Is it a case of poison as a cure?
The cure in this case is Clean Elections, Arizona’s system of publicly funded campaigns for statewide and legislative candidates. The malady, some legislators said, is the means used by the state’s two largest counties to select and appoint superior court judges.
SCR 1021, introduced by Sen. Chuck Gray, R-19, seeks to allow voters to strike the state’s use of merit selection and retention process for appointing and keeping the judges in Maricopa and Pima counties.
It’s a system that a significant number of state lawmakers criticize. They said it effectively shields judges who abuse their authority and ignore the law. The referendum was billed as a way to “restore democracy and accountability to the judiciary.”
In place of the current merit-selection system, Gray, the Senate Judiciary Committee chairman, and 11 other legislators in both chambers propose herding the counties’ superior court judges into competitive campaigns — with the option of drawing from the same well of public funds offered to legislative and statewide candidates.
While efforts to undo merit selection are nothing new, waging war with the offering of public funds is a first, as Gray and many of the “Clean Elections for Judges” co-sponsors openly express their opposition to public financing of campaigns.
“If I had the chance to eliminate Clean Elections, I would,” said Rep. Russell Pearce, R-18, a co-sponsor of the Senate bill and the prime sponsor of an identical House measure with the support of more than 30 legislators. “But because it is the law of the land, I think we should give them (judges) the same opportunity to use it.”
But judges and legal insiders well-versed in merit selection are not thrilled about the possibility of running competitive campaigns, with funding from public coffers or private contributors.
They said the merit selection established in 1974 has performed perfectly and helped create a talented crew of trial court judges in Maricopa and Pima counties, and an excellent and widely respected appellate bench in Arizona.
The referendum does not seek to alter appellate appointments.
Judges defend the selection process, which involves nominating candidates to county trial court appointment commissions, and gubernatorial selection from picked applicants as the best means to ensure neutral arbitration of the law. Superior court judges under the process are retained by non-competitive retention elections every four years.
In Arizona’s 13 smaller counties, superior court judges run competitive campaigns with contributions drawn from private donors. Gray’s Clean Elections proposal would cover these counties as well, and would also require counties with less than 800,000 people to hold elections for superior court judges. The current level is 250,000.
The gold, the grotesque and the good ol’ boys
“Merit is the gold standard,” said Arizona Supreme Court Vice-Chief Justice Rebecca White Berch, ranking the superiority of methods to select judges. “Public funding is a far, far second, but it certainly beats having to ask people and companies (for money) that would appear before their courts.”
Judicial elections might work very well for smaller counties where candidates are likely to be well known and have less need for campaign cash. But in larger areas, money is at a premium and presents a very real threat to impartial justice, said former U.S. Supreme Court Justice Sandra Day O’Connor.
“Partisan (judicial) elections in other states are just grotesque — the amounts of money raised; it’s a disgrace,” said O’Connor. “It’s more than it costs for U.S. Senate races. How are you going to get a fair and impartial judge if huge sums of money are raised in the judge’s name?”
The former Supreme Court justice, who routinely speaks at engagements to promote judicial independence, said she was motivated to bring judicial merit selection to Arizona after encountering a disappointing “mixed bunch” of judges while she was a private attorney.
While serving as a state senator, she presented a referendum to establish merit selection and retention for superior court judges in Maricopa and Pima counties and the appellate level, but the legislation died in the state House of Representatives, she said.
Supporters of the merit system are quick to point out that judges are rated through judicial performance reviews completed by attorneys, jurors and litigants. But opponents of merit selection and retention view the system as structurally flawed.
The appointment process itself may not be done in a “back room with cigar smoke,” and members of the public are free to provide comments on applicants, but much of the decision process is done in closed executive sessions, said Gray.
“In my view, it’s kind of a good-ol’-boy system because the public does not know these judges and is really unfamiliar with the process of how they get appointed,” said Gray, a former Mesa policeman.
Accountability and competition
The chances of losing a non-competitive retention election are next to zero and there is little to stop judges from issuing questionable rulings, said Gray, who is going on his sixth year as a legislator.
Two cases immediately come to his mind: Maricopa County Superior Court Judge Philip Marquardt was arrested twice for marijuana possession while the “judicial branch did nothing.” The second one was a 1999 order by Maricopa County Superior Court Judge William Sargeant, he said.
Sargeant aroused intense anger from some members of the public when he allowed a 14-year-old girl to travel out of state to have an abortion.
In doing so, the judge “circumvented” state law, which made abortions illegal after 20 weeks of pregnancy, and suffered no professional repercussions whatsoever until he retired, Gray said.
An intent clause in the referendums presented by Gary and Pearce, both law enforcement veterans, states that “out of the thousands of times judges have sought retention on the ballot…no judges have been removed by the voters.”
In reality, Gray said, the public will be able to truly hold judges accountable only if other candidates are able to challenge their records.
“There’s no competition,” he said, of retention elections. “There is no free market. It just asks you if you like Judge A. There is no Judge B.”
The Arizona Supreme Court counts two judges who have been rejected by voters, Maricopa County Superior Court Judge Fred Hyder, and Division 1 Court of Appeals Judge Gary Nelson. Both were voted out in 1978.
