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Lawmaker: Expand state Supreme Court from five to seven justices

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A state lawmaker wants to expand the number of justices on the Arizona Supreme Court from five to seven, saying it would increase diversity and better serve a growing state.

Two representatives from the courts say the proposed change is unnecessary, and the head of a watchdog group calls it an overt attempt to pack the high court with conservative justices.

But Rep. Warren H. Petersen, R-Gilbert, who authored HB 2076, said the high court has been lacking in dissenting views of late. He also noted that Arizona is the most populous state with only five justices.

“With a large population, and growing, we want to have better representation on the court,” he said after the House Judiciary Committee advanced the measure Feb. 11 on a 4-2 party-line vote.

The bill, created through a strike-everything amendment to legislation on another subject, was awaiting consideration by the full House.

Arizona’s governor appoints Supreme Court justices from a list of recommendations developed by a bipartisan commission consisting of lawyers, laypeople and the Supreme Court’s chief justice.

The Arizona Supreme Court currently consists of a chief justice appointed by a Democratic governor and four justices appointed by Republican governors.

Jerry Landau, government affairs director for the Arizona Judicial Council, a panel of judges, court administrators, attorneys and citizens that develops policies and procedures for courts, said he doesn’t see a relationship between a state’s population and how big a Supreme Court it needs.

“This isn’t something that the courts have asked for,” he said.

Landau said a state Supreme Court would need to expand if the number of petitions filed and cases heard becomes too large for the justices to handle. That could be caused by an increase in population but isn’t the case in Arizona, he said.

“We’re hearing cases timely, we’re acting on all the petitions that have been brought before us, and even with a population increase there’s been a petition decrease,” he said.

Landau also said that the cost of adding two justices would be approximately $950,000 a year, with a large amount of that going to staffing.

Heather Murphy, communications director for the Arizona Supreme Court, said the change would create an unnecessary expense and could actually make the court less efficient. Since each of the justices has to individually examine each case heard by the court, an increase in justices could make for longer review times, she said.

“Five justices is adequate representation for the state, and they debate very well together,” Murphy said. “There’s no need to add two more at a time when the state is experiencing a very significant budget crisis.”

With five Supreme Court justices, Arizona has one justice for every 1.3 million residents. California, the most populous state, has seven justices on its Supreme Court, or one for every 5.5 million residents.

Bert Brandenburg, executive director of Justice at Stake, a nonpartisan organization that advocates for fair and impartial courts, called Petersen’s bill an example of “court-packing,” political tampering aimed at changing or entrenching a dominant viewpoint on a court.

As an example, he pointed to President Franklin D. Roosevelt’s unsuccessful effort in the 1930s to pack the U.S. Supreme Court, which had ruled against elements of his New Deal, by appointing new justices to serve beside those who were older than 70 and refused to retire.

“Expanding the size of a court is a huge deal. It’s the same as if you expand a legislature: Everybody would recognize that it has huge political implications,” Brandenburg said in a telephone interview.

Brandenburg disputed Petersen’s contention that a growing state needs a larger Supreme Court and criticized his attempt to make that happen by simply introducing a bill.

“If there was truly a need for the court to be larger, that’s the kind of question that could be looked at through careful study and political deliberation, but this was inserted at the last minute,” he said. “I think that kind of assertion is something that policymakers need to examine and not just take someone’s word for it.”

Petersen hadn’t responded by Wednesday afternoon to repeated requests for comment on assertions by Brandenburg and others about the motives and rationale behind the proposed change.

The Center for Arizona Policy, a conservative advocacy group, registered its support for the bill at the Judiciary Committee meeting. In response to a request for comment, a representative said no one was available.

Bill Raftery, an analyst at the National Center for State Courts, a nonpartisan organization focused on improving judicial administration on the state level, said HB 2076 is one of more than a dozen predominantly Republican efforts over the past decade to increase the number of justices on state courts across the country. Arizona has now seen two such efforts, he said.

“The only reason that states have to expand the Supreme Court is about workload,” Raftery said. “But there have been several efforts recently simply because there’s anger or displeasure at the court for a particular decision, and all have failed.”

Raftery said that while most of this legislation has come from conservative lawmakers, the trend isn’t exclusively Republican, nor are all the proposals unwarranted in his view. He referred to Democrats in South Carolina who in 2007 also tried to increase their number of justices to seven because the sitting five couldn’t handle the workload.

Lisa Hall, executive director for Democracy at Stake, a nonpartisan organization that advocates for fair and impartial courts in Florida, compared the bill to unsuccessful legislation the group fought against there in 2011.

“You’re taking something that’s actually fairly balanced and making it exactly less representative of the population,” she said.

Hall said a balanced court is a fair court and leads to a more thorough examination and discussion of the law.

“I think my main recommendation based on our experience here in Florida is take a hard look at what they’re really accomplishing by it,” she said.