Rejection in the judicial election process unnecessary

The impact on them if the court allows Proposition 137 would be “rather muted and speculative,” Timmer told Capitol Media Services.

Timmer is not the only one in a position to decide whether the content of the bill put forward by Republican MPs is legal.

Only two judges have resigned: Clint Bolick and Kathryn King.

In her case, however, there is no doubt that the measure, if passed in November, would protect her from immediate removal from the bench – even if voters choose to remove her.

The reason for this is that the bill, as drafted, would retroactively override the public vote on their future. In fact, the results of a vote to retain or reject them would not even be officially recorded.

But the impact of this measure – if it is put to a vote by the Court and approved by voters – would affect all sitting justices if they choose to continue serving beyond the end of their current terms.

And whether the proposal will even be put to a vote will be decided by the members of the Supreme Court next week; only Timmer, however, wanted to comment on her decision not to resign.

In essence, the measure would override part of the system approved by voters in 1974 that governs the selection and retention of Supreme Court justices, as well as appeals court and superior court judges in Pima, Pinal, Maricopa and Coconino counties.

They are all selected by the governor, who must choose from lists submitted by special selection committees. Proposition 137 does not change this.

What is disappearing, however, is the ability of voters to decide on a regular basis – every four years for judges of first instance and every six years for judges at the appellate level – whether they should remain in office.

In place of that system, a system would be created in which only judges who get into trouble, such as personal bankruptcy, a felony conviction, or an unsatisfactory rating from the Commission on Judicial Performance Review, would be voted in by voters. All others would be allowed to stay in office until the mandatory retirement age of 70.

Supporters argue that the change makes sense because most voters are unaware that there may be dozens of judges on the ballot.

There's also the argument that it doesn't target judges just because voters don't like one or more of their decisions. That's clearly the case this year, when Progress Arizona led the effort to oust Bolick and King for casting two of the four votes earlier this year to uphold the enforceability of the state's 1864 law banning abortions except when saving the mother's life.

The question of whether the measure can be voted on is before the justices because another provision in Prop 137 would allow lawmakers from the majority party for the first time to make appointments to the Commission on Judicial Performance and would also require the panel to investigate any allegations of abuse of power raised by lawmakers.

Opponents say this is a completely different issue that cannot legally be packaged into an all-or-nothing offer to voters.

When the lawsuit was filed, the issue was so sensitive that Maricopa County Superior Court Judge Randall Warner, who was first assigned the case, recused himself. The case was eventually assigned to Yavapai County Superior Court Judge John Napper, who is directly elected and not part of the retain-reject system—and thus would not be affected by Prop 137.

Napper rejected the challenge, concluding that the two provisions were sufficiently related to meet the requirement that constitutional amendments such as this one address only one issue. The case then went to the Supreme Court, where Bolick and King promptly recused themselves.

In the interview, the presiding judge acknowledged that there is no clear boundary as to when someone should resign.

“It's a gray area,” she said. “People can make different decisions, like the judge in Maricopa County did.”

And it boils down to this, Timmer said, whether a reasonable person, looking at the case and the objective facts, could conclude that there is at least an appearance that a particular judge might not be fair.

“I came to the conclusion: 'No,'” she said.

Timmer said she knows there is a line that determines whether a judge should recuse herself from hearing a case. In fact, she said, she found herself on the other side of that line years ago.

At that time, there was a challenge to changes made by state lawmakers to the judges' pension system.

“In my opinion, that was a more direct conflict,” said Timmer. “If the plaintiffs had won in this case, the judges, including myself, would have gotten a lot of money back and would also have had to pay less pension contributions in the future.”

And, she said, it's about real – and immediate – money.

“At that time I needed a new roof,” said Timmer.

“I thought to myself, 'That's a lot of money I need to get back, and I would pay for it,'” she continued. “So for me, it really wasn't about the appearance of impropriety. It was an actual direct conflict.”

Timmer said she would like to think she could put her own needs – and the implications of a decision on pension changes – aside and simply judge the matter on its merits, but she could not guarantee that it would not stay in the back of her mind.

“So for me it was a no-brainer,” said Timmer.

She was not alone. All of the other justices on the court also put aside their bias at that time and were replaced by other judges from lower courts who had no financial interest in the outcome. The only sitting judge remaining was Bolick, who was not included in the pension fund.

The pending case, she said, is different, at least for her, because it has no direct and immediate impact on her.

“People say it has a lot of benefits for judges and judicial officials who are running for re-election,” Timmer said of Proposition 137.

“And that may be so,” she said. But Timmer said there were others who said there were disadvantages for those who sat on the bench.

“That's really a subjective analysis and a question of policy that this court will not comment on,” she said. The court must decide whether there are legal grounds not to allow voters to make that choice.

With this decision, however, the judges would determine whether voters can pass the change that could result in her and her colleagues facing life sentences. Timmer said, however, that she did not see this as an infringement on the protected interests of the judges in their office.

“There are a lot of ifs about what could and could not happen,” she said.

“It may be that I won't even run for re-election,” said Timmer, whose current term ends in 2028. And she said she has already spent enough years as a judge to be eligible for the pension.

“I think that's too watered down in my eyes to constitute a conflict of interest.”