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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?
Judges don't represent us. 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. We disagree with any
person or group, whether they are liberal, moderate or
conservative, that tries to unfairly influence the court system so
that the outcome fits their social, moral or political point of
view.
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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, go this Web page to find out: http://www.azleg.state.az.us/maps/state.htm.
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