Friday, September 13, 2013

READ: Arizona Legislature/Governor Brewer's Law Changing Judicial Merit Selection Process "Unconstitutional", Rules Supreme Court

The Supreme Court of Arizona this morning unanimously declared a new law that would have changed the judicial merit selection process as being "unconstitutional".  The decision is a defeat for the Republican Legislature and the Governor who passed and signed the statutory change months after voters had overwhelmingly defeated the proposed change.

The new law would have increased the number of candidates that the judicial selection commissions would have to send to the Governor for her or him to choose from.  As Rep. Justin Pierce (R-LD25), the sponsor of the measure said, it would not "bo(x) the governor into one of their (the commission’s) choices.”

The Supreme Court focused its opinion (posted below) on rejecting the state's argument that the law would only represent a "procedural change" to the Arizona Constitution's language on the number of candidates would be submitted to the Governor:

Under Turley’s analysis, H.B. 2600 cannot be said to “reasonably supplement” Arizona’s Constitution. Instead, H.B. 2600 materially changes the process of submitting judicial nominees to the governor as established in Article 6, Section 37. It works a fundamental change in the constitutionally prescribed balance of power between the Commission and the governor. By increasing the number of nominees the Commission must submit, H.B. 2600 simultaneously increases the governor’s discretion and narrows the commissioners’ constitutionally granted discretion to nominate no more than the three candidates whom they determine best meet the constitutionally mandated selection criteria.
Significantly, when the Legislature had referred the change to the voters for the 2012 ballot, they did it as a proposed amendment to the Constitution.  It was defeated by nearly a 3-1 margin.  Given the make-up of the current Legislature, Pierce did not propose it as a Constitutional amendment, but only as a statute.  It passed the House, 34-24, the Senate 16-13, and was signed by Gov. Jan Brewer on April 5.

Four members of the Commission on Appellate Court Appointments filed this Special Action challenging the constitutionality of the statute, and they were represented by several high-profile attorneys and former Supreme Court Justices.  They requested attorney's fees, and the state did not dispute that they would be entitled to fees if they were successful.  The (current) Supreme Court ordered the state to pay reasonable attorney's fees (with a caveat that the attorneys could only request fees for time spent on the ultimately-successful argument, as they had withdrawn one of their lines of argument).

The new law and the legal challenge attracted attention from across the nation, as Arizona's judicial merit selection process was a trail-blazer and is still viewed as a model for other states to follow.  A couple of national organizations had filed amicus briefs in support of striking down the law.

We welcome your comments about this post. Or, if you have something unrelated on your mind, please e-mail to info-at-arizonaspolitics-dot-com or call 602-799-7025. Thanks.


Unknown said...

First of all you are wrong. You must first place yourself in the eye of the litigants(self represented) who file cases with the pima county superior court. Those are the people who use the court system. And these are the people who have horror stories that will make you sick to your stomach. There are judges filing ruling Judgement because a corrupt agenda member of the BAR is telling them outside of the court proceeding on how the judgement should turn out! No ruling based in factual filing. From 2007 to 2011 there are reports that Sr BAR staff members had been calling commissions and directing them to filing specific rulings on family court cases. Gender hate against fathers is driven by BAR associated Judicial appointments. This is why the judicial branch should not be authorized to void any laws as the laws are crated and passed by the legislature. BAR is not an elected or public controlled by the legislature is. The BAR is the pup-it master of the judiciary! This is what child endangerment and gender hate continues to go on openly in the Judiciary! The movie "The FIRM". Its actually a lot worse then what happened in that movie in pima county because it involves children's lives!

Mitch M. said...

Thanks for the comment, Brian. Not sure what I'm wrong about, as I don't see any commentary in the article. (Except maybe to acknowledge the undeniable conclusion that it was a defeat for the Legis/Governor.)

As for your allegations regarding the Pima County Sup. Ct., the appointment commissions, the State Bar, and specific family court cases, I have not seen the reports to which your refer. It is difficult to imagine that there are judges who are being told how to rule on specific cases, and are actually ruling that way.

One reason why your allegations do not make sense to me is that judges do not answer to the Bar after they are appointed. They do answer to the Commission on Judicial Conduct ("CJC"), and to voters.

The CJC was established by Arizona voters, and has 11 members of the judiciary, the bar AND the public. Only 2 of the members are appointed by the Bar, 3 are appointed by the Governor (and approved by the Senate), and the 6 judges has one Justice of the Peace (JPs are often not attorneys).

If you have evidence that there are judges who are violating the ethical rules - which is what you are alleging - you should file a complaint with the CJC. And while the CJC likely does not release any of your allegations publicly unless they proceed on them, and while you are not likely to receive much media attention unless the CJC allegations have some demonstrable merit, you are still free to present your case with more details on the internet. (I have seen several anti-Arizona judiciary items on various websites that I visit, and I do not know of any judges taking legal action against those exercising the constitutional right of free speech.)

Finally, there are MANY people using the court system, not just pro se litigants in Pima Cty Supr Ct. And, in many of the proceedings, there is at least one person/party/etc who is not happy with a judge's ruling. Such is often the nature of the beast. That, in itself, is not enough to condemn our constitutionally-establish judicial system. However, if you have evidence that there is corruption within the system, we need to weed it out. But, that doesn't mean that the system itself is beyond rescue.

Best to you, Brian. Thanks.