Court expansion key to artists’ win in discrimination case

Joanna Duka and Breanna Koski, the owners of Brush & Nib Studio, appear at a news conference after the Supreme Court 4-3 decision that reversed a lower-court ruling in favor of Phoenix’s anti-discrimination ordinance. /Screenshot from Fox video

By Dillon Rosenblatt | Arizona Capitol Times

A landmark Arizona Supreme Court decision on September 16 would have been different had the court not expanded from five to seven justices in 2016.

Gov. Doug Ducey on several occasions has been accused of “packing” the state’s highest court with conservative justices. It was a criticism in 2016 when he signed the court expansion bill into law and this year when he appointed Justices James Beene and Bill Montgomery.

Ducey has now made five appointments, more than any other governor in Arizona history, and has shaped the court for possibly decades.

His choices for justices on the court and the expansion certainly affected the outcome of Brush & Nib v. City of Phoenix, a case in which a split court said the First Amendment rights of two business owners outweighed a city anti-discrimination ordinance.

Ducey appointed Justices Andrew Gould and John Lopez to fill the newly created sixth and seventh seats at the end of 2016, and both of them voted in the majority, joining fellow Ducey-appointee Clint Bolick, who was appointed in 2016 before the expansion, and Gov. Jan Brewer-appointee John Pelander, who retired March 1.

Because oral arguments in Brush & Nib took place in January, Chief Justice Scott Bales, who retired in July, and Pelander still weighed in on the case.

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