Horizon, Host: Ted Simons

April 5, 2006


Host: Michael Grant

Judicial Merit


  • HORIZON explores judicial merit selection. Maricopa County is one of two counties in Arizona that appoints judges based on merit. With a fast growing state, can merit selection improve the judicial system? Michael Grant interviews local leaders on both sides of the issue.
Guests:
  • Sandra Day O’Connor - Former U.S. Supreme Court justice
  • Pete Rios - State representative


View Transcript
Michael Grant:
Tonight on "Horizon" -- Judicial merit selection, does it help choose the right people for the bench? It's a process, which Maricopa and Pima counties have been using for over three decades. Now, as the state's population continues to grow, so does the probability of judicial appointments based on merit selection. It's an issue that is back on the debate table. Tonight, we'll discuss the pros and cons of judicial merit selection, next on "Horizon."


Announcer:
Horizon is made possible by contributions from the friends of 8, members of your Arizona PBS station.

Michael Grant:
Good evening. I'm Michael Grant. Welcome to "Horizon." Before we get to the issue of merit selection, there is a big issue from the law world. Arizona State University is naming the college of law after retired Supreme Court justice Sandra Day O'Connor. At a ceremony today at the "Sandra Day O'Connor College of Law," governor Napolitano called O'Connor "Arizona's gift to the national legal community". O'Connor spent her early childhood in Duncan, Arizona and attended Stanford university, where she earned her bachelor's and law degrees. She retired from the Supreme Court last July.

Michael Grant:
This fall voters in Pinal county will be doing something that can't be done in Maricopa and pima counties -- electing county judges. In 1974, voters allowed merit selection to determine judges in the two largest counties. Prospective judges in the other counties must undergo the rigors of politicking. Larry Lemmons: Lemmons takes us to Pinal County where two candidates are fighting to preside.

Brenda Herrod:
I'm looking for democrats to sign my nominating petition. I'm a member of the Pinal community, my home is just up the road and I'm looking for supporters here in the area that could sign my petition and consequently vote for me. Would you be able to do that.

Larry Lemmons:
Gold canyon's Brenda Oldham is running for a Pinal County office. She's doing what any candidate would do in her situation. Meeting the voters and shaking hands and offering credentials. Pinal County is nestled between Maricopa and Pima counties. She hopes to replace the incumbent, April Elliot. The honorable April Elliot, judge, division 8 of the superior court of Arizona.

April Elliot:
Having served as a family law commissioner where I did child support enforcement, individuals like you are few and far between so thank you for doing what you were supposed to do and paying your child support as ordered.

Larry Lemmons:
Maricopa and Pima counties are the only two counties that choose judges by merit election. In 1974, an amendment was made to the Arizona constitution to allow the two most populous counties to choose judges in this way. Elliot was appointed to the new position by governor Janet Napolitano in 2005. Now she must win the seat by election. Five judges are up for election. Two races are contested, Elliot is a republican. A republican has never been elected to a county-wide office in Pinal County.

April Elliot:
I thought it is ironic that you have to declare your party affiliation to get a job that requires you to be nonpartisan when you are there.

Larry Lemmons:
She receives the morning scheduling briefing from her scheduling agent Angel Holt.

Brenda Herrod:
I did receive that information and probably made notes in the file about that so we want to double check and make sure that the trial has gone away.

Larry Lemmons:
She has had a successful law practice for several years and focuses on family law and advocating for victims. Coincidentally, judge Elliot's court currently focuses on domestic relations, probate, and adoptions. Oldham says the electoral process can be tough but rewarding.

Brenda Herrod:
It is grueling, to say the least. It is a grueling experience. It is -- it takes a lot of energy. It takes a lot of time. But it is also really a great experience because I am a people person. I love to talk to people and I love getting out there and talking to the members of my community. I mean I am bonding. I'm meeting people. I'm getting to know things about people in the county that if I wasn't out walking on the streets at some of the activities and going to the community activities and the women's meetings and seniors clubs I would never have the opportunity to know that about the people in the community.

Larry Lemmons:
Elliot says she also enjoyed meeting the voters but running for election can intrude on her time as judge.

April Elliot:
It does. If you want to keep this job, you have to get out there and campaign and that is an advantage my opponent has in that she is not required to be here Monday through Friday 8:00 to 5:00 to serve the public. She can be out there doing it. It is hard. If you have a hearing go off, you can sort of then leave to go to various service club meetings or go out and gather signatures, but it is difficult and it is also difficult in terms of what the code of judicial conduct limits you in terms of being able to do while you campaign. Most people would probably -- I mean most other political candidates are able to actually personally solicit money and accept money. I cannot. That has to be done through my committee. They want you to run as a traditional candidate, but you can't do many of the same things a traditional candidate can do.

