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Updated Sep 13, 2013 - 3:24 pm

Arizona high court tosses new judge nomination law

PHOENIX -- The Arizona Supreme Court ruled Friday that a new state law changing the nominating process for appeals court judges is unconstitutional because it makes a fundamental change in the balance of power between a voter-approved nominating commission and the governor.

The high court said in its ruling that the law directly conflicts with the state constitution and cannot be enforced.

Gov. Jan Brewer signed House Bill 2600 in April. The bill sponsored by Republican Rep. Justin Pierce of Mesa increased the minimum number of nominees for each appellate court vacancy to five from the current constitutional requirement of three. The changes affected a 1974 voter-approved constitutional amendment establishing judicial merit selection and setting up the Commission on Appellate Court Appointments to vet candidates and recommend them to the governor.

Four members of the nominating commission sued, saying the law changed the constitution without voter approval. Attorneys for the state called the changes minor and urged the high court to uphold the law.

The Supreme Court opinion, written by vice chief Justice Scott Bales, flatly rejected the state's argument.

``By increasing the number of nominees the Commission must submit, H.B. 2600 simultaneously increases the governor's discretion and narrows the commissioners' constitutionally granted discretion to nominate no more than the three candidates whom they determine best meet the constitutionally mandated selection criteria,'' Bales wrote.

He added the measure imposes a two-thirds voting requirement in a context not authorized by the constitution.

``Even if the change were `merely procedural,' the Legislature has no authority to statutorily mandate procedures inconsistent with Arizona's Constitution,'' Bales wrote.

The law was the latest attempt by Republicans to change the state's voter-approved merit selection process.

Opponents of the bill pointed to the rejection of Proposition 115 in November. The referendum put on the ballot by the GOP-controlled Legislature would have overhauled merit selection, changing the selection committee's size and forcing a minimum of eight potential choices. Only 28 percent of voters backed the measure.

Pierce said that unlike Proposition 115, which he called a wholesale overhaul of the commission, his law touched only on one small part of its job and wasn't particularly controversial.

``Like many laws that we pass, there are multiple viewpoints on what the law means and whether it's constitutional,'' Pierce said. ``This is one where I believe it was constitutional, and many had the same legal opinion. The Supreme Court disagreed, and obviously I disagree with their decision but I respect it.''

A Brewer spokesman did not immediately respond to requests for comment.

The Arizona Center for Law in the Public Interest filed a friend-of-the-court brief urging the justices to strike down the law.

``A lawsuit like this should never have had to have been filed. It clearly violates the constitution,'' executive director Tim Hogan said Friday. ``The Legislature just keeps ignoring the constitution, especially in light of the voters just trouncing Prop 115 last year. It looks like a plain grab.''

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