Originally Published: January 11, 2016 6 a.m.
PHOENIX - Ignoring six appellate court judges and even members of his own Republican Party, Gov. Doug Ducey last week chose a lawyer known for his views on limited government to serve on the Arizona Supreme Court.
In selecting Clint Bolick of the Goldwater Institute, Ducey said in a prepared statement that he is "nationally renowned and respected as a constitutional law scholar and as a champion of liberty." And the governor cited his "unwavering regard for the rule of law."
What Ducey did not mention is Bolick's long history of filing suit - and often winning - against government agencies at all levels.
He challenged the 1998 voter-approved Citizens Clean Elections Act which allows candidates for statewide and legislative office to get public funds if they don't take private donations. But courts rejected his contention that using civil, criminal and traffic fines to finance the program was an illegal tax.
Bolick, however, had better luck in getting the U.S. Supreme Court to kill a provision of the Arizona law which provided matching funds to publicly financed candidates when their foes spend more.
He also has gone to court in support of giving a type of voucher of public dollars so parents can send their children to private and parochial schools, successfully got courts to rule that cities can't provide pay to police for union activities, and obtained a ruling overturning city laws restricting "sign walkers" who hang around street corners urging passers-by to stop at local merchants.
And he and colleagues at the Goldwater Institute are currently Republican lawmakers seeking to overturn a vote by the Legislature to expand the state's Medicaid program, an expansion pushed by Jan Brewer, Ducey's predecessor.
Bolick, a 1983 law school graduate of the University of California at Davis, has spent much of his legal career with organizations known for their battles with government over regulation.
That included a stint at the Mountain States Legal Foundation which advocates for limited government and free enterprise, the Institute for Justice which describes itself as a "libertarian public interest law firm' which sues over issues of school choice and property rights, and the Alliance for School Choice which has been at the forefront of using tax dollars for private and parochial school education.
But it has been at the Goldwater Institute, where Bolick has worked since 2007, that he has been the most active in his litigation, some of it against the state.
Aside from ongoing legal efforts to kill the state's Medicaid expansion, Bolick challenged the authority of the state Board of Cosmetology to tell a spa owner she could not use live fish to do "pedicures' on customers.
Bolick argued there was no need for the state to regulate the practice. But courts rejected his arguments, siding with the board's arguments that the "fish spa" created health issues.
But when the same board said people who braid hair also need to be licensed he championed a change in state law to exempt them.
Bolick, however, failed in his challenge to the decision by the Arizona Corporation Commission to require electric utilities to generate a certain amount of their power from renewable sources, including solar.
He was somewhat more successful in getting a court to rule that cities can't limit ads at bus shelters solely to commercial messages. And he helped overturn local regulations that limited the kind of political clothing that people can wear to polling places.
Bolick currently represents some non-Indian parents who are suing to overturn the federal Indian Child Welfare Act which requires require state courts when placing Indian children for adoption to give preference to a member of the child's extended family. That is followed by priority by other members of the child's tribe and, ultimately, other Indian families. Bolick also named DCS as a defendant because it follows that policy.
When litigation has proven not to be the answer, Bolick has been involved in crafting changes to the Arizona Constitution, including a measure requiring a secret ballot for union elections.
He also helped push a provision guaranteeing the right of people to have - or not have - health insurance, a measure aimed at giving Arizonans the right to ignore the Affordable Care Act. The effectiveness of that provision, however, remains untested.
Bolick replaces Justice Rebecca White Berch who is retiring.
Ducey chose Bolick from seven names sent to him by the Commission on Appellate Court Appointments. By law it screens applicants for vacancies and must give the governor at least three names.
No more than two thirds can be from any one political party. And the governor is required to choose from that list.
By naming Bolick, Ducey becomes only the second governor to go outside his own party since the current selection process for justices was approved by voters in 1974.
In his application, Bolick said he was a Republican until 2003, choosing at that time to become a political independent.
Republican Jane Hull was the only other governor to ignore party labels, naming Democrat Ruth McGregor to the high court in 1998.
Bolick also was the only one on the list sent to Ducey who was not already on the state Court of Appeals. In fact, Bolick has no judicial experience at all.
That, however, is not as unusual. In fact Scott Bales, currently the chief justice, was named to the court by Democrat Janet Napolitano directly from his private law practice.