Having a Dream Team of six former state Supreme Court justices brings more than just brain power to a lawsuit seeking to strike down a new law giving the governor a larger pool for appointing judges.
The sponsor of the measure, HB2600, sees the former justices’ presence in the lawsuit as a hypocritical political statement to influence the Supreme Court. Legal experts say their participation is a good strategy because they bring a high level of prestige, expertise and even intimidation.
“I think it’s very powerful,” said Phoenix School of Law professor Dave Cole, a former solicitor general and Superior Court judge. “These are six people with varied backgrounds and varied judicial philosophies and if all six of them are in a position to join together to say this is a good idea or bad idea.”
The former justices are Stanley Feldman, Ruth McGregor, Charles Jones, Thomas Zlaket, James Moeller, and Frank Gordon, who was the first justice chosen under merit selection after voters put it into law in 1974. Moeller did not submit an argument in opposition to Proposition 115 and is the only one of the group to not serve as chief justice. They are six of the eight living former justices. The former justices not involved in the case are Fred Martone and Andrew Hurwitz, who are now judges with the U.S. District Court and 9th U.S. Circuit Court of Appeals respectively.
HB 2600 changes the minimum number of nominees vetting committees can send to the governor from three to five. A proposal to increase the minimum to eight nominees was part of Proposition 115, a 2012 ballot measure that made a host of changes to merit selection, the way judges are chosen in the state’s three largest counties. Judges are elected in the rest of the state’s counties.
The ballot proposal failed by a vote of 72.5 percent to 27.5 percent, as five of the six former justices who are co-counsel in the lawsuit took a political stance by submitting an argument against it in the Voter’s Guide.
“This was a strategic decision to have those names as counsel of record to send the message that this shouldn’t be considered on its merits, this should be considered on who’s bringing it,” said Rep. Justin Pierce, R-Mesa, the sponsor of HB 2600.
Pierce, who is an attorney, was a staunch supporter of Proposition 115 and participated in debates and spoke in support of it in public appearances.
The suit alleges the new law, which takes effect Sept. 13, is unconstitutional because only voters can change the number of nominees, not the Legislature. A secondary argument asserts that the number of nominees is voter protected because of the failure of Proposition 115.
Paul Eckstein, the plaintiffs’ lead attorney, said there was no political or legal strategy behind the former justices working as co-counsel other than they know the merit system well. Each was appointed to the bench under the system and the five former chief justices all served as chairman of the Commission on Appellate Court Appointments, the selection committee that nominates Supreme Court justices and judges for the Court of Appeals.
“They understand and believe that the Legislature was trying to destroy merit selection,” Eckstein said.
None of the former justices contacted for this story immediately returned calls for comment.
Pierce said their participation as co-counsel is an obvious attempt to influence the Supreme Court and is the “height of irony” because merit selection supporters have always argued that the system is necessary to keep politics out of the judiciary.
“I’ve never seen a group of co-counsel like this on a petition like this,” Pierce said. “This was clearly a strategic decision.”
Jordan Rose, founder of Rose Law Group and a frequent legal commentator for television news shows, said the strategy is brilliant.
She said the presence of those justices is the equivalent of a legal tsunami and will make a great impact on the Supreme Court, making the case almost impossible for the state to win.
“You’ve got some of the greatest legal minds who have been the deciders of what is legal in Arizona agreeing that this law is just not,” Rose said. “When have we ever seen this many of our most respected judicial minds in 100-percent agreement on anything.”
Cole said judges do take notice of the lawyers involved in a case, but it is the judge’s responsibility to make sure the lawyers’ reputation or prestige doesn’t impact his thinking.
“I’ve seen situations where former judges and former justices have represented parties and the judge that is now involved in the case can be a little cowed by that,” Cole said.