The Arizona Supreme Court’s integrity is under attack by supporters of the defunct Invest in Education Act who accuse the justices and Gov. Doug Ducey of collusion.
But the accusations are fueled not by hard evidence but rather by an assumption grounded in speculation and unverifiable information spread by the Ducey campaign.
The court and its justices have been swept up in election season politics that typically bypass the judicial branch. And the lasting impact may not be a shift in electoral chances of Ducey or Democratic gubernatorial candidate David Garcia in November, but a threat to judicial independence.
On September 9, reporters on a local news talk show revealed that representatives from Ducey’s campaign had told them the Supreme Court decision on the Invest in Education Act was 5-2.
The initiative would have increased state income taxes on individual earnings above $250,000. It would have created a dedicated revenue stream of about $690 million a year for education.
The full Supreme Court ruling, including how the justices sided, has not been released yet.
Ducey and his campaign have since denied that they have any insider information on the Supreme Court ruling and he said the information given to reporters was not presented as fact.
“That’s a rumor. I have no idea about that,” Ducey said September 18.
Ducey’s campaign manager J.P. Twist dismissed the idea of a leak at the court. He did not disclose where the campaign got the vote information from, but said it was a third-hand rumor that didn’t come from the court.
But the damage was already done.
When Ducey’s campaign appeared to have inside information about the demise of the initiative, Democrats and the initiative’s supporters painted the news as a sign of clear collusion between the executive branch and the court.
“This is what corruption looks like,” Garcia tweeted. “Do Arizonans want four more years of Ducey tipping the scales of justice? I think not.”
— David Garcia (@dg4az) September 12, 2018
Garcia spokeswoman Sarah Elliott said the onus is on Ducey’s team to clarify to voters where the campaign got its information.
But without the release of a full opinion on the ruling, there’s no immediate way to prove any misconduct occurred.
Joe Thomas, president of the Arizona Education Association and a Red for Ed stalwart, said Arizonans may never know what really happened, but something doesn’t feel right.
“The frustrating part is no one knows if it’s accurate. No one knows yet, although there’s an investigation whether there was a leak,” Thomas said. “But it sure looks like one.”
Between the “unprecedented maneuver” by the court to strike the initiative from the November ballot and the Ducey campaign purporting to know the vote count, the situation simply stinks, he said.
Yet he acknowledged there has been no evidence beyond what Ducey’s campaign told reporters to support accusations of corruption.
The seriousness of @dougducey‘s CAMPAIGN TEAM knowing the vote total and who voted for and against #InvestInEd before the opinion and vote are made public cannot be overstated. #RedForEd https://t.co/FpdVPPRei1
— Joe Thomas (@AZ1Thomas) September 12, 2018
Former Supreme Court Justice Thomas Zlaket said he can’t remember a time when anyone — and certainly not a large contingent of people — seriously questioned the process or the integrity of Arizona’s high court.
Zlaket, who served on the court for 16 years before stepping down in 2002, said a breach among the justices or court staff is highly unlikely.
“I do know some members of the court and they would never, in my opinion, ever leak anything to another branch of government,” he said. “They know it’s just not the way the courts operate.”
The justices have maintained a common practice that no information on a ruling will be given to the parties, their attorneys or the public until an opinion is formally released, Zlaket said. Even law clerks are trained to keep quiet until an opinion is put out.
Half the people involved in any case are going to be unhappy with the outcome, Zlaket said. There’s nothing wrong with informed criticism, but the idea that justices or court staffers are doing something to undermine the public’s trust seems implausible, he said.
The judicial branch is unique because it’s free from the political pressure that pervades the other two branches of government, Zlaket said. The public has instilled their trust and confidence in the court to independently decide their rights and obligations, he said.
“If the public loses faith in the third branch of government and starts to believe that it is nothing more than another political arm of government like the executive, like the legislative branch, then it almost seems to me we’ve got a serious problem,” he said.
