PHOENIX — Saying legislators acted unconstitutionally, the Arizona Supreme Court on Friday voided a measure designed to give Gov. Jan Brewer and her successors more choices when selecting judges.
In a unanimous ruling, the justices said lawmakers cannot mandate that there be at least five people nominated by special screening panels for the Supreme Court, Court of Appeals and the trial courts of Pima, Pinal and Maricopa counties.
Justice Scott Bales, writing for the court, said those panels are free to send as many names as they want to the governor, subject only to all not being of the same political party.
But he pointed out that the Arizona Constitution, as approved by voters in 1974, permits them to nominate just three, and Bales said the only way to boost that minimum is to take the issue back to voters.
Lawmakers did try that in 2012 with a proposal to require eight names be submitted — only to rebuffed by voters by a 3-1 margin. But Rep. Justin Pierce, R-Mesa, said that measure may have been defeated because of other provisions it included, like extending the terms of justices.
But rather than re-crafting the measure and putting it back on the ballot, Pierce pushed through what amounted to an end-run around the Constitution with a change in state law, something that does not require voter approval.
HB 2600, signed by Brewer, said the panels must send five names, but with what Pierce said is an escape clause designed to make it constitutional: The panels could send just three — but only with a two-thirds vote saying there are not more qualified applicants.
But Bales said lawmakers cannot require a two-thirds vote for screening panels to do what the Constitution already permits them to do.
“Even if the change were ‘merely procedural,’ the Legislature has no authority to statutorily mandate procedures inconsistent with Arizona's Constitution,” Bales wrote. “When a state statute conflicts with Arizona's Constitution, the constitution must prevail.”
Pierce said Friday he remains convinced the governor should have more choices, so he is weighing whether to put another proposal to voters in 2014, this one limited to that question.
Prior to 1974, all judges in Arizona were directly elected like other politicians. That year, voters approved a constitutional amendment adopting a “merit selection process” for the state's high court, appellate court and the trial courts in counties of at least 250,000.
Judges in the remaining 12 counties continue to be elected.
Under the procedure, special screening panels cull through the applications, decide who to interview, and then submit names to the governor who must choose from that list.
“I don't have a problem selecting judges based on merit,” Pierce said.
He pointed out, though, that the screening panel for the Supreme Court rarely submits more than three names. And often, Pierce said, the lists are just reruns: The two applicants who were not chosen the last time get resubmitted.
Some foes of the change argued that requiring more names to go to the governor would provide more opportunities for political patronage, giving the state's chief executive a better shot of naming a political supporter.
“I disagree,” Pierce said.
“I really believe that this would have just opened it up for more people to say, ‘Hey, I've got a shot,’” he continued. “And we would have seen more qualified applicants applying and it wouldn't have been just the same people getting considered over and over again.”
Friday's unanimous decision by the five-member court overturning the law included three justices selected by Brewer herself, all selections that the governor herself praised as believing in judicial restraint. But Cathi Herrod, president of the Center for Arizona Policy, which supported HB 2600, said she was not impressed.
“The governor has had a small pool of names from which to choose judges,” Herrod said. “Most of the time, there are more meritorious nominees than what the governors' get.”
And Herrod has previously complained that the current process results in a decided tilt of the judiciary.
“We're getting liberal judges, regardless of who's governor,” she told Capitol Media Services in 2005.
Anyway, Herrod said, it makes sense to give the governor, who is elected, the maximum flexibility. She noted that the screening panel members are not elected, though they are selected by the governor with Senate approval.
Brewer not only supported the 2012 ballot measure and signed HB 2600 but actually is on record as wanting even more flexibility than either.
The governor has been a foe of the whole “merit selection” process. Instead she prefers the federal system where the chief executive gets to choose whoever she or he wants, subject only to Senate confirmation.
Brewer is not the first governor to complain about the judicial selection process.
Evan Mecham complained about the list of Supreme Court nominees sent to him in 1987, threatening to not name any of them. But he backed down and chose James Moeller after Thomas Zlaket, then the chief justice, informed the governor that he would get to make the choice if the governor failed to act.