State Supreme Court justice fights effort to remove him

Gary Grado//October 23, 2012

State Supreme Court justice fights effort to remove him

Gary Grado//October 23, 2012

Arizona Supreme Court Justice John Pelander (Photo by Bill Coates)

The only state Supreme Court justice on the retention ballot is striking back at Republicans calling for his removal because of a ruling on a ballot measure to change the state’s election system.

Republican committees throughout Maricopa County have circulated fliers calling for a “no” vote for Justice John Pelander, a Republican who was Gov. Jan Brewer’s first selection to the Supreme Court in 2009.

The targeting of judges on the retention ballot has been rare in the 38 years of the merit and retention system, and it is even rarer for judges to defend themselves when there is an organized effort against them.

“I intend to defend myself,” Pelander said.

He hired a political consultant Oct. 23, and a lawyer to help him navigate ethical canons that restrict judges in political campaigns.

The Republican committees also recommended votes against Court of Appeals judges Margaret Downie, Donn Kessler, Patricia Norris, Maurice Portley and Peter Swann, all appointees of Democratic Gov. Janet Napolitano.

Pelander, as well as Court of Appeals and Superior Court judges in Maricopa, Pinal and Pima counties, are part of the state’s merit and retention system. They are appointed by the governor and face retention by voters every four years. Judges in the 12 remaining counties are elected.

Merit selection judges are critiqued by the Commission on Judicial Performance Review, a 30-member panel that passes onto the voters its recommendations of whether the judges “meet” or “do not meet” judicial standards. The commission unanimously agreed Pelander meets the standards to be retained.

Paul Eckstein, an attorney with Perkins Coie, a law firm that takes up Democratic issues, said he is spearheading an independent expenditure committee to help Pelander.

“The guy is a scholar, a serious judge, totally apolitical,” Eckstein said. “I couldn’t be more pleased at having a judge of his caliber on the bench.”

Pelander said he began to see the fliers opposing him in recent weeks and he’s rushing to get his campaign together since Election Day is less than two weeks away. The recommendations against Pelander come on fliers that also include voting recommendations for other races, including propositions.

Jeni White, Republican chairwoman of Legislative District 18, a Southeast Valley district that includes parts of Phoenix (Ahwatukee Foothills), Chandler, Tempe and Mesa, said people often ask about the retention of judges.

“This was one where we could say, ‘Hey, this recent decision is worth your attention, let’s give this gentleman’s record a second look instead of a rubber stamp,” White wrote in an email.

The LD18 flier and posts on various GOP websites by former Senate President Russell Pearce, the first vice chairman of the state Republican Party, accuses Pelander of ignoring overwhelming evidence that signatures for Prop. 121, the top-two primary measure, were fraudulently collected. The measure would allow the top two finishers in a primary to go on to the general election regardless of their party.

Pearce did not immediately return a call seeking comment and the Republican chairman of Legislative District 12, another group recommending Pelander’s removal, did not immediately respond to an email seeking comment.

“The focus of that recommendation was the fraudulent signatures on Prop. 121, including thousands of signatures ‘gathered’ by a convicted forger, and the court panel (including Justice Pelander) refusing to hear the overwhelming evidence to this effect,” White wrote.

Pelander said the literature he has seen opposing him confuses his role as an appellate judge with a trial judge in the Proposition 121 case.

“People need to keep in mind we are not the fact-finding court, we are not the trial court, we are looking at a trial court record,” Pelander said. “Frankly, the issues and arguments raised on appeal were not supported by the record or the law.”

Pelander was part of a three-judge panel, including Chief Justice Rebecca White Berch and Vice Chief Justice Scott Bales, that upheld a trial court decision Sept. 6 allowing the top-two primary initiative to remain on the Nov. 6 ballot.

The panel determined that the trial court was correct in the way it managed evidence in a hearing. The trial court did not abuse its discretion in limiting Save Our Vote, the group challenging the measure, to two hours to present its case, the Supreme Court found.

Voters typically retain judges by a two-thirds average margin and have removed only two judges since 1994: Maricopa County Superior Court Judge Fred Hyder and Division 1 Court of Appeals Judge Gary Nelson, both in 1978.

In 2004, Len Munsil, founder of Center for Arizona Policy, a social conservative advocacy organization, and a one-time Republican gubernatorial candidate, targeted two Maricopa County Superior Court judges for removal for their abortion-related decisions. Munsil created a web page dedicated to their removal and formed a campaign committee called No Bad Judges.

Retired Judge Kenneth Fields, who was targeted with retired Judge William Sargeant, said the “no” campaign came in the final weeks before the election.

Voters retained them, but they got 6 percent fewer “yes” votes than other judges.

Fields, who still has some “No Bad Judges” yard signs in his garage, said he never considered defending himself.

“I was a merit-selection judge all the way through,” Fields said. “If you did not agree with my decision, no matter what I said would make a significant difference, not even a hair or a percentage of a difference for that voting population.”

Sargeant could not be reached for comment, but no records exist to show if he created a campaign committee. Judges are not allowed to raise campaign funds, but they can form a committee for others to raise funds.

Fields said he was philosophical about the ordeal, taking to heart advice from a colleague who said they aren’t entitled to their jobs.

“If you folks don’t want me sitting as a judge, OK, that’s it, if that’s the way they want to do it,” Fields said.

Seth Andersen, executive director of the American Judicature Society, an Iowa-based research group that supports use of the merit system, said vote “no” groups around the country have typically used the tactic of a last minute blitz, leaving the judges with little time to react.

There has also been a rise in big-money “no’’ campaigns in recent years. In Iowa in 2010, millions of dollars from out-of-state flowed in to oust three Supreme Court justices over their ruling making same- sex marriage legal. The fourth justice, who concurred in the 2009 ruling, is fighting to save his job this year in the face of another high-dollar campaign. Three Supreme Court justices in Florida this year are also in the midst of similar campaigns, Andersen said.

“They’re good old-fashioned political campaigns,” Andersen said.