Edwards: Prop 137 could irreparably damage our courts

By Susan Edwards | Co-founder of the Arizona Neighborhood Alliance

As a non-lawyer volunteer who has put thousands of hours into one of the finest state court systems in America, it is clear to me that our judicial retention system (“The O'Connor Judicial Selection Plan”) is not perfect. It is a national model, but it is led by people.

Proposition 137 destroys our model system, with insidious consequences.

I first volunteered for the Arizona Commission on the Courts in 1988-89, chaired by Eddie Basha. The commission was the brainchild of Chief Justice Frank Gordon, who foresaw massive growth and change for Arizona. He received a grant and recruited 150 people from across Arizona to look at our justice system and recommend ways to improve it. Part of his genius was to include public members such as lawyers, court staff, legislators, etc.

I have repeatedly raised the need:

1. A better system than the existing bar poll to give voters unbiased information about the judges we voted to retain; And
2. A quality improvement program for judges – which could work in a system with independent judges. There were none.

By 1992, Chief Justice Gordon implemented most of our recommendations. And Arizona voters overwhelmingly approved Proposition 109 and created the Commission on Judicial Performance Review – the only constitutionally authorized JPR in the country.

A crucial part of JPR's mission is quality improvement, where teams of volunteers meet with every judge and judge. I have been a member of conference teams and JPR. Since 1992, our court system has placed great emphasis on the active involvement of public volunteers. They understand that the best way to serve the public is to engage the public. And listen to us.

Public participation is a key reason Arizona is a national model. Prop 137 can destroy that. Who will want to serve in the JPR if the test is passed?

We have more public members on our JPR Commission than any other state, but we require a lot of time and effort from these unpaid volunteers. I am pragmatic and determined, but I never voted for Does Not Meet lightly because it impacts lives. I did it because it was right.

Prop 137 states that very few judges will not be retained, so voters will have to be happy. To put it another way: “Why bother voting?” They obviously didn't know that almost every cycle one or two justices resign/retire, rather than with a negative JPR vote or very poor numbers to appear on the ballot paper.

137 could put unbearable pressure on some JPR members. Because the vote only considers the names of judges who JPR determines do not meet the standards, some members will cave and vote “Completed” even though they shouldn't. Voters won't even see those with bad numbers. Arizona's legal system will pay the price.

Additionally, 137 would allow any lawmaker — anywhere in the state — to force JPR to investigate a magistrate for “a pattern of misconduct,” which is not defined. So a judge in Phoenix could rule against a friend/relative of a Page lawmaker. Even if it were unfounded, this law could force JPR to investigate the judge.

JPR already has a full plate, and that's not her job! That's why the Commission on Judicial Conduct exists. This shows how little the legislature knows about its proposals.

You're both in the construction business, but you're hiring an electrician, not a plumber, to do the wiring.

Why should judges take the quality improvement program seriously if Prop 137 passes?

Midway through each judge's term, each meets with a three-member volunteer “conference team” – an attorney, a judge and a public member. This involves discussing their survey results, any areas that need improvement, and their ideas for self-improvement.

In my experience, the best judges had an extensive list of ideas, while the worse judges' lists were short. One judge later gave it a “Fail” rating. You didn't see them on your ballot because they resigned.

I know if 137 were in effect they would still be on the bench potentially making decisions about your life.

Why should good lawyers sacrifice a lucrative practice to become judges when they might end up having to defend themselves against false accusations from a far-away legislator?

Prop 137 is a bad idea.

Editor's Note: Susan Edwards, a retired CFP in Phoenix, is president/co-founder of Arizona Neighborhood Alliance. She has served on the Arizona Supreme Court Commission on the Courts, the Phoenix Public Defender Contract Review Committee, the Arizona Judicial Council, the Judicial Performance Commission, the JPR Conference Teams, and the US District Court Flagstaff Magistrate Judge Selection Panel and is a recipient of the Outstanding Contribution of the Chief Justice of the Arizona Supreme Court for the Courts Award. Reader reactions, whether for or against, are welcome [email protected].