A far-reaching proposal by Rep. Warren Petersen, R-Chandler, would allow lawmakers, with a two-third vote, to remove any judge from the Supreme Court, Court of Appeals or any Superior Court judge from Maricopa, Pima or Pinal counties. And HCR 2006 would not require that legislators have any reason at all.
“You worry about judges legislating from the bench,” Petersen said, expressing concern that it’s done without accountability to voters.
He pointed out that his measure, like HCR 2002, would apply only to judges who are screened by a selection panel, appointed by the governor and then stand for reelection on a yes-or-no basis. Petersen said he is less concerned about the judges in the Superior Courts in the 12 other counties who have to run for reelection every four years facing an actual candidate, giving voters a real choice versus an abstract one of should they stay or should they go.
“How do you deal with a rogue, non-elected judge?” Petersen asked.
That description annoyed Pete Dunn, a attorney and former chair of the House Judiciary Committee who now lobbies for the Arizona Judges Association.
“Judges are not ‘going rogue’ in this state,” he said, calling Petersen’s proposal “a solution in search of a problem.”
“Our system of government with three co-equal branches has worked for several hundred years, and it’s going to continue to work well,” Dunn said.
Petersen disagreed, saying there needs to be more oversight of the judiciary.
Another proposal by Rep. Phil Lovas, R-Peoria, would require judges who have to stand for retention to get approval of at least 60 percent of the people casting a vote. Current constitutional provisions allow them to be retained on a simple majority.
Had HCR 2002 already been in place, four judges who were just retained by less than that margin — three in Maricopa County and one in Pima County — would be out looking for work and the new governor would get a chance to pick replacements.
Petersen said Lovas’ bill helps but doesn’t go far enough.
There is already another option: The Arizona Constitution allows all state and judicial officers to be impeached for “high crimes, misdemeanors, or malfeasance in office.” But Petersen said the issue goes beyond those grounds.
“A lot of people feel like the judges are out of control on some of these rulings where they just start making stuff up, changing the meaning of words,” he said.
His prime exhibit, also cited by Gov. Doug Ducey in his State of the State speech, is the 2013 decision by the state Court of Appeals in the school funding case.
The judges acknowledged that the 2000 voter-approved measure requires the Legislature to “increase the base level or other components of the revenue control limit” that determines aid to schools. Lawmakers argued that permitted them to simply increase transportation aid — a small component of school funding — and ignore inflation adjustments to everything else.
But Judge Michael Brown, writing for the unanimous appellate court, said not only was the measure sold to voters as requiring full inflation adjustment but the Legislature itself directed the Secretary of State to describe it on the ballot as increasing all elements of state aid.
The state never appealed that issue to the Supreme Court. And that’s what resulted in the order to immediately boost state aid by more than $330 million with the potential to have to also shell out more than $1 billion in aid never paid.
But Petersen said the courts still got it wrong. And that’s why lawmakers, who make the laws and answer to voters, should be able to remove them without a full blown impeachment and trial.
“I want judges to have a textural interpretation of law,” he said. “I want them to do what it actually says in writing, not what they want to do.”
He said that doesn’t happen most of the time.
“But what’s a good way to deal with it?” Petersen asked.
Petersen would first need voter approval to amend the Arizona Constitution to allow for legislative removal by vote.
But he said voters should be secure in believing that lawmakers would not abuse that power to simply remove judges who might have been appointed by a prior governor of a different party, pointing to the requirement for a two-thirds vote. Petersen acknowledged, though, there have been years where Republicans did have that margin.
Lovas does not seek to go that far. Instead, he figures that requiring a judge to get the approval of 60 percent of the voters ensures that they remain accountable.
In Pima County, Judge Catherine Woods would have been out, having garnered just 59.2 percent of the vote.
Also falling below that 60 percent threshold were Maricopa County judges Bradley Astrowsky, Bill Brotherton and Gerald Porter who got just barely more than 50 percent.
“The system is working,” Dunn said. He pointed out that Maricopa County Superior Court Judge Benjamin Norris, who was not recommended for retention by the Commission on Judicial Performance Review, was ousted after getting the support of just 42 percent of the voters.