Brenda Herrod:
There is an advantage to not being appointed to this position in a county where elections are held for the judges. And the advantage certainly is that because I am in private practice I can manage my practice so that I may be more available to events in the community during the day than what someone who has been appointed to fill the position until an election can be held can do.

Larry Lemmons:
Merit selection has been promoted as an alternative to election. The highest state courts use the system.

April Elliot:
I think the reasoning behind it at least at the appellate and the supreme court level was to preserve sort of that independence and impartiality into the judiciary to remove you from the standard election things that go on in the election process and all the politics associated with it. Although there is a lot of politics that go on in terms of courting members of the merit selection committee so it is not completely removed from -- politics is not completely removed from the merit selection process, but it is removed to a greater degree than it is in the election process. And I think why they included Pima and Maricopa counties superior court judge level is because those counties had just become too large to run a campaign.

Larry Lemmons:
And there is a question of conflict of interest. Will a judge face an attorney who has contributed to a campaign?

Brenda Herrod:
You hit upon one of the difficulties in running for judicial office is the financial end of it. Because you have to avoid the impropriety of having any unethical issues and situations coming up, but at the same time you are not allowed as a judge to solicit contributions but your committee is allowed to accept them on your behalf. So it is a fine line. It's difficult, but it is important that you have to maintain that -- that distance from the money part of your campaign.

Brenda Herrod:
I'm running for superior court judge here in Pinal county. I'm looking for democrats or independents who will be able to sign my nominating petition.

Larry Lemmons:
Oldham will spend a lot of time in parking lots and various events between now and Election Day. But because of the kind of election in which she is involved, she can't be too much of a politician.

Brenda Herrod:
When you are running for a judicial position, it is in Pinal county political in nature. You have to be elected and go out and campaign and you have to politic, as they say. You have to. That is one of the things you have to do. What I personally am making sure of and I will make sure all through this process and I will make sure that people who are supporting my campaign committee, et cetera, that I am not going to lose sight of and become someone that I am not. I'm going to be true to my own character and true to who I am as an individual. So I am not going to change my position in order to talk to a certain individual or change my party affiliation in order to -- to win something. Because I would rather not be involved in the process if that is who I have to become because that is not who I am.

Peggy White:
It was filed last week and I told her we need to --

Larry Lemmons:
Elliot's judicial assistant Peggy White briefs the judge on the day's business. In the coming months while Elliot divides her time between judicial responsibilities and getting elected, she is worried about a legislative action that could affect judicial selection for years to come.

April Elliot:
There is obviously the Rios amendment that appears will be on the ballot in the fall to raise the level from 250,000 to 600,000 in counties presently under the election system. Right now if the population is 250,0000 or under you are elected. 250,000 and over goes to merit. The amendment would raise it to 600,000. It is whatever your feelings are, most of the public this isn't something that they think about on a day-to-day basis, but they should because they never know when they are going to be in the judicial system for a criminal matter or divorce or probate or things of that matter and they need to consider how the judges in this state are selected. And also something to consider down the road that if the voters approve that this fall and raise the limit to 600,000, there is discussion that there will be a provision on the ballot in 2008 to do away with merit selection all together. And I think we need to look to what has happened in other states in terms of, you know, million dollar Supreme Court justice elections that to me just doesn't instill confidence in the quality of our judiciary. It is how much money an individual has to spend and how well they are connected as opposed to how good of a judge they can actually be.

Michael Grant:
Earlier this year, retired Supreme Court justice Sandra Day O'Connor joined Horizonte host José Cardenas, where she spoke about judicial merit selection. This is what she had to say.

Sandra Day O'Connor:
And I can remember the good old days or bad old days when there were partisan elections for judges. When I first went on the superior court bench, I had to run in a partisan election. Now, at that time, it was lawyers appearing before the very judges who were running who would come up and give the campaign contributions. Now, what kind of a system is that? It is really kind of frightening. And you can see it today in some other states in the United States where there are partisan elections and the results are pretty frightening. We don't want to return to that, I hope.

Michael Grant:
Here now to talk about the Rios amendment is its namesake, state representative Pete Rios. And joining us is Cathi Herrod, president of the center for Arizona policy. Welcome to you both. Representative Rios, give us a broad sketch of what your HCR would go to the ballot, would do.

Pete Rios:
This would allow the people of the state of Arizona to decide whether or not they want to allow judges in rural counties to continue running for election as opposed to being appointed by the governor. What I do is I raise the threshold from 250,000 in population to 600,000. It leaves Maricopa and Pima County alone. They would still be under merit selection of judges.

