ARIZONA HOUSE OF REPRESENTATIVES
Forty-sixth Legislature – Second Regular Session
Minutes of Meeting
House Hearing Room 3 -- 8:30 a.m.
Chairman Tully called the meeting to order at 8:35 a.m. and attendance was noted by the secretary.
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Mr. Downing |
Mr. Miranda B |
Mr. Wagner |
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Mr. Gallardo |
Mr. Pierce |
Mr. Yarbrough |
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Mr. Graf |
Mr. Robson |
Ms. Hubbs, Vice-Chairman |
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Mr. Gray C |
Mr. Straughn |
Mr. Tully, Chairman |
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None |
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H.C.R. 2010 – Held by Chairman |
H.B. 2261 – Discussed and Held |
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H.B. 2609 – DP (9-0-1-2) |
H.C.R. 2007 – No time |
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H.B. 2386 – Discussed and Held |
H.C.R. 2024 – No Time |
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H.C.R. 2018 – Discussed and Held |
H.C.R. 2039 – No Time |
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H.B. 2260 – Discussed and Held |
H.C.R. 2040 – No Time |
Tammy Blackburn, Majority Intern
Names of people recognized by Chairman Tully who appeared in support of H.B. 2609 but did not speak (page 2)
Ken Behringer, Legal Counsel, Legislative Council
Charles Jones, Chief Justice, Arizona Supreme Court
Katy Proctor, Majority Research Analyst
Names of people recognized by Chairman Tully who appeared in opposition to H.B. 2386 but did not speak (pages 10 and 11)
Barbara Rodriguez Mundell, Associate Presiding Judge, Maricopa County Superior Court
Eleanor Miller, representing herself
Susan Edwards, representing herself
Names of people recognized by Chairman Tully who appeared in opposition to H.C.R. 2018 but did not speak (pages 12, 13, 14 and 15)
Bret Huggins, representing himself
Name of person recognized by Chairman Tully who appeared in support of H.C.R. 2018 but did not speak (page 13)
Michael Ryan, Justice, Arizona Supreme Court
Representative Karen Johnson, representing herself
Ruth McGregor, Vice Chief Justice, Arizona Supreme Court
Tonia Tunnell, Government Affairs Manager, Arizona Association of Counties
Roberta Voss, representing the Arizona Library Association
Patricia Noland, Clerk of the Superior Court, Pima County
Michael Jeanes, Clerk of the Superior Court, Maricopa County and Arizona Association of Superior Court Clerks
Names of people recognized by Chairman Tully who appeared in opposition to H.B. 2260 but did not speak (page 18)
Bob Brutinel, Presiding Judge of the Superior Court, Yavapai County
Names of people recognized by Chairman Tully who appeared neutral on H.B. 2260 but did not speak (page 18)
Names of people recognized by Chairman Tully who appeared in opposition to H.B. 2261 but did not speak (page 19)
CONSIDERATION OF BILLS:
Chairman Tully announced that H.C.R. 2010 will be held.
Tammy Blackburn, Majority Intern, explained that H.B. 2609 allows unemployed jurors to receive compensation from the Arizona Lengthy Trial Fund (Attachment 1). The bill permits postponements to persons who have not previously had two postponements and allows the jury commissioner to determine the length of the postponement. Additionally, the bill makes technical, clarifying and conforming changes, and contains an emergency clause.
Chairman Tully announced that he had Request to Speak forms from the following people who are in favor of House Bill 2609:
Page Gonzales, Legislative Officer, Admin. Office of the Courts, Arizona Judicial Council
Ashley Fritz, Government Relations Director, Superior Court, Maricopa County
Tonia Tunnell, Government Affairs Manager, Arizona Association of Counties
Vice-Chairman Hubbs moved that H.B. 2609 do pass. The motion carried by a roll call vote of 9-0-1-2 (Attachment 2).
PRESENTATIONS:
Mr. Behringer pointed out that page 2 of the handout contains the structure of the courts. Page 8 contains a statistical overview of the number of judges, minimum requirements and terms of office. Page 9 presents the workload of the courts, including case filings and terminated cases for FY 2001-2002.
Chairman Tully asked Mr. Behringer to review the merit selection process. Mr. Behringer explained that the merit selection process applies to the justices of the Supreme Court, the Court of Appeals and the Superior Court judges in Maricopa and Pima Counties. He said three commissions make recommendations to the Governor, one for Maricopa County, one for Pima County, and the other for appointees to the appellate court. When a vacancy occurs, the commissions must make at least three recommendations to the governor to fill the vacancy. The recommendations have to be made within 60 days of the vacancy. The governor has 60 days from receiving the recommendations to make the selection. If the timeframes are not met, the governor can appoint any qualified person. If the governor does not appoint anyone from the list of nominees within 60 days, the Chief Justice of the Supreme Court makes the appointment. Prior to the expiration of a judge or justice’s term, he can apply to be put on the retention election. If the judge or justice fails to timely file for the election, or if the “no” votes outnumber the “yes” votes in the election, that office becomes vacant at the end of the term of the judge or justice.
Mr. Behringer explained that the Merit Selection Boards each have 16 members, ten public members and five attorneys. The five attorneys are selected by the Governor with the advice and consent of the Senate, and they are taken from recommendations of the Board of Governors of the State Bar. The public members are also appointed by the Governor with the advice and consent of the Senate. The Board of Supervisors in each county appoints a committee to make recommendations to the Governor for appointments to the nonattorney positions. The members serve four-year terms.
Mr. Wagner asked whether members have to be approved by the Senate. Mr. Behringer replied in the affirmative.
