Judicial imbalance

Relatively few private attorneys want to become judges in Arizona

Stagnant salaries and diminished retirement benefits keep private attorneys from joining Arizona’s bench, which is becoming unbalanced by increasing numbers of former government lawyers, said a lobbyist for Arizona judges.

Former public attorneys comprise almost 60 percent of the appointed judges in Arizona as fewer attorneys in private practice apply for openings. Superior Court judges in Maricopa, Pima and Pinal counties, the Court of Appeals and Supreme Court are appointed by the governor while Superior Court judges in all other counties are elected.

Pete Dunn, a lobbyist for the Arizona Judges Association, said private attorneys are more familiar with issues in the business world than government attorneys.

“There is nothing wrong with public sector attorneys becoming judges, but we need more balance,” Dunn said.

The imbalance is most prevalent with Maricopa County Superior Court, where

63 percent of the judges worked in government before their appointment. However, Pima County’s bench is composed mostly of former private attorneys — 63 percent, and the Court of Appeals has nearly equal numbers of private and government attorneys. The Supreme Court is made up of mostly former government attorneys, although three of those have extensive backgrounds in the private sector and the one justice who came directly from a law firm, Justice Scott Bales, had a long career in government.

Gov. Jan Brewer recently chose two new judges for Maricopa County.  Those openings attracted the fewest applicants ever, said Ron Reinstein, a retired judge who sits on the Maricopa County Commission on Trial Court Appointments, the panel of lawyers and residents who vet the applicants and nominate them.

Of the 22 who applied, 19 were government attorneys.  A large portion of them were court commissioners, who do the work of a judge, but they work at the pleasure of the presiding judge of Maricopa County Superior Court. Reinstein said when he applied in the 1980s there were 108 applicants for three positions.

“We have a lot of discussions on the issue of having professional diversity as well as gender diversity or ethnic, racial diversity,” Reinstein said.

He said sometimes the commission’s search for professional diversity may vary. For instance, the family court bar once complained that no family-court specialists were on the bench.

“If you had all people specializing in criminal or juvenile and nobody with a background in civil, it’s recognized by everybody on the commission that doesn’t help the court at all, especially when you’ve got complex cases,” Reinstein said.

Reinstein’s first assignment was in civil court after having worked as a prosecutor and he had never done a civil case before.

“A lot of times you’re just treading water on issues you really have no familiarity with,” Reinstein said.

Dunn said one way to overcome the imbalance is to give pay hikes to judges, who haven’t had a raise since 2009.

Dunn went to the Commission on Salaries for Elective State Officers in 2012 to ask for pay hikes, but his request was rejected. The commission meets every election cycle to consider the pay of judges and elected officers and makes recommendations to the governor.  She can submit them in her budget proposal to the Legislature, modify them or reject them.

The recommendation takes effect when an office becomes vacant if the Legislature doesn’t reject or alter the governor’s proposal.

Dunn said any salary increase adopted in 2014 for judges wouldn’t take effect until 2015, and the next increase could not occur until 2017.

Arizona’s highest ranking judge, Chief Justice Rebecca White Berch of the Supreme Court, earns $155,000, while appellate judges make $150,000 and Superior Court judges make $145,000.

Partners in large firms average $281,767, with a median of $250,000 according a State Bar of Arizona survey of attorney income.

Dunn said mid-level partners with courtroom experience are well suited for the bench.

He said some municipal judges, whose salaries are set by city councils, earn more than Berch.

The other part of the equation is encouraging judges to continue to work after they reach retirement eligibility. Dunn said the Judges Association is also discussing drafting legislation that would allow judges who are eligible for retirement after working for 20 years not to contribute to the Elected Officials Retirement Plan.

Judges who retire earn 80 percent of their salary, but those who keep working after 20 years still have to contribute, making it a losing proposition.

Dunn on Oct. 17 sought support for the pay raise and retirement benefit change from the Arizona Judicial Council, a panel that helps the Arizona Supreme Court make administrative policy for the state’s courts.

James Hacking, the administrator of the retirement plan, said employers would have to contribute more money to the plan if Dunn’s proposal were adopted to make up for a shortfall created by the judges who stopped contributing.

Even though Brewer has the final say on who sits on the bench, she doesn’t want to wade into the issue of salary increases or the issue of professional balance, said her spokesman, Andrew Wilder.

“She has a concern about the number of candidates she can choose from,” Wilder said.

Brewer strongly supported Proposition 115, which had several proposed changes to the way judges are selected, including an increase in the minimum number of nominees that selection committees could send her. The 2012 proposition failed overwhelmingly.

The Supreme Court earlier also struck a law passed this year that increased the minimum number of nominees.

Net Income of Arizona Attorneys and Judges

— Source: State Bar of Arizona 2012 Economics of Law Survey

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