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Proposition 115 would give governor more say in judicial selections

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PHOENIX – Proposition 115 asserts that more is better when it comes to selection and retention of state judges in Pima and Maricopa counties as well as appellate and Supreme Court judges.

If approved by voters, the measure would have more judicial nominees come before the governor for selection and give the governor more power over the makeup of commissions that nominate candidates.

Proposition 115 would require that orders and opinions by state judges and justices be published online. It would push back the mandatory retirement age for judges from 70 to 75 and extend the time before they face retention votes from four to eight years for Superior Court judges and six to eight years for appellate and Supreme Court justices.

At the heart of the proposition is a system called judicial merit selection that applies to Superior Courts in counties with 250,000 or more residents as well the state Court of Appeals and Supreme Court.

Merit selection uses nonpartisan commissions made up of five lawyers nominated by the State Bar of Arizona and appointed by the governor as well as 10 lay people appointed by the governor. The commissions recruit and review candidates and forward to the governor a slate of nominees – at least three and representing more than one political party.

In other counties, Superior Court judges are elected.

In Pima and Maricopa counties, Proposition 115 would increase the number of nominees from merit selection to at least eight and remove the requirement that more than one political party be represented. Rather than nominating lawyers for commissions, the State Bar would appoint one lawyer while the governor would appoint four lawyers without the State Bar’s input.

Under the measure, a joint legislative committee could hold hearings to gather testimony on the performance of judges and justices who are facing retention votes.

The Maricopa County Bar Association, Los Abogados Hispanic Bar Association, Arizona Association of Defense Counsel and Arizona Association for Justice/Arizona Trial Lawyers Association submitted arguments against Proposition 115 in the state’s publicity pamphlet on ballot measures. But the State Bar of Arizona, the Arizona Judges Association and the Arizona Judicial Council officially support the measure.

David Berman, senior research fellow at Arizona State University’s Morrison Institute for Public Policy, said that support stems from a compromise over legislation supported by Gov. Jan Brewer that originally sought to eliminate merit selection. He said the groups were basically outfoxed by Republicans.

“There have been a lot of people in the Legislature who feel the judges have been too liberal,” Berman said.

A group calling itself No on Prop. 115-Save Merit Selection of Judges had raised $56,000 through mid-August, almost all of it from lawyers and law firms. Meanwhile, the group Making Merit Selection Stronger, Yes on Prop. 115 had raised $300.

State Rep. Justin Pierce, R-Mesa, a practicing attorney, said Proposition 115 would preserve and strengthen merit selection.

“Everyone interested came together and recognized that there are things that we could improve in this system,” Pierce said.

Peter Gentala, counsel to the Republican majority in the Arizona House of Representatives, said that if the current focus is really on merit, then all qualified applicants should be passed on to the governor by the commission, not just the current minimum of three.

“More qualified names will be sent to the governor, and as a result more qualified applicants will apply,” he said.

Opponents of Proposition 115, including 19 past State Bar presidents and five retired Arizona Supreme Court justices, argue that the current system for judicial selection is considered one of the best in the country.

Former State Bar president Mark Harrison said the measure aims to politicize judicial selection by having the governor select all but one member of judicial selection commissions and allowing all nominees to be from one party.

He noted that in 1979 Democratic Gov. Bruce Babbitt selected Sandra Day O’Connor, a Republican, to the Arizona Court of Appeals. Two years later, she became the first woman to serve on the U.S. Supreme Court.

“Under Proposition 115, Sandra Day O’Connor would not have gotten to the Supreme Court of the United States,” Harrison said.

Gaetano Testini, president of the Los Abogados Hispanic Bar Association, Phoenix, said he’s worried about a loss of diversity in judicial selections if Proposition 115 passes.

“We’ve already seen a huge drop in the minority representation on the bench right now, and this will lead to a much bigger problem,” Testini said.