Mr. Straughn asked whether any judge has ever failed as a result of a retention vote. Mr. Behringer answered that he knows of at least one judge.
Charles Jones, Chief Justice, Arizona Supreme Court, thanked The Chairman for the opportunity to address this Committee today. He said he considers it a distinct honor to come here and address what he considers to be the most important form of persuasion in our state government. He said he has a very carefully considered message today. In response to the last questions, he replied that the members of the nominating commissions are bipartisan; there is an equal mix between Democrats and Republicans. Additionally, on failing on the retention ballot, there have been a number of judicial candidates who have resigned from office rather than go through the retention process over the 30-year period since Arizona has had merit selection, indicating that the system does work.
Chief Justice Jones said the courts are here today out of a sense of alarm with respect to the number of measures that have been introduced this session attacking the judicial branch of government. He related that some 30 measures have been introduced, 19 of which are proposed amendments to this state’s foundation document, our Constitution. He expressed concern about that because an amendment to the Constitution should be a last resort. Yet, of these 30 bills, 19 would amend the Constitution in ways that would demean and effectively destroy some of our most cherished judicial institutions in this state, institutions that have functioned well and have continued to function well over a period of time. Arizona is now almost 100 years old as a state. About 30 years ago, Arizona shifted from judicial elections to merit selection. He maintained that was a boon to the judicial branch because of the effect it has had on the quality of the judiciary. He said he has asked himself repeatedly why 30 bills have been introduced in the Legislature this session attacking the courts. He revealed that he intends to be rather direct, and apologized if he sounds overbearing because that is not his intention. He said that quite clearly these bills are intended to inject politics into the judicial process, and he stressed that is the wrong approach for the judicial process. He stated that the Legislature is the political branch. The Governor’s Office, the Executive, is a political branch as well. The courts constitute the Judicial Branch. Their work is different, their purpose is different and it is not appropriate for one branch to assert control over the efforts and work of another branch, particularly where the judiciary is concerned. He maintained it has always been intended in our Constitutional structure that there be a balance and a tension among the branches of government. When attempts are made by the Legislature, particularly in the constitutional arena, by amendments to the Constitution, to take control of the courts, it naturally makes the judiciary stand up in alarm, wanting to speak and be heard on these issues. He reiterated that, from the beginning, the Constitution designated the judicial branch as a single integrated branch of government.
Chief Justice Jones related there are three problems associated with many of these bills. He said he is focusing primarily on merit selection, but there is an array of legislation being introduced this session on a number of subjects, including the rule-making authority of the courts, the office of the clerks and merit selection. The first problem he perceives is the concept of the separation of powers of government. This is a concept that was introduced and established in our constitutional history more than 200 years ago. He cited the landmark decision that made that rule final, Marberry v. Madison, written by Chief Justice John Marshall in 1803. The second problem is the concept of judicial independence. Judicial independence is not absolute and judges and judicial officers have never advocated judicial independence on the part of the courts. He said the judiciary is bound by an oath of office and bound by the rule of law. It is the judiciary’s solemn responsibility to apply the rule of law. The third point relates to the court’s duty to render justice equally, i.e, equal justice under law for all. When attempts are made to control how judges are selected and to control the court’s rule-making authority, there is a tilting of the playing field. The process is open to persuasion by lobbyists and by money interests from outside the state coming in with slogans and initiative campaigns that could overtake the legitimate and the traditional authority that the courts have been enjoined in exercising within this nation for more than 200 years. He suggested that is the wrong approach. It is a dangerous approach and one that should not be considered.
Chief Justice Jones said the Legislature makes the law and sets policy. The courts interpret and apply the law, and the law in our society is the balance between freedom and order. He submitted that the courts of this state are doing, have done and will continue to do excellent work in seeing that the law is applied for all persons equally.
Chief Justice Jones revealed that before 1974, all judges in Arizona were elected. He explained that following an effort on the part of largely private citizens, it was decided that election of judges was not an appropriate method by which to select judicial officers. Initiatives were introduced and adopted by the voters relating to the Appellate Courts, the Supreme Court and the Superior Courts in the state’s most populous counties. There was some concern and reluctance to make a wholesale change in the system and, as a consequence, folks in rural counties decided they knew their candidates and they wanted to continue to elect them. In Maricopa County, with 91 divisions of the Superior Court and in Pima County, with 30 divisions of the Superior Court, people do not know their candidates. That is the reason for having nominating commissions comprised of citizens who deliberate and do thorough background checks on candidates.
Chief Justice Jones related that President William Howard Taft had some things to say about judicial elections. In 1913, speaking to the Cincinnati Bar Association, he described judicial elections as “disgraceful and so shocking that they ought to be condemned.” He showed a video of some of the most recent ads that have been played on television in the state of Ohio where they elect their Supreme Court, and said the video will give Members a flavor of what the election of judges would mean in Arizona today. He stated that political election processes are corrupt; they are rife with money and politics. He advised that 30 of our 50 states have gone to either retention elections as we have here in Arizona, with appointments for life by either commissions or by governors, and it works rather well. He disclosed that one of Arizona’s delegates to the American Bar Association just returned from San Antonio where their mid-winter meeting was held. The delegate told him that the things going on in the country in elections would “curl our hair.” More recently, Chief Justice Thomas Moyer of the Ohio Supreme Court had the following to say after these ads had played, and after an election had taken place in Ohio: “Candidates were outraged; citizens were outraged; I am outraged. And anyone who places their trust and confidence in a constitutional democracy should be outraged. This is the dark side of democracy.” He stated it is now being proposed that Arizona go to these elections. He submitted to Members that is wrong.
