Arizona voters will decide whether state judges should be awarded lifetime appointments, after the Arizona Supreme Court on Thursday cleared a proposal to do just that for the November ballot.
Progress Arizona, a progressive advocacy and lobbying organization, requested that the high court block the ballot measure and prevent it from going before voters. Attorneys for the group argued that Proposition 137, dubbed “The Judicial Accountability Act of 2024” by the GOP lawmakers who sent it to the ballot, is unconstitutional because it illegally amends more than one part of the Arizona Constitution.
But the justices were unconvinced, with Chief Justice Ann Scott Timer writing that the proposal’s content is so interconnected that it complies with the constitutional requirement that it make just one change.
“The Court finds that (Prop. 137) complies with the separate amendment rule because its provisions are topically related and sufficiently interrelated so as to form a consistent and workable proposition that, logically speaking, should stand or fall as a whole,” she wrote.
The proposal would virtually eliminate term limits for Arizona Supreme Court Justices, Arizona Court of Appeals judges and trial court judges in Maricopa, Coconino, Pima and Pinal counties. Currently, state supreme and appellate court judges have six-year tenures and trial court judges serve for four years before they must convince voters to award them another term.
But Prop. 137 would grant state judges indefinite terms. Only those convicted of a felony or a crime involving dishonesty or fraud; who file for bankruptcy or a mortgage foreclosure; or who receive a negative review from the Judicial Performance Review Commission would be forced to face a retention election.
The ballot measure also allows each legislative chamber to appoint a new member to the Commission by a majority vote. And every lawmaker would have the power to prompt an investigation of any judge by sending the Commission a written accusation that the judge in question is engaging in a “pattern of malfeasance in office.”
Opponents of Prop. 137 claimed in court filings that it violates the separate amendment mandate because it both revises how state judges are retained and inserts lawmakers into the performance review process. Timmer dismissed that concern, however, writing that the justices agree with a lower court’s assessment that the measure complied with the Arizona Constitution.
Before the Arizona Supreme Court threw out the appeal from Progress Arizona, Yavapai County Superior Court Judge John Napper rejected similar arguments. In his ruling, Napper concluded that, while the changes to how the Judicial Performance Review Commission is run are distinct from the overhaul of the judicial retention system, the two have been intertwined for long enough that they fall under the same subject.
“There is a history of linking retention elections and the judicial review process,” he wrote.
While it was being considered by lawmakers, Prop. 137 was mired in controversy. Along with transforming how term limits for Arizona judges work, the ballot measure is also retroactive to this year’s election. That means that, if Arizonans choose to approve it, any retention bids held in the same election would be nullified, even if a majority of voters agree to unseat a judge.
Among the judges facing retention elections this year are Arizona Supreme Court Justices Clint Bolick and Kathryn King. The duo have recently been targeted by a campaign to convince Arizonans to remove them — headed by Progress Arizona — in response to their support for reinstating a near-total abortion ban from 1864 earlier this year.
In April, Bolick and King were among the four justices who ruled that the Civil War-era law that mandated prison time for doctors who perform an abortion for any reason other than saving a woman’s life should once again be enforced.
Progressive and reproductive rights advocates are counting on abortion to be a mobilizing issue in November, drawing voters to the polls, and critics of Bolick and King hope that will result in rejected retention bids. But if Prop. 137 passes, Bolick and King will be insulated from any voter repercussions they might otherwise face.
Bolick’s wife, state Sen. Shawnna Bolick, helped send Prop. 137 to the ballot, despite criticism from fellow lawmakers.
Bolick and King both recused themselves from the case in light of the impact the ballot measure could have on their retention elections.
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