And at least seven other superior court judges have either resigned or retired when facing discipline from the state high court, and others have decided not to run again after receiving poor judicial performance reviews, Berch said.
Justice: political winds make a poor compass
Berch, a Republican appointed to the state high court in 2002 by Gov. Jane Hull, said the viewpoint that judges need to be “accountable” to the public is a “misunderstanding” of the fundamental purpose of the judicial branch.
“We’re a branch that is supposed to be responsible to the rule of law,” Berch said. “You don’t want judges to hold their finger up to the wind and saying ‘what is the popular way to vote that is going to ensure me the most votes at the next election?’ You want judges to make the difficult decision, to follow the law that is put down before them. It’s not always easy, and you are not always going to render a decision that is politically popular.”
The Clean Elections for Judges referendum, which is scheduled for a Feb. 25 hearing before Gray’s
committee, makes other changes to minimize the “massive public persuasion” that affected superior court judges could face, said Gray, noting their terms would be extended to six years from four.
Many, if not most, cases handled by judges are not “sexy” examinations of popular and controversial policies, said Berch, noting one of her first cases as a justice pertained to an unclear tax exemption.
The “burning issue” of the case, she said, was “if sand qualified as machinery or equipment.”
“These are not questions that you can say, ‘well the Republicans would be over here on that, and the Democrats would be over here on that,’” Berch said. “That is not what courts do. We decide on what some people might seem to be dull legal issues, and they are not political issues.”
Merit selection is no cake walk
Barbara Mundell, presiding judge of the Maricopa County Superior Court, was appointed to the court in 1991 after spending years as a commissioner following a stint as an administrative law judge for the Corporation Commission.
The appointment process is anything but easy, she said.
“They scrutinized me for a year,” said Mundell, believing her lack of jury trial experience at the time may have held up the process. “I had a lot of interviews, I had a lot of questions and I went before different commissions. It wasn’t a snap decision, and it wasn’t something that was quick and easy for me. It took a while. And that’s a good thing. They should get to know you, and they should scrutinize you.”
Mundell said she disagrees with the Clean Elections for Judges referendum for a number of reasons. Sheer volume of legal work makes the prospect of campaigning seem impossible, she said.
Currently, the court is handling 126 death-penalty cases. And each year, the court receives about 40,000 criminal filings, 35,000 family-law filings, and 30,000-35,000 civil filings, Mundell said.
“My concern as presiding judge is what is going to happen to the backlog that is going to be created while judges are out campaigning?” she said.
And Mundell believes requiring competitive elections would dissuade more withdrawn and studious candidates from seeking judicial positions.
“I think the nature of the bench would change and that we would lose a number of very good judges because they would refuse to go through a campaign — not because we are elitist or we think we are above a campaign. I don’t think that is the issue,” she said. “Even though we are elected officials, we really think of ourselves as judges first, and then as elected officials.”
Cathi Herrod, president of the Center for Arizona Policy, said the group does not support the merit-selection process or the election of judges, but advocates for the Senate to be given the power to confirm appointments of judges — the same method by which it confirms appointments to the commissions that review Maricopa, Pima and appellate applicants.
“Merit selection, in our view, does not have enough checks and balances,” she said. “The legislative branch in our state has a very insignificant role limited to confirming appointments to the court commissions.”
The Citizens Clean Elections Commission, which oversees the state’s system of publicly financed campaigns for legislative and statewide office, takes no position on the proposal to include judges, said Executive Director Todd Lang.
“The commission has no business on whether judges are elected or not,” he said. “That’s not our area of operation.”
But doling out funds for qualified candidates is, and Lang said the commission has concluded $17 million would be needed to pay for campaigns for the estimated 130 superior court judicial slots in Maricopa and Pima counties.
Under existing funding levels, that price tag assumes two members of each party would face each other in a primary election, with the successors competing in a general election.
But current U.S. case law requires that candidates must have the option of being able to run privately funded campaigns in order for publicly funded systems to be legal.
And running judicial campaigns has shown to be quite expensive, said Berch, noting a friend in a smaller county pegged the amount at $125,000. Even with matching funds provisions, she said she believes that most candidates would immediately flock to private donors — most of whom, undoubtedly, would have vested interests.
Berch and Mundell also raised a question of conflict: A great deal of Clean Elections funding is raised through 10 percent surcharges tacked onto criminal and civil fines levied. Would it be proper for judges to levy fines that could pay for their own campaigns?
On the reverse, many judges in states such as Wisconsin are pleading with legislators to create publicly funded judicial campaigns to avoid the risk and appearance of conflicts of interests arising from private contributions.
Can judges from states with publicly funded campaigns, such as Arizona, be counted on to impartially rule on challenges to the systems while knowing their rulings could derail their judicial colleagues’ hopes?
“I would hope so,” Mundell said. “To be honest, I’ve never made a decision where I determined the outcome (of a case) before hearing the evidence — and I would hope that no judge ever would.”
Gray said he opposes publicly funded campaigns out of a belief that such systems force citizens to pay for campaigns of candidates they may not support.
And judges who have previously upheld candidates’ challenges to the “bureaucracy of Clean Elections,” might reconsider their rulings if forced to “abide by the same system as legislators.”
Reporter Tasya Grabenstein contributed to this article.