2/21/2013 2:03:00 PM Lobbyist calls legislation on judges 'illegal'
Howard Fischer Capitol Media Services
PHOENIX -- State lawmakers launched what could be considered an end-run of last year's voter rejection of a change in how judges are selected.
On a 6-1 margin Wednesday the House Judiciary Committee approved legislation which would require the governor be given at least five names from which to select judges for the Supreme Court, Court of Appeals and the superior courts of Pima, Pinal and Maricopa counties.
The vote on HB 2600 came despite the comments of Pete Dunn, lobbyist for the Arizona Judges Association.
He pointed out that the state constitution specifically says the special selection panels that screen candidates need send only three names for each vacancy. Dunn said he believes this is an illegal attempt by the Legislature to effectively alter the constitution, something that can be done only by voters.
And Dunn pointed out that voters had a chance just last year to approve Proposition 115 which would have mandated -- legally -- that the governor be given at least eight names in most circumstances. That proposal was rejected by a margin of close to 3 to 1.
But Rep. Justin Pierce, R-Mesa, said he believes that rejection was based on concerns about another provision of the measure which would have given the governor more control over who serves on the screening panels.
And Rep. Eddie Farnsworth, R-Gilbert, said he reads the constitution to say only that the governor has to be given at least three names. He contended there is nothing illegal about the Legislature boosting that number to five, even with voter disapproval of the ballot measure.
At the heart of the fight is the contention by some that the governor should be given more choices. Pierce said while constitution allows the screening commissions to nominate as many people as they want, that has happened only twice in the nearly 40 years the system has been in place. And he argued the governor's choices are even narrower than that.
That's because the nomination lists must include people from more than one party. Pierce said that normally means just two names from the governor's own party.
``With three names, you can play games,' he argued, forcing the governor's hand. And Pierce said he believes that there usually are far more than three qualified applicants for most vacant slots.
Dunn, however, said most of the members of the current commission that makes nominations for the appellate level courts were appointed by Gov. Jan Brewer, people who he said are not seeking to withhold the names of qualified people from her.
"So it's not some left wing, liberal group of folks,' he said.
That still leaves the legal question.
Dunn said that constitutional provision allowing the screening panels to nominate as few as three people is sacrosanct and not subject to alteration except by amendment.
"If this bill passes, you've changed by statute that they can no longer send three names or four names' to the governor, he said. ``You can't amend the constitution by amendment.'
Farnsworth, however, pointed out the legislation does permit a nominating commission to send fewer than five names. But it requires a two-thirds vote to conclude there are not five qualified applicants.
He said that makes the legislation conform with the constitution.
But Jerry Landau, lobbyist for the Administrative Office of the Courts, an arm of the Arizona Supreme Court, said it will be up to the justices to make that final decision.
The concept, which now needs approval of the full House, already has the support of Gov. Jan Brewer.
In fact, Brewer is on record as supporting the federal system 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. But the governor agreed to support Proposition 115 as the best alternative available.