Arizona Chief Justice Charles E. Jones has taken the unusual step of criticizing pending legislation for the second session in a row.

“Quite clearly, these bills are intended to inject politics into the judicial process,” said Chief Justice Jones. Among the targets of his criticism are a concurrent resolution (HCR2024) that would require appointments to the bench to be approved by the state Senate, and re-approved in the Senate every four years.

Judicial nomination committees now make recommendations on appointments to the state appellate courts and superior courts in Maricopa and Pima counties with the final choice belonging to the governor. HCR2024 would require the governor’s nominees to be confirmed by the Senate and, rather than stand for retention, would have to be reaffirmed every four years. Voters in the 13 counties other than Maricopa and Pima still elect superior court judges as they have since statehood.

Rep. Andy Biggs, R-Dist. 22 and sponsor of HCR2024, said the measure would simply create a system that mirrors the U.S. Senate’s role in confirming nominees to the federal bench.

But Chief Justice Jones sees this measure and others recently heard in the House Judiciary Committee as an attempt by some lawmakers to “tip the balance of power” to the Legislature, when each of the three branches of government – the judiciary, the executive and the Legislature – should have no more power than the other.

Such drastic changes as proposed by some measures would “effectively destroy some of our most cherished judicial institutions in this state,” Chief Justice Jones told the House Judiciary Committee on Feb. 12.

Chief Justice Jones said during the 2003 regular session that it was “unusual, if not unprecedented,” for a sitting justice of the Supreme Court to testify on pending legislation. The chief justice at that time also criticized a number of measures he said would curb the authority and independence of the judiciary. Those measures ultimately failed to pass.

House Majority Whip Randy Graf, R-Dist. 30 and a member of the Judiciary Committee, makes no bones about the fact that he thinks judges and the state’s high court have upset the balance of power in state government.

“We had a case here just recently where there was a case before the court in which we were asserting our right as appropriator, and the [Supreme] Court didn’t see fit to uphold our role,” Mr. Graf said. He was referring to the court’s decision Dec. 4 upholding Governor Napolitano’s use of line-item vetoes in restoring spending in the state budget bill.

Chief Justice Jones said that the decision was an instance in which the high court refused to be the “activist court” that some conservative critics decry.

“We stayed out of it,” Chief Justice Jones said. “It was strictly a political issue; an issue that should have been resolved by the other branches.”

Other Resolutions

Other concurrent resolutions that would affect the judiciary:

HCR2007 – Amend the state Constitution to require that judges’ party affiliations be included on the ballot when they stand for retention.

HCR2010 – Amend the Arizona Constitution to state “that the Supreme Court shall not infringe on the authority of the Legislature or the people to enact laws to preserve and protect the rights of victims and to say the power to enact substantive, procedural and evidentiary laws is not a power inherent in the judiciary but is a legislative power inherent in the Legislature and the people.”

HCR2040 – Amend the state Constitution to replace four of the five governor-appointed attorneys on the judicial appointments commissions with two attorneys appointed by the Senate president and two by the House speaker; to drop the requirement that the attorneys be chosen from lists of nominees prepared by the State Bar of Arizona; to forbid justices and judges from lobbying on behalf of any nominee, and to keep the chief justice as chairman of the commissions but to make the chief a non-voting member.

If approved by a majority of the Legislature, concurrent resolutions are placed on the next general election ballot.

None of the court-related measures had passed the House Judiciary Committee as of the morning of Feb. 19, when they were on the agenda for the second time this session. —