Republican state lawmakers are helping insurance companies ensure they get a jury more to their liking when their clients get sued, but the question of whether they have the constitutional power to do so — particularly as the issue can affect the ability of minorities to be represented on juries — remains in doubt.

On a party-line vote, the Republican-dominated House Appropriations Committee on Monday approved a proposal by Sen. Mark Finchem, R-Prescott, to reinstate, at least in part, a practice that allowed attorneys from each side to use peremptory challenges. These are people they can eliminate from the jury not for any specific reason, like bias, but, in essence, because they believe those individuals are less likely to see things the way their clients want.

“Maybe they don’t have … the intellectual capacity to do a very complex case, so you strike that juror,” explained Marc Osborn, a lobbyist who represents a laundry list of some of the largest insurers. He also represents some governments that insure themselves with “pools.”

Osborn insisted that his clients are not “biased people.”

“But they’re not the kind of people we wanted on the jury because it reflects in decision making,” he said. “And we could not throw them off the jury.”

As it turned out, the case settled before it went to the jury.

But Barry Aarons, who lobbies for the Arizona Trial Lawyers Association, attorneys who represent plaintiffs who file suits seeking to recover damages, said the insurers raised no concerns when the Supreme Court eliminated peremptory challenges in 2021.

So what changed?

“All of a sudden, over the last couple of years, they suddenly realized they were losing a lot of cases because there were real people getting on juries,” he said.

Under the rules adopted four years ago by the state’s high court, the only way an attorney can eliminate that juror is by showing that person is likely to be biased.

SB1509, crafted by Finchem, would override the Supreme Court’s ruling and spell out in statute that each side in a civil case is entitled to four peremptory challenges. This is in addition to the number of prospective jurors attorneys can strike “for cause,” such as bias or inability to serve.

Finchem also took a swat at the Supreme Court for eliminating the peremptory challenges in 2021.

“The court took it upon itself to essentially write law,” he told colleagues, saying he found that “particularly offensive.” That decision, he said, belongs to the “policymakers,” meaning state legislators.

That, however, may not be true.

“Under our separation of powers, the (Supreme) Court has responsibility for trial court procedures,” Chief Justice Ann Scott Timmer told Capitol Media Services. And that, she said, includes “how jury trials are conducted.”

That brought a sharp retort from Finchem.

“Perhaps she should reread the Arizona Constitution,” he said in response.

“The Legislature handles ‘what’ the law is, the court handles ‘how’ the ‘what’ is implemented,” Finchem continued. “If the chief justice wants to craft policy, perhaps she should run for a legislative office.”

What makes that question of who has the authority to create law significant is that if Finchem’s bill becomes law, it is bound to lead to a challenge the first time an attorney in a civil case seeks to eliminate a juror without being able to cite a reason. And any litigation ultimately will wind up back at the Supreme Court.

All this is the result of that decision by the justices in 2021 to accept the recommendations of two judges from the State Court of Appeals. Peter Swann and Paul McMurdie argued that the move would go a long way in eliminating situations where juries that often do not reflect the racial and ethnic backgrounds of their communities are selected.

“The primary tool by which this discrimination is practiced is the peremptory strike,” they wrote.

All that was addressed — or supposed to be addressed — by the U.S. Supreme Court in 1986 in the case of Batson v. Kentucky.

In that case, James Batson, a Black man, was on trial and charged with burglary and receipt of stolen goods.

The prosecutor used his peremptory challenges to eliminate all four Black prospective jurors. Batson was then convicted.

In a 7-2 ruling, the nation’s high court said the prosecutor’s actions unconstitutionally denied him his right to a fair trial and his right to equal treatment under the law.

Since that time, any time there has been a peremptory challenge to a minority juror, attorneys are supposed to articulate a non-racial reason for their decisions, both in criminal and civil cases. But Swann and McMurdie, in their 2021 report to the Arizona Supreme Court, said the data they’d seen convinced them that the law still meant fewer minorities on juries, even with lawyers citing what they claimed were legitimate reasons.

And they had evidence to back that up.

Data compiled by the Administrative Office of the Courts in 2021 showed that in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.

By contrast, Black jurors were underrepresented by 16%. And it was worse for Hispanics who were underrepresented 21% of the time, with a 51% gap for Native Americans.

That report said the disparities were even more pronounced in civil cases — the part of the 2021 rule that Finchem and the insurers want changed.

There is some evidence the change has helped make civil juries more reflective of the population.

A study in the Arizona State Law Journal published this past winter, shows a lesser disparity between the number of whites who were called for jury duty but ultimately not chosen and a similar statistic for minorities.

In her comments to Capitol Media Services, Timmer said the decision to eliminate peremptory challenges was not made lightly. The justices considered various proposals, listened to the public and attorneys, and studied the issue themselves.

“Primarily, we concluded that everyone has the right and privilege to serve on a jury and should not be stricken for any reason other than an inability to be fair in a particular case,” Timmer said. “As it has turned out, the rule change has allowed more people to serve on juries, has shortened the selection process — thereby speeding up trials — and has saved valuable resources.”

Finchem’s legislation now needs approval of the full House and then, if it survives there, must go to the Senate which has never considered the plan. It also ultimately would need the approval of Gov. Katie Hobbs.