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Proposition 115 explained

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As voters go to the polls Tuesday, Nov. 6, one of the more complicated ballot measures is Proposition 115, which deals with Arizona's judiciary.

Unlike many state measures which have no or minimal opposition, or others where two traditional factions have taken predictable stances, Proposition 115 has split the support from judges and lawyers with some on each side of the argument.

Proposition 115 is among the more complex measures on the ballot. It would essentially make seven changes to Arizona's judicial system.

Terms

Arizona Court of Appeals judges and Arizona Supreme Court justices currently serve six-year terms while Superior Court judges serve four-year terms.

All would now serve eight-year terms.

Retirement Age

The mandatory age at which state judges and justices must retire would rise from age 70 to 75.

Arizona Judges Association President Kyle Bryson and Immediate Past President David Cunanan wrote in support of this provision. They glossed over the rest of the proposition, calling it a "compromise which preserves the essence of Arizona's merit selection and tenure system."

Vacancies and 'Merit Selection'

If there is a vacancy on the Arizona Court of Appeals or the Arizona Supreme Court, a five-member commission helps select candidates from which the governor appoints a new judge. Those five commissioners are nominated by the Arizona State Bar and then appointed by the governor.

There are 10 non-attorney members of the judicial nominating council as well, chosen by the governor and confirmed by the Arizona Senate. Their status is unaffected by the proposition.

If Proposition 115 passes, the governor would appoint four commissioners and president of the State Bar of Arizona would appoint the fifth. The bar association's nominee would not have to be approved by the governor. The governor would effectively choose 14 of the 15 members of the commissioners.

The proposition "minimizes the influence of the State Bar of Arizona in selecting the lawyer members of the judicial nominating commissions," Gov. Jan Brewer wrote in her argument supporting a "yes" vote.

Current State Bar of Arizona President Amelia Craig Cramer and Executive Director John F. Phelps also wrote in support of this provision.

However, a group of 19 former presidents of the Arizona State Bar collectively oppose the proposition's adjustment of "merit selection," which has been in place since 1974.

"The reasons for adopting merit selection [in 1974] included preventing unqualified persons from becoming judges, keeping politics out of choosing judges, and freeing judges to decide cases fairly without fear of political consequences," the group wrote.

A group of five former chief justices of the Arizona Supreme Court also oppose the proposition.

"While people may disagree about a particular decision, Arizona courts operate independently from the political branches of government, and justice is dispensed without worry about political influence, lobbying or corruption," the five justices wrote.

"'Reform' is a gross mischar-acterization, instead it gives future governors and legislators almost complete control in appointing members," wrote League of Women Voters of Arizona President Barbara Klein and First Vice President Robyn Prud' homme-Bauer.

"Proposition 115 will undermine the safeguards against partisanship contained in the current 'merit selection'process," Phoenix Law Enforcement Association President Joe Clure wrote.

Additionally, the commissioners would have be Arizona residents who have practiced law in the state for 10 years. The current residency requirement is five years.

Nominations

For an open court seat, the commission gives the governor three nominees. The proposition would require at least eight nominees and repeal the provision requiring they come from different political parties.

"Because the judiciary is the least directly accountable branch of government, it is essential that as many qualified individuals as possible be presented to the governor for consideration," Brewer wrote.

"Party affiliation should not be a factor in evaluating the qualifications of judges. This requirement has often resulted in limiting the number of qualified individuals who apply for and who are nominated for judicial positions," wrote Cathi Herrod, president of the Center for Arizona Policy, a conservative, pro-life, family issues advocacy group that sponsored Arizona's gay marriage ban, which failed in 2006.

Arizona State Senate President Steve Pierce [R-District 1], wrote the Center for Arizona Policy was one of the stakeholders that helped to craft the proposition.

Multiple Vacancies

If there were more than one vacancy, the commission would select at least six candidates per open seat, and the governor could select more than one nominee from the entire pool of candidates.

Orders Online

The Arizona Supreme Court must make opinions and orders of state judges and justices available on the Supreme Court website, excluding sealed orders such as those from juvenile cases.

Judicial Review

A joint legislative committee would review all judges 60 days before an election.

"Proposition 115 gives you more information about how the judges perform in office so you can make an informed decision when you cast your vote," wrote Speaker of the Arizona House of Representatives Andy M. Tobin [R-District 1].

"Judges will be required to testify before the Legislature about their decisions before their retention election, replacing an independent nonpartisan evaluation process," wrote Doris Marie Provine, president of the Arizona Advocacy Network, a voter rights nonprofit.

Other supporters include Arizona Rep. Eddie Farnsworth [R-District 22], the Arizona Judicial Council, Congressional District 5 candidate Kirk Adams and several private attorneys.

Other opponents include the Arizona Association of Defense Counsel, the Maricopa County Bar Association, the Arizona Democratic Party, the Arizona Center for Law in the Public Interest, Los Abogados Hispanic Bar Association, Tucson Community Development/Design Center, the Pima County Interfaith Council, the Save the Family Foundation, former Arizona Court of Appeals District 1 Chief Judge Noel Fidel and several private attorneys.

Christopher Fox Graham can be reached at 282-7795, ext. 129, or emailcgraham@larsonnewspapers.com



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