PHOENIX — The Arizona Supreme Court ruled Friday that a new state law
changing the nominating process for appeals court judges is unconstitutional
because it makes a fundamental change in the balance of power between a
voter-approved nominating commission and the governor.
The high court said in its ruling that the law directly conflicts with the
state constitution and cannot be enforced.
Gov. Jan Brewer signed House Bill 2600 in April. The bill sponsored by
Republican Rep. Justin Pierce of Mesa increased the minimum number of nominees
for each appellate court vacancy to five from the current constitutional
requirement of three. The changes affected a 1974 voter-approved constitutional
amendment establishing judicial merit selection and setting up the Commission on
Appellate Court Appointments to vet candidates and recommend them to the
Four members of the nominating commission sued, saying the law changed the
constitution without voter approval. Attorneys for the state called the changes
minor and urged the high court to uphold the law.
The Supreme Court opinion, written by vice chief Justice Scott Bales, flatly
rejected the state’s argument.
“By increasing the number of nominees the Commission must submit, H.B. 2600
simultaneously increases the governor’s discretion and narrows the
commissioners’ constitutionally granted discretion to nominate no more than the
three candidates whom they determine best meet the constitutionally mandated
selection criteria,” Bales wrote.
He added the measure imposes a two-thirds voting requirement in a context not
authorized by the constitution.
“Even if the change were `merely procedural,’ the Legislature has no authority
to statutorily mandate procedures inconsistent with Arizona’s Constitution,”
The law was the latest attempt by Republicans to change the state’s
voter-approved merit selection process.
Opponents of the bill pointed to the rejection of Proposition 115 in November.
The referendum put on the ballot by the GOP-controlled Legislature would have
overhauled merit selection, changing the selection committee’s size and forcing
a minimum of eight potential choices. Only 28 percent of voters backed the
Pierce said that unlike Proposition 115, which he called a wholesale overhaul
of the commission, his law touched only on one small part of its job and wasn’t
“Like many laws that we pass, there are multiple viewpoints on what the law
means and whether it’s constitutional,” Pierce said. “This is one where I
believe it was constitutional, and many had the same legal opinion. The Supreme
Court disagreed, and obviously I disagree with their decision but I respect
A Brewer spokesman did not immediately respond to requests for comment.
The Arizona Center for Law in the Public Interest filed a friend-of-the-court
brief urging the justices to strike down the law.
“A lawsuit like this should never have had to have been filed. It clearly
violates the constitution,” executive director Tim Hogan said Friday. “The
Legislature just keeps ignoring the constitution, especially in light of the
voters just trouncing Prop 115 last year. It looks like a plain grab.”