PHOENIX — Legislative Republicans decided Wednesday to ask voters to alter the method used to decide whether judges keep their jobs.
Democrats, galled by the proposal, said it’s designed to protect two justices on Arizona’s Supreme Court who ruled in April that the state can enforce its territorial-era abortion ban.
Current constitutional provisions require judges who are appointed by the governor to stand for reelection on a retain or reject basis every four years or, in the case of Supreme Court justices, every six years.
The measure the Republican-controlled Legislature will send to the November ballot would instead provide lifetime appointments unless a judge’s performance was found wanting by a special commission.
It is worded in a way that it would affect the already scheduled retention elections this November of Justices Clint Bolick and Kathryn King. It says they would get to keep their jobs even if voters, looking at their names individually, decide they do not deserve a new six-year term.
Arizona Justices Clint Bolick (left) and Kathryn H. King.
Other issues also being sent to voters
Lawmakers also agreed Wednesday to send other measures to the November ballot, including:
— Allowing restaurants to pay their tipped workers 25% less than the minimum wage versus the flat $3 flat “tip allowance.’’ At current rates, that would save restaurants an additional 57 cents an hour.
— Allowing foes of proposed initiatives to file lawsuits challenging their constitutionality even before voters get a chance to make a final decision.
— Giving state lawmakers more authority to review and override rules proposed by state agencies.
They quashed another proposal, to ask voters to mandate that local governments all hold their elections every other November at the same time as other elections. That would have overridden local laws in Tucson and other sites where voters have decided they want separate elections.
Career-long appointments for judges?
The proposal on judicial elections could have the biggest — and longest-lasting — impacts.
The current process, approved by voters in 1974, has the governor choose the judges for the Supreme Court, Court of Appeals and trial courts in the largest counties. There is no Senate confirmation. But the governor must choose from a list of nominees from a screening panel.
Then, on a regular basis, those judges stand for “reelection.’’ If rejected, they are turned out of office and the then-current governor picks a replacement.
Rep. Alexander Kolodin, R-Scottsdale, said the problem is that having all those names makes ballots longer, with perhaps 30% of voters simply ignoring those races. The proposed change says only those whose performance has been rated less than satisfactory by a judicial review panel would have to stand for reelection.
Anyone else would effectively have a lifetime appointment and could continue to serve until mandatory retirement age of 70.
“So that way, there will be a smaller, more focused list of judges that voters actually have time to research and examine,’’ Kolodin said. “And perhaps more voters will actually be willing to fill out their ballots and weigh in on it.’’
The measure is worded so it effectively is retroactive.
Abortion ruling in spotlight
That’s significant because Bolick and King, two of the four justices who ruled the 1864 law that bans abortion except to save the life of the mother is still enforceable, are up for retention. There is an active campaign to deny them a new term based in great part on that ruling.
If the policy change is adopted, it would override any decision by voters to oust the pair from the court.
Rep. Analise Ortiz, D-Phoenix, said the abortion decision was a wake-up call for voters who until now may have ignored judicial elections.
“Now as much as ever the people are aware of the tremendous power and the way it can be abused,’’ she said.
The proposal “would take away my right and the right of my constituents who want to vote to not retain those justices who approved the 1864 abortion ban,’’ by overriding any vote to oust them, Ortiz said. “This is what authoritarianism looks like, folks. It’s terrifying.’’
Rep. Judy Schwiebert, D-Phoenix, pointed out that Bolick already is writing op-ed pieces saying he is being targeted by special interest groups and arguing he should not be thrown out because people disagree with a particular decision. Bolick contends that is over-politicizing the court, she said.
“But what he doesn’t say is that the court is already heavily politicized,’’ Schwiebert said.
“He got the job when former Gov. (Doug) Ducey made the political decision to pluck Bolick, who was not even a judge, from the politically hard-right Goldwater Institute and make him an Arizona Supreme Court justice,’’ she said.
Schwiebert said Ducey, a Republican, further politicized the court in 2016 when he got the Republican-controlled Legislature to expand the court from five to seven justices “so he could pack it with political cronies.’’
