PHOENIX — A group trying to oust two Arizona Supreme Court justices over their decision on abortion law filed suit Friday to block a measure sent to the ballot by the GOP-controlled Legislature.
The measure would nullify any votes to remove the two justices and instead give them, and other judges, what could amount to lifetime appointments.
A second group also filed suit Friday challenging a separate measure put on the ballot by the Legislature. This one would save money for restaurant owners by allowing them to pay their tipped workers less than they do now.
On the judges' retention measure, the group Progress Arizona contends state lawmakers' decision to title it the "Judicial Accountability Act of 2024'' is deliberately misleading. Attorney James Barton says what the Republican-controlled Legislature voted to put on the ballot would eliminate the one bit of oversight that voters now have — the ability to throw gubernatorially appointed judges out of office.
"It is likely to mislead voters to believe that it will create judicial accountability, when, in fact, it eliminates it,'' Barton said. He said that violates a constitutional prohibition against a deceptive title.
That's just part of the problem, he said. The Arizona Constitution says ballot measures must be limited to a single subject.
But what the Legislature put on the ballot does more than strip voters in most cases of their right to turn judges out of office.
Arizona Supreme Court Justices Clint Bolick and Kathryn H. King.
It also alters the membership of the panel that reviews each judge's performance on a regular basis and determines who gets to avoid having voter scrutiny. It does so by giving an appointment on that panel to the majority party of both the House and Senate, both of which are Republican.
All that makes the measure legally unfit for the ballot, Barton said.
As for the restaurants measure, here, too, Barton says the title lawmakers gave it — the "Tipped Workers Protection Act'' — is "materially misleading, such that it creates a substantial danger of fraud, confusion and unfairness'' in violation of the Arizona Constitution.
It is the measure on judges, however, that could have the widest impact.
Until 1976, all judges in Arizona were elected like politicians.
A constitutional amendment created a "merit selection'' process that allows the governor to fill vacancies for the Supreme Court, Court of Appeals and superior courts of the larger counties from a list of those nominated by special screening panels.
Where voters get their say is that every four years — or six in the case of the Supreme Court — the judges stand for reelection on a retain-or-reject basis. If a judge is turned out, the process starts over.
The ballot measure, advanced by Sen. David Gowan, R-Sierra Vista, asks voters to amend the Arizona Constitution to say that once judges are appointed they need to stand for retention only in limited circumstances, such as if they have a felony conviction, personal bankruptcy or a finding by the Commission on Judicial Performance Review that the way they were doing their jobs was not up to standards.
Everyone else, however, would get to remain on the bench until mandatory retirement age of 70, with no ability of voters to get a chance to remove them for any reason.
That issue came into sharp focus this year after the state Supreme Court, in a 4-2 vote, ruled that an 1864 law outlawing abortion except to save the life of the mother is again enforceable now that the U.S. Supreme Court overturned Roe v. Wade and its constitutional right for women to terminate a pregnancy. Two of the justices in the majority — Clint Bolick and Kathryn King — are on the ballot in November.
That is significant because Gowan worded the measure to say that if voters approve the change in procedure, it would be retroactively effective.
That means that even if voters separately decided that Bolick or King, or both, should not get a new six-year term, it wouldn't matter: They would get to remain on the bench.
The same is true, said Barton, of all the appellate and superior court judges whose names are on the November ballot: Any decision by voters to deny them new terms would be invalidated.
Barton said that goes to the misleading title. Nothing in the measure "provides any judicial accountability,'' he told Maricopa County Superior Court Judge Randall Warner. In fact, he said, the reverse is true.
"Having this measure on the ballot along with a number of judges and justices being up for retention, particularly in light of the fact that this measure actually nullifies all of those elections if it passes is likely to lead to voter confusion.''
No date has been set for a hearing.
Barton also filed the separate challenge, this one on behalf of a group calling itself the Raise the Wage Act.
Its supporters are gathering signatures to put a measure on the November ballot to raise the minimum wage, currently $14.35 an hour, by an additional $2 an hour over the next two years, above and beyond the annual rate of inflation. That could easily bring the minimum wage to $18.
It also would override a provision in existing law that allows restaurants to pay tipped workers $3 an hour less than the minimum as long as they make up that much in tips.
The Tipped Workers Protection Act, put on the ballot by lawmakers, is worded to override the Raise the Wage Act and allow restaurants to pay their workers 25% less than the minimum wage. It does guarantee, however, that any worker would take home at least $2 more than whatever is the minimum wage.
That case is before Maricopa County Superior Court Judge Peter Thompson.
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