Judging the Judges
Arizona's merit selection process
“...While federal courts get the most attention, Americans are far more likely to find themselves before state court judges. Ninety-five percent of all cases are filed in state court, with more than 100 million cases coming before nearly 30,000 state court judges each year. In recent years, state supreme courts have struck down tort reform legislation, ordered state legislatures to equalize funding for public schools, and declared a state’s death penalty unconstitutional.” — Alicia Bannon, The Brennan Center, Rethinking Judicial Selection in State Courts
It’s Constitutional
Arizona is no stranger to state ballots containing a lengthy and confusing collection of initiatives, referendums, and constitutional amendments. In 1974, a 66-page pamphlet describing such measures was put to the voters; it included regulations on school bonds, residency requirements for statewide elected officials, a salary of $10,000 for legislators, expansion of authorized use of vehicle-related taxes, an amendment to the definition of public service corporations to include private sewage disposal companies (yes, that’s in the state constitution), and several more legislative referrals.
In the midst of the ballot was an initiative from the citizens of Arizona, amending the state constitution relating to judges. It created standard policies for retirement and limiting political activities; provided for commissions to select judicial nominees through a merit process; and established regular nonpartisan elections to retain judges. It passed by 53.72%, with a total of 255,915 votes in favor.1
Today, Arizona is among 21 states and the District of Columbia that use a merit selection process to select judges. (To clarify, 4 counties in Arizona follow this system, while the remaining 11 still use partisan elections.) Sometimes Arizona can surprise us with its progressiveness: not only was our state among the first to introduce vote-by-mail, but instituting a bipartisan selection system for judges on state Superior Court, Appellate Courts, and the Supreme Court can be a source of pride.
Judicial Nominations
Buckle up, this is a little dry: Merit selection of judges encompasses Judicial Nominating Commissions with a prescribed balance of political affiliations, consisting of both lawyers and members of the public. The commissioners review applications, conduct interviews, hear public testimony, and make recommendations to the governor. In Arizona, a Commission on Appellate Court Judicial Appointments makes recommendations for Divisions I and II of the Appellate Courts and the Supreme Court, and separate Commissions on Trial Court Judicial Appointments make recommendations for Superior Court Judges in Maricopa, Pima, Pinal, and Coconino Counties.
Would you like to be a fly on the wall when the commissions meet and discuss judicial candidates? You can! They are public, and take place in the Arizona State Courts Building at 1501 W Washington St in Phoenix.
While the merit process is meant to remove partisanship from judicial selection, that’s not entirely the case: while the Commissions are required to submit nominees from various political affiliations, the partisan governor almost always chooses one who will represent their political views.
When the nominating commission refused to submit ethically challenged Bill Montgomery’s name to the governor in 2019, then-Gov. Ducey named 4 more loyalists to the appointment commission, and his nomination then sailed through. “[This will] further cement the conservative, all-male majority Ducey has named to the state's top bench,” wrote Maria Polletta in the Arizona Republic.
The Republic further reported, “Alessandra Soler, executive director of the ACLU of Arizona, said Ducey had chosen "the most unqualified candidate on the list to serve on the highest court in Arizona," showing "complete disregard for Arizona’s most marginalized communities who’ve been deeply hurt by Montgomery’s harsh and intolerant policies."
Gov Ducey further imperiled the state judiciary by expanding the number of seats on the Arizona Supreme Court in 2016, appointing a new batch of political cronies, and doing the same with the Appeals Courts in 2022 when he was leaving office.
The original constitutional amendment limited merit selection to the 3 most populous counties, establishing a population cutoff of 150,000 (later modified to 250,000). Coconino County opted into merit appointments by popular vote in 2018. The remaining 11 counties still conduct partisan elections, and could opt to establish a merit system. The latest census indicates that Yavapai County is nearing 250,000 residents, and thus may be folded into the system before long.
The public may review the extensive applications submitted by applicants to the bench HERE.
Judging the Judges
Once judges are appointed, voters get an opportunity to retain or reject them: every four years for the four superior courts and every six years for the appellate courts and Supreme Court.
