By Howard Fischer Capitol Media Services
Upset with a ruling that knocked a tax hike for education off the ballot, some education advocates are trying to get voters to turn one or two Supreme Court justices out of office in November.
Teresa Ratti said the conclusion by the justices that the wording of the Invest in Ed initiative was misleading was “the exact same statement’’ that came from the Republican-controlled legislative council which was tasked with writing an explanation of the proposal.
“Do we really have a separate judiciary branch, or is our judicial branch being controlled or influenced by the executive and the legislature?’’ she asked.
So Ratti, a high school government teacher, is using a constitutional provision on how judges are chosen in Arizona to urge people to oust Clint Bolick and John Pelander. They are the two of the seven justices whose terms are up this year.
Jennifer Hilsbos is focusing solely on Bolick.
Ideally, Hilsbos said, she would like to get rid of the two newest justices who Gov. Doug Ducey got to name after the Republican-controlled legislature agreed to expand the court from five to seven members. She said Ducey effectively was packing the court with his choices.
But neither John Lopez nor Andrew Gould are up for election this year. So that leaves her to take out her wrath on Bolick, who Ducey named to the high court in 2016.
Anyway, she notes, Pelander was tapped for the court by Jan Brewer, Ducey’s predecessor. But if Pelander is removed and Ducey gets reelected, that gives the current governor a chance to name yet another member of the court.
The system, approved by voters in 1974, sets up a process where the judges of the Supreme Court, Court of Appeals and superior courts of Pima, Pinal and Maricopa counties are named through what is known as a “merit selection’’ process.
A special panel reviews applicants and forwards the names of nominees to the governor, who must choose from that list. Then, as terms expire, the judges stand for reelection on a retain-or-reject basis. If they are turned out, the process starts all over.
In the entire history of the system, only two judges have been removed, one from the Court of Appeals and one from the Maricopa bench. No Supreme Court justice has ever lost an election, though a group that did not like one of his rulings did try to deny Pelander another six-year term in 2012.
The initiative at issue would have increased state income taxes on individual earnings above $250,000. The idea was to create a dedicated revenue stream of about $690 million a year for education.
Backers got more than enough signatures to put the issue on the November ballot.
But in a brief order late last month, Chief Justice Scott Bales said the description provided to petition signers did not inform them of all the implications of the measure, saying “that creates a significant danger of confusion or unfairness.’’
It’s not just that conclusion that angered education supporters. There was also the fact that Daniel Scarpinato, a campaign aide to Ducey, confirmed that he had told some reporters that the decision was a 5-2 split in a bid to show that the governor’s two new appointments didn’t make a difference, even though that information is not public.
From the perspective of those seeking to oust the justices, that just confirms their belief that there is a pipeline between the high court and the governor’s office, one they contend suggests that information also flows the other way.
That “leak’’– no one from the court will confirm the vote until a formal ruling comes out – has caused some concern.
Jerry Landau, an aide to the court, said there already is an inquiry into how any information got out.
“I am completely confident that none of the justices communicated that information,’’ Bolick told Capitol Media Services, adding:
“The notion that any of us would ever divulge a vote breakdown before it was official is flabbergasting.’’
Pelander said he knows nothing about it and does not believe it came from any of the justices.
“But if there was any kind of leak, it’s extremely disappointing and disconcerting to me,’’ he said.