These accusations have not gone unnoticed, but the court has not started a formal investigation, said Jerry Landau, the court’s director of governmental affairs. Court staff is discussing the allegations with those involved in judicial opinions, but not questioning anyone outside the court.
“Someone made a statement. Is it true? We don’t know,” he said. “What’s the basis for it? We don’t know. … We’re simply asking if anyone knows about it, and that’s really the end of it.”
The court was targeted by the initiative’s supporters even before the purported vote was shared with reporters.
About a week after the Invest in Education Act was kicked off the ballot, Arizona Educators United, the group behind the Red for Ed movement, vowed retribution in November. They targeted Justices Clint Bolick and John Pelander — the only two justices up for retention this year.
The Invest in Education committee — the group behind the initiative — is not taking part in the effort to target Bolick and Pelander.
The response rankled even some who typically align with the goals of the initiative.
Attorney Dan Barr, on Twitter, deemed the retention election challenge “idiotic.”
— Dan Barr (@DanCBarr) September 5, 2018
“A bedrock of our judicial system is that of judicial independence, and when you start targeting judges for decisions you don’t like, then you make the judges far more wary of doing what they think is the right thing to do,” Barr said in an interview.
He said the court’s critics should have at least waited for the opinion to be released before criticizing it.
The campaign against Bolick and Pelander isn’t just absurd, he said, it’s offensive.
The state Commission on Judicial Performance Review found both justices met judicial performance standards by a vote of 27-0. And according to their reviews, both received integrity scores of 100 percent from attorneys who returned commission surveys.
Bolick said he cannot begrudge anyone engaging in civic activism, but he hopes the effect is not to politicize the court.
“Punishing judges for a good faith decision would be a very concerning precedent,” he said.
He suffered his fair share of losses during his career as an attorney, Bolick said, and he may be the only person in the state to have had two ballot measures thrown off the ballot.
“What did we do? We dusted ourselves off. We got it right the next time,” he said.
Bolick dismissed the suggestion that the justices may have been influenced by Ducey or his administration as “silly.”
The alleged leak is concerning to the justices, he said. If the vote truly was leaked, he does not believe one of his colleagues was responsible.
But he said that anyone would purport to have that information is distressing in any case.
Josselyn Berry, co-director of Progress Now, a left-leaning advocacy group, said some people were quick to suggest corruption or collusion between the Supreme Court and the executive branch after the Invest in Education Act decision because of Ducey’s push to expand the court in 2016.
Bolick worked at the Goldwater Institute before Ducey tapped him to serve on the Supreme Court. He had never been a judge, which raised some eyebrows in 2016, Berry said.
.@dougducey said Monday that teachers need a civics lesson because the AZ Supreme Court and his office are separate branches.
— Josselyn Berry (@joss_berry) September 12, 2018
Ducey named two new justices after the Republican-controlled Legislature agreed to expand the court to seven members from five.
House Speaker J.D. Mesnard sponsored the bill to expand the court, which was criticized as an effort by conservatives to pack the court in their favor. But it’s news to him if he or his fellow legislators ever had any influence over the court.
“As the kind of head of half of one of the branches, I’m wondering where that sway is,” he said.
Berry didn’t go so far as to suggest there was a leak at the Supreme Court, but she said Invest in Education supporters are confused why Ducey’s campaign appeared to have information that wasn’t publicly available.
Supporters of the initiative were devastated when the court denied the measure a spot on the November ballot.
“A lot of people worked hard to get Invest in Ed on the ballot,” she said. “270,000 people signed the initiative. A lot of teachers and parents and people worked to get that to happen and so when it was ripped off the ballot … I think there was a lot of anger and upset because they wanted the chance to vote on that.”
But if conservative sway over the court is of the utmost concern here, targeting two sitting justices may do nothing to change that.
Most polls indicate that Ducey is favored to win re-election in November. In that case, should Bolick or Pelander or both lose in the retention election, Ducey would appoint their replacements.