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Process to replace Hurwitz on Supreme Court in limbo

Andrew Hurwitz (Photo from www.azcourts.gov)

Replacing Arizona Supreme Court Justice Andrew Hurwitz has the potential to fall under a proposed law that will give the governor more nominees to choose from.

The number of nominees the Commission on Appellate Court Appointments sends to Gov. Jan Brewer depends on two main factors: The timing of Hurwitz’s exit and whether voters pass Proposition 115, a ballot measure that makes a host of changes to Arizona’s system of selecting judges.

On a voice vote June 11, the U.S. Senate confirmed Hurwitz to the 9th U.S. Circuit Court of Appeals.

The commission has 60 days from a justice’s resignation to vet applicants and send a list of nominees to Brewer, who then has another

60 days to make the appointment.

Under current law, the selection committee has to send a slate of at least three nominees to the governor, with no more than two hailing from the same political party.

But a provision in Proposition 115, a measure hammered out by judges, the Supreme Court, the Center for Arizona Policy, the State Bar of Arizona, Brewer and legislative leaders in 2011, requires a slate of at least eight nominees and does away with the requirement limiting the political affiliation.

“Governor Brewer would always prefer to be presented with as many qualified nominees as possible,” Brewer spokesman Matthew Benson said.

Proposition 115 also diminishes the influence of the State Bar of Arizona in appointing members to the state’s three judicial selection committees, increases terms for Superior Court judges to eight years from four years and Supreme Court justices to eight years from six years. It also increases the retirement age for justices and appellate court judges to 75 from 70.

No opposition to the measure has arisen yet and Cathi Herrod, president of Center for Arizona Policy, said recently that a “yes”

campaign for the measure is in its initial stages.

Hurwitz hadn’t submitted his resignation as of June 14 and wouldn’t grant an interview, but he will likely have to wind down his work, which will take time.

David Madden, a spokesman for the 9th Circuit, said the court’s most recent addition, former Alaska Supreme Court Justice Morgan Christen, took almost six months after her Dec. 15 Senate confirmation to begin hearing cases.

Madden said Christen, who was sworn in May 30, had to finish up work in Alaska and expectations are that Hurwitz will have similar obligations.

“It could take some time for him to come over our way,” Madden said.

If voters approve Prop. 115, it will take effect upon certification of the election, said Michael Braun, executive director of the Arizona Legislative Council. That typically occurs at the end of November or beginning of December.

Jennifer Liewer, a spokeswoman for Chief Justice Rebecca White Berch, who chairs the Commission on Appellate Court Appointments, said Berch won’t speculate on the legal issues that could arise if the replacement period under current law overlapped with passage of the ballot measure.

“If the ballot initiative is passed and certified, the commission would follow the appropriate statutes at that time, should there be a vacancy to fill,” Liewer said.

Brewer’s previous appointments, Justices Robert Brutinel and John Pelander, were made in 97 days and 28 days, respectively, of their predecessors’ last day on the bench.

With Hurwitz’ replacement, Brewer will join Govs. Fife Symington and Jane Dee Hull in having three of their choices sitting on the Supreme Court at once.


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