Michael Grant:
Is Pinal county the only one knocking on the door of that 250 limit?

Michael Grant:
Coconino might be getting somewhat close.

Pete Rios:
Pinal county is at 250,000 already if you look at the numbers under DES. Yavapai County is next and then Yuma County is 178,000 in third place.

Michael Grant:
Here is the argument. At 250, one of the rationales for a quarter of a million is, is that small enough that people can really know the judicial candidates, they can press a lot of flesh, they can maybe press substantial percentage of that flesh. Take it up to 600,000 and you don't have that kind of contact and familiarity.

Pete Rios:
At 250,000 we have eight superior court judges. They run staggered terms so every two years four of them run. People know them by name. They appreciate that they are out there in the community in parades, at barbecues and union functions and social functions. At 600,000 we would have 20 judges. Staggered terms means they run 10 every two years. Beyond that point, people lose contact with the judges. That is why I picked the figure 600,000.

Michael Grant:
Cathi, what is the center's take on merit selection generally?

Cathi Herrod:
Generally we oppose merit selection, we believe that merit selection simply is controlled by the judges and the lawyers, that the commissions that nominate judges that are then appointed by the governor basically lack a check and balance. The legislative branch, for example, has a minimal nominal role. We don't support election of judges either. Not elections, not merit selections, but basically A modified federal model where the governor appoints judges and the senate confirms and then confirms and then a system of checks and balances where judicial activism means something, and 30 senators every two years up for elections and if they are confirming judges whose judicial philosophy is not to interpret the law but act as a legislator, then the people can turn out the senators.

Michael Grant:
What does the Arizona senate bring to the process? I mean America has been exposed to the federal model a couple of times here recently. If you took a vote right now, I'm not sure that the United States senate would be faring very well given what went on. What would the Arizona senate bring?

Cathi Herrod: I think the Arizona senate brings, for one thing, a more open public hearing. A senate judiciary hearing with public vetting of a judicial nominee than through the trial court commission or appellate court commission where hardly anyone shows for the hearing. Not an open public process. Open to the public, but sparsely attended. The senate judiciary hearing would shed more light on the nominee's judicial philosophy and where they are at and the fact that all 30 senators are up for election every two years, so if they start confirming judges making the law instead of interpreting the law --

Cathi Herrod:
Judicial activism becomes an issue in those campaigns.

Michael Grant:
Representative Rios last time I checked, you are a veteran of the senate.

Pete Rios:
Absolutely.

Michael Grant:
You want the senate weighing in on gubernatorial judicial appointments?

Pete Rios:
I don't think that I would personally; I would support a different model, which would be to divide the county into districts or wards where they would be small enough. Divide Maricopa into six different wards, that would make an election of judges at -- at 18 per ward and then they serve county wide and that is another model that other legislators have been looking at for purposes of election of judges in the larger counties.

Michael Grant:
If I'm following your system correctly, you're talking about getting down to at least at the current population numbers but it continues to explode maybe 600,000 people electing x number of judges, you're back at your 600?

Pete Rios:
Yeah. And that is precisely why I picked that number.

Michael Grant:
There is a certain symmetry. How consistent. Looking at the quality of the bench, do you have -- strong argument that merit selection has produced a pretty good quality bench?

Pete Rios:
I wouldn't disagree. I have been a supporter of merit selection of judges for a long time except for rural counties because the way they are elected you remove a lot of the pressure. You remove a lot of the big dollar campaign contributions and big law firms that try to influence judges. But I have backed merit selection for Pima and Maricopa County but there are those in Maricopa County that also want election of judges. So I have said if you were to go to that, I would support a ward or district system where it is a smaller number of judges that people have to know as opposed to 100 judges that currently exist in Maricopa county.

Michael Grant:
Sorry, we are out of time. Too short a time for the subject, but thank you very much for joining us. And Cathi Herrod of the center for Arizona policy thanks to you as well.

Michael Grant:
Earlier tonight I spoke with Barbara Rodriguez Mundell, presiding judge for the superior court of Arizona. Judge Rodriguez Mundell is a strong supporter of judicial merit selection and during our discussion she shared why she believes merit selection is the best way to have effective judges on any bench.

Michael Grant:
Judge, welcome.

Barbara Rodriguez Mundell:
Thank you very much.

Michael Grant:
You are a product of merit selection. Why do you think it is a good system?

