Edwards: Prop 137 could damage our courts beyond repair
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Susan Edwards
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By Susan Edwards | Co-Founder, Arizona Neighborhood Alliance
As a non-lawyer volunteer who has poured thousands of hours into one of the best state court systems in America, I realize our judicial retention system (“The O’Connor Judicial Selection Plan”) isn’t perfect. It’s a national model, but it’s run by human beings.
Proposition 137 shreds our model system, with insidious consequences.
I first volunteered in 1988-89 on the Arizona Commission on the Courts chaired by Eddie Basha. The commission was the brainchild of Chief Justice Frank Gordon, who foresaw massive growth and change ahead for Arizona. He got a grant and recruited 150 people from across Arizona to look at our judicial system and recommend ways it could be improved. Part of his genius was including public members with the lawyers, court-related folks, legislators, etc.
I repeatedly raised the need for:
A better system than the existing lawyers’ survey to give voters unbiased information about the judges we were voting on retaining; and
A quality-improvement program for judges — that could work in a system with independent judges. None existed.
By 1992, Chief Justice Gordon put most of our recommendations into action. And Arizona voters overwhelmingly adopted Proposition 109, creating the Commission on Judicial Performance Review — the only constitutionally-authorized JPR in the country.
A critical part of JPR’s charge is quality improvement, where volunteer teams meet with each judge and justice. I served on conference teams and JPR. Since 1992, our court system has made it a point to actively involve public volunteers. They understand the way to serve the public best is to involve the public. And listen to us.
Public involvement is a key reason why Arizona is a national model. Prop 137 can destroy that. Who will want to serve on JPR if it passes?
We have more public members on our JPR Commission than any other state, but we ask a lot of time and effort from these unpaid volunteers. I’m pragmatic and firm, but I never voted “Does Not Meet” lightly, because it affected lives. I did it because it was right.
Prop 137 states that very few judges are not retained, so voters must be satisfied. Then, to paraphrase: “Why bother to vote?” They clearly didn’t know that that almost every cycle one or two judges resign/retire instead of appearing on the ballot with a negative JPR vote, or very bad numbers.
137 could put excruciating pressure on some JPR members. With only the names going to the ballot of judges determined by JPR not to meet standards, some members will succumb and vote “Meets” when they shouldn’t. Voters won’t even see those with bad numbers. Arizona’s legal system will pay the price.
Additionally, 137 would allow any legislator — from anywhere in the state — to force JPR to investigate any retention judge for “a pattern of malfeasance,” which is undefined. So, a judge in Phoenix could rule against a friend/relative of a Page legislator. Even if groundless, that legislator could force JPR to investigate the judge.
JPR has a full plate already, and this isn’t their job! That’s what the Commission on Judicial Conduct is for. This shows how little the Legislature knows about what they’re proposing.
They’re both in construction, but you hire an electrician, not a plumber, to do wiring.
Why would judges take the quality improvement program seriously if Prop 137 passes?
Midway through all judges’ and justices’ terms, each meets with a three-person volunteer “conference team” — a lawyer, a judge and a public member. This is to discuss their survey results, any areas needing improvement, and their ideas for self-improvement.
In my experience, the best judges had a healthy list of ideas, while the lesser judges’ lists were short. One judge was later voted “Does Not Meet.” You didn’t see them on your ballot, because they resigned.
If 137 was in effect, I know they’d still be on the bench, potentially making decisions about your life.
Why would good lawyers sacrifice a lucrative practice to be a judge when they could end up having to defend themselves against spurious accusations from some distant legislator?
Prop 137 is a bad Idea.
Editor’s note: Susan Edwards, a retired CFP in Phoenix, is president/co-founder of the Arizona Neighborhood Alliance. She served on the Arizona Supreme Court Commission on the Courts, the Phoenix Public Defender Contract Review Committee, the Arizona Judicial Council, the Judicial Performance Commission, JPR Conference Teams, the U.S. District Court Flagstaff Magistrate Judge Selection Panel, and is a recipient of the Arizona Supreme Court Chief Justice's Outstanding Contribution to the Courts Award. Reader reactions, pro or con, are welcomed at AzOpinions@iniusa.org.
