If you're an Arizona's Law reader and/or paying attention elsewhere, you are aware of the wave of Arizona Supreme Court Justice recusals that has been building. Today, it crashed to the shore with a decision in one of the abortion rights measure cases and with recusals in two more cases (below).
In two of the four election-related cases with recusals, retired Justices were called in to come off the bench... and get on the bench.
The Court wants Arizonans to have confidence in the judicial system, including this recusal/replacement system. Arizona's Law had questions for new Chief Justice Ann Timmer, and is here to explain how this process works.
A recap: Today, the Court split 5-2 on finding that Republican lawmakers can tell voters that the citizens' abortion rights ballot initiative involves an "unborn human being" (instead of a "fetus"). Justice Clint Bolick did not take part in the case because his wife (Shawnna Bolick) was one of the Republican lawmakers on the Legislative Council that chose that "impartial" language. Retired Justice John Pelander took his place and was part of the majority.
Also today, Justice Clint Bolick recused himself in two more cases. One is the other appeal regarding the abortion rights ballot measure, and the other involves citizens' open primaries initiative. (Shawnna Bolick was involved in the latter, but Clint Bolick's reason for recusing in the Arizona Right to Life appeal is less clear.)
Pelander was tapped to replace Bolick in the 2nd abortion case, and retired Justice Rebecca Berch in the new open primaries case.
We asked Chief Justice Ann Timmer to explain the process she used, and how Justice Pelander wound up on both abortion cases. Here is the (email) conversation (lightly edited for clarity):
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Arizona's Law: Who decides which retired Justice (or lower court judge) will sit on which case?
Chief Justice Timmer: I do.
Arizona's Law: What are the bases for those decisions?
Chief Justice Timmer: As with the United States Supreme Court, the Arizona Supreme Court is not required by statute or the constitution to replace justices who have recused from cases. Regardless, and unlike SCOTUS ("Supreme Court of the United States"), the Court follows a practice of generally appointing judges to fill in for justices who recuse from a case. If two justices recuse, I do not fill the positions, leaving five justices (an odd number) to decide the case. If only one justice recuses, or more than two recuse, leaving an even number, I will appoint replacements.
Arizona's Law: How do you choose among the retired Justices or Judges from the Court of Appeals?
Chief Justice Timmer: I follow a practice that avoids matching up a replacement justice with a case. Specifically, I call on either retired Justices Pelander or Berch—alternating between both in a sequential manner. (Capitalizing on these Justices’ great experience, the Court has retained them to serve as fill-in justices or to head court projects, as needed.) That appointment is based on which of the two are up next to serve as a replacement—no case-matching is involved.
On occasion, one or both may decline to serve as a replacement due to a conflict of interest or not being available for a conference or oral argument. If one is not available, the other will be asked. If both are unavailable, I will ask the Chief Judge of one of the divisions of the court of appeals to designate a judge to serve. If the appeal came from a division one case, I ask the division two Chief Justice and vice versa. If the appeal bypassed the Court of Appeals, I ask the Chief Judge of whichever division has waited the longest to fill in. Each Chief Judge uses a practice to select a judge that avoids merely picking a particular judge.
Arizona's Law: Well, the two recusals today are a little confusing, then. If you alternate, why did Justice Pelander appear to get two cases in a row - both related to the abortion rights ballot measure? (The Right to Life case was filed six days before the open primaries appeal.)
Did Justice Bolick recuse from the newer case before the older abortion case, did retired Justice Berch pass on the abortion case, or something else?
Chief Justice Timmer: Your second possible explanation was correct. I make the assignments in the order I receive the notification of a recusal. That would most often track case number sequence, but not always. It did here, but Justice Berch passed on the abortion case.
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Anticipating at least some of the recusals, on July 17, Timmer issued Administrative Orders calling retired Justices Pelander and Berch back into as-needed service for the coming year. Per the Orders and an Arizona Constitution provision, both are entitled to be paid for their work on the cases.
By the way, in keeping with the process that Chief Justice Timmer explained, Justices Bolick and Kathryn King both recused themselves from the appeal about the Legislature's judicial retention ballot measure. Neither of them were replaced, and the five remaining Justices - who are not on the ballot this year - will decide it.
"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet.
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