Friday, March 4, 2011
Channing Turner of Cronkite News Service has the details:
PHOENIX — Several bills introduced by a conservative lawmaker would transform the way Maricopa and Pima counties select and retain judges, including putting the Senate in charge of confirming and deciding whether to retain them.
Opponents, including the former chief justice of the Arizona Supreme Court, have called the bills misguided and an attempt to inject politics into the judicial system. But Sen. Ron Gould, R-Lake Havasu City, who chairs the Senate Judiciary Committee, said the current system needs to be reformed.
Gould authored 11 bills dealing with the way judges are selected and retained, including five that are still active.
While judges in smaller counties are selected and retained through elections, since 1974 Maricopa and Pima counties, which have populations larger than the current threshold of 250,000, have used a merit selection system that begins with nominating commissions.
Under the system, the governor appoints five attorneys from a pool vetted by the State Bar of Arizona and 10 members of the public to each county’s nominating commission. The Senate confirms each commission nomination.
When a judicial vacancy occurs, the commission selects at least three candidates judged most highly qualified to fill the position. The governor then makes a final appointment from those candidates.
SCR 1045 would have voters decide whether to remove the Bar Association’s power to select nomination committee member, while SCR 1040 would have voters decide whether to both eliminate Bar involvement and require Senate confirmation.
Both measures made it out of committees.
Peter Dunn, a lobbyist for the Arizona Judges Association, said the resolutions spring from a “myth” among lawmakers that the Bar Association has too much control over nominating commissions.
“A minority of the commission’s members are lawyers, and the non-lawyer members certainly aren’t taking a backseat to the lawyer members,” Dunn said. “Conservative Republicans seem to want to change or get rid of a system that is really working well.”
Jon Phelps, CEO of the State Bar of Arizona, said lawmakers like to think there’s a “star chamber, underground society” at the Bar, but that perception is unfounded.
“That just doesn’t happen,” he said. “And if you’re going to look for the best qualified legal professionals and legal minds — and isn’t that what we all want in the courtroom — then wouldn’t you want lawyers who are practicing in these roles to have a say?”
Phelps said lawmakers need to take a closer look at the current system before rushing to change it, particularly when it comes to abolishing the Bar’s involvement.
“If the Legislature is serious about going down this road, then have real hearings, talk to people who have been in the courtrooms … look at the judicial reviews,” he said. “None of that has been done.”
Adding Senate involvement to the selection and retention of judges could cripple their independence, said David Berman, senior research fellow at Arizona State University’s Morrison Institute for Public Policy.
“You’re really replacing the voters with the Senate,” Berman said. “That might be a more attentive audience, and one that remembers more politically.
William J. O’Neil, a retired Superior Court judge from Pinal County, said involving the Senate would transform judges into “political animals.”
“You will have lost an enormous balancing aspect,” O’Neil said.
In a brief telephone conversation, Gould said he was dissatisfied with the way judges are appointed and retained. He said he would call back to discuss his legislation further but didn’t return several follow-up calls.
Three other measures Gould authored seek to increase transparency and voter participation in the process.
SB 1482 would require the Commission on Judicial Performance Review, which rates and recommends judges for retention, to post the decisions of appellate court judges coming up for retention election on its website. SCR 1047 would have voters decide whether to open meetings and minutes of the Arizona Commission on Judicial Conduct to the public.
Both measures passed the Senate and were forwarded to the House.
SB 1472, which was on its way to the Senate floor, would allow members of the public to submit arguments for and against the retention of specific judges for publication in voter pamphlets.
Dunn, with the Arizona Judges Association, said that while he does support efforts to increase transparency and participation he doesn’t support any of Gould’s bills.
“I don’t think the people of Arizona want more political influence in the judiciary,” he said.
Bills involving appointing, retaining judges:
- SB 1482: Would require the Commission on Judicial Performance Review to publish on its website the decisions of an appellate court judge who is up for retention election.
- SB 1472: Would allow the public to file arguments advocating or opposing the retention of a judge in a public voter pamphlet.
- SCR 1040: Would let voters decide whether to subject judicial appointments and reappointments to Senate confirmation and would remove the State Bar of Arizona from the nomination procedure for attorney members of the Appellate and Trial Nomination Commissions.
- SCR 1045: Would let voters decide whether to remove the Bar Association from the process of appointing attorney members to the Appellate and Trial Court Nomination Commissions.
- SCR 1047: Would let voters decide whether to open documents and proceedings relating to complaints reviewed by the Commission on Judicial Conduct to the public.