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Judicial retention becomes political in 2024

Judicial retention elections have by-and-large been invisible to voters beyond the ballot in past cycles, with no signs, no voting guides and no attempt at overhaul. 

But in 2024, a ballot measure to limit when judges stand for retention and campaigns organized for and against two state Supreme Court justices created a conspicuous race. 

Whether judicial retention elections are wont to see the same level of electoral attention and attempts at reform in coming years remains an open question, but those engaged in retention elections say, despite heightened visibility, this year’s results did not necessarily make for a watershed moment. 

Per final election results, voters roundly rejected Proposition 137, a measure tailored to eliminate term limits for judges given “good behavior,” with 77.67% of people voting against its passage, while Justices Clint Bolick and Kathryn King, who saw campaigns both for and against their retention, passed voter muster and were both retained by 58.19% and 59.35%, respectively. 

The end result was effectively no change in the status quo. 

“It resoundingly seems to me to indicate that voters still want to have a voice, they don’t want to let that go,” said Timothy Berg, an attorney and chair of a PAC to advocate and educate on the current retention system, Arizonans for an Independent Judiciary. “It also seems to me that the voters also weren’t swayed much by all the campaigning that went on.” 

In 2022, three Maricopa County Superior Court judges were not retained by voters, giving way to the perception of the increasing “politicization” of retention elections. In 2024, the fear materialized as an attempt at legislative reform, with Republicans forwarding a resolution limiting when judges are made to stand for retention elections. 

Under Proposition 137, judges and justices would only be made to go before the voters if they were convicted of a felony offense, or any crime involving fraud or dishonesty, were involved in any personal bankruptcy proceedings, had any foreclosed mortgage or if the Judicial Performance Review Commission deemed the judge did not meet standards. 

The measure headed to the ballot as campaigns around the 2024 judicial retention election started to take shape. Though some voting guides advocated against retaining a handful of Superior Court judges, most of the attention, and money, coalesced around Justices Clint Bolick and Kathryn King, given their earlier ruling upholding the 1864 abortion ban. 

Protect Abortion Rights, No Retention Bolick and King formed to oust the justices, while Judicial Independence Defense PAC sought to see the two retained. A third PAC, Arizonans for an Independent Judiciary, advocated for the retention of all judges and the system. 

As of October, Judicial Independence Defense PAC raised $530,000 and spent $333,007. Protect Abortion Rights, No Retention Bolick and King brought in $17,477 and spent $5,492. 

Both campaigns printed signs, though the Judicial Independence Defense PAC commanded more street corners. Berg said this year was “extraordinary” in the sense that signs and spending in judicial retention elections went on at all.

“I spoke at a seminar in October with a bunch of lawyers, and I asked them, ‘How many of you have ever seen a campaign sign before this year for a judicial election?’ And out of 40 people, three people raised their hand,” Berg said. “Then I asked, ‘How many of you haven’t seen one this year?’ And nobody raised their hand.”

Beyond PACs, grassroots group Civic Engagement Beyond Voting put together Gavel Watch, a voting guide on judicial elections. Gavel Watch advocated against the retention of Bolick and King. 

“The purpose of our oversight is not to throw lots of judges off the bench, it’s really just to call attention to what the judiciary does,” Cathy Sigmon, co-founder of Civic Engagement Beyond Voting and Gavel Watch, said. “We’re so privileged in Arizona to have that oversight. I’ll continue to call attention when any judge seems to sort of put their own political judgment above what the law states.”

Though abortion served as some conduit for campaigns against judges, given Bolick and King’s vote to keep the 1864 ban in place, the issue did not entirely carry into how voters weighed in on retention. 

The Arizona Abortion Access Act passed with 61.61% support, while Bolick and King were retained at a similar margin. 

“I think what it showed is that, fortunately, campaigns to get rid of judges are hard to do, and that’s as it should be … you don’t want a system where a judge makes what he or she thinks is the right decision, but it’s unpopular, and you bounce the judge for doing that,” Berg said. “It showed voters made a distinction between what they wanted the policy of the state to be, which is the initiative, and what they thought judges should be doing, which is doing their jobs, and not necessarily punishing them for disagreeing with them.”

As for Prop. 137, efforts to oppose were wrapped into efforts by Gavel Watch and by Protect Abortion Rights No Retention Bolick and King, but there was no organized campaign for or against the measure.  The effort failed by nearly 80%. 

“Hopefully they realize that that is not a winning issue,” Sigmon said. 

Berg agreed the margin to which Prop. 137 failed was particularly illustrative of how voters view the current judicial retention system. 

“At the end of the day, the state kept that system, and it was used the way it should have been used.” 

 

Justices fend off removal, voters keep power over the bench

Voters kept two state Supreme Court justices on the bench and roundly rejected a measure poised to walk back the results of the 2024 retention election and limit when and how often voters can weigh in on whether to fire judges.

Election results painted an existential picture of how the state’s voters sat with and acted on judicial candidates, and how they valued the civic power to keep or kick out judges.

Initial election results showed 79% of voters rejected Proposition 137, a measure poised to nullify results of the 2024 retention election and effectively do away with judicial term limits. 

As for how individual judges fared, Supreme Court Justices Clint Bolick and Kathryn King are likely to stay on the bench, per initial returns, with Bolick seeing support for his retention from 58.42% of voters, and King receiving 59.47%. 

All four Arizona Court of Appeals judges and all 42 Maricopa County Superior Court judges are safe, too, with early results awarding some sizable margins. 

The 2024 retention election served as a turning point for the typically lackluster portion of the ballot. Justices at the top of the ticket prompted high-ticket campaigns both for and against and some zeal on judicial races drifted down to Superior Court judges, too. 

Campaigns for and against retention coalesced around Bolick and King. 

Those seeking to see the two booted from the bench primarily highlighted their vote on the ruling keeping the state’s 1864 abortion ban intact and touched on past rulings striking down school funding initiatives.  

Opposing groups noted Bolick’s past work on litigation for the Goldwater Institute, Institute for Justice and the American Federation for Children and King’s past work as former Gov. Doug Ducey’s deputy general counsel and as a corporate litigator. 

Judicial Independence Defense PAC, a group seeking to keep Bolick and King on the bench, highlighted the threat of Gov. Katie Hobbs appointing two new “liberal” justices to the bench in the event of Bolick and King’s exit and made a general plea for voters to reject the “politicization” of the judiciary. 

Judicial Independence Defense PAC brought in high dollar donations from in-state and out-of-states, including $125,000 from Randy Kendrick, Goldwater Institute board member and wife of Arizona Diamondbacks managing general partner, and $200,000 from billionaire Jeff Yass. 

Protect Abortion Rights No Retention Bolick and King reported a total of $17,477 in income per their pre-general election campaign finance report and no money spent or raised in the post-primary report, but noted they had been working with partner organizations to campaign against the justices. 

Daniel Scarpinato, spokesperson for Judicial Independence Defense PAC, the effort formed to back Bolick and King’s retention, said the results showed “a reputation of these independent justices and all of our judges and a real repudiation of this effort to inject partisan politics into our retention elections and into our judicial branch.” 

Scarpinato said, had the effort to oust Bolick and King been successful, it would have “opened the floodgates on both sides.” 

“Next time around, whoever the new justice is that Governor Hobbs selects would have a target on their back. If there had been success on this front, partisan special interests would have smelled blood in the water,” Scarpinato said. 

As for Court of Appeals and Superior Court judges, another political action committee, Arizonans for an Independent Judiciary, advocated for the retention of all judges on the ballot and made specific defenses of Court of Appeals Judge Angela Paton, Maricopa County Superior Court Judge Chistopher Coury, and Pima County Superior Court Judge Kellie Johnson after Gavel Watch, a voting guide to the retention elections by Civic Engagement Beyond Voting, advocated against their retention. 

Voters retained all four Court of Appeals judges, with Paton seeing a slightly lower margin at 67.48%. 

Early results also showed voters on track to retain all Maricopa County Superior Court judges, too, with comfortable margins. The vast majority of judges courted more than 70% support from voters, with Coury seeing a slightly lower margin at 65%.

In Pima County, judges had similar success, with the vast majority seeing approval above 70%. Johnson, who initially lifted the injunction on the 1864 abortion ban, was still retained, but saw a slightly lower margin of support at 67%. 

In Pinal County, all four judges are on track to stay on the bench. 

Proposition 137

Beyond individual judges, the 2024 judicial retention elections, and all retention elections thereafter, will stay intact given the sweeping failure of a measure poised to void retention results rendered this cycle and limit when judges are made to stand for retention.

Proposition 137, as referred by the Legislature, would have nullified the results of the 2024 retention election and effectively done away with judicial term limits.

Under the measure, judges are only made to sit for a retention election given a negative finding from the Commission on Judicial Performance Review, or if the judge is facing a conviction of a felony offense, any crime involving fraud or dishonesty, or personal bankruptcy or foreclosure. 

The measure also input legislative say into the Judicial Performance Review Commission by way of an appointee. 

Proponents of the measure made the case by noting the typically lengthy judicial retention ballot means a low-information election and further expressed a fear of a politicized judiciary, given ramped-up efforts to keep or oust judges. 

Proposition 137 did not draw any dedicated for or against campaigns but was instead woven into messaging, primarily from Democrats. Those against the measure highlighted the need to keep voter input on judicial retention elections and to ensure the results of the 2024 election stand, while a Republican judicial PAC opted not to take a position. 

Scarpinato noted too, though the Judicial Independence Defense PAC did not engage in Prop. 137, that the measure reflected the public’s appreciation of the current system in place. 

Cathy Sigmon, co-founder of Civic Engagement Beyond Voting and founder of Gavel Watch, the state’s first voting guide on judicial retention elections, said the “resounding” rejection of Prop. 137 served as a “big bright spot in the results.” 

She said, “The people in Arizona don’t like to have their powers curtailed or taken away.” 

Gavel Watch advocated against the retention of Bolick and King, as well as some Superior Court judges down ballot. 

Though all judges are likely to be retained, Sigmon said margins for the two justices – 58.42% for Bolick and 59.47% for King – were lower than a typical retention election and gave some an indication of higher voter attention. 

In 2022, Gavel Watch advocated for the removal of Justice William Montgomery. 

He was ultimately retained by 55.53% of voters, but his margins stood lower than two justices on the same ballot – Justice Ann Timmer, who courted 71.09% support from voters, and Justice James Beene, who secured 70.53%. 

Sigmon said Gavel Watch would continue gathering information for the next round of retention elections and dissecting the 2024 results in the meantime. 

She noted, too, in assessing the passage of the abortion measure but the failure to boot Bolick and King, of a continued goal to draw lines between candidates and key issues.

“It’s extremely common that people don’t quite see the connection between people making those decisions and the policies they care about. So that, to me, just makes it all the more important to continue doing what we’re doing throughout Arizona,” Sigmon said. “We try to focus less on the actual candidates and more on the issues, and draw that association.” 

Sigmon said certain voters do in fact care about judicial retention, contrary to claims of ballot fatigue and disinterest in judges. 

“That has been very decisively debunked,” Sigmon said. “People do care about the judiciary, and they very much see that it’s a third branch of government that they should have public oversight of.”

Justices targeted over abortion ruling are holding onto their seats

Supreme Court Justices Clint Bolick and Kathryn King are on track to stay on the bench, per initial returns, with Bolick seeing support for his retention from 57.17% of voters, and King receiving 58.97%. 

All four Arizona Court of Appeals judges and all 42 Maricopa County Superior Court judges are set to stay on the bench, too, with early results awarding some sizable margins. 

The 2024 retention election served as a turning point for the typically lackluster portion of the ballot. Justices at the top of the ticket prompted high-ticket campaigns both for and against and some zeal on judicial races drifted down to Superior Court judges, too. 

Two Supreme Court justices, four Court of Appeals judges, 42 Maricopa County Superior Court judges, 16 Pima County judges and four Pinal County Superior Court judges were up for retention this cycle, with all deemed fit for the bench by the Commision on Judicial Performance Review. 

Campaigns for and against retention coalesced around Bolick and King. 

Those seeking to see the two booted from the bench primarily highlighted their vote on the ruling keeping the state’s 1864 abortion ban intact and touched on past rulings striking down school funding initiatives.  

Opposing groups noted Bolick’s past work on litigation for the Goldwater Institute, Institute for Justice and the American Federation for Children and King’s past work as Ducey’s deputy general counsel and as a corporate litigator. 

Judicial Independence Defense PAC, a group seeking to keep Bolick and King on the bench, highlighted the threat of Gov. Katie Hobbs appointing two new “liberal” justices to the bench in the event of Bolick and King’s exit and made a general plea for voters to reject the “politicization” of the judiciary. 

Judicial Independence Defense PAC brought in high dollar donations from in-state and out-of-state donors, including $125,000 from Randy Kendrick, Goldwater Institute board member and wife of Diamondback’s managing general partner, and $200,000 from billionaire Jeff Yass. 

Protect Abortion Rights No Retention Bolick and King reported a total of $17,477 in income per their pre-general election campaign finance report and no money spent or raised in the post-primary report, but noted they had been working with partner organizations to campaign against the justices. 

As for appeals court and superior court judges, another political action committee, Arizonans for an Independent Judiciary, advocated for the retention of all judges on the ballot and made specific defenses of Court of Appeals Judge Angela Paton, Maricopa County Superior Court judges Chistopher Coury, and Pima County Superior Court Judge Kellie Johnson after Gavel Watch, a voting guide to the retention elections by Civic Engagement Beyond Voting, advocated against their retention. 

Election night results showed Bolick received yes votes on his retention from 56.94% of voters, and King garnered slightly more support, with 57.93% voting in favor of her retention. 

Early results also showed voters on track to retain all Maricopa County Superior Court judges, with comfortable margins. The vast majority of judges courted more than 70% support from voters, with one judge, Christopher Coury, seeing a slightly lower margin at 64.65%.

 

Justice faces ethics complaint over pledge to ‘fight for conservative principles’

A complaint submitted to the state’s judicial conduct commission alleges Arizona Supreme Court Justice Clint Bolick violated judicial ethics for vowing to continue “fighting for conservative principles”  at a Republican club meeting

In a formal complaint to the Arizona Commission on Judicial Conduct, Save Our Schools Arizona, a public education advocacy group, cited an article from Politico in which Bolick is quoted as saying he and Justice Kathryn King “check our politics at the door” but said he would continue “fighting for conservative principles.” 

The group claimed the statements violated “several provisions” of the judicial ethics canon.

“The judicial codes of conduct clearly state that judges should aspire at all times to conduct that ensures the greatest possible public confidence in their independence and impartiality,” Beth Lewis, director of Save Our Schools, said. “I think that both independence and impartiality are in question.” 

A committee working to retain Bolick and King dismissed the complaint as merely last-ditch campaign fodder. 

Daniel Scarpinato, spokesperson for Judicial Independence PAC, said it was a “frivolous complaint to try to create more political acrimony in advance of the election.” 

Per the Arizona Code of Judicial Conduct, the general campaign and political rules prohibit judges from engaging in political or campaign activity inconsistent with the “independence, integrity and impartiality of the judiciary.”  

Judges are not prohibited from making their personal views on legal or political issues known, so long as they differentiate them from a promise, pledge or commitment to rule a certain way and acknowledge “the overarching judicial obligation to apply and uphold the law, without regard to his or her personal view.” 

“The making of a pledge, promise, or commitment is not dependent upon, or limited to, the use of any specific words or phrases; instead, the totality of the statement must be examined to determine if a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result,” the rules hold. 

An Oct. 12 Politico article detailing the intersection of judicial races and abortion noted Bolick’s appearance at a Sun City West Republicans Club meeting on Oct. 5. Per the club’s meeting minutes, King was also in attendance. 

“Standing between a fully decorated Christmas tree and a cardboard cutout of Trump giving a double thumbs up, Bolick said he and King know how to “check our politics at the door of the court.’”  

Per the article, Bolick said the abortion ruling was “a convenient excuse to try to get people on the left riled up and replace us with judges who will rubber stamp their ideological agenda.” 

He further stressed his own fairness and independence but “assured the assembled Republicans that he would continue ‘fighting for conservative principles.’” 

According to Politico and meeting minutes from the Republican club, Bolick further noted his advocacy for constitutional principles, making mention of his time clerking for U.S. Supreme Court Justice Clarence Thomas and working for the Goldwater Institute. But he generally stressed judges cannot be political. 

Complaints submitted to the Commission on Judicial Conduct remain confidential, but Save Our Schools alleged Bolick’s appearance and comments violated “several” provisions of judicial conduct. 

As part of the investigation of judicial conduct complaints, the commission may review relevant materials, interview witnesses and seek a response from the judge, with a standard allowance of about three to four weeks to respond to the complaint. 

Alberto Rodriguez, spokesperson for the court, noted the commission currently has approximately 160 open complaints, and given the standard timeline for a complaint, any resolution would not come before the election.

The complaint falls into the larger fight around judicial retention this cycle, with Bolick and King at the nucleus, and with both pro- and anti-retention groups claiming the other is aiding and abetting the politicization of the courts. 

Lewis acknowledged as much but said the goal was to bring the issue to the attention of voters. 

Save Our Schools Arizona is advocating against the retention of Bolick and King, with Lewis noting the justices’ past rulings striking down two education funding proposals. 

“It’s personal for us,” Lewis said. 

Save Our Schools Arizona called out Judicial Independence Defense PAC, a committee aimed at keeping Bolick and King on the bench. Lewis said the committee’s vow to “protect our independent judiciary” and “keep politics out of the court,” was undercut by Bolick. 

“The court should not be politicized,” Lewis said. “But I do think that Bolick and King have politicized the court.” 

Lewis further noted funding from conservative donors like Jeffrey Yass and Randy Kendrick.

Scrpinato said he thought Save Our Schools “did not have much credibility to be talking about anything related to independence, or taking the temperature down, or keeping politics out of anything. They’ve been obsessed with injecting politics into everything.” 

As for the aim of Judicial Independence Defense PAC, Scarpinato said the goal was to retain all justices and judges in the upcoming election. 

“There is no credible reason to remove them. There are no substantive, ethical complaints. The legal community is not suggesting they be removed,” Scarpinato said. “The reasons for removing them are all partisan and political.”

Judges face increased scrutiny in upcoming election

Campaign energy in judicial retention elections this cycle has largely concentrated on two state Supreme Court justices, but as voter guides from both sides trickle out, groups have singled out Superior and Court of Appeals judges, too. 

Citizen groups lodging voter guides and education efforts on judges up for retention are not entirely new. However, the Republican and Democrat parties started to fold judicial elections into their respective 2024 voting guides, leaving the question of how down-ballot judges will fare come November. 

The 2024 retention election stands in contrast to elections past, where voter participation, let alone education or advocacy, on judges up for retention was rare.

After three Superior Court judges were not retained in 2022 after some light advocacy in a voter guide, those working within and around the judiciary predicted the successful effort to see certain judges off the bench would stir new efforts in the next election. 

Now, political action committees have launched explicit campaigns for and against the retention of state Supreme Court justices and to educate voters on retention elections in general. Meanwhile, grassroots organizations and political parties have penned Superior and Court of Appeals judges into their voting guides. 

“What happened in 2022 motivated people to be more involved in 2024,” said Timothy Berg, co-chair of Arizonans for an Independent Judiciary, a nonpartisan political action committee advocating for the retention of all judges. “This whole judicial retention selection process has become much higher profile than it’s been in the past.” 

In 2022, Gavel Watch, an inaugural judicial retention voting guide prepared by Civic Engagement Beyond Voting, advised voters not to retain Justice Bill Montgomery, Maricopa County Superior Court Judges Rusty Crandell, Stephen Hopkins, Howard Sukenic and Bradley Astrowsky, and Court of Appeals Judge Cynthia Bailey. 

Voters did not retain Crandell, Hopkins and Sukenic and narrowly kept Justice William Montgomery. 

Civic Engagement Beyond Voting issued another installment of Gavel Watch for 2024 and noted at the top of the guide, that the view within the voter guide was “nonpartisan but not neutral,” as the group “with a progressive perspective on governing, judicial standards, citizens’ rights, criminal justice, and rehabilitation.” 

The guide was prepared using performance reports from the Commission on Judicial Performance Review, court websites, financial statements, social media and news articles. 

Using that information, the group made recommendations to retain, not retain, or retain with reservations. 

Beyond warding against retaining state Supreme Court Justices Clint Bolick and Kathryn King, Gavel Watch 2024 advised voters not to retain Maricopa County Superior Court Judge Christopher Coury, Pima County Superior Court Judge Kellie Johnson and Court of Appeals Judge Angela Paton. 

The guide noted Coury had ruled against the Invest in Ed initiative, a ballot measure taxing high income households to fund schools, and received more than 20% “poor” and “unacceptable” ratings from litigants and witnesses. 

Johnson’s no-vote recommendation is based on her September 2022 ruling lifting an injunction on the 1864 abortion ban after the reversal of Roe v. Wade and finding the all-out ban to take precedence over the 15-week limit passed by the Legislature. 

Gavel Watch advised against retaining Paton as her husband, Jonathan Paton, served on the Appellate Court Judicial Nominating Commission at the time of her nomination. 

Jonathan Paton told the Arizona Capitol Times he recused himself from his wife’s nomination process and was absent from all relevant meetings. 

“As soon as I knew she was going to apply, I did not participate whatsoever,” Paton said.

The guide further points out Paton lobbied on behalf of the Arizona Judges Association to pass Proposition 137, which limits when judges and justices are made to stand for retention, and advises voters to vote against the ballot measure. 

Beyond Gavel Watch, Democrat voting guides weighed in on retention beyond the justices, too. The federal and statewide guide for Democratic and independent voters advises against retaining Paton, as well as Court of Appeals Judges Christopher Staring and Brian Furuya, though offers no explanation for advising against retaining the appellate court judges. 

The guide makes no mention of Superior Court judges, though some individual legislative district websites noted information on Court of Appeals and Superior Court judges would be coming soon, while others deferred to Gavel Watch. 

Republican input on down-ballot judges remains fractured. Some Republican districts advocate for and against Superior and Court of  Appeals judges on legislative district voting guides, though the state party has yet to issue its statewide “Golden Ticket.”

Legislative District 11’s guide warns against retaining a long list of Superior Court judges, including Civil Division Judges John Hannah, Timothy Ryan, Christopher Whitten, Scott McCoy and Joseph P. Mikitish, though the guide offers no reason for not retaining the judges. LD2 similarly issued a list of judges fit for retention, with the same civil judges absent.

LD3 advocates for the retention of all judges, but Judge Peter Thompson. 

Other Republican voting guides advocate for keeping all judges on the bench, noting that removing any judges would give Democratic Gov. Katie Hobbs an opportunity to appoint replacements.

While grassroots organizations and political parties put out literature for or against various judges, Berg noted Arizonans for an Independent Judiciary advised voters to retain all judges as they all met judicial standards per Judicial Performance Review in their voting guide and hopes to put together a voter education campaign together soon. 

“Our position is ‘the system works,’” Berg said. “We’ve got good people. The judicial performance review process works, and you ought to rely on that and information like that, rather than just somebody getting mad at the judge over one case or two cases.”

High court approves ballot measure on judicial retention

The Arizona Supreme Court has cleared the way for voters to decide whether they and most other judges in the state should be allowed to have de facto life terms.

In an order late Thursday, the justices rejected claims that Proposition 137 illegally seeks to amend two separate and unrelated provisions of the Arizona Constitution about judicial elections.

On one hand, if approved, it would eliminate the requirement for judges who are now selected by the governor to have to seek voter approval on a regular basis for new terms. Instead, it would spell out that only a sitting judge who ran into trouble, like a personal bankruptcy, a felony conviction or a sub-par evaluation from the Commission on Judicial Performance Review would have to face voters.

And anyone else could remain on the bench, untouchable by voters, until they reach the mandatory retirement age of 70.

But the measure also would, for the first time ever, allow the majority party in the Legislature to appoint two members to that performance review commission. And it would require the commission to investigate any lawmaker’s complaint of malfeasance against any judge.

Challengers said the issues should be presented to voters as separate questions versus a take-it-or-leave-it approach. But Chief Justice Ann Scott Timmer, writing for the court, said they are sufficiently related to each other to be a single question.

The ruling was unanimous – at least of the five justices who heard the arguments.

Justices Clint Bolick and Kathryn King recused themselves from participating.

But while the future of Proposition 137 would affect all sitting justices, they had what could be considered the most direct interest in the future of the measure: Both are up before voters at the Nov. 5 election seeking new six-year terms.

More significant is how the issue was crafted by Sen. David Gowan, R-Sierra Vista.

Put simply, if voters approve Prop 137 on Nov. 5, it would be effective retroactively, to Oct. 31. And that means if the measure is approved, it would negate any separate decision by voters to reject new terms for Bolick or King or both.

Thursday’s ruling sets the stage for a battle, both over the ballot measure and the future of the two justices.

Progress Arizona already has launched an effort to convince voters to turn both Bolick and King out of office as well as to defeat Prop 137. But it is not alone.

The National Democratic Redistricting Commission and Planned Parenthood Votes announced in May they intend to spend at least $5 million on supreme court races across the country, with a focus on six states, including Arizona. The reason, they said, is that those courts are crucial to determining whether abortion rights stay in place after the U.S. Supreme Court overturned Roe v. Wade in 2022.

Bolick and King, both appointed by Republican Doug Ducey when he was governor, provided two of the four votes on the court earlier this year that ruled an 1864 law outlawing abortion except to save the life of the mother trumped a 2022 law allowing the procedure until the 15th week.

State lawmakers have since voted to repeal the old law. And no changes on the court now would overturn the decision.

But if the pair were turned out of office, that would give Democratic Gov. Katie Hobbs, an abortion rights advocate, a chance to replace them with her own choices.

On the other side, conservative political activist Randy Kendrick launched the Judicial Independence Defense PAC, putting up $100,000 of her own money of the $140,000 raised to convince voters specifically to retain the sitting justices. And she had her own take on what would happen if Hobbs got to select their replacements as well as that of Robert Brutinel who, at 66, is four years away from mandatory retirement.

“It matters because the Arizona Supreme Court is our last line of defense against liberal government overreach,” she wrote in a fundraising appeal.

If approved, Prop 137 would be a major shift in what is known as the “merit selection” process for judges.

Until 1974, all judges at all levels were elected, just like politicians.

That year voters approved a system where the governor selects members of the Supreme Court, the Court of Appeals and the superior court judges in the larger counties. That list now includes Pima, Pinal, Coconino and Maricopa.

The governor’s picks, however, are limited, with the choices needing to come from a list of nominees from special screening panels.

Once on the bench, they are subject to regular voter review of four years for superior courts and six years for appellate-level court. If turned out, the process starts over again.

Proponents say the system is too cumbersome, with upwards of 50 judges appearing on ballots in some counties. And, in most cases, they all have been returned to the bench.

But there’s also the fact that judges can face opposition over unpopular decisions, pretty much what is happening now with the targeting of Bolick and King.

That has led to another group that is weighing in.

Attorney Tim Berg who chairs Arizonans for an Independent Judiciary said its goal is not specifically to keep either Bolick or King on the bench but instead to educate people about the merit selection and retention process. And that, he said, means convincing voters that their choices should not be made based on whether they are happy with one or two decisions.

But Abigail Jackson, spokeswoman for Progress Arizona, said voters should have their say on judges, even if opposition is based on a single decision like the one on abortion.

“Voters across the board are angry about this ruling,” Jackson said in launching the effort to oust the pair. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.”

In agreeing Thursday to put Prop 137 on the ballot, the justices did not get into any of that.

The only question was whether it meets the legal standards to go to the ballot. And Timmer said it does not violate restrictions on placing separate issues into a single all-or-nothing measure.

“(Prop 137) complies with the separate amendment rule because its provisions are topically related and sufficiently interrelated so as to form a consistent and workable proposition that, logically speaking, should stand or fall as a whole,” Timmer wrote.

 

Justice explains why she won’t recuse herself from retention case

She says she can’t speak for anyone else on the Supreme Court.

But Chief Justice Ann Scott Timmer told Capitol Media Services there’s a good reason she hasn’t recused herself from a case the court is expected to decide this week that could affect whether she and her colleagues must face voters again. She said any impact on her if the court allows Proposition 137 to go forward is “rather attenuated and speculative.”

Timmer is not alone in deciding she is capable of deciding whether what’s in the measure referred to the ballot by Republican lawmakers is legal.

Only two justices have stepped away: Clint Bolick and Kathryn King.

In their case, however, there is no question that the measure, if approved in November, would immediately shield them from being removed from the bench, even if voters decide they should be ousted.

Clint Bolick

That’s because, as crafted, it would retroactively override the public vote on their future. In fact, as written, the results of any vote to retain or reject them would not even be officially recorded.

But its effects, if allowed by the court to go to the ballot and approved by voters, would affect all the sitting justices if they decide they want to continue to serve beyond the end of their current terms.

And whether it makes the ballot in the first place will be decided by members of the high court this week, though only Timmer would comment about her decision not to step aside.

At its heart, the measure would override part of the system approved by voters in 1974 dealing with the selection and retention of Supreme Court justices  and judges on the Court of Appeals and the superior courts in Pima, Pinal, Maricopa and Coconino counties.

All are selected by the governor who must pick from lists submitted by special screening panels. Nothing in Prop 137 would change that.

But what disappears is the ability of voters to decide on a regular basis, which is every four years for trial judges and every six for appellate-level judges, whether they should keep their jobs.

Justice Kathryn King

Replacing it would be a system where only judges who get into trouble through things like a personal bankruptcy, a felony conviction or a less-than-adequate rating from the Commission on Judicial Performance Review would have their futures decided by voters. Everyone else could serve until the mandatory retirement age of 70.

Supporters argue that the change makes sense because most voters are unfamiliar with what could be dozens of judges whose names appear on the ballot.

There’s also the argument that it shields judges from being targeted simply because voters don’t like one or more of their rulings. That’s clearly the case this year with Progress Arizona leading an effort to oust Bolick and King because they provided two of the four votes earlier this year to uphold the enforceability of the state’s 1864 law outlawing abortions except to save the life of the mother.

The issue of whether the measure can go on the ballot is before the justices because another provision in Prop 137 would, for the first time ever, allow lawmakers from the majority party to make appointments to the Commission on Judicial Performance Review and require the panel to investigate any legislatively generated allegations of malfeasance.

Challengers say that is an entirely different issue that cannot legally be packaged in an all-or-nothing offering for voters.

So sensitive was this issue when the lawsuit was filed that Maricopa County Superior Court Judge Randall Warner, who first got the case, recused himself. It ended up being assigned to Yavapai County Superior Court Judge John Napper, who is directly elected, not part of the retain-reject system, and would be unaffected by Prop 137.

Napper, a Republican, rejected the challenge, concluding both provisions are sufficiently related to each other to comply with requirements that constitutional amendments like this one can deal with only one subject. That sent the case to the Supreme Court where Bolick and King immediately recused themselves.

In the interview, the chief justice acknowledged there is no bright line on the question of when someone should step aside.

“This is a gray area,” she said. “People can make different calls, as the judge in Maricopa County did.”

And it comes down, Timmer said, to whether someone who is reasonable, looking at the case and the objective fact, might conclude there is at least an appearance that a particular judge couldn’t be fair.

“I concluded ‘no,’ ” she said.

Timmer said she knows there’s a line that determines whether a justice should step away from hearing a case. In fact, she said, she found herself on the other side of the line years ago.

That’s when there was a challenge to changes made by state lawmakers to the pension system for judges.

“That was really what I consider to be a more direct conflict,” Timmer said. “If the challengers in that case had prevailed, then the justices, myself included, would have gotten refunded a bunch of money as well as not having to pay as much in future pension contributions.”

And that, she said, involved real and immediate dollars.

“At the time I needed a new roof,” Timmer said.

“My thinking was ‘That’s a lot of money to get back and would pay for that,’ ” she continued. “So for me, it really wasn’t a question of an appearance of impropriety. It was an actual direct conflict.”

Timmer said that she would like to think that she could put her own needs, and the effects of a ruling on the pension changes, aside and simply judge the issue on its merits. But she said she couldn’t guarantee to herself that it wouldn’t be in the back of her mind.

“So, to me, that was a no-brainer,” Timmer said.

She wasn’t alone. All the other justices on the court at that time also recused themselves and were replaced by other judges from lower courts who had no financial stake in the outcome. The sole sitting justice who remained was Bolick who was not part of the pension system.

The pending case, she said, is different, at least for her, because there is no direct and immediate impact on her.

“People say, oh, it has a lot of benefits for judges and justices who stand for retention,” Timmer said of Prop 137.

“And that may be so,” she said. But Timmer said there are others who say there are drawbacks for those sitting on the bench.

“That’s really one of subjective analysis and one of policy that this court is not going to weigh in on,” she said. What the court has to decide is whether there are legal reasons not to allow voters to make that choice.

Still, in making that decision, the justices would determine whether voters will be allowed to make the change that could give her and her colleagues life terms. Timmer, however, said she doesn’t see it as affecting some protected interest the justices have in their jobs.

“There’s a lot of ‘ifs’ in there on what may or may not occur,” she said.

“It may not even occur that I stand for retention,” Timmer said, whose current term is up in 2028. And she said she already has enough years on the bench to qualify for the pension.

“I think that is too attenuated in my mind to make for a conflict of interest.”

 

 

2 justices won’t rule in retention case

Two Supreme Court justices who would be most immediately affected by a proposed ballot measure will not participate in deciding its legal fate.

But the other justices who would be affected by the outcome of Proposition 137 – eventually – will not step away from the case.

A new scheduling order from the court shows that Justices Clint Bolick and Kathryn King have recused themselves from hearing a challenge by Progress Arizona to changes in the system proposed by Republican lawmakers by which sitting judges stand for reelection. Neither provided a reason.

But what is clear is that if the court allows Proposition 137 to be on the ballot and it passes, it would allow both to get new six-year terms – even if voters were to separately decide to remove them from the bench. And that gives them a more immediate stake in the case.

The other five justices also have a stake if they, too, want new terms when their current ones end in 2026 or 2028.

At this point, however, all will decide the case.

Chief Justice Ann Scott Timmer did not immediately respond to a request for an interview.

But Paul Bender, a professor at the Arizona State University College of Law, told Capitol Media Services it is a “serious question” of whether they also should recuse themselves given how it would affect their own future elections.

That, however, still leaves the question: If not the current Supreme Court justices, then who?

One option, said Bender who is a former dean at the college, could be retired justices who would have no stake in the case.

There actually are rules for that. In fact, Timmer tapped retired Justice John Pelander to sit in in an upcoming hearing on a dispute over the use of the wording “unborn human being” by lawmakers to describe Proposition 139 dealing with the right to abortion. That is because Bolick stepped away as his wife, Sen. Shawnna Bolick, sits on the legislative panel that approved the controversial wording and also is a defendant in that case.

Replacing all the justices in this case, however, is not going to occur. Nor is there even a request they do so from Jim Barton who is representing challengers to Prop 137.

“We are not going to ask for a fresh panel of justices like was evidently done in the past when a matter related to their pensions was before them,” he said.

That refers to a case years ago involving legislative changes to the pension system for judges.

All but one of the justices on the high court were replaced, at least temporarily, by other lower-court judges who were not affected. Only Justice Bolick got to remain because he was not on the bench at the time the challenged pension changes were approved.

Hanging in the balance in this case are what Barton says are two significant changes in the judicial election process.

Strictly speaking, judges on the Supreme Court, Court of Appeals and superior courts in Pima, Pinal, Maricopa and Coconino counties are not elected. They are named by the governor who has to choose from nominees submitted by special screening committees.

Under the current system, however, superior court judges from the affected counties have to face voters every four years on a retain-or-reject system. Those who fail to get enough votes lose their jobs and the selection process begins again.

At the Supreme Court and Court of Appeals, the terms are six years. But the process is the same.

Prop 137, if approved by voters, would change that to say that judges can remain on the bench as long as they want, at least until mandatory retirement at 70, if they don’t get into trouble. That is defined in the proposal as things like a felony conviction, personal bankruptcy or their performance on the bench being found lacking by the Judicial Performance Review Commission.

Only then would they have to face voters.

Barton said there’s no problem with that, at least from a legal perspective. He said it’s a policy question for voters whether they want to give up their right to vote on each judge and justice.

But he said Prop 137 also includes a provision which for the first time would let the majority party in the House and Senate to select members for the Judicial Performance Review Commission. And it would also allow any of the 90 legislators to force the commission to investigate any allegation of “a pattern of malfeasance in office.”

In his new pleadings, Barton told the justices that lawmakers are free to put a measure on the ballot asking voters to make that change. But what they can’t do, he said, is put it into a single take-it-or-leave-it ballot measure with the proposed changes in the retention system.

“A voter who wants greater judicial independence by creating a system wherein there are on for-cause retention elections cannot vote for this system without also accepting a new avenue for interference with the judiciary by the legislative branch,” he wrote.

“The court should not ignore the dilemma this creates for voters,” Barton said. “Altering the makeup of the JPRC is not related to holding judicial retention elections.”

Where King and Bolick specifically fit in has to do with something else the Republican-controlled Legislature added to Prop 137: a retroactivity clause.

The election will be on Nov. 5. But proponents crafted it in a way to say that if it is approved it applies retroactively, to Oct. 31.

And if that’s not clear, the measure spells out that the results of this year’s retention elections, the one including King and Bolick, would not be formally recognized if Prop 137 passes even if voters turn both out of office.

That, too, is part of the all-or-nothing package that the measure would present to voters.

While not part of the legal dispute before the Supreme Court, the whole issue has political implications.

If either justices is turned out of office, that would allow Democratic Gov. Katie Hobbs to replace the pair who had been tapped for the court by her predecessor, Republican Doug Ducey. And that possibility already has resulted in conservative political activist Randy Kendrick, wife of Diamondbacks owner Ken Kendrick, to set up and fund a committee to try to convince voters to retain the two Ducey picks.

Effort underway to keep justice who is under fire for abortion ruling on Supreme Court

A conservative political activist has launched a campaign to convince voters not to oust Clint Bolick from the Arizona Supreme Court.

In a fundraising letter, Randy Kendrick, the wife of Arizona Diamondbacks owner Ken Kendrick, said “liberal groups” already have succeeded in clinching the posts of governor, secretary of state and attorney general for Democrats. She also pointed out that Republicans hold the majority in the House and Senate by only one seat in each chamber.

“These same groups have now set their sights on the Arizona Supreme Court,” Kendrick wrote in the letter, first reported by the Yellow Sheet Report, a sister publication of the Arizona Capitol Times.

There is some basis for her concern.

Progress Arizona in April announced it was launching a campaign to deny both Bolick and fellow Justice Kathryn King, whose names are on the November ballot, new terms.

Separately, the National Democratic Redistricting Commission and Planned Parenthood Votes announced in May they intend to spend at least $5 million on supreme court races across the country, with a focus on six states, including Arizona. The reason, they said, is that those courts are crucial to determining whether abortion rights stay in place after the U.S. Supreme Court overturned Roe v. Wade in 2022.

Bolick and King, both appointed by Republican Doug Ducey when he was governor, provided two of the four votes on the court earlier this year that ruled an 1864 law outlawing abortion except to save the life of the mother trumped a 2022 law allowing the procedure until the 15th week.

State lawmakers have since voted to repeal the old law. And no changes on the court would overturn the decision.

But if the pair were turned out of office, that would give Democratic Gov. Katie Hobbs, an abortion rights advocate, a chance to replace them with her own choices.

The loss of those two, said Kendrick in her fundraising letter, is just part of the problem.

Justice Robert Brutinel, appointed by Republican Jan Brewer, is 66.

There is a mandatory retirement age of 70. And he may choose not to seek a new term when his current one is up at the end of 2026.

That, said Kendrick, would allow Hobbs to name yet a third justice to the seven-member panel.

Kendrick, a contributor to Republican and conservative causes, made it clear what she thought of the possibility of three new Hobbs-appointed justices in the face of three statewide elected Democrats and the chance the Republicans could lose control of the Legislature.

“If they were to also claim a majority on the Supreme Court, they would control every branch of government in Arizona for the first time,” she wrote. “It matters because the Arizona Supreme Court is our last line of defense against liberal government overreach.”

Kendrick is willing to put up her own money.

Campaign finance reports show she already has contributed $100,000 to the Judicial Independence Defense PAC out of the $140,000 it has reportedly raised so far.

To date there are no contributions or expenses reported by the Progress Arizona PAC.

That group is not just fighting to oust the two justices whose terms are up.

Abigail Jackson, a spokeswoman for the organization, said it also is working to defeat Proposition 137.

Put on the ballot by Republicans, it would curtail the ability that voters now have to unseat judges when their terms end.

Instead, only a judge who ran into problems, like a personal bankruptcy, a felony conviction or being found failing to meet standards by the Commission on Judicial Performance Review, would have to face voters. Others could remain on the bench until they reach mandatory retirement age.

And there’s something else.

Prop 137 is crafted so it would be retroactive if approved. That would mean both Bolick and King would keep their jobs even if there was a separate vote to oust them.

Kendrick isn’t the only one raising money to influence what voters think about retaining judges. Arizonans for an Independent Judiciary has so far collected more than $47,000.

But attorney Tim Berg, who is chairing that effort, said it isn’t specifically designed to keep either Bolick or King on the bench. Instead, he said, its focus is to educate people about the process under which judges are selected and the retention system that gives voters a chance to keep or oust them.

More to the point, Berg said, the goal is to convince voters that their choices should not be made based on whether they are happy with one or two decisions.

“We think judges ought to be retained not because of their politics but almost, in a sense, despite of it,” he said. The question is whether they are doing the job.

“And if they’re doing the job, then liberal, conservative, moderate, whatever else you can be, that shouldn’t make the difference because it shouldn’t make a difference in how they rule,” Berg said. More to the point, he said the question is whether there is a reasonable basis for a ruling, not whether someone agreed with a judge’s conclusion.

Jackson, however, said voters are entitled to have their say on judges, even if opposition is based on a single decision like the one on abortion.

“Voters across the board are angry about this ruling,” Jackson said in launching the effort. “If Arizona voters want to use the power that the constitution gives them to hold them accountable, and their main concern is this ruling, then I think voters are within their rights and power to do so.”

She also has denied that Progress Arizona is the one making the court political.

Jackson pointed out that there were just five justices on the Supreme Court until 2016. That is when Ducey convinced the Republican-controlled Legislature to expand the court to seven, a move that immediately gave him two appointments on top of the one he already had made.

That enabled Ducey to add Bolick, a registered Libertarian, and Republican John Lopez IV. It also means he has named five of the seven justices.

At least part of the reason there needs to be an outside-funded campaign – whether to retain Bolick and King on the Supreme Court or just to convince voters not to oust judges based on a controversial ruling –  has to do with rules that govern the conduct of judges.

They prohibit sitting judges from soliciting funds to convince voters to keep them on the bench. Instead, only someone acting as a “surrogate” for them can raise money for a campaign.

There’s also the fact that those rules bar judges from speaking about or defending individual decisions. The only option allowed is the ability to respond to “false, misleading or unfair allegations” made against them during the campaign.

Kenrick is no stranger to political giving.

Since the 2022 election she has donated $110,000 to a political action committee run by the Free Enterprise Club, $96,000 to the Republican Party of Arizona, $37,500 to a PAC to elect Republican state senators and an identical amount for House GOP contenders.

 

 

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