By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — A group trying to oust two Supreme Court justices over their decision on abortion filed suit Friday to block a ballot measure that would nullify any votes to remove them and instead give them — and other judges — what could amount to lifetime appointments.

Promise Arizona contends the decision by state lawmakers to title the proposal the “Judicial Accountability Act of 2024” is deliberately misleading. Attorney James Barton says what the Republican-controlled Legislature voted to put on the ballot is anything but because it would eliminates the one bit of voter oversight that voters now have: the ability to throw gubernatorially appointed judges out of office.

“It is likely to mislead voters to believe that it will create judicial accountability, when, in fact, it eliminates it,” he said. And Barton said that violates a constitutional prohibition against a deceptive title.

But that, Barton said, is just part of the problem. He said the Arizona Constitution says ballot measures must be limited to a single subject.

By contrast, he said, what the Legislature put on the ballot does more than strip voters in most cases of their rights to turn judges out of office.

It also alters the membership of the panel that reviews each judge’s performance on a regular basis and determines who gets to avoid having voter scrutiny. And it does so by giving an appointment on that panel to the majority party of both the House and Senate — both of which happen to be Republican.

All that, Barton said, makes the measure legally unfit for the ballot.

Barton also filed another lawsuit on behalf of the Raise the Wage Act challenging a separate measure put on the ballot by the Republican-controlled Legislature. This one would save money for restaurant owners by allowing them to pay their tipped workers even less than they do now.

Here, too, Barton says the title lawmakers gave it — the “Tipped Workers Protection Act” — is “materially misleading, such that it creates a substantial danger of fraud, confusion and unfairness,” all in violation of the Arizona Constitution.

It is the measure on judges, however, that could have the widest impact as it would strip voters of some of the rights they have now over judges.

Until 1976, all judges in Arizona were elected like politicians. A constitutional amendment created a “merit selection” process that allows the governor to fill vacancies for the Supreme Court, Court of Appeals and superior courts of the larger counties from a list of those nominated by special screening panels.

Where voters get their say is that every four years — six in the case of Supreme Court — the judges stand for reelection on a retain-or-reject basis. If a judge is turned out, the process starts over.

SCR 1044, advanced by Sen. David Gowan, R-Sierra Vista, asks voters to amend the Arizona Constitution to say that once judges are appointed they need to stand for retention only in limited circumstances, like a felony conviction, personal bankruptcy or a finding by the Commission on Judicial Performance Review that the way they were doing their jobs was not up to standards.

Everyone else, however, would get to remain on the bench until mandatory retirement age of 70, with no ability of voters to even get a chance to remove them for whatever reason.

That issue came into sharp focus this year after the Supreme Court, in a 4-2 vote, concluded that an 1864 law that outlawed abortion except to save the life of the mother is again enforceable now that the U.S. Supreme Court overturned Roe v. Wade and its constitutional right for women to terminate a pregnancy. And two of the justices in the majority — Clint Bolick and Kathryn King — are on the ballot.

That is significant because Gowan worded the measure to say if voters approve the change in procedure, it would be retroactively effective.

That means is even if voters separately decided that Bolick or King — or both — should not get a new six-yerm term, it wouldn’t matter: They would get to remain on the bench.

The same is true, said Barton, of all the appellate and superior court judges whose names are on the November ballot: Any decision by voters to deny them new terms would be invalidated.

Barton said that goes to the misleading title.

“Nothing in SCR 1044 provides any judicial accountability,” he told Maricopa County Superior Court Judge Randall Warner. In fact, he said, the reverse is true.

“Having this measure on the ballot along with a number of judges and justices being up for retention, particularly in light of the fact that this measure actually nullifies all of those elections if it passes is likely to lead to voter confusion.”

No date has been set for a hearing.

Barton’s separate challenge is filed on behalf of the Raise the Wage Act.

Its members are gathering signatures to put its own measure on the November ballot to raise the minimum wage, currently $14.35 an hour, by an additional $2 an hour over the next two years, above and beyond the annual rate of inflation. That could easily bring the minimum wage to $18.

It also would override a provision in existing law that allows restaurants to pay tipped workers $3 an hour less than the minimum as long as they make up that much in tips.

The Tipped Workers Protection Act, put on the ballot by lawmakers, is worded to override the Raise the Wage Act and allow restaurants to pay their workers 25% less than the minimum wage. But it contains a sweetener designed to gather support from the public and at least some restaurant workers: It guarantees that any worker would take home at least $2 more than whatever is the minimum wage.

That case is before Maricopa County Superior Court Judge Peter Thompson.