Nonprofits Bemoan AZ’s New Nomination Bill

     PHOENIX (CN) – A new Arizona law unconstitutionally requires the nomination of at least five judges to an open position, two nonprofits said in an amicus brief.
     Justice at Stake, a nonpartisan group focused on keeping courts impartial, filed the brief Wednesday alongside another nonprofit, the Brennan Center for Justice at NYU School of Law, with the Arizona Supreme Court.
     By adopting House Bill 2600 “the Legislature brushed aside the will of Arizona’s citizens in a brazen, unlawful attempt to inject the political dynamics of the legislature into the apolitical process of judicial selection,” the brief states.
     The law requires the Commission on Appellate Court Appointments and the Commission on Trial Court Appointments to “submit to the governor the names of at least five persons nominated by it to fill the vacancy, except that on a two-thirds vote, the commission may reject an applicant and submit fewer than five names.”
     If there are five or more applicants, no more than 60 percent may be from the same political party, the law states. If there are fewer than five applicants, no more than two may be from the same political party.
     Justice at Stake and the Brennan Center claim that H.B. 2600 violates the Arizona Constitution “because it unconstitutionally supersedes the citizens’ overwhelming rejection of Proposition 115 in the 2012 election … and that alone is reason to grant the petition.”
     Proposition 115, which Arizona voters rejected in the 2012 election, would have required the commissions to provide the state with eight nominees.
     “Last year, Arizona voters soundly rejected a proposed constitutional amendment to tamper with a system that has helped insulate judges from politics for decades,” acting JAS executive director Liz Seaton said in a statement. “Now, legislators have disregarded that result, throwing open the courtroom doors to greater political influence on the judiciary. To those who care about fair and impartial courts, that’s a move in the wrong direction.”
     Justice at Stake says the changes made to the process could allow the Arizona Legislature in the future to continue to change the number of nominees, make the commission meetings private, and change the makeup of the commission.
     “To allow the changes included in H.B. 2600 to stand would be to shift selection based on merit toward selection based on partisanship, and would shift the balance of power away from the commission and toward the governor,” the brief states.
     Arizona has used merit selection for all superior court and appellate judges in counties larger than 150,000 since 1974 when voters adopted Proposition 108 by referendum, the groups noted.
     At the time, the only counties that met this description were Maricopa and Pima, according to the brief.
     Voters then passed Proposition 109 in 1992 to “improve and strengthen the program,” Justice at Stake and the Brennan Center added.
     The amendments made “increased public participation and transparency in the merit selection process by opening up nominating commission hearings to the public and establishing a judicial evaluation system to assess judges before retention elections,” according to the brief. “The measure also increased the number of attorney commission members from three to five; doubled the number of non-lawyer members appointed by the governor from five to ten; and instituted an expanded process, including citizen committees, to recommend potential members to the governor.”

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