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Merit selection of judges facing possible revamp

Merit selection proponents had to give ground this year in the annual struggle to do away with the state’s system of choosing judges.

The force for change this session came from a greater-than-usual number of legislators opposed to merit selection and a judicial screening commission’s handling of applicants for the Independent Redistricting Commission, say those who were involved in crafting a constitutional amendment that would dramatically alter the system.

“The factors all came together to where people on all sides of the judicial reform issue were interested in reaching a consensus,” said Cathi Herrod, president of Center for Arizona Policy, which was instrumental in the negotiations that spawned SCR1001.

The measure, which was set for a third read at press time in the House on April 14, gives the governor more choices in appointing judges by requiring a slate of eight nominees, eliminates the constitutional requirement that no more than two-thirds of the nominees hail from a single political party, and diminishes the influence of the State Bar of Arizona in appointing members to the state’s three judicial screening commissions.

A second constitutional change, SCR1002, proposes to raise the county population threshold for joining merit selection, effectively keeping the method to Maricopa and Pima counties. Currently, counties with more than 250,000 residents use the merit selection system. According to the 2010 census, Pinal County has 375,000 residents and under the current constitutional provision is required to begin using merit selection. The measure passed the House Rules Committee on April 13.

Two other bills proposing that the Commission on Judicial Performance Review be required to gather and publish legal decisions and biographical information of state and county judges up for retention also passed the House this week. Both are awaiting the governor’s signature.

Peter Dunn, a lobbyist for the Arizona Judges Association, said the spate of successful legislation this year was the result of having more legislators who favor getting rid of merit selection than in previous legislatures.

Chief Justice Rebecca White Berch said the judiciary either had to compromise on SCR1001 or it would be stuck with something unpalatable.

The measure also lengthens the terms of judges in the trial and appellate courts to eight years from four years and six years respectively.

 “I don’t think any harm was done to merit selection,” Dunn said.

The House Judiciary Committee on March 24 added a strike-everything amendment to SCR1002 that would increase the constitutional population threshold for a county going to merit selection to 600,000 from 250,000, which would then eliminate Pinal County.

Under the current merit system, screening commissions in Maricopa and Pima counties vet the applications of prospective judges and pass along a slate of at least three nominees to the governor. If there are only three nominees — the bare minimum under the Constitution — then only two can be from the same political party.  If more than three nominees are sent, then no more than 60 percent can be from the same party.

The governor then chooses a judge from that list. Judges then must go before the voters every four years for retention.

Herrod said the selection process of the Independent Redistricting Commission, which is done by a panel that normally screens applicants for the Court of Appeals and Supreme Court, the Commission on Appellate Court Appointments, caught the attention of legislators.

“It showed that, at some levels, politics is still involved,” she said. “Merit selection does not mean politics is removed from the system.”

The Commission on Appellate Court Appointments angered some legislators when commission member Luis Araneta took exception to religious references in the application of a Republican applicant from Pima County. After Republican legislators and groups like the Center for Arizona Policy publicly criticized him, Araneta resigned from the panel.

Berch, who chairs the Commission on Appellate Court Appointments, said the requirement that allows people to claim merit selection is a political process will be gone under SCR1001.

The measure proposes that the screening commissions send the governor a slate of eight judicial applicants, without regard for political affiliation.

Dropping the political affiliation requirements will be a welcome change because the commission has often felt constrained by them, Berch said.

Professor David Berman of the Arizona State University Morrison Institute for Public Policy said he sees the increase in nominees as lessening the significance of the vetting process.

“It’s getting to be more of an appointment system,” Berman said. “Merit selection is really the screening system.”

The legislative session began with a host of bills and ballot measures filed by Sen. Ron Gould, R-Lake Havasu City, that proposed a variety of changes from requiring Senate confirmation of judges to doing away with the screening commissions. There were also two ballot proposals introduced in the House.

SCR1001 emerged as a compromise because merit selection proponents saw they were up against a formidable force.

“It’s clear from this Legislature that there will be some form of change to merit selection,” Berch said April 7 at a meeting of the Arizona Judicial Council, which voted to support the measure.

Senate President Russell Pearce, who like Gould prefers judges to be elected, said the compromise is better than the system in place.

“This gives the governor real choices,” Pearce said at a March 24 committee hearing on the measure.

Herrod said the proposal creates more checks and balances by allowing the Legislature to be involved, which it had never been before, and widens the pool for the governor.

Some of the failed measures were seeking Senate confirmation and reconfirmation, a step that merit selection proponents opposed.

But SCR1001 permits the two chambers’ Judiciary committees to convene before retention elections to take testimony on justices and judges who are up for retention.

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