Barbara Rodriguez Mundell:
I think it is an excellent system because you have a commission of nonpartisan members, five lawyers, ten non-lawyers, lay members and the chief justice chairing that committee. They receive applicants and scrutinize and analyze them. They call attorneys who have had cases opposing them and vet out the qualified applicants and send three names to the governor and the governor makes the appointment.

Michael Grant:
How did you find that process? I think one of the mysteries about this is the process you just walked through is really not well known, generally. I mean I think that the public may see, well, the governor got three names and doesn't know a lot about the process. You went through it. Is it a -- is it a vigorous vetting? You know, what goes on?

Barbara Rodriguez Mundell:
It is. It is an arduous process because you have to fill out an application that is probably about 35 pages long, you attach some of your writings to the application and go before a commission that are going to ask you a number of questions. They do analyze and evaluate and scrutinize you. That might feel a little uncomfortable. They talk to people who you don't know who they might be talking to, to find out about your reputation and ethics and intelligence. And all of that plays into whether you get sent up to the governor or not. It is arduous, but you minimize the political influence and what politics might play into selecting judges.

Michael Grant:
One of the criticisms made of the merit selection is that it leads to an imperial judiciary. That there is something about the fire and metal of the campaign process forces the third branch to commune with the people to, you know, go out there, find out about their concerns, you know, those kinds of things, doesn't keep judges so much in an ivory tower. What say you?

Barbara Rodriguez Mundell:
Well, I don't think that that is necessarily true. In fact, many of our judges go out and speak and -- and have community forums with the public and we find out what the community needs are so that we can better serve the public. It is not an elitist process. Under merit selection, we have had more women and minorities appointed than direct election of judges and how can a process that gives us more women and minorities on the bench and more representative of the community are an elitist system?

Michael Grant:
Another criticism is the retention aspect of it. Particularly as the Maricopa county superior court has gotten bigger and bigger and bigger, you know, you get more and more judges up for retention, the public, heck, even probably most of the bar isn't that aware of an individual judge's qualifications. So how can you vote intelligently on whether or not they should be retained? Is that a flaw of the process?

Barbara Rodriguez Mundell:
I don't think it is. We have the judicial performance review commission that they gather data on each and every judge that is up for retention, and even those that aren't, so that we can look at the data that is collected from litigants, jurors, witnesses. Everyone that comes into the courtroom fills out a survey on each judge that they appear before and fill out a questionnaire about the judge's competency and any biases that they might have experienced in the judge's courtroom. They want to know about a judge's abilities. Any settlement activities or administrative abilities. And so that data is collected anonymously from the people who appear before that judge. The Supreme Court collects it. It is analyzed, tabulated and published for the public so that they will know how a judge performs in his or her courtroom.

Michael Grant:
Could that data perhaps be communicated better as part of the electoral process?

Michael Grant:
I think it is rolled into the publicity pamphlet, if I recall correctly.

Barbara Rodriguez Mundell:
It is. It is possible, I know various forms have been used in order to get that information out to the public. I know that the first time I ran for a retention election they had each individual judge's picture and the rating that each individual judge had gotten, had received. And then later it was just published in a pamphlet and so there are various ways of getting it out to the public. We are trying to do everything that we can to inform the public about each and every judge. It might be difficult knowing that there are so many judges on the ballot in addition to those that are running for the legislature and the executive branch.

Barbara Rodriguez Mundell:
Sure, so it puts an onus on the voter to get themselves informed.

Michael Grant:
Almost out of time, but I did want to touch on the subject -- as you know, one of the current issues is how high should the population threshold be for a county. A proposal to raise it from 250,000 to 600,000. What is the -- what is the rationale for keeping that threshold fairly low?

Barbara Rodriguez Mundell:
Well, you know, the question is how big is too big. The primary reason why rural counties have direct election of judges is because the community primarily knows who their candidates are and can make an informed decision about who they want to vote into that judicial position. But in a county with over 250,000 people it might be very difficult and probably is very difficult for the electorate to know who the candidates are and so the question really becomes how big is too big, and it is believed that if it is over 250,000 it will be too big.

Michael Grant:
All right. Judge, thank you very much for joining us. We appreciate the information.

Barbara Rodriguez Mundell:
Thank you for having me.

Mike Sauceda:
Another big immigration march planned in Phoenix next week, and one lawmaker is calling on the governor to send out the National Guard.

Mike Sauceda:
The state's school chief has succeeded in at least temporarily helping the spending of funds for English learners. All that and more with the governor Thursday at 7:00 on "Horizon."

Michael Grant:
Friday, the journalists' roundtable. Join us then. And thanks for being here this evening. I'm Michael Grant. Have a great one. Good night.

