Former Chief Justice Ruth McGregor and attorney Mark Harrison, on a Maricopa County Bar Association panel on merit selection, Sept. 25, 2012.

Former Chief Justice Ruth McGregor and attorney Mark Harrison, on a Maricopa County Bar Association panel on merit selection, Sept. 25, 2012.

Another chapter in the merit selection of judges was started on Friday, July 12. That’s when a group of people you’ve likely heard of filed a lawsuit.

As the Republic reported:

“In April, the Arizona Legislature passed a bill that increased the minimum number to five candidates for each judicial vacancy, and Gov. Jan Brewer, who has lobbied for more candidates, signed it into law.”

“On Friday, four members of the commission that nominates judicial candidates for the state’s appellate courts filed a petition for special action in the Arizona Supreme Court, asking the high court to throw out the law on the grounds that it is unconstitutional. Among the lawyers of record for the petition are six former Arizona Supreme Court justices, including five former chief justices.”

That sequence of events came after a November ballot initiative that sought to change the selection process set out in the Arizona Constitution. In case you don’t remember, voters rejected the effort to change the process by giving the governor’s office even more say than it has now.

Read the whole news story here.

The newest development sees four members of the appellate court commission suing to have the Legislature’s recent actions found unconstitutional.

Lawyers on the special action are Tim Eckstein and Mark Harrison as well as former Chief Justices Ruth McGregor, Stanley Feldman, Tom Zlaket, James Moeller, Frank Gordon, Jr., and Charles Jones.

Quite the legal heavyweights.

Just to keep you up to speed, be sure to read the Republic’s editorial “Supreme Court should throw out judicial-selection law.”

And just because it’s worth reading, here is the Introduction and Statement of Issues  from the Special Action:

Introduction

The Arizona Constitution, in Article VI, creates the Commission on Appellate Court Appointments (“the Commission”), and establishes the procedures by which the Commission must nominate candidates to the Governor for judicial vacancies. Article VI, § 371 requires the Commission to nominate “not less than three” candidates, but leaves to the Commission’s discretion whether to nominate more than three candidates. In 2012, the Legislature attempted to amend this constitutional scheme by referring to the People a measure (Proposition 115) that, among other things, would have amended the Constitution by changing the number of candidates the Commission must nominate. Over seventy percent of voters rejected that measure.

Not content with the People’s decision to leave Article VI, § 37 of the Constitution as it is, the Legislature, in its just-completed session, passed (and the Governor signed) House Bill 2600 (“H.B. 2600”), which purports to amend Article VI, § 37 by requiring the Commission to submit at least five candidates to the Governor, but provides that on a two-thirds vote, the Commission may reject a candidate and “submit fewer than five names.”2 This statute thus attempts two changes in the constitutional scheme: First, in the absence of a supermajority vote, the Commission is required to nominate five (rather than three) candidates.

Second, with a supermajority vote, the Commission may nominate fewer than three candidates. The Legislature’s attempt to amend the Constitution in these ways cannot stand. Under Article XXI, the Constitution may be amended only by vote of the People—not, as here, by legislative fiat. In addition, under Article IV, Part 1, § 1(14), the Legislature cannot supersede Proposition 115, which was defeated by the voters in 2012. Because of the frequency and importance of the Commission’s work, this Court should exercise its special action jurisdiction, declare that H.B. 2600 is unconstitutional, and enjoin and prohibit the Commission from applying H.B. 2600.

1 Article VI, § 36 of the Constitution creates the Commission on Appellate Court Appointments and Article VI, § 37(A) of the Constitution sets forth the nomination procedures for the Commission on Appellate Court Appointments. Article VI, § 41 creates Commissions on Trial Court Appointments and Article VI, § 37(B) sets forth nomination procedures for the Commissions on Trial Court Appointments. Counties with populations of 250,000 or more are covered by §§ 37(B) and 41; presently Maricopa, Pima and Pinal Counties are covered by those sections.

