Senators vote to expand state Supreme Court from five to seven justices

State senators voted Monday to expand the Supreme Court in what one Democrat lawmaker called a “power grab” by Gov. Doug Ducey.

HB 2537 approved on a 18-12 party-line vote would add two more justices to the current five-member panel. The House already has approved the measure, meaning it now goes to the governor.

Ducey, who made one appointment earlier this year, has not discouraged the move to give him the opportunity to select two more justices — even if that means increasing the cost to taxpayers of running the judiciary.

“We have made our government more efficient,” the governor said Monday when asked about the move to increase the size of the court.

Justices are paid $155,000 a year, plus a package of fringe and retirement benefits that probably brings the cost close to $200,000. And each justices has a judicial assistant and two law clerks who also are paid.

Sen. Andrea Dalessandro, D-Green Valley, pegged the total cost at $1 million a year.

But the governor sidestepped the question of why it makes sense to spend more tax dollars on the court, saying only said there “certain services” that need to grow because of the increasing size of the state, things like K-12 education.

Sen. Steve Farley, D-Tucson, sees something more sinister in the maneuver, saying no one — including the current justices on the court — is asking for the expansion.

“The only reason why you would add justices to the court is to pack the court for political reasons,” he said.

“This is the executive making a power grab over the judiciary,” Farley continued. “If you don’t like the decisions the Supreme Court is making, you don’t pack the court.”

Sen. Martin Quezada, D-Phoenix, said the numbers do not justify an expansion.

He said Arizona has one justice for every 1.3 million residents. By contrast, Quezada said California, with seven on its high court, has one justice for every 5.5 million residents.

But Sen. John Kavanagh, R-Fountain Hills, had his own set of figures.

He said Vermont, with just 626,000 residents, has the same number of justices as Arizona. Based on that, Kavanagh said, Arizona would need 43 more justices to keep the same ratio.,

“But we’re only going to add two,” he said.

Four of the five justices were named by Republican governors, though Ducey, in his first pick, chose Clint Bolick who was a registered political independent. Chief Justice Scott Bales, selected by Janet Napolitano when she was governor, is the court’s lone Democrat.

Republican senators who supported the move denied it had anything to do with putting more Republicans on the court.

Senate President Andy Biggs, R-Gilbert, said additional justices are needed not just because of the growth of the state but increased litigation. And Sen. Don Shooter, R-Yuma, said more justices will lead to more justice.

“In a multitude of counselors, there is wisdom,” he said.

But Farley said that’s just a convenient excuse by GOP lawmakers to give the GOP governor additional influence on the court.

Justices technically serve for six-year terms, at which time they stand for a reelection, not facing any other candidate but on a retain-or-reject basis. No Supreme Court justice who has sought a new term has been turned out of office since that system was put in place by voters in 1974.

And with justices able to serve until age 70, anyone named now likely would have influence long after Ducey has left office.

Rep. J.D. Mesnard, R-Chandler, who crafted the legislation, said he believes a larger Supreme Court is appropriate. But he conceded there is a political component behind the timing.

“Separating the politics from the policy is impossible,” he said.

“There’s always going to be a political consideration,” Mesnard continued. “And if there were a Democrat on the ninth floor (where the governor’s office is located) that would be a political consideration that I would take into account.”

And he said the political reality is that a Republican-controlled Legislature would never give such power to a Democrat governor.

“If there were a Democrat up there, I’m sure I’d have heartburn, like others have heartburn who don’t like the current governor,” Mesnard said.

There’s another factor at play: Money.

Bales had requested additional funds from lawmakers for raises for judges statewide as well as for other priorities for the courts. The budget package awaiting legislative action provides $2.1 million for some of what the chief justice had asked for — above and beyond the $500,000 cost of new justices and staff — but only if Mesnard’s bill becomes law.

Put differently, if the court stays at five, the funding goes away.

Even Mesnard said he finds that unacceptable.

“I am totally, absolutely opposed to linking them,” he said of the issues of funding and court expansion. And Mesnard said he is particularly unhappy that the court’s request for additional adult probation officers also is contingent on expanding the court.

“The probation issue should stand on its own,” he said.

Even if the court is expanded, Ducey would not get to name just anyone he wants.

That 1974 constitutional amendment setting up the retain-reject election also spells out that applications for the Supreme Court, Court of Appeals and the trial courts in Maricopa, Pima and Pinal counties have to be screened by special commissions. Those panels then must recommend at least three names to the governor for every vacancy, all of whom cannot be from the same party.

Bolick was selected from nine finalists approved by the commission which reviews high court appointments.