By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — There’s nothing legally wrong with the way Republicans are asking voters to change how often judges need to be subject to voter review, a Yavapai County Superior Court judge has concluded.

In a ruling released Monday, Judge John Napper acknowledged what lawmakers put on the ballot as Proposition 137 does more than give Supreme Court judges virtual lifetime terms. Now the justices, who are chosen by the governor, can be thrown out by voters once every six years.
Similar rules exist for judges on the Court of Appeals and the superior courts of Pima, Maricopa, Coconino and Pinal counties.

In his ruling, Napper acknowledged the measure, also would, for the first time ever, inject the Legislature into the process of reviewing judicial performance.

But Napper said none of this runs afoul of requirements that constitutional amendment sent to voters be limited to a single subject. He said all the provisions are “sufficiently interrelated.”

The judge also rejected claims by challengers that the wording of the measure constituted “log rolling,” where voters who may want part of what is before them have to vote for the whole package on an all-or-nothing basis.

Anyway, Napper said, he doubts the proposal would confuse voters.

“All is laid bare for decision by the people,” he wrote.

“They will either reject SCR 1044 of adopt it fully aware of the modification to the right to vote for judges and of the intrusion into the independence of the judiciary,” wrote Napper. “A difficult decision, certainly, but not one they have been log-rolled into making.”
There was no immediate response from challengers.

Under the current system approved by voters in 1974, the governor chooses justices of the Supreme Court as well as all appellate judges and those on the superior courts of the four largest counties.

Before their terms are up — six years for appellate-level judges and four for those in superior courts — the Commission on Judicial Performance Review evaluates their conduct, taking input from other judges, attorneys, litigants and observers. Based on that, they issue recommendations.
But the final decision is up to voters who can retain or reject them. If a judge is turned out of office, the selection process begins again.

Jonathan Paton, lobbying for the Arizona Judges Association, said the system can be particularly confusing, saying most Arizonans are totally unfamiliar with the judges. He pointed out that in Maricopa County alone it is not unusual for the names of more than 50 superior court judges to be on the ballot.

He got Sen. David Gowan, R-Sierra Vista, to sponsor legislation that would essentially create lifetime appointments — at least until mandatory retirement at age 70 — for the judges who otherwise would have to have their terms renewed by voters. The only judges whose names would appear on the ballot are those who got into trouble, like a personal bankruptcy, a felony conviction, or a finding by the Commission on Judicial Performance Review that their actions on the bench fell below standards.

For good measure, it would for the first time ever, put two legislators on the panel — selected by the majority — as well as allow lawmakers to force the commission to look into their complaints.

Napper, however, said he sees all this as part of a single subject. He said even if the Commission on Judicial Performance Review was created nearly two decades after voters approved creating the retain-reject system “there is a history of linking retention elections and the judicial review process.”

The judge was no more impressed by arguments by challenges that the title of the measure — the Judicial accountability Act — is deceptive.
Attorney Jim Barton, arguing for Progress Arizona, which filed the challenge, said that if Prop. 137 is approved it actually will create less accountability because most judges will be shielded from having to regularly get voter approval to remain on the bench.

Napper wasn’t buying it. In fact, he said that it could be seen to increase accountability — even if it would take away the rights of voters to get to regularly review and oust sitting judges.

He cited, for example, the provision that would allow any legislator to call for an investigation of any judge who is part of the current retain-or-reject system. And the commission would be required to conduct an inquiry.
“The legislature being given such vast authority to delve into the workings of a sitting judge is a different and increased method for creating judicial accountability,” Napper wrote.

The case was sent to Napper because Yavapai County judges — like those in 11 of the state’s 15 counties — are elected by popular vote, like all politicians. That made him unaffected by the outcome.

But the case gets more complicated now that it is expected to go to the Arizona Supreme Court where all the justices are subject to being ousted on the same retain-or-reject system.

The justices could cite the “rule of necessity” which says, in essence, that if there’s no one else to decide the case — Arizona has only one Supreme Court — they get to rule.

But Chief Justice Ann Scott Timmer also has options, like creating a panel of retired justices who would have no stake in the outcome to hear any appeal.

Only six judges have been turned out of office since the system was implemented. That includes Gary Nelson who was on the court of appeals and five Maricopa County judges, three of whom were ousted in 2022.