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retention rules

Arizona lawmakers agree to let voters decide on retention rules for state Supreme Court justices


PHOENIX — Legislative Republicans voted Wednesday to ask voters to alter the method used to decide whether judges keep their jobs — but in a way that Democrats say is designed to protect two on the Supreme Court who ruled 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-reject basis every four years — six years for the Supreme Court. SCR 1044 would instead provide lifetime appointments unless a judge’s performance was found wanting by a special commission.

But what is galling foes is that it is worded in a way that it would affect the already scheduled retention elections 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.

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 did quash another proposal to mandate that local governments all hold their elections only every other November at the same time as other elections. That would have overridden local laws in places like Tucson where voters have decided they want separate elections.

But it is the proposal on judicial elections that 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 up makes ballots longer, with perhaps 30% of voters simply ignoring those races. This system would say 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.”

But the measure is worded so it effectively is retroactive.

What makes that significant is that Bolick and King, two of the four justices who concluded tn 1864 law that bans abortion except to save the life of the mother is still enforceable, are up for retention. And there is an active campaign to deny them a new term based in great part on that vote to reinstate Arizona’s territorial-era abortion ban.

If the policy change proposed by SCR 1044 is adopted, it would override any decision by voters to oust the pair from the court.

Rep. Analise Ortiz, D-Phoenix, said that 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.

“SCR 1044 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,” Ortiz said, by overriding any vote to oust them. “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. And she said Bolick believes that is over-politicizing the court.

“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. And Schwiebert said Ducey further politicized the court in 2016 when he got the Republican-controlled Legislature to expand the court from five to seven “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,” he said.

If voters turn Bolick and King out of office, and if SCR 1044 is defeated, that would give Gov. Katie Hobbs a chance to make her first picks to the high court.

One of those who voted for the measure 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.

But if she had recused herself, SCR 1044 would not have gotten the 16 votes necessary to send it to the ballot.

The measure on tipped wages, SCR 1040, is a bid by the Arizona Restaurant Association to blunt an initiative effort to raise the minimum wage even higher than required under proposals approved — twice — by Arizona voters.

At the heart of the fight is the current law which 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.

More to the point, those two provisions would mean restaurants have to pay that entire $18 — or whatever is the figure — regardless of how much a worker makes in tips, versus $11.35 under current law. And that alarmed Steve Chucri, president and CEO of the Arizona Restaurant Association.

His organization got lawmakers to adopt a proposal 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.

But there’s a sweetener designed to gather support from the public and at least some restaurant workers: It guarantees 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 just $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.”

And 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 SCR 1040.

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.”

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 have faltered after courts have 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.

SCR 1023 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 hike 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.