appointment plausibly imply his involvement in his own nomination,” the decision states. “He took part in the Board’s decisions to forego other candidate selection methods, to go into executive session, and to table the matter — all without publicly disclosing his interest in the position.

“The Board then resumed its session an hour after the appointed time and immediately nominated and appointed Call to the post. Because the Board’s decision affected Welch’s statutorily protected interest in preventing self-dealing, he has standing to challenge it.”

English said she had not seen the Supreme Court’s decision and could not comment on it. Supervisor Judd did not return a call for comment from the Herald/Review.

Welch’s attorney, Chris Russell, said he and the rest of Welch’s trial team appreciate the higher court’s recognition of a “citizen’s standing” to bring suit against a public entity such as Cochise County.

“We are appreciative that the Supreme Court provided a rational and common sense analysis of a citizen’s standing to bring a private cause of action against the Cochise County Board of Supervisors,” Russell said in an email. “Mr. Welch, as a citizen within the Board’s zone of interest, may now proceed with his effort to hold the county to a policy of transparency and accountability.

“The high court certainly provided Arizonian’s workable guidance on standing in the context of governmental meetings and actions,” Russell added. “We are anxious to get back to the work of holding the county accountable—the case will proceed.”