The Arizona Supreme Court is under a lot of scrutiny by voters this election. Two justices are the subject of campaigns to get voters to kick them off the court after they voted to uphold an 1864 abortion ban. And, a competing initiative is attempting to retroactively keep them on — and essentially give all judges in the state lifetime appointments.
Now, a story from the Arizona Capitol Times is adding a new layer of scrutiny to the court just weeks before the election. Reporter Kiera Riley found that the justices buried a finding by their own Ethics Advisory Committee that found two of the justices shouldn’t have worn their judicial robes while attending the so-called Red Mass earlier this year.
Justices Kathryn King and Bill Montgomery attended the event and spoke at it wearing their robes in January. The Show spoke with Riley more about it.
Full conversation
KIERA RILEY: So the Red Mass is a Roman Catholic gathering. They have it annually usually in January. It's aimed specifically at attorneys, lawmakers and judges. It is open to anyone of any religious denomination. But essentially the aim of the gathering is to invoke divine guidance in the coming year as it pertains to lawmaking or the judiciary.
LAUREN GILGER: So this year, two Arizona Supreme court justices attended and there are photos of them wearing their robes, their kind of court robes at the Mass. First of all, tell us how did they participate in the Red Mass?
RILEY: So Kathryn King gave the first reading and Montgomery led attorneys in renewing their oath of admission to the state Bar of Arizona. And so, yeah, the photos show them in their robes at the lectern speaking to the crowd in both those those instances.
GILGER: Tell us a little about what comes next because that's where the story gets really interesting. It seems that this appearance of these two justices at the Red Mass in their robes raised some questions because there was an ethics committee decision that has surfaced since. Tell us about that decision. Do we know who asked the ethics committee to review it?
RILEY: So, no, we don't. But the next day, the day after the Red Mass, they did get a request to kind of look into the ethical implications of wearing an official judicial robe at a religious service like the Red Mass the ask, you know, specifically pertain to the Red Mass. We don't know who submitted it because those requests for opinions are confidential and usually pertain to a judge or justice's own conduct. And so the ethics committee got this request for an opinion.
They discussed, it decided to move forward with issuing a formal opinion and basically return to finding that a judge or justice can attend a religious service and fulfill a special role, but they should not do so wearing an official robe, you know, that indicates their job and their government duties and can kind of create an appearance of impropriety or undue influence.
GILGER: OK, so let's talk about what happened afterward. The decision comes out from this ethics review committee and the justices that same day right petition for a rule change to allow them to do this differently, to handle it differently, describe that for us.
RILEY: So, yeah, the opinion came out on June 3rd and the same day, the administrative office for the courts petitioned the court to change the rules and oversight of the ethics Advisory committee and would basically install a review period so that Supreme Court Justices could overlook an opinion before it becomes final. And before, you know, it gets distributed and published, this ethics opinion was briefly published online and then the justices did ask the committee to reconsider their finding and then when it did come back that they found, you know, the same conclusion, the justices then, you know, a few weeks later voted to adopt this rule that allowed them final review over ethics opinions. And then, you know, a week after that, decided to withdraw the opinion.
GILGER: So they withdraw this official opinion. What does that mean exactly? Does it mean that it disappears that it is unsearchable?
RILEY: So it was, I mean, pulled off the website during reconsideration and then withdrawn entirely after that. And so, I think for a little bit, it was just kind of like a note that said, you know, we're reconsidering this opinion and then, you know, any mention of it is now gone off the website and so inaccessible to whoever may be looking for it. So I got it through a public records request, but when it was withdrawn and they kind of sent a note out to all the judges and justices, they distributed it to and then again, you know, just kind of pulled any mention of it from the website. And so it kind of disappeared in that, in that sense.
GILGER: Is this common for the justices to withdraw an opinion like this. Have they done this before?
RILEY: No, I don't think it's unheard of, but it is uncommon. The staff director of the ethics advisory committee called it an anomaly. If an ethics opinion is withdrawn, it's usually done to avoid confusion, misinterpretation, reliance on inaccurate or out of date information. But in this case, you know, the justices disagreed with the result, reasoning and chose to withdraw it on those grounds.
GILGER: Can you back up for a moment, Kiera and just tell us a little bit about this ethics review committee and like what they're supposed to do what their role usually is?
RILEY: Yeah, absolutely. So they are different and distinct from the commission on judicial conduct. The commission on judicial conduct investigates like ethics complaints. The advisory committee kind of takes up different issues and weighs in on how it would fit into our ethics scheme for the judiciary. And so, I mean, in this instance, took up a question about robes at a Red Mass and looked at our existing ethical constructions for judges and justices and proceeded accordingly. In this case, they did issue a formal opinion. They don't always have to do that. If they get a request to weigh in, they can, you know, talk to the person directly, resolve it informally through communication. But you know, in instances where you know, they think maybe an issue needs a little more clarification, they'll go forward with a formal opinion and kind of clarify and, and build upon our ethical canon here.
GILGER: OK, so let me ask you lastly, Kiera, just to put this into context for us like this comes at a time in which the State Supreme Court in particular, the U.S. Supreme Court as well are under a lot of scrutiny. Two of our State Supreme Court justices, including one of the justices at hand here are the subject of campaigns to have them voted out in November because of decisions that people view as political.
RILEY: I, I think we are on the eve of a particularly contentious judicial retention election, there's a lot of attention paid to it, which is not completely new, but I mean, I think definitely we're hitting new heights as we approach this election in terms of campaigning and, and what have you. We also have Prop. 137 which would kind of change the judicial merit selection and retention system for Arizona and would walk back the results of our 2024 retention election. So it comes on the eve of a lot of big decisions that the voters have to make.
GILGER: Yeah. And another reason to put more scrutiny on the court it seems.
RILEY: Absolutely, yeah.
