Legal Corner: Arizona Supreme Court

Christina Estes-Werther, League General Counsel

Last month's Legal Corner discussed cases before the U.S. Supreme Court that may impact local governments. In Arizona, our highest state court continues to decide matters that directly affect Arizona municipalities, including a recent oral argument in State ex rel Brnovich v. City of Tucson/DeWit relating to the S.B. 1487 legislation that threatens the shared revenue of cities or towns. Since our state supreme court issues decisions that affect local governance, this article explains the structure of the state supreme court and how the justices who make these important decisions are appointed to the bench.

Establishment of the Arizona Supreme Court
According to the Arizona Supreme Court website, there have been 39 individuals who have served on the state's supreme court, which does not include the current justices serving on the bench. When Arizona became a state in 1912, the supreme court consisted of three justices. The court increased to five justices in 1949 and the statutory increase was reflected in Article 6, Section 2 of the Arizona Constitution in the 1960 initiative measure known as the Modern Courts Amendment (Proposition 101). While the Arizona Constitution requires a minimum of five justices, the court can be expanded by law and two justices were recently appointed after legislation was enacted last year that increased the court to seven justices.

Qualifications & Terms
Arizona law requires that a supreme court justice be a person of good moral character, and be a resident of the state and admitted to practice law in Arizona for ten years before taking office. In addition to those requirements, the judicial application consists of over 80 questions that require the applicant to provide in-depth responses about career, family and community activities, business and financial matters, public service activities, and ethical issues.

Unlike the federal system of lifetime appointment, Arizona Supreme Court justices serve six-year staggered terms and are subject to retention elections under Article 6, Section 42 of the Arizona Constitution. The justices are reviewed by the Commission on Judicial Performance Review which collects surveys of those who have interacted with the justice and compiles a performance review that is published in the general election publicity pamphlet during the appropriate election year. Voters must approve to retain each justice for another six-year term.

Merit Selection of Supreme Court Justices
In 1974, Arizona approved Proposition 108 establishing merit selection for judges and justices for the Arizona Court of Appeals and the Supreme Court and certain superior court judges in counties that meet a specific population threshold. Merit selection is an appointment-based system that relies on a commission to review applications and recommend applicants for appointment rather than voters directly electing judges and justices.

Article 6, Section 36 of the Arizona Constitution establishes a Commission on Appellate Court Appointments, which is a body that investigates, evaluates, and recommends judicial applicants to the governor for appointment to the Court of Appeals and the Arizona Supreme Court. The Commission consists of 16 members - five attorneys who are recommended by the State Bar of Arizona and ten public members who are nominated for service by a gubernatorial nominating committee. The fifteen members are appointed to the Commission by the governor, subject to the consent of the senate. The sixteenth member is the chief justice of the supreme court or designee who is the chairman. The Commission members must meet certain qualifications and the Arizona Constitution requires a political party and geographical balance on the Commission.

Review & Appointment Process
Upon notification of a vacancy on the court of appeals or the state supreme court, the Commission rules require the Chair to call for a meeting and provide notice seven days prior to the meeting on the Commission's website. The Commission typically meets twice to discuss the applicants for a specific position. At the initial screening meeting, the Commission reviews the applications and accepts public comment before voting on the applicants who will move forward to the interviews. The voice vote is public and Commission members will declare any conflicts since it is part of their position to assist with recruitment of these judicial positions. When the list of applicants is created, Commission members are given "due diligence" assignments to investigate the applicants by contacting references, former clients, law partners, supervisors, and any other individuals that can share information about the applicant's background, experiences, and legal work.

The interview phase is conducted at a subsequent public meeting with public comments, interviews and deliberations. Following the applicant interviews, the Commission recommends a list of names to the governor. Article 6, Section 37 of the Arizona Constitution requires the list to include a minimum of three applicants with no more than two applicants being members of the same political party. If there are more than four applicants, then not more than 60 percent of the applicants can be of the same political party. The entire process from the vacancy notice to the recommendation to the governor must be completed within 60 days. The governor has an additional 60 days to make the appointment from the Commission's list and typically the governor's office will conduct separate interviews of the applicants. The Arizona Constitution requires the governor's appointment to be based on merit, and to consider the diversity of the state's population, without regard to political affiliation.

Recent Developments
In 2016, H.B. 2537 was enacted by the Arizona State Legislature and signed by Governor Ducey. The bill increased the state supreme court from five justices to seven justices. As a result of the legislation, the two most recent justices, Andrew Gould and John Lopez, were appointed to the court on November 28, 2016 and joined Chief Justice Scott Bales, Vice Chief Justice John Pelander, Justices Ann Timmer, Robert Brutinel and Clint Bolick. The two new justices were appointed through the merit selection process and will be subject to retention.

Since the passage of the legislation it is likely that the increased number of justices may result in more cases being accepted and heard before the supreme court. As our state's highest court, the decisions rendered by these justices will have long-lasting impacts on our local form of government and it is important to recognize that the public has a voice in the process at the initial stages of the appointment process when a vacancy occurs and again at the ballot when a justice is subject to a retention election.

Arizona Constitution - Article VI: Judicial Department

Judicial Nominating Commissions

Arizona Memory Project - Publicity Pamphlets Since 1912

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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