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:


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?

News from the State Bar about what looks to be a great event at 2:00 Friday afternoon: 

Rule of Law Reform in a World of Conflict Featuring a Presentation by the
Honorable Medhat al-Mahmoud, Iraq’s Chief Justice

 State Bar Convention
Arizona Biltmore Resort & Spa
Friday, June 22, 2012
2 – 4 p.m.
No Charge

This program is open both registered attendees and lawyers who will not be attending the convention. This program may qualify for 2 hours of MCLE.

About the Session

All too often we take for granted the solidity and stability of our legal system. Yet, what of countries emerging from dictatorship and war? How do they develop laws and create a legal order that defends basic rights and enables due process protections? Can they base a new system on prior structures? Can outside assistance from the U.S. and the international community support these changes? How do the experiences of other countries help us understand legal challenges within our own communities? This panel explores the role of law in the reconstruction of Iraq following decades of brutal authoritarian rule and Kosovo following years of devastating conflict. The panel features a talk by the Honorable Medhat al-Mahmoud, the Chief Justice of Iraq and President of the Iraqi Higher Judicial Council about the state of the country’s judiciary nearly a decade after the U.S. led invasion brought about regime change. It also includes a presentation by Tom Monaghan, a Nebraska judge who led legal reform projects in Kosovo. The panel is introduced by Douglas Sylvester, Dean of the Sandra Day O’Connor College of Law at Arizona State University and moderated by Daniel Rothenberg, also of the Sandra Day O’Connor College of Law.

About Chief Justice Medhat al-Mahmoud

Iraq is known as the land of two rivers – the Tigris and the Euphrates – and many first learned of this part of the world as “the cradle of civilization” where writing, agriculture and other early signs of complex society began. For Iraqis, their land is also known as the birthplace of law through the Code of Hammurabi which defined key aspects of social order, including criminal punishments and rules for contracts, almost 4,000 years ago. Over the last several decades Iraq has been known to Americans as a zone of conflict, an oil-rich nation that was the focus of two major U.S. military actions, the Gulf War of 1991 and the invasion of 2003 and subsequent multi-year, large scale military and civilian presence.

The regime of Saddam Hussein and the Ba’ath Party used law as a key tool for repression, creating special courts and legal proceedings that linked surveillance, abuse and the brutal targeting of those seen as enemies of the state. Yet, even under the dictatorship, the country’s regular courts and legal processes continued to function, reflecting Iraqi society’s longstanding respect for law and the judiciary. Following the fall of the prior government, Iraq experienced a political transformation to a democratic system, the significant rebuilding of state institutions and a period of sustained and devastating violence.

The Honorable Medhat al-Mahmoud, Chief Justice and President of the Iraqi Higher Judicial Council has played a central role throughout the reconstruction process. He has been directly involved in virtually every major rule of law reform initiative in Iraq, overseeing the interpretation of new laws, the development of revised court procedures and multiple efforts to strengthen the legal system. Many of these initiatives have been supported by our government as well as the international community. While most Americans are aware of U.S. military actions in Iraq, training for local security forces and support for elections, few know that the American government has invested over a billion dollars on rule of law reform in the country. The goal of this funding has been to support the Iraqi legal system with the understanding, shared by most Iraqis, that a clear sense of law and a functioning legal system are essential for democracy, economic growth and stability.

Like most countries in the world, Iraq’s legal system follows the civil law tradition, as opposed to the common law tradition that our system is based upon. Judges in Iraq participate in a special career track that involves specific training in judicial institutes and is deigned to highlight their role as members of a distinct profession. The Court of Cassation is the highest judicial body in Iraq and renders the final decisions on unresolved legal issues from the country’s lower courts which operate through fourteen judicial regions, each of which has an appellate court as well as various lower courts, including a number of specialty courts.

In 2004, at an early stage in the nation’s reconstruction process, the Chief Justice wrote, “Judges enjoy a highly revered stature in the people’s minds . . . due to the role they play in preserving social equilibrium . . . Being the custodians and guardians of the people’s rights, freedom and dignity, they deserve the great veneration and esteem the people bestow on them.” It is an honor and privilege to welcome the Chief Justice Medhat al-Mahmoud of Iraq to Arizona.