Arizona lawmakers have advanced a ballot measure that would eliminate term limits for many state judges, instead making judicial service dependent on “good behavior.” The bill would have retroactive effect, meaning that if voters pass it in November, all judges who currently face periodic retention elections would effectively be granted life terms. This would apply even to judges who lose a retention bid in the same November election.
The immediate practical impact of the measure is to severly curb the number of judicial retention elections, a mainstay in Arizona for decades. Currently, all state appellate judges, as well as Superior Court judges in Coconimo, Maricopa, Pima, and Pinal Counties, face retention at the end of their set terms of office. Under the proposed measure, however, such judges would only face a retention vote upon (1) conviction of a felony or another crime involving fraud or dishonesty, (2) initiation of personal backruptcy proceedings, or (3) a determination by the Judicial Performance Review (JPR) Commission that the judge does not meet performance standards.
The measure would also seem to change the role of the JPR Commission, converting it primarily to a disciplinary or investigative body. Under the measure, the Commission would be charged with investigating any written allegation from a legislator that a sitting judge “engaged in a pattern of malfeasance in office.” If the Commission found this to be the case, it would be required to make a determination that the judge does not meet performance standards.
This is a very odd setup. If a sitting judge is convicted of a felony or another crime involving fraud or dishonesty, it should not require a retention vote to remove the judge from office. Likewise, if the judge has engaged in a pattern of malfeasance, he or she should be removed immediately without having to waste voter time. Retention votes increase cost and delay, and create the risk that a corrupt judge would somehow survive a retention vote. Then what?
Folding judicial discipline into the work of the JPR is also a mistake. Judicial performance evaluation operates most effectively when it focuses on the professional development of the judiciary, working to improve the performance of all judges based on common criteria. This proposal seems to eviscerate the professional development role and turn the JPR Commission into a shell of itself. It also invites partisan mischief, since any state legislator could allege malfeasance against a judge, and the Commission would have to investigate. And becaused the measure requires legislators to be added to the JPR Commission, it is even more likely that weak claims of malfeasance will be dragged out.
There are also more general concerns that the entire measure is motivated by partisan politics. Two state supreme court justices, Clint Bolick and Kathryn King, are up for retention this year. Both justices have been targeted for non-retention by left-leaning groups based on their votes last April to revive an 1864 state law prohibiting abortion. The current measure passed both houses of the Arizona legislature on party-line votes, with Republicans in the majority. Justice Bolick’s wife, a Republican state senator, helped advance the measure in the senate. Predictably, Republicans are championing the measure as protecting judicial independence, while Democrats are decrying it as denying voters the right to decide the fate of their own judges.
There are good reasons to promote judicial independence, and it would be a terrible mistake for Arizona voters to throw out otherwise good judges because of disagreement with a single decision. But this whole thing feels like legislators messing with the judiciary for its own partisan gain. Hopefully Arizona voters see the value in their existing system of appointment, evaluation, and retention, and reject this measure in November.
The Interdependent Third Branch 