Two of the three Arizona Appeals Court judges weighing the Ahwatukee Lakes Golf Course case are looking to change jobs.
Judges Jennifer M. Perkins and Randall M. Howe are among the 11 applicants to fill a vacancy on the state Supreme Court created by the retirement of Chief Justice Scott Bales.
Their applications could mean that a decision in the Lakes case could come sooner rather than later since the timetable for filling the high court vacancy suggests that Gov. Doug Ducey could likely fill the slot before fall.
A clearer idea may come June 25, when the Commission on Appellate Court Appointments decides which of the 11 applicants it will interview. Those interviews will take place on July 26 and out of that session, the panel will submit the names of at least three applicants to Ducey for a final selection.
The commission is currently soliciting public comment on all 11 applicants at azcourts.gov/jnc.
Of the other nine applicants for the position, seven are Superior Court or appellate judges, one is a lawyer in private practice and the other is Maricopa County Attorney Bill Montgomery.
Howe and a third member of the appellate panel, Judge David Weinzweig, had plenty of questions when the Lakes case was argued by attorneys Dan Maynard and Tim Barnes on May 22.
Maynard, representing course owner Wilson Gee, and Barnes, representing Lakes homeowners Eileen Breslin and Linda Swain, were respectively arguing against and for Maricopa County Superior Court Judge John Hannah’s January 2018 decision that land use regulations governing the 101-acre site require that a golf course be operated on the site.
Gee closed the 18-hole executive course in 2013, saying it was losing money amid a downturn in the popularity of golf.
Breslin and Swain filed suit five years ago, asking the court to order Gee to restore the course.
Since its closure, the course has deteriorated into barren desert after two different developers tried to persuade homeowners to vote in favor of changing the deed restrictions so houses could be built there.
During the lawyers’ arguments, both Howe and Weinzweig fired plenty of questions at both lawyers while Perkins silently listened.
And as is the case in most appeals hearings, none of them tipped their hand on how they might ultimately rule.
While Weinzweig challenged Maynard’s assertion that Gee could simply let the site lay fallow, Howe made an observation that ran counter to homeowners’ demands that the site be restored to its former glory as a pristine 18-hole executive course.
Howe said deed restrictions seemed to mandate a course, but added:
“It could be the ugliest golf course ever designed. It might not make the homeowners happy but it would comply with the statutes.”
Estimates by experts from both sides in the case have pegged reconstruction costs between $6 million and more than $14 million. Gee has vowed the site will never see golf being played there again.
Both Howe and Perkins filed lengthy applications that detail a stunning amount about their personal and professional backgrounds, even including their hobbies.
The applications also give intimate perspectives on personal challenges they’ve encountered in the course of their careers.
For example, Perkins discusses the tribulations she encountered while she was prosecuting a justice of the peace while she worked for the Arizona Supreme Court Commission on Judicial Conduct.
Perkins suffered a miscarriage and a broken ankle that left her bedridden for a time when she was pursuing formal charges against the jurist.
At the same time, she said, the justice of the peace had filed a blizzard of motions against the commission’s efforts to remove him from office.
The case, she says in her application, “required balancing the duty to protect the public and enforce the ethical rules while taking into consideration the mitigating factors presented by the judge’s personal circumstances and relative inexperience.”
She learned two lessons from the case, she said.
First, she writes, “I learned that higher fidelity to the law need not lead one to pursue a lawyer’s duty without empathy or humanity.”
As for her own personal issues during the case, she said, she learned “coming through such trials by fire makes a person that much stronger.”
Perkin also states that she spends “a substantial amount of my ‘free’ time studying both law and theology.”
“On any given evening, you might find me watching a 2013 panel discussion on textualism and constitutional interpretation or detailed exegeses by multiple preachers of the portion of Genesis that tells the story and evolution of Abraham, Isaac and Jacob as the fathers of my faith,” she writes.
Howe focuses on the legal precedents of his work for 24 years as a lawyer with the state Attorney general’s Office and U.S. Justice Department as well as his time on the court.
He also makes some points that could be viewed as hopeful for the Lakes homeowners.
At one point in discussing a case he helped decide as an appeals court judge, Howe writes, “Courts should resolve matters on the narrowest possible grounds, leaving larger, more complicated issues for another day when they are truly at issue and must be decided.”
He also notes in another case that appeals court judges “are required to defer to the superior court’s findings of fact, absent an abuse of discretion, and should not make factual determinations on appeal. The trial judge, who sees and hears the witnesses and counsel, is in a better position to decide matters than an appellate court.”
But Howe also details aspects of his personal life, including his long community service on behalf of organizations that help people with disabilities.
He was born with cerebral palsy and writes proudly of how his parents “insisted that I receive the proper medical care and therapy for my disability,” but “raised me as an otherwise normal child, expecting me to succeed and to be a productive member of society.”
“Because of my upbringing and life experiences, I have pursued my career as a lawyer without regard to my disability, yet I still understand the trials and difficulties of being perceived as ‘different’ from other people. My practice of law is separate from my disability, but I am active in the disability community, working for the inclusion and the integration of persons with disabilities into society.”