Panels asks court to overrule judge nomination law

PHOENIX -- Calling the legislation unconstitutional, members of a special screening panel asked the Arizona Supreme Court late Friday to void a law that would require them to give the governor more names from which to select new judges.

Attorney Paul Eckstein said a 1974 voter-approved constitutional amendment requires members of the Commission on Appellate Court Appointments to screen applicants for the Supreme Court and state Court of Appeals. That same provision mandates they must send the governor at least three names, though they can send more.

But HB 2600, approved earlier this year by the Republican-controlled Legislature and signed by Gov. Jan Brewer, mandates they must submit at least five names to the governor. That can be ignored only if two-thirds of the commissioners vote that there are not that many qualified applicants.

The law applies those same changes to separate commissions, which choose superior court judges in Pima, Pinal and Maricopa counties. The other 12 counties still elect their judges directly.

Eckstein wants the high court to declare the law invalid, ruling that the Arizona Constitution and its provision allowing the commission to nominate as few as three applicants trumps the legislation.

He also said it's not like lawmakers do not know how to do it right.

Eckstein pointed out the Legislature put a similar measure on the 2012 ballot to require the nominating commissions to give the governor at least eight names for each vacancy. That, however, was done legally as a constitutional amendment, with voters rejecting it by a margin of close to 3 to 1.

So rather than risk taking a modified proposal back to voters -- all constitutional amendments need voter approval -- Eckstein said lawmakers simply decided they have the right to make the changes themselves. And that, he said, they cannot do.

"Only the people may amend the Constitution,' he wrote.

"Any legislation that purports to change the Constitution trespasses upon the fundamental rights of the people,' Eckstein continued. "HB 2600 is just such a trespass.'

At the heart of the fight is the contention by some that the governor should be given more choices.

Rep. Justin Pierce, R-Mesa, sponsor of the legislation, said the Arizona Constitution allows the screening commission to nominate as many people as it wants. But he said that has happened only twice in nearly 40 years.

And Pierce argued the governor's choices are even narrower than that because the nomination lists must include people from more than one party, which normally means just two names from the governor's own party. Pierce said there usually are far more than three qualified applicants for most vacant slots.

Brewer, who signed HB 2600, actually is on record as believing it does not go far enough. She has argued that Arizona should have a system similar to the federal government where she would be allowed to appoint anyone she wants -- and not have to choose from a list of nominees -- subject to only Senate confirmation.

Political arguments aside, that still leaves the issue of whether lawmakers can force the nominating commissions to provide more choices without first getting voters to amend the Arizona Constitution.

Rep. Eddie Farnsworth, R-Gilbert, HB 2600 does permit a nominating commission to send fewer than five names, leaving undisturbed the three-name minimum. But that can occur only with a two-thirds vote by commissioners and only if they conclude there are not five qualified applicants.

Eckstein said that still amounts to changing the voter-approved constitutional provision letting a bare majority of the commission choose to send just three names.

"Plainly it was not the people's intent to leave the minimum requirement to the discretion of the Legislature,' he wrote.

The lawsuit should come as no surprise. Jerry Landau, lobbyist for the Administrative Office of the Courts, an arm of the Arizona Supreme Court, told lawmakers when they were debating the bill he expected the issue to wind up before the justices.

In taking the case to the high court, Eckstein is pulling out all the stops to impress the justices. While he is lead counsel, he has signed up six former Supreme Court justices as co-counsel: Stanley Feldman, Charles Jones, Frank Gordon, Ruth McGregor, Tom Zlaket and James Moeller. All but Moeller served as chief justice.


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