Frequently Asked Questions

What do you mean by "Fair Courts?"

It means both sides in court will get a fair hearing because the judge does not have an allegiance to any particular person or point of view in the courtroom, and is not influenced by political pressure or by personal interests or relationships. The judge listens to both sides of a case and makes principled decisions based only on the law and the facts of the case.

To maintain impartiality, judges should be selected based on their legal expertise and qualifications. They should not be selected based on any predetermined point of view, political preference, or political connections.

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Why is it important to have impartial judges?

Impartial judges are crucial to making sure the justice system works in our democracy. This way, any person or any organization has a fair chance of getting their side heard. It allows the common man or woman to have equal footing when challenging the government or big business. It allows organizations or businesses to get a full and fair hearing when they are accused of wrongdoing. It allows an unpopular position to be heard. Ultimately, impartial judges make sure everyone's rights are protected as defined by state and federal law and the Constitution.

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I've heard people use the phrase "activist judge" and "legislating from the bench." What does that mean?

When a judge decides a case, he or she looks at the law or the constitution and applies those laws to the facts of the case. The judge must interpret how the law applies to the case he or she hears to make a decision. Sometimes, when people disagree with the judge's ruling, they say the judge's decision is wrong and claim the judge purposely misinterpreted the law ("activist judge") or changed the meaning of the law with their ruling ("legislating from the bench").

A system is set up to determine if a judge makes a legal mistake. An appeals court is the appropriate place for those challenges to be heard. Also, lawmakers can change the law if current legislation is not having the intended outcome.

Judge's decisions are questioned all the time by the losing side. Just because someone disagrees with the judge doesn't mean the judge is an "activist," nor does it mean that the judge is changing the law to suit his or her own personal purposes.

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How are judges held accountable?

Judges are accountable for their decisions and their actions in a variety of ways.

  • An appeals court can review a judge's decision. This gives people a double check to make sure the decision is legally sound, based on the law and the Constitution.
  • Judges are accountable for their behavior to the Commission on Judicial Conduct, which has the power to reprimand a judge or recommend his or her censure, suspension or removal to the Arizona Supreme Court.
  • In the merit selection system, voters regularly decide by popular vote whether judges get to keep their jobs. It's called a retention election.
  • In merit selection, the public has a strong impact on the process of choosing judicial candidates. Public members make up the majority of every judicial nominating commission. The commissions meet and vote in sessions open to the public.
  • In merit selection counties, judicial candidates are put through a rigorous public application process, which finds the most qualified candidates.
  • In counties with a population under 250,000, voters directly elect judges.
  • The Constitution requires a periodic performance review of appointed judges, which is done by the Commission on Judicial Performance (JPR). This commission has 30 members, 18 of whom are public members. The JPR commission surveys jurors, litigants, court staff and lawyers in order to provide meaningful and accurate reports to the public about how well judges are doing their jobs. The commission issues an unbiased public report on the judges' performance before each general election. The commission recently performed a thorough review of its process with the goal of making it even more effective for everyone involved.

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What is Merit Selection?

Merit selection is a method of choosing Arizona judges through a non-partisan commission of ten public members and five lawyers who investigate and evaluate judicial applicants. The commission submits names of at least three of the most highly qualified applicants to the governor, who then makes the final selection. Arizona voters approved merit selection in 1974. Two-thirds of the states in America and the District of Columbia use some form of merit selection to choose their judges.

The primary reason for merit selection is to avoid expensive judicial election campaigns, which can compromise judicial impartiality and integrity by forcing judges to solicit campaign contributions from attorneys and other persons who might someday appear before them in court.

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Why does Arizona have judicial elections in smaller counties, but merit selection in larger counties?

Voters changed Arizona's Constitution to put merit selection in effect for counties with a population of 250,000 or more. Smaller counties still have popular elections for judicial candidates.

People believe elections still work in smaller counties because there are fewer candidates, and it is easier for voters to learn about the qualifications and experience of those candidates. In smaller counties, it's also much less expensive for the candidates to reach voters with information.

In other states, judicial candidates have been forced to spend thousands, sometimes millions of dollars, to run an election campaign in heavily populated areas. Expensive judicial campaigns compromise judicial impartiality by forcing judges to solicit contributions from attorneys and other people who may appear before them in court.

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Should we be using Senate confirmation as it is used in judicial selection for the Federal government?

Arizona's selection process is different from the federal model. In Arizona's merit selection system, the Governor appoints any one of the judicial candidates nominated by the merit selection commission; voters then decide whether that judge can continue during regular retention elections.

Federal judges serve for life. The United States President nominates federal judges and the U.S. Senate must confirm them. Voters do not have an opportunity to remove federal judges from office, so Senate confirmation acts as a check and balance in the process.

In Arizona's system, the public is the most in control through the merit selection and retention process. Since Arizona voters can decide whether to keep a judge during retention elections, the check and balance properly belongs in the hands of the public, not politicians.

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Should a judge's decision be in step with the majority of public opinion?

Lawmakers are elected by the public to write law. The judges' role is to interpret the law. They represent the law. Judges should make decisions based on the law and the constitution, not based on current popular opinion. This is the only way to protect people's legal rights. Judges must have the freedom to make legally correct decisions even if the decisions are unpopular. Otherwise the mob will always rule.

In a famous 1954 case, Brown v. Board of Education, the United States Supreme Court ruled that school children could no longer be segregated by race. At the time, it was a very unpopular decision, but it was a decision that forever changed civil rights in America. In hindsight, we know it was the right decision.

We must keep judges free from political influence so they can make very difficult decisions, like the one in the Brown v. Board of Education case, without fear of retaliation.

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Do these questions and answers mean the State Bar favors liberal or conservative ideology?

Neither. These points of view purposely avoid political ideology because it doesn't belong in a courtroom. It's improper for any group, whether they are liberal, moderate or conservative, to unfairly influence the court system without regard for the language of the law and the Constitution.

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What can I do to make sure we maintain fair courts?

Some Arizona legislators try to change the laws so their 'point of view' can have more influence over the decisions in court. As voters, you have influence on your legislators. Write or call them and let them know you do not want any legislative efforts that threaten judicial impartiality. Stay informed about proposed legislation and consistently communicate your concerns with your lawmaker. He or she is there to represent you. If you don't know your legislator's name, click here to find out.