Announcer:
Horizon is made possible by contributions from the friends of eight, members who support your Arizona PBS station.

Merit Selection v. Election


  • A look at the issue through the eyes of two candidates hoping to fill a Pinal County Superior Court Seat: Sitting Judge April Elliot and her opponent Brenda Oldham.
Guests:
  • Sandra Day O’Connor - Former U.S. Supreme Court justice
  • Pete Rios - State representative


View Transcript
Michael Grant:
Tonight on "Horizon" -- Judicial merit selection, does it help choose the right people for the bench? It's a process, which Maricopa and Pima counties have been using for over three decades. Now, as the state's population continues to grow, so does the probability of judicial appointments based on merit selection. It's an issue that is back on the debate table. Tonight, we'll discuss the pros and cons of judicial merit selection, next on "Horizon."


Announcer:
Horizon is made possible by contributions from the friends of 8, members of your Arizona PBS station.

Michael Grant:
Good evening. I'm Michael Grant. Welcome to "Horizon." Before we get to the issue of merit selection, there is a big issue from the law world. Arizona State University is naming the college of law after retired Supreme Court justice Sandra Day O'Connor. At a ceremony today at the "Sandra Day O'Connor College of Law," governor Napolitano called O'Connor "Arizona's gift to the national legal community". O'Connor spent her early childhood in Duncan, Arizona and attended Stanford university, where she earned her bachelor's and law degrees. She retired from the Supreme Court last July.

Michael Grant:
This fall voters in Pinal county will be doing something that can't be done in Maricopa and pima counties -- electing county judges. In 1974, voters allowed merit selection to determine judges in the two largest counties. Prospective judges in the other counties must undergo the rigors of politicking. Larry Lemmons: Lemmons takes us to Pinal County where two candidates are fighting to preside.

Brenda Herrod:
I'm looking for democrats to sign my nominating petition. I'm a member of the Pinal community, my home is just up the road and I'm looking for supporters here in the area that could sign my petition and consequently vote for me. Would you be able to do that.

Larry Lemmons:
Gold canyon's Brenda Oldham is running for a Pinal County office. She's doing what any candidate would do in her situation. Meeting the voters and shaking hands and offering credentials. Pinal County is nestled between Maricopa and Pima counties. She hopes to replace the incumbent, April Elliot. The honorable April Elliot, judge, division 8 of the superior court of Arizona.

April Elliot:
Having served as a family law commissioner where I did child support enforcement, individuals like you are few and far between so thank you for doing what you were supposed to do and paying your child support as ordered.

Larry Lemmons:
Maricopa and Pima counties are the only two counties that choose judges by merit election. In 1974, an amendment was made to the Arizona constitution to allow the two most populous counties to choose judges in this way. Elliot was appointed to the new position by governor Janet Napolitano in 2005. Now she must win the seat by election. Five judges are up for election. Two races are contested, Elliot is a republican. A republican has never been elected to a county-wide office in Pinal County.

April Elliot:
I thought it is ironic that you have to declare your party affiliation to get a job that requires you to be nonpartisan when you are there.

Larry Lemmons:
She receives the morning scheduling briefing from her scheduling agent Angel Holt.

Brenda Herrod:
I did receive that information and probably made notes in the file about that so we want to double check and make sure that the trial has gone away.

Larry Lemmons:
She has had a successful law practice for several years and focuses on family law and advocating for victims. Coincidentally, judge Elliot's court currently focuses on domestic relations, probate, and adoptions. Oldham says the electoral process can be tough but rewarding.

Brenda Herrod:
It is grueling, to say the least. It is a grueling experience. It is -- it takes a lot of energy. It takes a lot of time. But it is also really a great experience because I am a people person. I love to talk to people and I love getting out there and talking to the members of my community. I mean I am bonding. I'm meeting people. I'm getting to know things about people in the county that if I wasn't out walking on the streets at some of the activities and going to the community activities and the women's meetings and seniors clubs I would never have the opportunity to know that about the people in the community.

Larry Lemmons:
Elliot says she also enjoyed meeting the voters but running for election can intrude on her time as judge.

April Elliot:
It does. If you want to keep this job, you have to get out there and campaign and that is an advantage my opponent has in that she is not required to be here Monday through Friday 8:00 to 5:00 to serve the public. She can be out there doing it. It is hard. If you have a hearing go off, you can sort of then leave to go to various service club meetings or go out and gather signatures, but it is difficult and it is also difficult in terms of what the code of judicial conduct limits you in terms of being able to do while you campaign. Most people would probably -- I mean most other political candidates are able to actually personally solicit money and accept money. I cannot. That has to be done through my committee. They want you to run as a traditional candidate, but you can't do many of the same things a traditional candidate can do.

