Supreme Court Retention Gets Political

Arizona has an enviable merit selection process for our state appellate courts. Appellate court judges and supreme court justices are nominated through non-political special screening commissions that conduct public hearings, manage extensive professional and user surveys and background checks, and then send a list of three vetted nominees to the governor who appoints from that list. Each judge is up for a retention vote every six years. On the general election ballot, voters of Arizona in relevant districts are asked whether the judge should be retained -- and vote "yes" or "no."

In the long history of the merit selection system, it has been almost unheard of for such retention elections to become political. After all, there is no opposing candidate running "against" the sitting judges or justices. The decision that the voter is called on to make is whether the judge or justice deserves to keep the job. With significant input from jurors, litigants, court staff and attorneys, the Arizona's Judicial Performance Review Commission assesses the performance of each judge to determine if he or she is meeting judicial performance standards and distributes this information to voters before the election. Each judge or justice is expected to:

  • administer justice fairly, ethically, uniformly, promptly and efficiently;
  • be free from personal bias when making decisions and decide cases based on the proper application of law;
  • issue prompt rulings that can be understood and make decisions that demonstrate competent legal analysis;
  • act with dignity, courtesy and patience; and
  • effectively manage their courtrooms and the administrative responsibilities of their office.

Note that there is nothing in the above that suggests that a judge or justice who issues a decision that a voter (or group of voters) disagrees with fails to meet judicial performance standards. But that appears to be what groups that are attempting to oust Justice John Pelander from the Arizona Supreme Court would have voters believe.

As reported in this story, the groups are sending out mailers urging voters to vote against retention of Justice Pelander because he (sitting in panel along with two other justices not up for retention this year) refused to reverse a superior court ruling allowing Proposition 121 to go to the ballot "in the face of overwhelming evidence of fraudulent signatures ... including thousands submitted by a convicted forger.'' The superior court apparently gave both sides in the election contest two hours to present evidence. When Proposition 121 opponents asked to admit "some more evidence" at the end of the hearing, that request was denied. No offer of proof was made regarding what evidence would have been submitted. As will be evident to readers of this blog, the nuances of applicable standards of review and the limits of the actual record before the high court are completely lost in such misleading rhetoric. Indeed, Justice Pelander didn't even write the order.

Having argued before Justice Pelander both in the Arizona Supreme Court and when he was in Division Two of the Court of Appeals, we can attest that he possesses a fine legal mind is an excellent judge. In the tribal politics that dominate our election system, it is truly unfortunate that some opponents of Proposition 121 are so blinded by zeal that they would attack Justice Pelander as a vehicle to drive more votes against Proposition 121.

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