2 H.B. 2600 applies to the Appellate Court Appointment Commission and the three Commissions on Trial Court Appointments. The arguments and references made in this Petition with respect to the Commission on Appellate Court Appointments apply equally to the three Commissions on Trial Court Appointments.

Statement of Issues

1. Does H.B. 2600 unconstitutionally amend Article VI, § 37 by (1) requiring the Commission, in the absence of a supermajority, to nominate more than three candidates to the Governor; and (2) permitting the Commission, with a supermajority, to submit fewer than three candidates to the Governor?

2. Does H.B. 2600 violate Article IV, Part 1, § 1(14) of the Constitution by superseding Proposition 115, which was defeated by a majority of the voters in 2012?

Chief Justice Rebecca White Berch receives MCBA Hall of Fame Award

Chief Justice Rebecca White Berch, left, receives an MCBA Hall of Fame Award from President Jennifer Cranston, Oct. 30, 2012.

Congratulations to all those who were honored at Tuesday’s Maricopa County Bar Association annual Hall of Fame Induction. As always, the selections made by the MCBA’s committee were superb.

Hon.Glenn Davis was named the Member of the Year.

The 2012 Hall of Fame inductees are:

  • Pioneers: Hon. Ernest McFarland and Jubal Early Craig
  • Modern Era: Hon. Rebecca White Berch, Walter Cheifetz, Hon. Robert L. Gottsfield, Hon. Michael Daly Hawkins, William R. Jones, Jr., Alan A. Matheson, Hon. Janet Napolitano, and Hon. Robert W. Pickrell 

As the MCBA describes the honor:

“Through the Hall of Fame, created in 2008, the MCBA seeks to honor in perpetuity those remarkable individuals who have built the legal profession in this country and beyond, who have made extraordinary contributions to the law and justice, and who have distinguished themselves at the highest levels of public service. The Hall of Fame’s goal is to preserve and foster the legal profession’s history in our country and to showcase the best and brightest lights to the larger community.”

MCBA Hall of Fame honoree William R. Jones, Jr.

MCBA Hall of Fame honoree William R. Jones, Jr.

The bios and photos of all the honorees are available at the recently opened Maricopa County Justice Museum and Leaning Center (which I wrote about here).

William R. Jones, Jr., one of Tuesday’s honorees, opted to use his 60-second remarks to highlight the value of merit selection, much in the news this year and this election season. In so doing, he lived up to the MCBA’s wish to recognize those who “distinguish themselves at the highest levels of public service.” I end with Bill’s remarks:

“The courts and our profession are under attack, and we have been given the fiduciary duty to be protectors of the legal system. How we ultimately perform will say much about us. We are at a crossroads when we need to stand up and protect the court system and the judicial selection system. Now is the time to put our money where our mouth is and to say we have the greatest dispute resolution system in the world.”

Here are a few other photos from the event (thank you to the MCBA’s Isolde Davidson for sharing them; photos and more can be found at the MCBA Facebook page).

This slideshow requires JavaScript.

AZ Supreme Court logoI began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

The news story was penned by longtime reporter Howard Fischer, of Capitol Media Services, and it’s titled “Groups Campaign To Oust Supreme Court Judge.”

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

Really? REALLY?

For a treatment of the subject that is far more compelling and eloquent than my two-word screed, you should read Chief Justice Rebecca White Berch’s commentary in the Arizona Republic from this past Monday. She also is careful not to urge any particular vote, but she does point us all to some sources of actual data that might inform our ballot choice: The Arizona Commission on Judicial Performance Review, and the Arizona General Election Guide, which is mailed to each registered voter.

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

That takes us back to Howie’s article, which you can read here.

So let’s examine that “Top 2” primary issue, which is ostensibly the sole source of upset against a Supreme Court Justice. You may recall that it was just back on September 6 that the Court ruled that the item could be on the ballot.

Chief Justice Rebecca White Berch

Chief Justice Rebecca White Berch

I would urge the following for anyone “on the fence” due to this ruling: As the Chief says, review the data at the website of the Arizona Commission on Judicial Performance Review, and read your own voter pamphlet.

