Analysis

Current Selection of Judges

In Arizona’s system, there are two methods of selecting judges. Voters elect judges for Superior courts (state trial courts) in counties with less than 250,000 people.[i] These counties are Apache, Cochise, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, Yavapai, and Yuma.

By contrast, public committees evaluate judges for the Superior courts in Coconino[ii], Maricopa, Pima, and Pinal counties, Arizona Supreme Court and Arizona Court of Appeals, and send names to the governor for final selection and appointment. These committees—called “commissions”—are composed of 16 members comprised of 10 non-attorneys, five attorneys, and an Arizona Supreme Court justice, who serves as the chair of the commission, selected in accordance with the state constitution.[iii] There are currently four commissions: one for each county and a fifth—the Commission on Appellate Court Appointments—for vetting candidates for the Arizona Court of Appeals and Supreme Court.

When vacancies occur in one of these courts, the commission notices the public, evaluates and interviews applications, solicits comments from the public, deliberates, publicly votes, and forwards at least three recommendations to the governor.[iv] No more than two of the three applicants recommended, or 60 percent of applicants, can be from the same political party.[v] Commission members are supposed to make recommendations “without regard to political affiliation in an impartial and objective manner” considering “the diversity of the state’s population” but focusing on the merit of the candidates.[vi] The governor then appoints one of the recommended applicants.

Past Selection Reforms

Voters only reformed the merit-based selection system once, in 1992, when they expanded the commission membership and required the commissions to take public testimony and vote in public. However, there have been several significant attempts to reform the system.

In 2011, the Legislature passed CAP-supported SCR 1001 to place what would become Proposition 115 on the 2012 ballot to make changes to Arizona’s judicial selection system. Although Proposition 115 was a consensus measure that sought to improve the system by allowing the governor to select from a larger pool of names, remove the party affiliation restraints, and change the role of the State Bar of Arizona in nominating attorney members for the “merit-selection” commissions, Proposition 115 failed to pass at the ballot.[vii]

Then, in 2013, the legislature passed and Governor Brewer signed CAP-supported HB 2600, which improved the current system by ensuring more qualified candidates are forwarded to the governor so that the duly elected representative of the people, the governor, had a larger pool of qualified names to choose from.[viii] The bill also added transparency to the selection process by requiring the voting records of the commissions to be recorded in the minutes and made public.[ix]

Several former justices of the Arizona Supreme Court and four members of the Commission on Appellate Court Appointments filed a legal challenge against HB 2600. In September 2013, the Arizona Supreme Court struck down the law in toto.[x]

Current Retention of Judges

The other significant piece of the merit-selection system is the retention election of judges. All judges appointed through the merit-selection process can serve until they reach the age of seventy.[xi] However, they must periodically face retention elections. Superior court judges come up for retention every four years while appellate court judges come up for retention every six years following their initial appointment. The ballot simply reads: Shall (Name of justice or judge) of the (applicable) court be retained in office? Yes __ No __ (Mark X after one). A judge must receive the support of a majority of those voting on that judge in order to be retained.[xii]

As an accountability measure, election by retention has been virtually meaningless. Useful information on judicial performance and philosophy is scarce and not easily accessible. The voting public has found the long list of judges on the ballot puzzling, with very few voters even filling out an answer, and those that do voting to retain virtually every judge with over a two-thirds margin. Until 2022, only two judges have ever failed to be retained,[xiii] and judges with issues of competency have been retained because the voters simply do not have enough information.

Part of the 1992 reform of the merit-selection system included the constitutional creation of the Commission on Judicial Performance Review (JPR commission) to provide voters a standard for evaluating judges.[xiv] The commission is composed of 30 members appointed by the Supreme Court from among the public at large, attorneys, and judges. Jurors, witnesses, litigants, administrative staff, and attorneys answer surveys evaluating such things as the judge’s legal ability, integrity, communication skills, judicial temperament, administrative performance, and settlement activities. The JPR commission compiles the data and scores judges as either “Meets” or “Does not Meet” standards and distributes this information to voters prior to the election. Nearly all judges receive an affirmative rating.

In addition, CAP-supported laws passed in 2011 offered voters some relief from the problem of inadequate information about judges who are up for retention.[xv] The JPR commission is now required by law to:

• Prepare biographical information on each judge or justice and post this information online on the Secretary of State’s website.
• Prepare a list of the opinions in which the judge ruled a statute constitutional or unconstitutional.
• Publish an electronic list of all the opinions in which an appellate court judge participated, with a link to the text of that opinion.

These legislative changes have been meaningful to voters. Every election cycle, CAP summarizes this information and publishes it as a part of our Arizona Voter Guide (https://www.azvoterguide.com/).

Retention election hit another roadblock in 2022. That year, a total of 74 judges were up for retention (three Supreme Court justice, five Court of Appeals judges, 47 Maricopa County Superior Court judges, 12 Pima County Superior Court judges, four Pinal County Superior Court judges, and three Coconino Superior Court judges).[xvi] Even though the JPR commission determined nearly all the judges “met” the standard for retention, voters rejected three judges including two approved by the commission.[xvii] Explanations for the rejections included voter confusion, a decline in JPR surveys returned, and partisan voter guides that weaponized JPR scores and attacked judges for ideological bias indicated by such biographical details as past association with the Federalist Society.[xviii] A 2023 task force has proposed on policy changes to the JPR process. Time will tell whether these proposed changes improve the system or not.

Potential Retention Reforms

Nearly fifty years into the merit-selection system, Arizona’s judicial laboratory is still finessing its system to ensure more transparent and accountable judicial selection. One potential policy change is the state-wide election of Arizona’s Court of Appeals judges. Court of Appeals judges are divided into two divisions and state law mandates that a certain number of judges must come from counties other than Maricopa and Pima (A.R.S. § 12-120.02). The law also requires that a Court of Appeal judge only appear for retention elections on the ballots of voters who reside in the same geographic area as the judge.

In 2023, the Arizona Legislature passed HB 2757 that required that Court of Appeals judges up for retention election appear on all ballots around the state regardless of the judge’s county of residency. Governor Hobbs vetoed the bill, citing voter dilution.

Four Arizona voters filed a special action with the Arizona Supreme Court claiming they should be able to vote on all Court of Appeals judges because the Court of Appeals issues decisions that control the whole state.[xix] The current law, they claim, violates the Arizona Constitution that guarantees “free and equal elections”[xx] and deprives them of the “privileges or immunities” that “equally belong to all citizens.”[xxi] The case is currently pending a decision of the Arizona Supreme Court.

Recall

In Arizona, all public officials—including judges—hold their offices subject to recall.[xxii] When judges act beyond the scope of their authority, Arizonans have the right to remove them from office. This process has never been successfully used against a judge.