Chief Justice Jones revealed that in the early ‘60s and ‘70s, when lawyers went to court, one of the first things they would hear during an election year would be a statement from the judge either on the bench or in chambers that would go something like this: “Now, counsel, this is an election year. I am up for re-election. I would expect that your law firms make contributions to my campaign so I can be re-elected.” He said it was that blatant and that open. And of course, the clients wondered how much the opponent’s law firm was going to contribute to the campaign. The sole practitioner, who had no financial clout, had to stand opposite a lawyer from one of the large law firms in Phoenix, with the judge telling both of them that he expected contributions. He asserted that it was a corrupt system; it was a bad system. He stated there is not a single constitutional historian or scholar in this country who would recommend going back to the election of judges. He suggested that it is a pernicious practice that is being proposed, and in his view is coming from forces and influences which do not have the best interest of state government uppermost in their minds.
A handout prepared by the Arizona Supreme Court was distributed (Attachment 4).
Chairman Tully queried how these bills demean the institution of the court. Chief Justice Jones replied that the best evidence is probably what goes on in states that elect their judges. He said that, in his opinion, is demeaning. He noted that the state of Texas still elects judges. The office of the Chief Justice in Texas carries a campaign price tag of between $3 and $5 million, according to Chief Justice Phillips of that state who is working with the Legislature of Texas and the governor to try to move away from that system into the system we have. It is demeaning in the sense of politics; it is demeaning in the sense of the corrupt influence that money brings to judicial campaigns. That is a clear reason why these measures would demean the courts and would be to some extent destructive of a cherished institution on the part of the people. He wondered what the motive is, and whether it is an attempt to make the courts better for the people or an attempt to make them such that they respond to the political ideals of a certain segment. He maintained that the latter course is the wrong course.
Chairman Tully referred to comments made that when money and politics are injected, the system is corrupt. He said the legislative system involves money and politics, and asked whether there is the suggestion that the legislative process is corrupt. Chief Justice Jones replied in the negative. He said the judicial branch engages in a judicial analysis process, not to be subjected to the day-to-day political whims of one party or another party. The legislative role is very political. The Legislature is intent on hearing political arguments and making policy under the authority of the majority of the Legislature. The judicial process is radically different from the political process.
Mr. Downing asked whether the will of the people would be interpreted, when they voted in Clean Elections, to indicate they concurred that it would be best to remove partisan-based money from the political process. Chief Justice Jones feels there is a link between the two. That is why there is merit selection among judges; to reduce the politicization in the selection process of judges.
To that point, Mr. Downing questioned where that would lead to, if the sponsors of this bill, who have not been noted as supporters of Clean Elections, agree that the judiciary could only be run “clean.” Chief Justice Jones answered that it would create quite a contradiction in ideology and philosophy.
Mr. Miranda asked Chief Justice Jones to address the checks and balance system. Chief Justice Jones replied that within the separation-of-powers doctrine, the framers of the Constitution determined that government should function in a tripartite fashion, with three branches, each co-equal with the others, each independent of the others, within the sphere of their responsibilities. The checks and balance system is there. The Legislature operates in a decidedly majoritarian manner. The courts, on the other hand, are decidedly non-majoritarian in their make-up and in their structure. When a court makes a decision, it may well be to protect the guaranteed fundamental constitutional right of a single individual. It may even be against the will of the majority from time to time. He brought up Brown v. The Board of Education as an example and noted that it was not a popular decision. He stated that the majoritarian role in the legislative chamber, as opposed to the individualistic role that must have sway in our courts, are vastly different and that is why one serves as a check on the other. This body controls the purse. The Executive Branch controls the sword, according to Alexander Hamilton’s ‘78 federalist paper. The Judicial Branch has nothing more than the power of judgment. The Judicial Branch has to have the public trust and confidence of the people in order to make the judgments of the Supreme Court stick. That is true at the national level and true in every one of the 50 states, regardless of the systems they use. Checks and balances are very important to the process.
Chairman Tully asked whether the concern is that some of these bills might upset the balance between the three branches, and whether the branches of government in Arizona currently are adequately balanced. Chief Justice Jones answered in the affirmative.
Chairman Tully queried whether it is possible for them to become unbalanced. Chief Justice Jones replied that he would agree it is possible for them to become unbalanced.
Chairman Tully said he assumes it is the Chief Justice’s position that prior to 1974, the branches were unbalanced. Chief Justice Jones said that was a long time ago and he is not sure the answer to that is a yes or a no. When decisions were made prior to 1974, there could have been some imbalance by reason of the contributing funds into the process. He advised he and his four colleagues never sit in conference to discuss a case and ask themselves what impact it will have on the political scene. That is not the point of the judicial process. The point is to determine the law and then apply it equally to everyone. Prior to 1974, there was probably some imbalance; however, he said he does not sense that any more in this state.
Chairman Tully referred to the concern about the initiative process being bad in that it allows outside money to come in and make changes. He asked whether it is the sense of the Supreme Court that our initiative process is being abused. Chief Justice Jones replied that he has sensed that outside money interests have been brought into our state to influence the decision-making that should be vested here, and he thinks that is dangerous. He revealed that he is not against the initiative process per se, because it was placed in our Constitution to give the people a voice, but it can be misused. He said he believes it has been misused in the state of Arizona during the past ten years.
Chairman Tully brought up the comment about the populous vote; however, he said an argument has been presented here today against it with regard to the populous election of judges. Chief Justice Jones said he was only arguing against it in the sense that some of these measures are subject to question. He said he is not arguing against the initiative process, per se. He pointed out that the election of judges is not the initiative process.
