PHOENIX – Saying legislators acted unconstitutionally, the Arizona Supreme Court on Friday voided a measure designed to give Gov. Jan Brewer and her successors more choices when selecting judges.
In a unanimous ruling, the justices said lawmakers cannot mandate that there be at least five people nominated by special screening panels for the Supreme Court, Court of Appeals and the trial courts of Pima, Pinal and Maricopa counties.
Justice Scott Bales, writing for the court, said those panels are free to send as many names as they want to the governor, subject only to all not being of the same political party.
But he pointed out that the Arizona Constitution, as approved by voters in 1974, permits them to nominate just three. And Bales said the only way to boost that minimum is to take the issue back to voters.
Lawmakers did try that in 2012 with a proposal to require eight names be submitted -- only to rebuffed by voters by a 3-1 margin. But Rep. Justin Pierce, R-Mesa, said that measure may have been defeated because of other provisions it included, like extending the terms of justices.
But rather than recrafting the measure and putting it back on the ballot, Pierce pushed through what amounted to an end-run around the Constitution with a change in state law, something that does not require voter approval.
HB 2600, signed by Brewer, said the panels must send five names, but with what Piece said is an escape clause designed to make it constitutional: The panels could send just three -- but only with a two-thirds vote saying there are not more qualified applicants.
But Bales said lawmakers cannot require a two-thirds vote for screening panels to do what the Constitution already permits them to do.
“Even if the change were ‘merely procedural,’ the Legislature has no authority to statutorily mandate procedures inconsistent with Arizona’s Constitution,’’ Bales wrote. “When a state statute conflicts with Arizona’s Constitution, the constitution must prevail.’’
Pierce said Friday he remains convinced the governor should have more choices. So he is weighing whether to put another proposal to voters in 2014, this one limited to that question.
Some foes of the change argued that requiring more names to go to the governor would provide more opportunities for political patronage, giving the state’s chief executive a better shot of naming a political supporter.