Arizona vice chief justice discusses innovation, retention elections
Bold. Innovative. Visionary. The Arizona Supreme Court is a visionary. Lopez and his colleagues are working to improve access to legal services through lowering costs and expanding options. The court approved several programs for lower-income citizens, including the Legal Paraprofessional Program (a highly successful program), the Lawyer Apprentice Program (a highly successful program), the Legal Advocate Program (a very effective program), and the Government Law Admission Program. It allows nonlawyers who hold a license to provide limited legal services. This includes legal advice, drafting and filing of legal documents, opinions, and strategies, and representing clients in court. Arizona has 65 licensed LPs. The first licenses will be granted in November 2021. The program increases access to justice by allowing nonlawyers who have been trained to represent clients on criminal, family, civil and administrative law matters. The University of Arizona, Arizona State University and the Arizona Supreme Court have approved a Lawyer Assistant Program to address the problem of Arizona’s “legal deserts,” a term coined in the ABA for counties with no or few lawyers (i.e. fewer than one attorney per 1,000 residents). The program is designed to encourage aspiring lawyers to remain in Arizona. It also provides a path to licensure for those with lower bar exam scores, and increases the number lawyers in the state. In a state that ranks 49th of 50 states in lawyers per capita, such a program is a necessity, but it’s a very disciplined necessity: Applicants must (1) be graduates of an ABA-accredited law school (2) score 260-269 on the Uniform Bar Exam (3) and commit to practice under the supervision of a qualified Arizona attorney for at least two years in rural Arizona or a public law practice.
More controversial are the Arizona Supreme Court-approved “Alternative Business Structures.” The ABS program allows nonlawyers to partner with lawyers in businesses that provide legal services. The program was designed to encourage innovation and make legal services more affordable. ABS are subject to Rules of the Arizona Supreme Court that regulate the practice and practice of law. This includes the requirement that ABS employ a member from the Arizona Bar who supervises law practice. The ABS program was approved by the Big Four accounting firm KPMG on February 27. Some skeptics questioned whether this would help bridge the justice gap and lower costs for lower income citizens. Lopez acknowledges some have raised concerns that the “one-stop shop” model may put traditional law firms out of business. Lopez supports this goal and the court has implemented several initiatives to address it. Media coverage often focuses on the outcome of a case and fails to accurately identify or even mention the issue. The inaccurate framing of judicial decision is then used to create a narrative that judicial opinion are always political decisions. Media reports on judicial opinion are often limited to the political affiliation of the judge and the case outcome. This coverage encourages public distrust and cynicism of courts.” Lopez noted that the initial results appear to be positive. He noted that coverage of judicial opinions has been more accurate. He said that the goal and effect of the new system is not to reduce critical reporting, but rather to increase the likelihood the criticisms and coverage accurately reflect actual issues, reasoning, and conclusions in a case. Arizona adopted a merit-based selection system in 1974. This applies to Arizona’s appellate and trial court judges, in the four most populous counties. A nonpartisan commission of attorneys and citizens investigates and assesses candidates for judicial posts. After being appointed, judges can be retained through regularly scheduled retention election, where a majority vote in favor of the judge will result in a second term. During judges’ terms, beginning in 1992, a commission of citizens and lawyers, known as “Judicial Performance Review,” assessed judges’ performances and issued recommendations to the voters prior to an election.
From 1974 to 2020, no endorsed judge had ever been removed by voters. Most of the judges who were recommended for removal by JPR, were actually retained by voters. Moreover, during those nearly 50 years, only three judges were removed by voters in retention elections; all were embroiled in legal scandal or were otherwise deemed unfit by the JPR Commission.
But, Lopez said, “Something began to change about Arizona’s retention elections in 2020. For the first time a major political group targeted judges for nonretention. All were retained. In 2022, however, voters failed to elect three judges of the Maricopa County Superior Court. In other words, voters removed as many judges in one election as they had removed over the past 48 years. Two of the three judges were recommended for retention by JPR Commission, a first in Arizona’s merit-based selection system. One of the judges’ retention was not based on his judicial performance but rather his previous associations and his role as an assistant A.G. The partisan/ideological divide was sparked by an unpopular abortion ruling, while the other side expressed dissatisfaction over the court’s electoral decisions. The political forces culminated into two main events: (1) a campaign was launched to remove two members from the Arizona Supreme Court; (2) Proposition 137, which was put on the ballot, was introduced to eliminate the routine retention elections for judges unless those judges committed certain crimes or filed bankruptcy. He concluded his presentation with a question about the wisdom of politicizing merit selection. He quoted the late U.S. Supreme Court Justice Sandra Day O’Connor who called the prospect of jettisoning the merit selection system “a great step backwards.”
Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal–or the American Bar Association.