Brenda Herrod:
There is an advantage to not being appointed to this position in a county where elections are held for the judges. And the advantage certainly is that because I am in private practice I can manage my practice so that I may be more available to events in the community during the day than what someone who has been appointed to fill the position until an election can be held can do.

Larry Lemmons:
Merit selection has been promoted as an alternative to election. The highest state courts use the system.

April Elliot:
I think the reasoning behind it at least at the appellate and the supreme court level was to preserve sort of that independence and impartiality into the judiciary to remove you from the standard election things that go on in the election process and all the politics associated with it. Although there is a lot of politics that go on in terms of courting members of the merit selection committee so it is not completely removed from -- politics is not completely removed from the merit selection process, but it is removed to a greater degree than it is in the election process. And I think why they included Pima and Maricopa counties superior court judge level is because those counties had just become too large to run a campaign.

Larry Lemmons:
And there is a question of conflict of interest. Will a judge face an attorney who has contributed to a campaign?

Brenda Herrod:
You hit upon one of the difficulties in running for judicial office is the financial end of it. Because you have to avoid the impropriety of having any unethical issues and situations coming up, but at the same time you are not allowed as a judge to solicit contributions but your committee is allowed to accept them on your behalf. So it is a fine line. It's difficult, but it is important that you have to maintain that -- that distance from the money part of your campaign.

Brenda Herrod:
I'm running for superior court judge here in Pinal county. I'm looking for democrats or independents who will be able to sign my nominating petition.

Larry Lemmons:
Oldham will spend a lot of time in parking lots and various events between now and Election Day. But because of the kind of election in which she is involved, she can't be too much of a politician.

Brenda Herrod:
When you are running for a judicial position, it is in Pinal county political in nature. You have to be elected and go out and campaign and you have to politic, as they say. You have to. That is one of the things you have to do. What I personally am making sure of and I will make sure all through this process and I will make sure that people who are supporting my campaign committee, et cetera, that I am not going to lose sight of and become someone that I am not. I'm going to be true to my own character and true to who I am as an individual. So I am not going to change my position in order to talk to a certain individual or change my party affiliation in order to -- to win something. Because I would rather not be involved in the process if that is who I have to become because that is not who I am.

Peggy White:
It was filed last week and I told her we need to --

Larry Lemmons:
Elliot's judicial assistant Peggy White briefs the judge on the day's business. In the coming months while Elliot divides her time between judicial responsibilities and getting elected, she is worried about a legislative action that could affect judicial selection for years to come.

April Elliot:
There is obviously the Rios amendment that appears will be on the ballot in the fall to raise the level from 250,000 to 600,000 in counties presently under the election system. Right now if the population is 250,0000 or under you are elected. 250,000 and over goes to merit. The amendment would raise it to 600,000. It is whatever your feelings are, most of the public this isn't something that they think about on a day-to-day basis, but they should because they never know when they are going to be in the judicial system for a criminal matter or divorce or probate or things of that matter and they need to consider how the judges in this state are selected. And also something to consider down the road that if the voters approve that this fall and raise the limit to 600,000, there is discussion that there will be a provision on the ballot in 2008 to do away with merit selection all together. And I think we need to look to what has happened in other states in terms of, you know, million dollar Supreme Court justice elections that to me just doesn't instill confidence in the quality of our judiciary. It is how much money an individual has to spend and how well they are connected as opposed to how good of a judge they can actually be.

Michael Grant:
Earlier this year, retired Supreme Court justice Sandra Day O'Connor joined Horizonte host José Cardenas, where she spoke about judicial merit selection. This is what she had to say.

Sandra Day O'Connor:
And I can remember the good old days or bad old days when there were partisan elections for judges. When I first went on the superior court bench, I had to run in a partisan election. Now, at that time, it was lawyers appearing before the very judges who were running who would come up and give the campaign contributions. Now, what kind of a system is that? It is really kind of frightening. And you can see it today in some other states in the United States where there are partisan elections and the results are pretty frightening. We don't want to return to that, I hope.

Michael Grant:
Here now to talk about the Rios amendment is its namesake, state representative Pete Rios. And joining us is Cathi Herrod, president of the center for Arizona policy. Welcome to you both. Representative Rios, give us a broad sketch of what your HCR would go to the ballot, would do.

Pete Rios:
This would allow the people of the state of Arizona to decide whether or not they want to allow judges in rural counties to continue running for election as opposed to being appointed by the governor. What I do is I raise the threshold from 250,000 in population to 600,000. It leaves Maricopa and Pima County alone. They would still be under merit selection of judges.

