Vote 'Em Out

Here's How You Can Put The Fear Of The Electorate In Arizona's Top Judges.

By Vicki Hart

EXERCISE YOUR right--vote 'em out.

In 1974 the people of Arizona voted 255,914 to 220,462 for a constitutional amendment to stop electing judges and start appointing them in Maricopa and Pima counties (counties over 250,000).

Thus judges for the Superior, Appeals and Supreme courts are now appointed by the Governor, who receives three candidates, selected by the state Judicial Commission, for each vacancy. The Governor may decline the list and ask for another.

Currents The process is called "Merit Selection." Once a Superior Court judge is appointed, he or she appears on the ballot for retention every four years; Supreme Court and Court of Appeals judges are on the ballot every six years. In Pima County no judge has ever lost a retention vote, and none has been recalled. Essentially, these judges all have a lifetime appointment. They can retire at age 70 with an 80 percent pension.

Critics complain that far from removing politics from the selection process, Merit Selection has become even more political. The local joke is that you have to get ubiquitous car dealer Jim Click's support before you can become a judge.

While an attorney may submit his or her own name for consideration, critics say that often the choice has already been made--based on who the big campaign contributors want on the bench. They also claim there's a prejudice against nominating prosecutors and a favoritism toward private attorneys.

The critics also point out the political party of the applicant is important, and that the successful candidate often is of the same party as the Governor. Also, once a prospective judge sends in an application to the Judicial Commission, he must "campaign" for the appointment, which involves pestering friends and influential people to write and call the Commission and the Governor to lobby on his behalf.

Occasionally, even extremely qualified attorneys never get an interview.

A representative of the Office of Elections calls the judiciary a "hidden office" because judges are selected and installed on the bench with little publicity or fanfare. Unless they're trying a high-profile case, most judges get little publicity or recognition. The representative says many people don't even understand what "retention" means.

THE TRUTH IS, voters are provided with little or no information about judges, making it difficult to decide whether to vote for or against retention.

The State Bar Association used to make recommendations on judges' retention. Although the bar gave a couple of judges low ratings, it never actually recommended against retaining a judge.

Since 1992 the Commission on Judicial Performance Review has been in operation. The 30-member Commission is made up of lawyers, judges and members of the general public who have applied to serve. All are appointed by the Arizona Supreme Court. And until this year the commissioners have never recommended that a judge not be retained.

Pima County Superior Court Judge Robert Donfeld received low ratings this year. He claims it's because attorneys didn't like the fact that he refused to grant them delays while he was supervising the Court's so-called "Rocket Docket," designed to promote speedy trials. The Commission rated Donfeld low on "judicial temperament," among other items. The fact that many lawyers profess anger towards Donfeld, however, is a great argument in favor of his retention.

Two Pima County Superior Court judges, William Scholl and Lawrence Fleischman, were retained in the November 1996 election, despite the fact that Fleischman was under investigation and Scholl was on trial at the time. Both later resigned before possibly facing removal for their behavior.

Scholl, who admitted to having "an adult fantasy life" in Las Vegas, was convicted of filing false tax returns and concealing gambling winnings from the IRS. He also borrowed money from an attorney who had a case before him.

Fleishman resigned after he was investigated for violating the judicial code section prohibiting sitting judges from practicing law.

Judges' rulings can have fatal consequences:

In 1983 a Pima County jury found James Crummel guilty of first-degree murder for killing fourth-grader Frank Clawson. Crummel was sentenced to life. Two years later Pima County Superior Court Judge Michael Brown ruled that Crummel had received inadequate counsel and granted him a new trial. Brown ruled that evidence in the first trial would not be allowed in the new one. Crummel was released with five years probation, and went on to molest and kill young boys again.

Judges have a very serious impact in our community. If they're not performing to our standards, if we don't like their rulings, or even if we just don't like them personally, we can--and should--vote them out. TW

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