Rep. Charles Lucking, D-Phoenix, called it “a political power grab by partisan politicians who want to rip choices away from the voters.’’
But Rep. Matt Gress, R-Phoenix, who used to work for Ducey in the governor’s office, called the move to oust the two justices chosen by his former boss “a radical movement to remake an independent judiciary in the eyes of one partisan belief.’’
“That could not be more dangerous to our society, to our system than it is right now,’’ Gress said.
If voters turn Bolick and King out of office, and if the system change is defeated, that would give Democratic Gov. Katie Hobbs a chance to make her first picks to the high court.
One of those who voted to send the measure to the ballot was Sen. Shawnna Bolick, wife of the Supreme Court justice. That drew criticism from Sen. Theresa Hatathlie, D-Tuba City, who said she should have recused herself.
“When you share one pillow, I think that’s a conflict of interest,’’ Hatathlie said. Bolick made no comment.
If Bolick had recused herself, the measure would have failed without her vote.
Letting restaurants pay less to tipped workers
The measure on tipped wages is a bid by the Arizona Restaurant Association to blunt an initiative effort to raise the minimum wage higher than required under proposals approved — twice — by Arizona voters.
The current law has the minimum wage increase annually to match inflation. That is currently $14.35 an hour.
But that law allows restaurants to pay their tipped workers $3 an hour less, provided that each worker’s take-home still hits the minimum wage.
A national organization operating under the umbrella of “One Fair Wage’’ is collecting signatures to ask voters to phase out that tip credit entirely by 2027. At the same time, it also would raise the overall minimum for everyone by an additional $2 an hour over the next two years, above and beyond the annual inflation adjustments.
That could easily bring the minimum wage to $18.
Those two provisions would mean restaurants would have to pay the entire $18 — or whatever is the figure — regardless of how much a worker makes in tips, versus $11.35 under current law. That alarmed Steve Chucri, president and CEO of the Arizona Restaurant Association.
His organization got lawmakers to agree to ask voters to allow restaurants to pay their workers 25% less than what is the minimum wage. Assuming that $18 minimum wage, that’s $13.50 an hour for tipped workers.
There’s a sweetener designed to gather support from the public and at least some restaurant workers: The proposal would guarantee that any worker would take home at least $2 more than whatever is the minimum wage.
So, assuming that $18 minimum wage if the initiative passes, that means $20.
On paper, that would increase staff wages. But Chucri is convinced that most wait staff would earn that $20 minimum with their tips — saving money for his restaurants by leaving them responsible solely for $13.50 of that.
Sen. J.D. Mesnard, R-Chandler, said the measure is also good for workers, and not just because of that $20 guaranteed minimum.
“Restaurants live right on the edge when you talk about their margins,’’ he said, saying they have been struggling since voters approved the last hike in the minimum wage in 2016. “And this other effort that we’re seeing out there would be on top of that.’’
Mesnard said if the newest increase takes place “they will not be able to continue to have their entire labor force’’ without the protections in the ballot proposal.
But Sen. Anna Hernandez, D-Phoenix, said that logic is flawed.
“For anybody to say that raising the minimum wage is the sole reason why businesses go out of business is factually incorrect,’’ she said. “We have to account for inflation and the fact that there are expenses that go with that.’’
Tucson election schedule won’t change
The proposal on consolidating election dates was designed to affect all cities, towns and school districts. But it really was the latest bid by Republican lawmakers to bring Tucson and other cities into line.
Prior efforts faltered after courts pointed out that charter cities like Tucson have a constitutional right to run their own elections. And that includes deciding whether voters would be better served by having an election in which only local issues are on the ballot.
The latest proposal would have gotten around that by putting a single election date into the Arizona Constitution.
Rep. Rachel Jones, R-Tucson, said there is a history of low turnouts in her home community on important issues. She said that includes a move to increase pay for city employees, one Jones said was decided based on a 30% turnout.
But Rep. Rachel Terech, D-Phoenix, said this should not be something decided by voters statewide.
“I just see no reason why voters in Bisbee or Flagstaff should decide how Tucson conducts their elections,’’ she said.
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