By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Two Arizona 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 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.

What is clear is 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 remained 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 lost 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 such as 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 and every judge and justice.

But he said Prop. 137 also includes a provision that for the first time would let the majority party in the House and Senate to select members for the Judicial Performance Review Commission. 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 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.

If that’s not clear, the measure spells out 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 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.