By AnnaLisa Barlin.
Arizona is one of 14 states that has adopted a judicial merit selection process. Under this system, judges have two pathways to the bench: (a) some judges run for office in contested elections and are elected by the voters, and (b) some judges are appointed by the governor based on recommendations from a non-partisan commission, which thoroughly investigates and assesses candidates.
Judges who are appointed by the governor must periodically stand for retention—meaning at the end of their statutorily defined term they must go through an election in which voters decide whether to retain them in office. Arizona’s retention election process, while not without its flaws, is designed to promote judicial accountability and encourage judges’ self-evaluation and continuous improvement.
Over the past three decades, Arizona has worked to refine and strengthen its judicial retention process, which has been regarded as “one of the most comprehensive and progressive systems for judging judges in the United States.” However, in June 2024, the Arizona Secretary of State signed Senate Concurrent Resolution 1044 (SCR 1044), popularly known as the Judicial Accountability Act. Contrary to its name, the resolution seeks to eliminate mandatory, periodic retention elections for appointed judges. In response to a challenge to its constitutionality, the Arizona Supreme Court ruled that SCR 1044 meets all relevant criteria, paving the way for it to appear on the November 2024 general election ballot.
Because concurrent resolutions are placed directly on the ballot to be considered by voters, they do not require Governor Katie Hobbs’s approval and are not subject to her veto. If voters pass SCR 1044, Arizona’s robust retention election system may be dismantled—exactly when two Supreme Court justices who upheld the abortion ban are up for retention.
Arizona’s Judicial Retention System
Article 6 of the Arizona constitution outlines the state’s merit selection and retention system. Under this system, Arizona Supreme Court justices, appellate judges, and superior court judges in counties with populations over 250,000 are appointed through the merit selection process and, thus, must stand for periodic retention. After serving their first two years, justices and judges will face their first retention election, and they are up for retention at the end of each full term thereafter.
Justices and appellate judges serve six-year terms, while superior court judges serve four-year terms. Before the general election preceding the end of their term, justices and judges must file a declaration of candidacy. If properly filed, their names are placed on the upcoming general election ballot, and voters will decide whether to retain them by marking “yes” or “no.” A justice or judge must receive a majority of “yes” votes to remain on the bench for another term.
To help voters make informed decisions, the Supreme Court established the Judicial Performance Review Commission (JPRC). All commission members are appointed by the Supreme Court, and they include some judges and lawyers, but are primarily non-lawyer residents from counties with merit-selected judges. The JPRC evaluates judicial officers throughout their retention periods using standards and methods set by the Supreme Court, and its findings are posted on its website prior to each general election.
Despite Arizona’s comprehensive process of judicial retention, performance reviews, and information sharing, it is exceedingly rare for justices and judges to be voted out of office. However, proponents—including Sandra Day O’Connor—have argued that this system is preferable to contested elections, as it better promotes judicial accountability and independence.
Senate Concurrent Resolution 1044
Despite the state’s long-time efforts to improve the retention election system, SCR 1044 aims to abolish it. First, the resolution eliminates term lengths for all judicial officials. Instead, justices and judges “shall hold office during good behavior.” This change would free appointed justices and judges from the obligation to stand for retention at the end of each term, taking away the right of voters to periodically decide whether they should remain in office.
With mandatory retention elections eliminated, SCR 1044 provides that a justice or judge must stand for retention only if any of five events occur: the justice or judge (1) is convicted of a felony offense; (2) is convicted of any crime involving fraud or dishonesty; (3) initiates personal bankruptcy proceedings as a debtor; (4) forecloses any mortgage for which they are a mortgagor; or (5) is determined by the JPRC to not meet judicial performance standards.
If none of these events occur, a judicial officer could serve for life without ever being accountable to the voters. Also, it is uncertain why some of these situations—particularly initiating bankruptcy or foreclosing a mortgage—should trigger a retention election, as these circumstances do not necessarily cast doubt on a judge’s ability to serve competently.
Does SCR 1044 Pose a Separation of Powers Concern?
SCR 1044 also aims to change the operations of the JPRC. Per article 6, section 42 of the Arizona constitution, the Supreme Court “shall adopt…a process, established by court rules for evaluating judicial performance,” which is language SCR 1044 does not seek to change. The Supreme Court has exercised this constitutional mandate by establishing the JPRC and formulating Rules of Procedure that the commission must follow. Rule 2(a) states, “The Commission is comprised of 34 members appointed by the Supreme Court.”
However, via SCR 1044, the legislature is trying to amend section 42 by providing that each legislative chamber shall appoint one member to the JPRC. Additionally, SCR 1044 would require the JPRC to investigate “an allegation that a justice or judge has engaged in a pattern of malfeasance in office” upon the written request of a single legislator.
Through these proposed changes, SCR 1044 seems to be taking authority that the constitution grants only to the judiciary—the powers to appoint JPRC members and to control the judicial performance review process—to the legislature. While this may not constitute a separation of powers issue, it raises concerns that the legislature is attempting to assume judicial functions and grant itself greater power to monitor and investigate judges.
What’s Next?
One of the most concerning aspects of SCR 1044 is its retroactive application. If approved by the voters, the resolution will be deemed effective beginning October 31, 2024—effectively nullifying the judicial retention votes cast in the November 2024 election.
This retroactivity provision is particularly worrisome given that Supreme Court Justices Clint Bolick and Kathryn King are up for retention this year. Following their votes to uphold the near-total abortion ban in April 2024, fierce campaigns have been launched regarding their retention. While Arizonans have never voted a Supreme Court justice off the bench, this trend may change in light of public outrage over the Court’s recent decision. Yet, if SCR 1044 passes, voters’ anger will have no impact on their terms, and the removal of Justice Bolick and Justice King will be contingent upon narrow circumstances like bankruptcy rather than accountability to the electorate.
AnnaLisa Barlin is a second-year law student at the Sandra Day O’Connor College of Law. AnnaLisa serves as a Senior Fellow for the Marshall-Brennan Constitutional Literary Project and the 2L Representative for the Asian Pacific American Law Student Association. She is interested in labor and employment law, as well as immigration and refugee law.