In 1992, Arizona voters approved the first changes to the merit selection process since its adoption in 1974. These changes modified the process for appointing superior court and appellate court judges, including adding the requirements that judicial nominating commissions hear public testimony and vote in public before making recommendations to the governor, who then appoints new judges from the recommendations of the commissions. The revisions established a Judicial Performance Review process.
The Commission on Judicial Performance Review (the JPR Commission) sets standards for judicial performance, including whether judges can apply the law fairly, treat people with respect and manage a courtroom. The JPR is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit-selected and subject to retention elections.
The current judicial performance review process includes surveys sent to jurors, attorneys, witnesses, litigants, and other judges. Unfortunately, the response rate can be low (even when guaranteed anonymity, some lawyers are reluctant to rate judges they still have to appear before), and ratings can be based on fewer than 10 respondents. A peek at the public ratings for Supreme Court Justice Bill Montgomery, for example, reveals survey responses from 5 out of 6 peer judges, just 12 out of 112 attorneys, and zero out of 6 Superior Court judges.
Judicial Performance Standards include:
Legal Ability: Decides cases based on applicable law, demonstrating competent legal analysis.
Integrity: Free from personal bias. Administers justice fairly, ethically, and uniformly.
Communication Skills: Issues prompt and understandable rulings and directions.
Judicial Temperament: Dignified, courteous, and patient.
Administrative Performance: Manages courtroom and office effectively. Issues rulings promptly and efficiently.
It’s relatively rare that a judge is deemed unqualified with a “Does Not Meet JPR Standards” evaluation by the JPR, and it’s still opaque how the commission arrives at that final rating. The survey results are only a part of the process, along with public meetings, ethical filings, and private executive discussions.
One such judge, Stephen Hopkins, was rated “Does Not Meet” in 2022. However, his publicly available ratings raised no major red flags (although he had previously been reprimanded by the Commission on Judicial Conduct for rude courtroom conduct, which would have taken digging to discover). It can only be guessed that private information led to the decision, with 15 out of 22 commissioners deciding he didn’t meet JPR standards. Abe Kwok wrote in the Arizona Republic, “The performance-review process itself could use greater transparency and explanation.”
The Voters Weigh In
It’s also rare for judges not to be retained, yet in 2022 3 Maricopa Superior Court judges were given a pink slip by the voters. Until then, a total of 3 judges had been voted off the island in more than 4 decades and only 1 since 1978. When this happens, replacements go through the same judicial selection process.
Voters are often stymied by the judges on their ballot, especially the looooonnng list in Maricopa County, and were grateful in 2020 and 2022 for the extensive research and evaluations published by CEBV’s Gavel Watch. Recommendations by the team of Gavel Watch researchers are based on JPR results as well as publicly available news reports, ethics reports, past legal history, and other sources, and take into account inappropriate ideological bias that appears to drive decision-making. (Watch for a future article on The Federalist Society, which has influenced judicial selection at the national and state level for years, twisting our judiciary to the ultra-conservative and religious right.)
After the 2022 election, Chief Justice Robert Brutinel established a task force to review the Judicial Performance Review rules and process, to be submitted to the Arizona Supreme Court for review and adoption.
CEBV will be watching closely. A bill introduced in the Arizona Legislature this year would have made it harder for the voters to unseat appellate court judges by diluting their votes across the entire state (appellate judges are appointed according to county). Gov. Katie Hobbs vetoed the bill.
The list of judges who will be up for retention in 2024 is already published on the JPR website.
References:
https://www.azcourts.gov/guidetoazcourts/Upholding-Judicial-Standards
https://www.azcourts.gov/jnc https://tucson.com/opinion/local/local-opinion-arizona-s-judicial-appointments-are-a-model-for-nation/article_d7865458-793d-5785-9e03-147a2cb06a15.html
https://ballotpedia.org/Arizona_judicial_elections
https://www.brennancenter.org/judicial-selection-map
https://www.brennancenter.org/our-work/policy-solutions/choosing-state-judges-plan-reform
Remember how we keep telling you that the power of Arizonans to write and vote on their own laws is paramount in the AZ Constitution, and how much our legislators hate it?