And then, go the extra step: Read the ruling itself.

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

Arizona, at a turning point.

L to R: Joe Kanefield, Peter Gentala, Hon. Ruth McGregor (ret.), and Mark Harrison.

Well done to the panelists in Tuesday’s Maricopa County Bar Association discussion of Proposition 115, this fall’s ballot issue that would alter the way we select and retain some state court judges.

Each side did their best to describe the merits of their position—as well as the one-hour format would allow.

The panel, moderated by Michael Grant (of Gallagher & Kennedy), was: former Arizona Chief Justice Ruth McGregor; Osborn Maledon attorney (and former State Bar President) Mark Harrison; Peter Gentala, counsel to the majority, Arizona House of Representatives; and Ballard Spahr lawyer (and immediate past president of the State Bar) Joe Kanefield.

More photos are at the Arizona Attorney Magazine Facebook page.

Proposition 115 is on the November ballot in Arizona, and its passage would lead to changes in the way we select certain judges (appellate court judges and superior court judges in Maricopa, Pima and Pinal counties).

This past month, State Bar CEO John Phelps co-wrote an article in Arizona Attorney that described the history of merit selection. The authors also explored what would change under the new law.

As John pointed out, there is a wide variety of opinion among the state’s lawyers and judges over the wisdom of passing Prop 115. The State Bar is supporting its passage and has written a ballot-pamphlet statement on its behalf.

(To read the text of the Proposition as well as all of the “For” and “Against” statements, go here.)

An event tomorrow night may allow you to hear both sides state their cases. The Maricopa County Bar Association (which wrote an “Against” statement in the voter pamphlet) is hosting a forum on the topic. It will be held at their offices at 303 E. Palm Lane in Phoenix, from 4:30 to 5:30.

More information on the event is here.

As the MCBA describes it:

“All sides of the issue will be debated by a distinguished panel moderated by Michael Grant of Gallagher & Kennedy.”

“The panelists are Hon. Ruth V. McGregor, retired chief justice, Arizona Supreme Court; Mark I. Harrison, Osborn Maledon; Peter Gentala, counsel to the majority, Arizona House of Representatives; and Joseph A. Kanefield, immediate past president of the State Bar of Arizona of Ballard Spahr.”

Admission is free, but they’ve asked people to register their attendance with bboehlke@maricopabar.org.

I may see you there.

Here’s a map to the location:

Arizona Superior Court for Pinal County

Yesterday, a press release came to my inbox, and it took me a moment to realize that it signaled a historic event.

Typically, when the State Bar of Arizona seeks lawyer applicants for an appellate court or trial court appointment commission, it is a routine event (though it is a prestigious appointment). For example, the Maricopa and Pima County Trial Court Appointment Commissions have been around a long time. In the decades since the merit-selection and retention system was instituted in 1974, many lawyers have served the state by participating in the work of those boards.

(For more detail on merit selection, go here.)

So when something’s been operating for almost four decades, I hope you’ll forgive me for almost missing a related press releases as it sails by me. To my surprise, I spotted the fact that this is not more of the same, but it is about a new commission entirely: the Pinal County Commission on Trial Court Appointments. With that commission, Pinal County joins the ranks of more-populous Arizona counties in their manner of selecting state court trial judges.

The notion of extending the merit-selection system is not without controversy, but the change comes simply through an increasing population. Once the county exceeded 250,000 people, a commission would be formed, as required by the Arizona Constitution.

In the September issue of Arizona Attorney Magazine, we will have a great article on merit selection’s history and new developments, written by the State Bar’s CEO John Phelps and lawyer Kellen Bradley. In the meantime, read about this historic development in Pinal County. And if you are a lawyer in Pinal, you should consider applying to be part of the inaugural panel of this commission. There’s only one first.

Here’s the release:

Applications Being Accepted for Newly Forming Pinal County Commission on Trial Court Appointments

PHOENIX – Aug. 21, 2012 – The State Bar of Arizona, the State’s attorney regulation and consumer protection organization, is currently accepting applications to fill five lawyer openings on the Pinal County Commission on Trial Court Appointments. Results from the 2010 U.S. Census, which reported that the population of Pinal County now exceeds 250,000, triggered the constitutional requirement to create a trial court commission.

The newly forming sixteen-member commission will be responsible for screening, interviewing and selecting judicial nominees for submission to the Governor of Arizona for her appointment of superior court judges in Pinal County. It will be chaired by the Chief Justice of the Arizona Supreme Court (or her designee).

Applicants must be active members of, and in good standing with, the State Bar of Arizona; shall have resided in the state and been admitted to practice before the Arizona Supreme Court for no less than five (5) years; and must have resided in Pinal County for at least one year. There are no applicant restrictions with regard to one’s political party affiliation for these openings. 

Applications can be obtained at the State Bar of Arizona’s Appointment Committee webpage at http://www.azbar.org/sectionsandcommittees/committees/appointments. Completed applications must be submitted to Nina Benham at the State Bar of Arizona by 5 p.m. on Friday, Sept. 14, 2012. Applications can be delivered in person to 4201 N. 24th Street, Suite 100, Phoenix, Arizona 85016-6266; or faxed to 602.416.7529; or submitted electronically via email to nina.benham@staff.azbar.org.

About the State Bar of Arizona Appointments Committee

The mission of the committee is to recommend to the Board of Governors the appointment of members to fill openings on state-wide boards, committees and commissions. Achieve a “balance” in all appointments as they relate to each voluntary professional activity, i.e., age, gender, geography, ethnicity, area of practice. The Committee and the Board of Governors consider all aspects of diversity in their recommendations and appointments.

About the State Bar

The State Bar of Arizona is a non-profit organization that operates under the supervision of the Arizona Supreme Court. The Bar includes approximately 17,000 active attorneys and provides education and development programs for the legal profession and the public. Since 1933 the Bar and its members have been committed to serving the public by making sure the voices of all people in Arizona are heard in our justice system.

The State Bar Convention is about a lot more than merit selection of judges—but a dialogue on the topic ranged through numerous sessions.

Prop 115 panel, L to R: Grady Gammage, Jr., Peter Gentala, Hon. Mary Schroeder, Pete Dunn, Hon. Ruth McGregor (ret.)

An unscientific survey (by me in the Biltmore hallways) reveals that too few lawyers are even aware that a ballot proposition is headed our way that would alter the Arizona Constitution in a way that should be of interest to all.

Proposition 115, as it’s been numbered, will be on the November ballot. For some background on merit selection generally, see a page on the State Bar website (the State Bar supports the compromise).

A Wednesday morning seminar at Convention covered the general topic of the relationship between the Legislature and the courts. And as I noted previously, even that session ended up substantially focused on merit selection.

Then, on Wednesday afternoon, a session dedicated to the topic provided a stellar panel. It included Ninth Circuit Judge Mary Schroeder; former Arizona Supreme Court Chief Justice Ruth McGregor (ret.); Pete Dunn of the Arizona Judges Association; Peter Gentala, Counsel to the Majority in the state House of Representatives; and State Bar President Joe Kanefield. The moderator was Grady Gammage Jr. (who has performed this task, on the same subject, before).

A slide on the judicial merit-selection compromise

Judge Mary Schroeder, in short order, explained why we have merit selection, why she opposes Prop 115 and why Arizonans should be proud of their judges. Justice McGregor then did the same.

On the other side of the issue, Peter Gentala and Pete Dunn urged support for Prop 115.

State Bar President Joe Kanefield

Dunn, however, said that even he believes Prop 115 will be defeated “because it’s a very complex proposition and people usually vote no.” But if it goes down, he added, we had better be ready for a legislative backlash. He said he would expect “a total emasculation of merit [selection] in coming sessions.”

Four audience members spoke, largely in opposition to the proposition or simply seeking clarification. Speaking for the State Bar and its support of Prop 115 were Amelia Craig Cramer and Whitney Cunningham.

Follow

Get every new post delivered to your Inbox.

Join 2,399 other followers