Arizona made a small change to how it reviews judges. In a way, it's better than reform
The lone judge who got a vote of no-confidence for her retention election nabbed the headlines this week.
But the more consequential news was changes to the process that the nonpartisan Commission on Judicial Performance Review, or JPR, uses to cast those pivotal votes on judges’ fitness.
Especially because those votes increasingly have become weaponized by advocacy groups seeking to toss out judges via the voting booth.
The activist movement led to the historic ouster of three Superior Court judges in the 2022 election and alarmed the judicial branch.
To the point that the Arizona Judges Association, representing some 300 judges and commissions, helped craft a proposed ballot measure this year that would eliminate retention elections except for limited circumstances.
How the retention system had been working
Most pertinent would be when the Judicial Performance Review commission, by majority decision, deems a judge unfit for retention, as in the case with Maricopa County Superior Court Judge Jo Lynn Gentry. (She has since opted to retire instead of face reelection.)
The changes to the JPR process are modest but not insignificant.
Arizona’s merit system uses nonpartisan commissions to nominate judicial candidates and to evaluate sitting judges when they’re up for retention — two years after appointment and then every four years. (Six years for appellate judges.)
On the performance evaluation side, the JPR relies on surveys from attorneys, jurors and litigant witnesses that score individual judges on various behaviors and actions.
The categories range from fairness in treatment and clarity in communication to the judge’s temperament and management of the courtroom.
Judges with low average scores or with a high percentage of poor or unsatisfactory marks receive a "letter of concern" and an opportunity to address those concerns.
Why there were so few 'no' votes this year
Commissioners — made up of attorneys, judges and public members — weigh both current and previous metrics, as well as the judge's response in voting whether the judge has met standards or not.
The votes, as well as the metrics, are published on the JPR website and in the voter’s guide for the general election.
In 2022, six of the 74 judges up for retention received one or more “do not meet standards” vote — including the three that got the boot.
This year, aside from Judge Gentry, no one got a “do not meet standards” vote.
Instead, the remaining 71 judges facing retention were put on a consent agenda and approved with a single voice vote.
Thus, no breakouts for those judges would be available publicly.
It was not a sleight of hand.
Only two letters of concern were issued this year, one of them to Gentry. The other? A judge who elected to not run for retention, which made moot the need for a roll call vote.
In 2022, there were 17 such letters.
JPR excluded judges with no concerns
What did change this year, according to longtime JPR member Doug Cole, was the halt to the practice of commissioners voting on a judge who had not received a letter of concern.
The reasoning being if there’s no indication from the survey metrics that a judge is falling short on benchmarks and isn’t notified that there’s a need to respond, the judge could not be punished with any commissioner’s thumbs-down vote.
Which could be significant given that one of the ousted judges two years ago got but two “no” votes and 18 “yes” votes.
Progressives have declared: Open season on Arizona judges
Regardless, judges who are issued a letter of concern would be excluded from a consent agenda vote.
That is, if 2022 were to occur again, those 17 judges would still be up for a roll call vote and the tallies disclosed.
In a way, this is better than reform
Another change that JPR has started rolling out is modernized, cleaner surveys to both boost participation and better capture feedback from people who interact and are impacted most by judges.
The modifications might slow but not stop the wave of activism targeting judges, less for their performances than the outcome of specific rulings.
But they are nonetheless laudable.
The changes were drafted by a task force that the state high court assembled, went through a deliberative process that included public input and vetted by the court’s justices.
And they are preferable to the proposal to rid retention elections in one key regard:
They keep voters’ voice intact in Arizona’s merit system for judges.
Reach Abe Kwok at akwok@azcentral.com. On X, formerly Twitter: @abekwok.
This article originally appeared on Arizona Republic: Arizona judges are now reviewed differently. That's a good thing
