Among the ballot measures voters will decide this fall is Proposition 137, which deals with judicial retention. Supreme Court justices and Superior Court judges in a handful of counties, including Maricopa, appear on the ballot at the end of their terms.
This proposal would essentially end that process of asking voters whether or not they should stay on the bench. Instead, voters would only weigh in under certain circumstances — including if a particular judge or justice is convicted of a felony or a crime of fraud or dishonesty, if they’re in personal bankruptcy or if a state commission finds the judge or justice does not meet performance standards.
Prop. 137 also includes a retroactivity clause, meaning that if voters decide not to retain the two state Supreme Court justices on the ballot this year — Clint Bolick and Kathryn King — they’d still get to keep their jobs.
Supporters of the proposal say it’d help reduce the length of the ballot, by keeping many judges off of it. They also point out that many voters don’t know who the judges are or how they should vote on their retention.
But, critics worry the measure would be bad for the judicial system. Scott Bales, a former state Supreme Court chief justice, opposes the proposition, but he also believes voters shouldn’t vote against a judge’s retention because they disagree with their decision in a particular case. Bales joined The Show to discuss why he feels this proposal isn't a good idea.
Full conversation
SCOTT BALES: Well, it would, it would drastically change the merit system we've used for picking and retaining judges since 1974. And I don't think that system's broken. We certainly shouldn't make changes that would undermine the system.
MARK BRODIE: What about these proposals do you think would potentially undermine it?
BALES: Well, there are three aspects. First, it takes away from the voters as a practical matter, their voice and whether we keep judges and that was one of the premises for the merit system when we adopted it in 1974 that judges periodically would face the voters and the voters would decide if they keep their jobs.
Two other aspects that I find particularly troubling is it would give the legislature the power to appoint some members to the judicial performance review commission. This is the independent, nonpartisan commission that reviews whether judges are meeting the performance standards.
And then third, it would also allow any legislature, any legislator, any member of the legislator to require the commission to investigate an allegation that the judge had committed a pattern of misfeasance in office. So that would invite political attacks on judges and it would distract the commission from its role in fairly evaluating judicial performance.
BRODIE: I'm curious about the practicality of all this because for example, this year in Maricopa County and elsewhere around the state, it's going to be a two-page ballot, two pieces of paper judges are traditionally at the end. And you know, we hear every two years how little most voters know about who these judges are and you know what their disposition is on the bench or what their legal knowledge is?
Does it make sense? I mean, given that a lot of voters either don't fill out this part of the ballot or are kind of flying blind, like, does it make sense to continue to have voters weighing in on whether or not a judge stays on the bench or not?
BALES: I think it does and I'll, I'll try to address two points that are suggested by your question. One is the argument that voters lack information. They don't know who the judges are. I think that underestimates voters because the information is certainly there. You can get it in the publicity pamphlet. You also can go online to a website that is azjudges.info that is prepared by the commission on judicial performance review. So you can get that information. And I think many voters do get that information. If you look at the, the retention votes for judges over the last several elections. It's clearly influenced by how judges do in terms of the JPR evaluations.
Another point is that those supporting the proposition have said, well, we have these very long ballots and, you know, that's undesirable in itself or, if we shortened the ballots, it would somehow speed up the processing of the elections. Couple points first if the concern is the length of the ballot that might suggest that Superior Court judges should be up for election less often or they should not be subject to retention. Because if you look at the ballot this year, there's two Supreme Court justices on the ballot and there are two court of appeals judges on the ballot. That's not a huge number of judges.
Now, depending where you live, there might be as many as several dozen Superior Court judges. So if your concern is the ballots just become too lengthy, that might suggest we should do something about the retention of Superior Court judges. It doesn't suggest we should deny the voters any voice with respect to those judges who do make precedential decisions and have jurisdiction that extends across the state.
BRODIE: What is it like as a Supreme court justice when you appear on the ballot? Because there are rules right about how, like, what you can do and what you can't do in terms of quote unquote campaigning for yourself, right.
BALES: Well, it is unusual in the sense that you're on the ballot, but in Arizona, you don't actively campaign. So if you've, if you've had experience in other elections, it, it seems odd in that respect. I thought that, as a member of the court, it actually was a beneficial process in the sense that I think all of the judges who are under the merit system are conscious of wanting to do well on the various criteria that are evaluated under the performance reviews. Because you know that that's gonna be reported publicly and it can influence the outcome of the retention elections.
BRODIE: You kind of alluded to this in terms of thinking about maybe for example, Superior Court judges not appearing on the ballot. I'm wondering if you think that there are other changes to the way judges are selected and ultimately put on the bench and keep that spot that maybe we should be thinking about changing in Arizona, if not this, the proposals offered in this initiative.
BALES: Well, there are and I think, you know, this proposition kind of looks at the back end, the retention side of it. I think it's a mistake to look at changes piecemeal. I think you gotta think about how the system overall works. And as I said, we have a system that was adopted to address both the initial selection and then the later retention of judges.
I think in the selection process, the design was that judges would be appointed on a nonpartisan basis based on their merit. And we created commissions of 16 people, 10 of whom are non-lawyers that review candidates for judicial positions and they make recommendations to the governor. Governor has to pick from the list that the commissions provide.
I think there's a weakness in our system because the governor appoints the members of the nominating commissions. And it would help ensure that those commissions were independent and nonpartisan if we gave the selection of the commission members, if we spread that more broadly, if the governor didn't have a monopoly on it.
BRODIE: Are you thinking that maybe like other legislative leaders or maybe the state bar or some other entity have some picks onto, onto that commission?
BALES: Yeah, those are things that I think should be considered and we also have some experience otherwise under Arizona's Constitution because for example, the redistricting commission is composed of members who are appointed by different leaders in different political positions. The Citizens Clean Election commission has membership that is appointed by different members.
So you could imagine, for example, that some of the commission members might be appointed by the majority and minority leaders in the Legislature or a similar kind of process. So you'd ensure that the members of the commission are not appointed just by one person of just one political party.
