Republican anger against the Arizona Supreme Court over its ruling in last year’s redistricting case is fierce, but wasn’t enough to push through a trio of bills that sought to retaliate against the judiciary, including the perennial conservative goal of forcing the direct election of judges.
The Senate Judiciary Committee voted 4-3 against a proposal sponsored by Sen. Don Shooter, R-Yuma, that would have required the direct election of all judges in Arizona. Supreme Court, appellate court and superior court judges in Maricopa, Pima and Pinal counties are chosen through a system known as merit selection.
Republican Sens. Adam Driggs and Steve Yarbrough joined Democrats Steve Gallardo and David Lujan in opposing the two direct election measures, SB1371 and SCR1034.
The committee also rejected another Shooter bill, SB1372, that would have reduced the number of judges in each Arizona Court of Appeals to three, down from 16 in Division One and six in Division Two. That measure failed 5-2, with Sen. Ron Gould, the committee chairman, joining the dissent.
Shooter said the direct election measures were a way to rein in an increasingly activist judiciary. When Gallardo, D-Phoenix, asked Shooter to name a Supreme Court that he thought was activist, Shooter laid his cards on the table and pointed the court’s reinstatement of Arizona Independent Redistricting Commission Chairwoman Colleen Mathis, whom the Senate and governor removed in November.
“I think the Supreme Court reached in where it had no business. And I think it did it on the IRC ruling,” Shooter said. “They reached into our chamber and I believe overreached into our chamber. I think that those kinds of actions shouldn’t go without some kind of consequences. This is one of the consequences that I would propose. I think that this bill speaks to the honor of the Senate. So I guess we’ll see if we have any.”
Sen. Rick Murphy, R-Peoria, agreed with Shooter’s description of the judiciary as “activist,” and said the Founding Fathers of the country were concerned not with an independent judiciary but with a system of checks and balances.
“The judicial branch has asserted itself over time, both federally and at the state level, as being a super legislative branch, at times. And if there’s accountability to the people, then at least there would be that check and balance. But now we don’t even have that,” Murphy said.
Arizona Supreme Court Chief Justice Rebecca Berch reiterated her long-running opposition to the direct election of judges, joking that her testimony against similar proposals has become a near-annual event. But instead of rehashing her arguments against it, she reminded the committee that the courts and the Legislature negotiated a ballot measure in 2011 that flew in the face of the direct election proposals.
That agreement, which will be on the ballot in November, led to a ballot measure requiring Senate confirmation for the governor’s judicial appointments and giving the governor a larger pool of applicants from which to select judges.
“I understand that some legislators take the position that they personally don’t agree with that compromise that was worked out between the Legislature and the courts,” Berch said. “The agreement, though, was made on behalf of Legislature as a body and the courts as a body. … While these institutions of government are made up of individual members, they’re more than any one individual. The members of the Legislature and the courts may come and go, but the dignity and the honor of the institutions must remain.”
Yarbrough, R-Chandler, cited the 2011 compromise as well, but added a practical element to his opposition. With more than 90 superior judges in Maricopa County, voters would have to vote on half of them, along with appellate and Supreme Court justices, every two years, which Yarbrough said would double the number of races and ballot measures voters would decide.
“We would go from 45 offices being elected right now, plus or minus, to 99 under this proposal,” Yarbrough said. “I personally doubt the ability of commitment of the voters to actually be well informed on that many officers and candidates, more than double than is presently the case.”
Even though the Court of Appeals had no role in Mathis’ reinstatement, or in a Maricopa County Superior Court case in which a judge ruled that the IRC was not subject to state open meeting law, Shooter said SB1372 was another way to “push back” against an activist judicial branch that overreached when it interfered in Senate business.
“This is another attempt to try to salvage some honor, and it’s an extreme attempt, I understand that. But somebody needs to push back,” he said.
Larry Winthrop, the chief judge in the Court of Appeals Division One, testified against Shooter’s appellate court bill, arguing that the bill would make it impossible for the courts to rule on the 4,000 appeals that come before them each year. Winthrop said the two appellate court divisions are required by law to prioritize criminal appeals, along with several other types of cases, over civil appeals.
If the bill passed, Winthrop said, Division One would have to delay 80 percent of its cases each year, and Division Two would resolve 50 percent fewer cases.
“There’s a time-honored principle at play here, and that – justice delayed is justice denied. And the reality is this bill would guarantee justice is delayed,” Winthrop said.
Winthrop said the biggest losers would be businesses whose civil litigation would be tied up in the Court of Appeals. Lujan questioned Shooter on the issue, asking if businesses would be adversely affected by the reduction in appellate judges.
Though the appellate court had no role in the Legislature’s conflicts with the IRC, Shooter referred back to the redistricting issue.
“Sen. Lujan, there’s probably some truth to what you say, but I also believe that businesses will be adversely affected by 10 years of liberalism brought about by an IRC that’s out of control,” Shooter replied.
Yarbrough too said the bill would negatively affect too many people.
“I respect and admire Sen. Shooter for tilting at this windmill. I’ve tilted at a few of them myself over the years,” he said. “But despite my respect and enthusiasm, I think this would indeed be destructive to a lot of folks who deserve the very best from our judicial system.”
After the hearing, Shooter said he wasn’t surprised his proposals failed, “because that’s the way things work up here.”
“Everybody talks one way and does something else,” Shooter said. “I just think that (the courts) need to know that we’re paying attention. But we just sent them a signal that we’re not paying attention, so the next time they step on our heads, we shouldn’t be really surprised.”