Mr. Graf referred to the concern about the number of bills that have been introduced, and asked the Chief Justice to comment on why so many bills have come forward this year. Chief Justice Jones said that is a question that needs to be addressed to the sponsor of the bills. He said he has opinions and can only speculate as to what he thinks.
Mr. Graf referred to comments made about separation of power, that all have roles to play, and that the legislative body has control over the purse. He stated that one of the reasons for the number of bills is the fact of who is playing what role. The legislative concern and the reason this many bills have come forward is the effect of judicial activism. The Legislature tried passing a budget last year and obviously the Executive Branch decided to try to change the rules. He said one would think that the courts would have supported the legislative body in the role as the appropriator, and yet that did not happen. He asked for comment on that. Chief Justice Jones replied that the courts hand down tens of thousands of decisions a year. Only a few ever reach the media or have a degree of notoriety. Usually those cases are those that have political overtones to them. He stated that the court knows when there are political overtones in a decision, yet it tries to apply the law. The budget case referred to was a clear exercise of judicial restraint where the court, for a variety of reasons, chose not to inject itself into the political process. He said the issue should have been resolved between the political branches. He agreed that it is true the Legislature controls the purse strings of the state, but the Legislature has Constitutional responsibilities. One of those responsibilities is for the Legislature to adequately fund the other branches of government. There is constitutional history to that effect. He said he does not perceive activist attitudes on the part of the Supreme Court of Arizona. The courts have attempted to bring about an evolution in the law that is appropriate for the people and appropriate for the other branches of government.
Mr. Graf agreed that the three branches all have their own roles to play. He said he thinks the judicial role is to interpret the Constitution, make sure it is applied fairly and interpret the law. He said he does not think the Legislature was asking the courts on the budget issue to decide how it should be spending the money; it just wanted a decision
Chairman Tully said he does not want to debate any cases here today.
Mr. Graf declared that all the Legislature needed was a response advising whether or not things were going correctly between the branches. He said he just does not think that was done, and said he believes that is paramount to why there are as many bills before the Legislature this year dealing with this. Chief Justice Jones disclosed that the courts did not leave all the issues unanswered in that decision. In the final analysis, the interpretation of the Constitution, as Justice Marshall said 200 years ago, is for the courts to interpret. That is the responsibility the courts have. He related the court today is completely different from the court when he came to the bench; however, the court does not change its stripes because it is bound by stare decisis, the rule of law established years ago, unless there is some sound reason warranted by the times or technology to change a rule of law.
Mr. Robson noted that he has sponsored a Concurrent Resolution on designating party affiliation on the retention ballot. He asked Chief Justice Jones’ opinion on that. Chief Justice Jones said he understands the question and the motivation but, again, there are always unintended consequences to these things. When an R or D designation is put opposite a candidate’s name on a ballot, it will further politicize the process. There are some concerns that the designation has nothing to do with the legal ability or the judicial ideology of the particular individual. It would politicize the process to a point where it would impact the independence of the judiciary and the power to make judgment as a judiciary.
Mr. Wagner questioned whether the Commission members who investigate nominees for the bench are political. Chief Justice Jones replied that the people on these commissions have been carefully chosen. They are upstanding citizens. They check the background of every candidate thoroughly. He said he is totally convinced that politics does not play a role in that process. He said he cannot say that politics has been completely eliminated from the commission process. There is a lot of calling going on and lobbying of commission members. But it is the best system found in these United States that has eliminated the political influence from the process as much as possible. There are members from both parties on the commissions and they are wonderful people. They are among Arizona’s best citizens. They have the best interests of the people of Arizona at heart.
Mr. Gray mentioned that he knows of one appellate court judge who would prefer election of judges. He referred to the comment made that any time the Constitution is changed, there are unintended consequences, and he asked what those might have been for the election of judges for the past 30 years. Chief Justice Jones said he is not sure he follows that question; however, it is known nationwide that merit selection is the best system.
Mr. Pierce opined that both election of judges and merit selection of judges have problems. Chief Justice Jones agreed. He said there are vast differences between the two that make sense, and there is value of incumbency in rural areas.
Mr. Miranda maintained that it is important to have impartial judges. The change in 1974 was proactive and visionary because of Arizona’s growth. He opined that if there is anything the Legislature needs to address, it should be the selection process.
CONSIDERATION OF BILLS:
Katy Proctor, Majority Research Analyst, advised that H.B. 2386 requires all Superior Court judges to be elected (Attachment 5). The bill contains a conditional enactment clause requiring a Constitutional amendment at the next general election for the bill to become effective.
Mr. Gray stated that the current system does produce quality, but he thinks the system does have downsides. He related there is a growing distrust of the judiciary among the people and there are some changes that need to be made. He said there has been only one judge not retained in 30 years. He thinks the advantage of incumbency is more pronounced in Maricopa and Pima Counties than in rural counties. There is never a change because of incumbency. The retention system prohibits the free market expression of ideas. In rural counties, voters have input into who will be elected. He said misuse of power is not seen in the rural counties. He said he thinks the current system has flaws. Election of judges will quell the growing distrust of the judiciary by the public. He encouraged Members to consider supporting H.B. 2386.
In response to Chairman Tully, Mr. Gray replied the largest sense of distrust is at the Superior Court, and there is a growing distrust in the Supreme Court. He said his bill separates the election of judges by County Board of Supervisor districts in order to avoid voter fatigue. He thinks voters in a district will be able to know the candidates better.
Mr. Straughn commented that judges do not rule by supervisory boundaries. Mr. Gray said that currently judges are ruling countywide, so he does not see a problem. He sees this as an improvement rather than a negative.
Mr. Straughn said that if these elections are broken down by supervisory districts, he does not see the populous vote. Mr. Gray countered by saying it would spread more equality across the county. County election of judges would be more reflective of the area.
Mr. Yarbrough queried the number of judges or justices on the ballot for retention since 1974 who have not been retained. He also asked how many justices or judges have been appointed by the governor from a party other than the governor’s party. Chairman Tully directed staff to provide that information.
Mr. Wagner asked Mr. Gray if he advocates this to be a partisan or nonpartisan election. Mr. Gray replied that the way the bill is constructed is nonpartisan.
Mr. Wagner asked Mr. Gray if he advocates clean election funding or traditional funding. Mr. Gray said he opposes clean election funding, but in a judicial election, he would support clean elections for judges because it would offer a way for judges to be elected without heavy money influences.
Chairman Tully announced that he had Request to Speak forms from the following people who are in opposition of House Bill 2386:
Christine Thompson, Director, Government Affairs, State Bar of Arizona
David Benton, Legislative Officer, Administrative Office of the Courts
Ashley Fritz, Government Relations Director, Maricopa County Superior Court
Marty Lieberman, representing himself
Roberta Voss, representing Trial Courts of Maricopa County
Mr. Yarbrough said he has just been informed that since merit selection, two judges were not retained. He said he is still curious to find out the total number.
Barbara Rodriguez Mundell, Associate Presiding Judge, Maricopa County Superior Court, testified against H.B. 2386. She concurred with all the statements made by Chief Justice Jones and with the concerns the judiciary has with this bill. She said she has been through a couple of retention elections. She stated that direct election of judges will reduce the number of minorities on the bench. Studies conducted in both Texas and California indicate that minority representation will be decreased as a result of direct elections because minorities lack political power and influence, and do not have the resources to run for office. She related that 17 percent of the bench in Maricopa County is comprised of minorities. She believes the merit selection process is the appropriate vehicle to expand the number of minorities on the bench.
Chairman Tully asked Judge Mundell whether it is her position that a meritorious minority is less likely to succeed at election than with this system. Judge Mundell replied in the affirmative.
In reply to Chairman Tully, Judge Mundell agreed that ethnicity is taken into account in the merit selection process.
In response to Chairman Tully, Judge Mundell opined that the merit selection system is working very well. She said she does not think she would have been appointed to the bench but for merit selection.
Mr. Miranda remarked that some comments raised about the system were made because of decisions, rather than concern with the system.
Mr. Wagner wondered how the district would be selected for a judge to sit in. Judge Mundell said she has absolutely no idea. Mr. Wagner concurred. Mr. Gray stated that the provisions within his bill try to mirror the supervisory districts. He disclosed that the intent of the bill is to address voter fatigue.
Mr. Miranda claimed it is important to keep in mind that we all seek diversity because it brings the points of views of a wide spectrum of our society. He said he is glad to hear remarks that the merit selection process brings that diversity. He believes diversity is at risk if the system is changed to direct election.
Chief Justice Charles Jones, Arizona Supreme Court, expressed opposition to H.B. 2386. He commented that there are some very subtle notions at play here when dealing with the election of judges.
Chairman Tully announced that he had Request to Speak forms from the following people who are in opposition to House Bill 2386:
Andy Federhar, representing himself
David Derickson, Legislative Liaison, Arizona Attorneys for Criminal Justice (AACJ)
Eleanor Miller, representing herself, spoke against H.B. 2386. She testified that she opposes the direct election of judges; however, she has a great deal of disagreement with some of the remarks made about merit selection. The fact that only two judges have not been retained over the last 30 years speaks for itself. One of the issues that is a great concern is when there is a judge on the bench who is not a good judge, there is absolutely no way to remove that judge. There is no way for the voters to know that person should be removed from the bench. There is no impeachment process. Until that judge does something so grossly inappropriate that it goes to the Judicial Commission because of a complaint made, that judge will remain on the bench. She opined that is not a good system. She said another concern is that a judge should not be appointed because of ethnicity or gender. She maintained that the problems with the merit selection process should be addressed. The process, including the people on the Commission, are very political, and she thinks the Legislature should look at that issue.
Chairman Tully said the reason for these bills is there is a feeling that the justice system is not functioning well. He asked Ms. Miller whether she thinks there is value in having minority representation on the bench. Ms. Miller agreed. She said she believes in diversity on the bench, however, there are instances when people are appointed solely because of ethnicity or gender. That is the problem because if the person turns out to not be a good judge, there is no way for that person to be removed.
Chairman Tully asked Ms. Miller to submit her recommendations for improvement of the system.
Mr. Downing commented that if only two people have been removed from the bench, would that not be an indication of a good merit system. Ms. Miller replied in the negative.
Susan Edwards, representing herself, testified against H.B. 2386. She advised she has been a public member of the Judicial Commission for three and a half years, and is impressed by the quality and the dedication of the people in the justice system. The system is not perfect but she thinks it is the best system we have. She submitted that the current system is proven, and changing it will denigrate and cheapen the system. She stated that Arizona has not been named the best court in the country by accident.
In reply to Mr. Gray, Ms. Edwards said that the U.S. Chamber of Commerce named Arizona as the best court in the nation.
Chairman Tully announced that H.B. 2386 will be held.
Katy Proctor, Majority Research Analyst, stated that H.C.R. 2019 amends the Arizona Constitution to provide for the election of Supreme Court justices and Superior Court judges (Attachment 6).
Ms. Proctor explained the Gray five-page amendment dated 2/10/04 at 4:15 p.m. removes the requirement for Superior Court judges to be elected but retains the requirement for Supreme Court and Appellate Court justices to be elected (Attachment 7).
Ms. Proctor explained the Gray four-page amendment dated 2/10/04 at 4:17 p.m. removes the requirement for Supreme Court justices to be elected but retains the requirement for Superior Court and Appellate Court judges to be elected (Attachment 8).
Ms. Proctor explained the Gray five-page amendment dated 2/10/04 at 5:10 p.m. removes the requirement for Appellate Court judges to be elected (Attachment 9).
Mr. Gray explained the purpose of the proposed amendments. Since the language on Appellate Court judges was already in the original bill, an amendment was proposed to remove these judges. He said the other two amendments are proposed as options to the Committee. He said the most pressing issue, where there is the most discontent, is with the Superior Court.
Mr. Wagner queried whether this
Concurrent Resolution is contingent upon the passage of
H.B. 2386. Chairman Tully replied that the opposite is true. Mr. Gray said
that H.B. 2386 is contingent upon this passing.
Mr. Straughn wondered whether the H.C.R. proposes to elect judges by supervisory districts. Ms. Proctor replied in the affirmative. She said judges must reside in the specific district in which they are elected.
Chairman Tully announced that he had Request to Speak forms from the following people who are opposed to H.C.R. 2018:
Christine Thompson, Director, State Bar of Arizona
David Benton, Legislative Officer, Administrative Office of the Courts
Eric Ehst, Arizona Advocacy Network
Ashley Fritz, Director, Government Relations, Maricopa County Superior Court
Marty Lieberman, representing himself
Roberta Voss, representing Trial Courts of Maricopa County
Bret Huggins, representing himself, testified in support of H.C.R. 2018. He advised that he is a former elected judge in rural Arizona. He commended Representative Gray for bringing this legislation forward. He said it is a day to celebrate democracy; the right of access to our government and our courts. He said there is no democracy in the court system or the court process at the present time. It is difficult, if not impossible, for the judiciary to speak out. The Legislature created the merit system in 1974 to improve the judiciary. A compromise agreement was reached to exclude rural counties. Since 1974, not one rural county has opted to go to the merit system. He stated that merit selection is not representative. The merit system is controlled by the judiciary and the State Bar. There is no check by the public. He said he strongly recommends democratizing the courts. He said he would much rather have a system where he can choose rather than have it chosen for him. He encouraged Members to consider term limits for judges. He said it bothers him to hear the Chief Justice say that he will be removed by age, and raised the issues of merit, quality of decisions, and standing up for rights of minorities.
Mr. Miranda asked Mr. Huggins whether he is suggesting that a non-lawyer has a role to play in Superior Court in deciding decisions that involve complex legal decisions. Mr. Huggins replied that he is absolutely suggesting that.
Mr. Miranda brought up Mr. Huggins’ comment that judges and justices should be questioned regarding their decisions, and currently there is no opportunity to question those decisions. Mr. Huggins suggested that the public should determine whether or not a judge is retained, based on his conduct and his decisions on the bench. He asserted that the greater issues need to be debated, and interested people should be able to discuss and debate whether decisions are correct.
In response to Mr. Wagner, Mr. Huggins said he believes clean election funding is a good idea for judges. He spoke of the need to ensure that decisions made are based on merit.
Chairman Tully announced that he had a Request to Speak form from the following person who is in favor of H.C.R. 2018:
John MacMullin, representing self
Chairman Tully announced that he had Request to Speak forms from the following people who are in opposition to H.C.R. 2018:
Andrew Federhar, representing himself
Jojene Mills, Past President, Arizona Trial Lawyers Association
Andy Federhar, representing himself
Yvonne Hunter, Pinnacle West Capital Corporation/APS
Sidney Marable, President, Arizona Trial Lawyers Association
Chairman Tully asked for suggestions to improve the system.
Chairman Tully announced that he had Request to Speak forms from the following people who are in opposition to H.C.R. 2018:
Susan Edwards, representing herself
David Derickson, Legislative Liaison, Arizona Attorneys for Criminal Justice (AACJ)
Eleanor Miller, representing herself
Gini McGirr, President, League of Women Voters of Arizona
Chairman Tully announced that H.C.R. 2018 will be held.
PRESENTATIONS:
Ken Berringer, Legal Counsel, Legislative Council, gave a presentation on Court Clerks. He advised that Clerks hold a unique position in that they are elected officials in addition to being under the supervisory jurisdiction of the courts. It has been suggested that Clerks are elected because of their function as a money handler, and it was believed that frequent review by the voters was the best way of protecting the public treasury. The Clerks of the Superior Court have to answer to two masters. They have to answer to the people through the election process. They also must meet these needs under the authority and within the constraints of law and court rule.
Ruth McGregor, Vice Chief Justice, Arizona Supreme Court, gave a PowerPoint presentation on the Commission on Technology (Attachment 11). An informational pamphlet on the Commission was distributed (Attachment 12). The Constitution of Arizona vests the judicial power in an integrated judicial department. The Supreme Court has administrative supervision over all the courts of the state and the Chief Justice is designated by the Constitution to exercise administrative supervision over all the courts of the state. The placement of the Commission on Technology within the administrative structure of the court shows the importance of the Commission. Policies and procedures, and what can be accomplished, depend on the technology available. The Commission on Technology answers to the Judicial Council, and through the Council, to the Chief Justice of the Supreme Court.
Vice Chief Justice McGregor advised that in 1990 the Commission on the Courts made recommendations to require automation of the court system. It made the following recommendations: establish data standards, establish a governing commission, develop an automation funding system and establish a statewide data network. The Chief Justice established the Commission on Technology in 1992. At that time, 80 percent of the courts were without basic automation, there was incomplete and insufficient funding and there was the need too move from a paper or analog system to a digital information system.
Vice Chief Justice McGregor advised that as Arizona was transitioning from a small rural state to large urban centers, the courts were transitioning from a decentralized to an integrated court system. The courts were taking in millions of dollars in the course of a year. It was being done by paper, sometimes not recorded, and there was no way to exercise audit controls over what was going on the courts. To solve the situation, the Judicial Collection Enforcement Fund (JCEF) was created, a statewide infrastructure was set up, key technologies were standardized, core applications were standardized, limited support resources were leveraged, and local activity was coordinated and leveraged.
Vice Chief Justice McGregor reviewed the challenges currently facing the Commission: aging technology, escalating business demand, integration/collaboration, business process complexity, field support and trailing, funding, data quality and reuse of local innovations.
Vice Chief Justice McGregor advised that the reason for her presentation is to let Members understand how the Commission on Technology works within the court system, and how central it is to the administrative branch of the judiciary. In addition, she stated that the Commission on Technology has worked very well, taking the court system from one that was entirely fragmented and not automated, to a statewide network.
CONSIDERATION OF BILLS:
Katy Proctor, Majority Research Analyst, advised that H.B. 2260 prescribes approval requirements before monies may be spent from the State Aid to the Courts Fund, the Local Courts Assistance Fund and the Judicial Collection Enhancement Fund, and requires the Auditor General to conduct an audit of the Administrative Office of the Court (AOC) (Attachment 13).
Ms. Proctor explained that the Tully four-page strike-everything amendment dated 2/10/04 contains many provisions similar to the underlying bill (Attachment 14). The reporting language is the same except the requirement to report to the Boards of Supervisors is removed. The strike-everything amendment contains a requirement for the Auditor General to conduct a performance audit of the Administrative Office of the Courts and specifies the scope of the audit.
Tonia Tunnell, Government Affairs Manager, Arizona Association of Counties, spoke in support of H.B. 2260. She related that negotiations continue with the Vice Chief Justice and the AOC on the strike-everything amendment. The first issue being addressed in the bill is local control. The courts want an integrated system with Judicial Collection Enhancement Fund (JCEF) monies. A percentage of those funds stay in the local courts for their use, and it is believed that they have the authority to use those funds. After the local courts tell AOC how the funds are to be used, they must again ask for further approval. The strike-everything amendment stipulates that local courts be able to use those funds as long as they are consistent with the strategic plan.
Chairman Tully asked for clarification that Library, Archives and Public Records need a copy of each report to be preserved for the historical record.
Roberta Voss, representing the Arizona Library Association, explained that whenever there is an audit of a municipal, county or state agency report, Library and Archives wants all reports and audits sent to them for archival filing.
Chairman Tully asked whether that concern has been dealt with. Ms. Voss said that if this legislation goes forward, she would want to ensure that the language is consistent with the rest of statute that allows Library and Archives to have copies of reports.
Ms. Tunnell said the Association would be happy to work with Library and Archives on the strategic plan.
Mr. Miranda stated that the Arizona Constitution calls for an integrated court system and places the Supreme Court in a monitoring role, and he asked what the proposed changes would do to that. Ms. Tunnell explained that the strategic plan lays out general parameters on how the funds are to be spent. She maintained that it is unreasonable to require local courts to ask for additional permission before any of the funds are spent. She stated that is micromanaging. She said it is a repetitive and duplicative effort, and a waste of resources.
Mr. Miranda wondered whether the framers of the Constitution meant there be a coordinated effort, especially when it deals with the judicial system. Ms. Tunnell said she is not arguing coordination, she is arguing micromanaging.
Patricia Noland, Clerk of the Superior Court, Pima County, testified in support of the strike-everything amendment to H.B. 2260. She said the Clerks of the Court deal with a lot of money. The Clerks follow a strategic plan that they file with the courts every year. In the early ‘90s, the Legislature agreed to automate the smaller courts around the state. In 1996, Pima and Maricopa County asked the Legislature for automation funds and priorities. The Supreme Court and the Administrative Office of the Courts agreed to give Pima and Maricopa Counties priority. In 2001, a priority was given to try to handle financial needs, but it could not be done with the current system. Pima and Maricopa had to keep up with technology because of the volume of people they deal with. The Clerks are simply asking for the ability to make a decision on local funds. She revealed that most of Pima and Maricopa County technology has been funded by its taxpayers. She thinks the Clerks and the courts are very close to an agreement on this issue.
Michael Jeanes, Clerk of the Superior Court, Maricopa County and Arizona Association of Superior Court Clerks, spoke in support of the strike-everything amendment to H.B. 2260. He advised that the Clerks submit a strategic plan to the Supreme Court that is approved by the Commission on Technology. The Clerks are not objecting to that; it is important to ensure that the various courts can work together and share information. The issue here is making sure there are streamline processes to create more efficiency, eliminate redundancy and ensure participation by those individuals affected by decisions of the court and the Commission on Technology.
Mr. Miranda expressed his concern of oversight and coordination that could have a disproportionate effect on the system. He said that ultimately the Chief Justice is responsible for our court system and how it functions. He said he believes the counties should be given control over their own funds; however, the court system is different because it overlaps.
Mr. Jeanes agreed. For that reason, a strategic plan is submitted to the Supreme Court annually. The Clerks concern is where they have already reported to the Supreme Court, had a plan approved by the Supreme Court as to how funds are to be spent, and then having to go back and ask again. This legislation asks that if the information is in the plan, and the plan has been approved by the Commission on Technology and the Supreme Court, there should not be a redundant step to again seek approval to spend monies are already in the plan that have already been approved. It is an issue of redundancy and trying to streamline the process.
In response to Mr. Downing, Mr. Jeanes answered that the courts are working toward a system where a person can access information by logging on to one system. He said this legislation would not impact that. Mr. Downing commented that he has heard a lot about coordination but he does not see it here. Mr. Jeans said that is the goal; however, he again stated this bill does not address that issue.
Ruth McGregor, Vice Chief Justice, Arizona Supreme Court, spoke against the strike-everything amendment to H.B. 2260. She related that both H.B. 2260 and 2261 are used by all parts of the court system and none of those groups are here asking for these changes. H.B. 2260 changes the method of getting approval of local JCEF funds. This is talking about millions of dollars. She asserted that it would be irresponsible on the courts part to not have accountability of these funds. She stated that it is essential to have some oversight on these funds. She does not think the strategic plans are sufficient now; they only deal with technology. JCEF funds are much broader. She does not want to have millions of dollars of JCEF funds spent without oversight on the state level. She asked that this legislation not be passed.
Mr. Miranda asked whether the threshold is $250,000. Vice Chief Justice McGregor said that is the point that local JCEF funds have to go to the Commission on Technology for approval.
Chairman Tully announced that he had Request to Speak forms from the following people who are in opposition to House Bill 2260:
Robert Dorfman, Presiding Judge, Phoenix Municipal Court
Roberta Voss, representing Trial Courts of Maricopa County
David Benton, Legislative Officer, Administrative Office of the Courts
Bob Brutinel, Presiding Judge of the Superior Court, Yavapai County, testified in opposition to H.B. 2260 because of what it will do to existing projects. He has not had the opportunity to review the strike-everything amendment; however, he is favor of the parties trying to work out their differences. He related there is not a problem in Yavapai County. He encouraged Members not to change the current system.
Mr. Jeanes clarified that to spend any local JCEF funds, a form has to be filled out whether the amount is $1 or $25,000.
Chairman Tully announced that he had Request to Speak forms from the following people who are neutral on House Bill 2260:
Melanie Chesney, Performance Audit Director, Office of the Auditor General
Richard Pearce-Moses, Director of Digital Governmentt Information, State Library and Archives
Chairman Tully announced that H.B. 2260 will be held pending further work.
S/E: same subject – DISCUSSED AND HELD
Katy Proctor, Majority Research Analyst, explained that H.B. 2261 establishes the Commission on Technology in statute to administer and approve expenditures from the Judicial Collection Enhancement Fund (JCEF) (Attachment 15). The bill transfers the duties of approving plans to use JCEF monies from the Supreme Court to the new Commission on Technology, and makes conforming changes.
Ms. Proctor explained that the Tully four-page strike-everything amendment dated 2/10/04 establishes the Commission on Technology in statute (Attachment 16). The strike-everything amendment does not transfer the duties of administration of the JCEF from the Supreme Court to the new Commission but states that expenditures from the JCEF are subject to legislative appropriation as approved and directed by the new Commission.
Mr. Wagner queried whether the strike-everything amendment means that it will go to a legislative appropriation. Ms. Proctor replied in the affirmative.
Tonia Tunnell, Government Affairs Manager, Arizona Association of Counties, advised that the Association continues to work with the Administrative Office of the Courts. This legislation is an effort to bring more diversity to the process and input on how technology is going to be used, and seeks more openness and accountability on the use of funds.
Michael Jeanes, Clerk of Superior Court, Maricopa County and Arizona Superior Court Clerks Association, spoke in support of the strike-everything amendment to H.B. 2261. He clarified that this and the previous legislation are not simply Maricopa and Pima County issues. There is concern throughout the counties of the state. Decisions are being made by the Commission on Technology that have impacts on all the jurisdictions. Part of the purpose of this bill is to provide greater diversity and allow input to the system.
Patricia Noland, Clerk of the Superior Court, Pima County, testified in support of the strike-everything amendment to H.B. 2261. She said this bill and H.B. 2260 are about where the money goes. They are about opening up a system to provide more people with expertise, because getting information out of the courts affects everyone. The Clerks want to see more public input. The Clerks want to have some say and respect for the jobs they do for their presiding judges in operating the courts. This is not taking away from the Supreme Court’s oversight. She expressed support of H.B. 2261 and a change in the membership of the Commission on Technology.
Ruth McGregor, Vice Chief Justice, Arizona Supreme Court, expressed strong opposition to H.B. 2261 as presented. She said the courts are attempting to work out some agreement; however, the issue of most concern is that this bill creates a statutorily-created Commission on Technology to replace a standing Committee of the Arizona Supreme Court, a Committee that reports directly to the Arizona Judicial Council. It impacts an integral part of the administrative structure of one branch of government. She contended that technology decisions cannot be separated from any other administrative decisions. She urged Members to reject this measure that undermines an administrative structure that has been carefully set up.
Chairman Tully announced that he had Request to Speak forms from the following people who are opposed to House Bill 2261:
Robert Dorfman, Presiding Judge, Phoenix Municipal Court
Susan Edwards, representing herself
David Benton, Legislative Officer, Administrative Office of the Courts
Amber Wakeman, Government Relations, City of Tempe
Roberta Voss, representing Trial Courts of Maricopa County
Chairman Tully announced that H.B. 2261 will be held.
Without objection, the meeting adjourned at 1:05 p.m.
___________________________________
Joanne Bell, Committee Secretary
December 22, 2016
(Original minutes, attachments and tape on file in the Chief Clerk’s Office)
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COMMITTEE ON JUDICIARY
5
February 12, 2004
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