2 of 7 Arizona justices step away from case affecting them

PHOENIX — The two Arizona Supreme Court justices who would be most immediately affected by a proposed ballot measure will not participate in deciding its legal fate.

But the other justices who would be affected, eventually, by Proposition 137’s outcome will not step away from the case.

A new scheduling order from the court shows Justices Clint Bolick and Kathryn King have recused themselves from hearing a challenge, filed by the group Progress Arizona, to the changes proposed by Republican lawmakers to how sitting judges stand for retention by voters.

Neither justice provided a reason. But it’s clear that if the court allows Proposition 137 to be on the November ballot and it passes, Bolick and King would get new six-year terms — even if voters separately decided to remove them from the bench.

The other five justices also have a stake in the case if they want new terms when their current ones end in 2026 or 2028. At this point, however, all will decide the case.

Chief Justice Ann Scott Timmer did not immediately respond to a request for an interview.

But Paul Bender, a professor and former dean at the Arizona State University College of Law, told Capitol Media Services it is a “serious question’’ of whether the other justices also should recuse themselves, given how the case would affect their own future elections.

Instead of the current justices deciding the case, one option could be turning it over to retired justices who have no stake in the outcome, Bender said.

There are rules allowing that. Most recently, for instance, Timmer tapped retired Justice John Pelander to sit in on an upcoming hearing on lawmakers’ disputed use of the phrase “unborn human being’’ to describe Proposition 139 dealing with the right to abortion. That is because Bolick stepped away as his wife, Sen. Shawnna Bolick, sits on the legislative panel that approved the controversial wording and also is a defendant in that case.

Replacing all the justices in the judicial retention case, however, is not going to occur.

“We are not going to ask for a fresh panel of justices like was evidently done in the past when a matter related to their pensions was before them,’’ said Jim Barton, an attorney representing challengers to Prop. 137.

That refers to a case years ago involving legislative changes to the pension system for judges. All but one of the justices on the high court were replaced, temporarily, by lower-court judges who were not affected. Only Justice Bolick got to remain because he was not on the bench at the time the challenged pension changes were approved.

Hanging in the balance in the current case are what Barton calls two significant changes in the judicial retention process.

Strictly speaking, judges on the Supreme Court, Court of Appeals and superior courts in Pima, Pinal, Maricopa and Coconino counties are not elected. They are named by the governor, who has to choose from nominees submitted by special screening committees.

Under the current system, however, superior court judges from the affected counties have to face voters every four years on a retain-or-reject system. Those who fail to get enough votes lose their jobs and the selection process begins again.

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At the Supreme Court and Court of Appeals, the terms are six years. But the process is the same.

Prop. 137, if approved by voters, would change that to say judges can remain on the bench as long as they want — at least until mandatory retirement at age 70 — if they don’t get into trouble. That is defined in the proposal as things like a felony conviction, personal bankruptcy or their performance on the bench being found lacking by the Judicial Performance Review Commission.

Only then would they have to face voters.

Barton said there’s no problem with that, at least from a legal perspective. He said it’s a policy question for voters whether they want to give up their right to vote on each and every judge and justice.

But he said Prop. 137 also includes a provision that for the first time would let the majority party in the Arizona House and Senate select members for the Judicial Performance Review Commission. It would also allow any of the 90 legislators to force the commission to investigate any allegation of “a pattern of malfeasance in office.’’

In new court filings, Barton told the justices that lawmakers are free to put a measure on the ballot asking voters to make that change. But what they can’t do, he said, is put it into a single take-it-or-leave-it ballot measure with the proposed changes in the retention system.

“A voter who wants greater judicial independence by creating a system wherein there are on for-cause retention elections cannot vote for this system without also accepting a new avenue for interference with the judiciary by the legislative branch,’’ he wrote.

“The court should not ignore the dilemma this creates for voters,’’ Barton said. “Altering the makeup of the JPRC is not related to holding judicial retention elections.’’

Where King and Bolick specifically fit in has to do with something else the Republican-controlled Legislature added to Prop. 137: a retroactivity clause.

The election will be on Nov. 5. But proponents crafted the measure to apply retroactively, to Oct. 31, if approved by voters.

The measure spells out that the results of this year’s retention elections, including King’s and Bolick’s, would not be formally recognized if Prop. 137 passes — even if voters turn both out of office.

That, too, is part of the all-or-nothing package the measure would present to voters.

The whole issue has political implications, although those aren’t part of the legal dispute before the Supreme Court..

If either justice is turned out of office, that would allow Democratic Gov. Katie Hobbs to replace the pair, who were named to the court by her predecessor, Republican Doug Ducey. That possibility already led conservative political activist Randy Kendrick, wife of Diamondbacks owner Ken Kendrick, to set up and fund a committee to persuade voters to retain the two Ducey picks.