Brennan Center for Justice

Download the Amicus Brief [PDF]

Article VI of the Arizona Constitution created the Commission on Appellate Court Appointments and requires the Commission to nominate “not less than three” candidates to the governor in order to fill judicial vacancies. In 2012, the legislature placed a referendum measure on the ballot to amend this article with Proposition 115, which would have increased the minimum number of candidates the Commission was required to nominate. Over 70 percent of Arizona voters rejected this measure.

In April 2013, the Arizona Legislature passed House Bill 2600, “requiring the Commission to submit at least five candidates to the Governor, but provides that on a two-thirds vote, the Commission may reject a candidate and ‘submit fewer than five names.’”  This measure was signed into law by Governor Brewer on April 5, 2013.

On July 12, 2013, four members of the Commission filed a petition for special action with the Arizona Supreme Court challenging the constitutionality of House Bill 2600. They argue House Bill 2600 should be revoked because increasing the required number of nominees and permitting the Commission to submit fewer than three nominees impermissibly changes the constitutional scheme. Moreover, Article XXI states that only the people of Arizona may amend their constitution. Any legislation that attempts to change the constitution violates the rights of the people.

The Brennan Center for Justice, along with Justice at Stake, filed an amicus curiae brief on August 7, 2013 to explain the virtues of merit selection of judges, and argue that the case presents an issue of serious public importance in changing the state’s separation of powers. This brief was filed with local counsel Lawrence Kasten from the firm Lewis and Roca, LLP. 

“In addition to the constitutional harm caused by overriding the voters’ clearly-expressed wishes, the enactment of legislation increasing the governor’s influence over the makeup of the judiciary risks violating fundamental separation of powers precepts,” states the brief. “It also risks undermining the public’s confidence in the independence of the judiciary in the process—which itself raises independent constitutional concerns.”