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?

Mark Harrison

Mark Harrison

Last week we heard some great news about an Arizona lawyer from the national organization Justice at Stake.

Mark Harrison is a member at Osborn Maledon, as well as the board chairman of Justice at Stake. On February at the midyear meeting of the American Bar Association in Dallas, he was given the 2013 Burnham “Hod” Greeley Award.

As a press release indicates, he was honored “for making a significant, positive impact on public understanding of the role of the judiciary in a democratic society.”

Justice at Stake is committed to aiding the judiciary. It “promotes increased public awareness of the need for a fair and impartial judiciary.” As the organization describes itself:

“Justice at Stake is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the rule of law.”

Gavel Grab adds a mention that Harrison “has worked as president of Justice for All, a nonprofit group dedicated to preserving a strong and impartial judiciary in Arizona.”

But … am I missing something? Unmentioned in the accolades is the fact that Mark was once the President of the State Bar of Arizona. Sure, Justice at Stake writes that he “led the local Bar with distinction,” but who the heck is that “local bar,” anyway? It was the SBA.

Maybe the omission signals a reduced “wow” factor associated with being a state bar president. But that would surprise me. I know that folks at Mark Harrison’s level have a drawerful of accolades and high-level experience. But even given that, bar president on the state level usually merits a mention.

And why not mention it? Isn’t the mentioning the only real payoff for the work of leading a bar? Remember, the days of a bar president are littered with meetings regarding section revenues, and lunches with tiny civic organizations, and information-sharing trips to exciting venues like Dallas or Duluth or a legislative grilling chair. After all that work, why not drop the title occasionally?

In any case, congratulations to Mark Harrison. We at the local bar look forward to continuing to collaborate with him on important issues.

Former Arizona Chief Justice Lorna Lockwood

Former Arizona Chief Justice Lorna Lockwood

I’ve written before about how much I enjoy a good book review. And as January is about to close, I point to another great review in this month’s Arizona Attorney.

The author this month is esteemed lawyer (and past State Bar President) Mark Harrison. He is a good writer, but to make his task easier, he wrote about a great woman—Lorna Lockwood.

Arizona’s first woman Chief Justice is described well in the book Lady Law, by author Sonja White David. Here is how Mark opens his review:

Lady Law Lorna Lockwood book cover“In 1960, Lorna Lockwood became the first female Justice on the Supreme Court of Arizona. In 1965, she became the first female Chief Justice of any state Supreme Court in the nation. Justice Lockwood’s remarkable story is beautifully captured in Lady Law, a book written by Sonja White David, a resident of Mesa. In a way that Justice Lockwood surely would have appreciated, the author describes how a small-town girl from Douglas and Tombstone, Arizona, defied the odds and blazed the way for women in the law. In the process, Justice Lockwood left a significant and indelible mark on the law of Arizona.”

“Lady Law would be an enriching read for all Arizona lawyers, but it will be an inspiration for young girls and women. As Ms. David describes Justice Lockwood’s journey, she explains how Justice Lockwood was rebuffed and discouraged, not surprisingly by the male establishment, from pursuing her ambition to become a lawyer. As we now know, the pioneering role of Justice Lockwood was a harbinger of things to come; in the half century since Justice Lockwood was elected to the Supreme Court, the percentage of women in law schools has equaled and occasionally exceeded the percentage of men. In addition, women have come to play an increasingly influential role in the profession and on the judiciary.”

Read the entire book review here. And if you’re interested, the book is available here.

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

I may see you there.

Here’s a map to the location: