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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 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.

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