Michael Grant:
Is Pinal county the only one knocking on the door of that 250 limit?

Michael Grant:
Coconino might be getting somewhat close.

Pete Rios:
Pinal county is at 250,000 already if you look at the numbers under DES. Yavapai County is next and then Yuma County is 178,000 in third place.

Michael Grant:
Here is the argument. At 250, one of the rationales for a quarter of a million is, is that small enough that people can really know the judicial candidates, they can press a lot of flesh, they can maybe press substantial percentage of that flesh. Take it up to 600,000 and you don't have that kind of contact and familiarity.

Pete Rios:
At 250,000 we have eight superior court judges. They run staggered terms so every two years four of them run. People know them by name. They appreciate that they are out there in the community in parades, at barbecues and union functions and social functions. At 600,000 we would have 20 judges. Staggered terms means they run 10 every two years. Beyond that point, people lose contact with the judges. That is why I picked the figure 600,000.

Michael Grant:
Cathi, what is the center's take on merit selection generally?

Cathi Herrod:
Generally we oppose merit selection, we believe that merit selection simply is controlled by the judges and the lawyers, that the commissions that nominate judges that are then appointed by the governor basically lack a check and balance. The legislative branch, for example, has a minimal nominal role. We don't support election of judges either. Not elections, not merit selections, but basically A modified federal model where the governor appoints judges and the senate confirms and then confirms and then a system of checks and balances where judicial activism means something, and 30 senators every two years up for elections and if they are confirming judges whose judicial philosophy is not to interpret the law but act as a legislator, then the people can turn out the senators.

Michael Grant:
What does the Arizona senate bring to the process? I mean America has been exposed to the federal model a couple of times here recently. If you took a vote right now, I'm not sure that the United States senate would be faring very well given what went on. What would the Arizona senate bring?

Cathi Herrod: I think the Arizona senate brings, for one thing, a more open public hearing. A senate judiciary hearing with public vetting of a judicial nominee than through the trial court commission or appellate court commission where hardly anyone shows for the hearing. Not an open public process. Open to the public, but sparsely attended. The senate judiciary hearing would shed more light on the nominee's judicial philosophy and where they are at and the fact that all 30 senators are up for election every two years, so if they start confirming judges making the law instead of interpreting the law --

Cathi Herrod:
Judicial activism becomes an issue in those campaigns.

Michael Grant:
Representative Rios last time I checked, you are a veteran of the senate.

Pete Rios:
Absolutely.

Michael Grant:
You want the senate weighing in on gubernatorial judicial appointments?

Pete Rios:
I don't think that I would personally; I would support a different model, which would be to divide the county into districts or wards where they would be small enough. Divide Maricopa into six different wards, that would make an election of judges at -- at 18 per ward and then they serve county wide and that is another model that other legislators have been looking at for purposes of election of judges in the larger counties.

Michael Grant:
If I'm following your system correctly, you're talking about getting down to at least at the current population numbers but it continues to explode maybe 600,000 people electing x number of judges, you're back at your 600?

Pete Rios:
Yeah. And that is precisely why I picked that number.

Michael Grant:
There is a certain symmetry. How consistent. Looking at the quality of the bench, do you have -- strong argument that merit selection has produced a pretty good quality bench?

Pete Rios:
I wouldn't disagree. I have been a supporter of merit selection of judges for a long time except for rural counties because the way they are elected you remove a lot of the pressure. You remove a lot of the big dollar campaign contributions and big law firms that try to influence judges. But I have backed merit selection for Pima and Maricopa County but there are those in Maricopa County that also want election of judges. So I have said if you were to go to that, I would support a ward or district system where it is a smaller number of judges that people have to know as opposed to 100 judges that currently exist in Maricopa county.

Michael Grant:
Sorry, we are out of time. Too short a time for the subject, but thank you very much for joining us. And Cathi Herrod of the center for Arizona policy thanks to you as well.

Michael Grant:
Earlier tonight I spoke with Barbara Rodriguez Mundell, presiding judge for the superior court of Arizona. Judge Rodriguez Mundell is a strong supporter of judicial merit selection and during our discussion she shared why she believes merit selection is the best way to have effective judges on any bench.

Michael Grant:
Judge, welcome.

Barbara Rodriguez Mundell:
Thank you very much.

Michael Grant:
You are a product of merit selection. Why do you think it is a good system?

Barbara Rodriguez Mundell:
I think it is an excellent system because you have a commission of nonpartisan members, five lawyers, ten non-lawyers, lay members and the chief justice chairing that committee. They receive applicants and scrutinize and analyze them. They call attorneys who have had cases opposing them and vet out the qualified applicants and send three names to the governor and the governor makes the appointment.

Michael Grant:
How did you find that process? I think one of the mysteries about this is the process you just walked through is really not well known, generally. I mean I think that the public may see, well, the governor got three names and doesn't know a lot about the process. You went through it. Is it a -- is it a vigorous vetting? You know, what goes on?

Barbara Rodriguez Mundell:
It is. It is an arduous process because you have to fill out an application that is probably about 35 pages long, you attach some of your writings to the application and go before a commission that are going to ask you a number of questions. They do analyze and evaluate and scrutinize you. That might feel a little uncomfortable. They talk to people who you don't know who they might be talking to, to find out about your reputation and ethics and intelligence. And all of that plays into whether you get sent up to the governor or not. It is arduous, but you minimize the political influence and what politics might play into selecting judges.

Michael Grant:
One of the criticisms made of the merit selection is that it leads to an imperial judiciary. That there is something about the fire and metal of the campaign process forces the third branch to commune with the people to, you know, go out there, find out about their concerns, you know, those kinds of things, doesn't keep judges so much in an ivory tower. What say you?

Barbara Rodriguez Mundell:
Well, I don't think that that is necessarily true. In fact, many of our judges go out and speak and -- and have community forums with the public and we find out what the community needs are so that we can better serve the public. It is not an elitist process. Under merit selection, we have had more women and minorities appointed than direct election of judges and how can a process that gives us more women and minorities on the bench and more representative of the community are an elitist system?

Michael Grant:
Another criticism is the retention aspect of it. Particularly as the Maricopa county superior court has gotten bigger and bigger and bigger, you know, you get more and more judges up for retention, the public, heck, even probably most of the bar isn't that aware of an individual judge's qualifications. So how can you vote intelligently on whether or not they should be retained? Is that a flaw of the process?

Barbara Rodriguez Mundell:
I don't think it is. We have the judicial performance review commission that they gather data on each and every judge that is up for retention, and even those that aren't, so that we can look at the data that is collected from litigants, jurors, witnesses. Everyone that comes into the courtroom fills out a survey on each judge that they appear before and fill out a questionnaire about the judge's competency and any biases that they might have experienced in the judge's courtroom. They want to know about a judge's abilities. Any settlement activities or administrative abilities. And so that data is collected anonymously from the people who appear before that judge. The Supreme Court collects it. It is analyzed, tabulated and published for the public so that they will know how a judge performs in his or her courtroom.

Michael Grant:
Could that data perhaps be communicated better as part of the electoral process?

Michael Grant:
I think it is rolled into the publicity pamphlet, if I recall correctly.

Barbara Rodriguez Mundell:
It is. It is possible, I know various forms have been used in order to get that information out to the public. I know that the first time I ran for a retention election they had each individual judge's picture and the rating that each individual judge had gotten, had received. And then later it was just published in a pamphlet and so there are various ways of getting it out to the public. We are trying to do everything that we can to inform the public about each and every judge. It might be difficult knowing that there are so many judges on the ballot in addition to those that are running for the legislature and the executive branch.

Barbara Rodriguez Mundell:
Sure, so it puts an onus on the voter to get themselves informed.

Michael Grant:
Almost out of time, but I did want to touch on the subject -- as you know, one of the current issues is how high should the population threshold be for a county. A proposal to raise it from 250,000 to 600,000. What is the -- what is the rationale for keeping that threshold fairly low?

Barbara Rodriguez Mundell:
Well, you know, the question is how big is too big. The primary reason why rural counties have direct election of judges is because the community primarily knows who their candidates are and can make an informed decision about who they want to vote into that judicial position. But in a county with over 250,000 people it might be very difficult and probably is very difficult for the electorate to know who the candidates are and so the question really becomes how big is too big, and it is believed that if it is over 250,000 it will be too big.

Michael Grant:
All right. Judge, thank you very much for joining us. We appreciate the information.

Barbara Rodriguez Mundell:
Thank you for having me.

Mike Sauceda:
Another big immigration march planned in Phoenix next week, and one lawmaker is calling on the governor to send out the National Guard.

Mike Sauceda:
The state's school chief has succeeded in at least temporarily helping the spending of funds for English learners. All that and more with the governor Thursday at 7:00 on "Horizon."

Michael Grant:
Friday, the journalists' roundtable. Join us then. And thanks for being here this evening. I'm Michael Grant. Have a great one. Good night.

Announcer:
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