Justice fights effort to oust him

An Arizona Supreme Court justice has taken the highly unusual step of forming a campaign committee to fight a Republican and "tea party" effort to vote him off the bench.

Fliers and Web postings advocate a "no" vote on retention of Justice John Pelander because he joined in a Supreme Court decision allowing an initiative that would scrap the two-party primary system to appear on next month's ballot.

Pelander formed a political committee through which he has spent his own money to hire a publicist. He also has named a treasurer but did not specify what the committee will do. He is not allowed to raise money.

Pelander said he formed the committee, named Retain Justice John Pelander, because he wants to combat allegations in the campaign. He said he knows of no other instance in which an Arizona Supreme Court justice has formed a political committee in a retention race in the past four decades.

"I'm concerned on two fronts," Pelander said. "The Supreme Court ruling in this case is being mischaracterized. So, I view it not only as a personal attack on me as the only (Supreme Court) judge on the retention ballot, but also as an affront to the integrity of the court."

In addition, Phoenix attorneys Paul Eckstein and Mark Harrison have formed an independent expenditure committee called Save Our Judges to counter the anti-Pelander campaign. Eckstein said that the committee will do a mass e-mailing and that if it raises sufficient money, it will run radio ads, as well.

The anti-Pelander fliers were distributed across the Valley. The Arizona Republic obtained campaign literature opposing various judges that was circulated in three legislative districts in the East and West Valleys.

Pelander was part of a three-judge panel that in September unanimously upheld a lower-court ruling to allow Proposition 121, the so-called top-two primary initiative, to go forward.

One of the East Valley fliers states that Pelander voted to uphold the ruling "in the face of overwhelming evidence of fraudulent signatures collected for Proposition 121." The statement was repeated in a tea party post attributed to former state Senate President Russell Pearce. Pearce could not be reached for comment.

The circular goes on to recommend that all Arizona Court of Appeals judges on this year's retention ballot also be voted down because they were appointed by former Democratic Gov. Janet Napolitano. Some of the postings target Superior Court judges, as well, especially Napolitano appointees.

Pelander, a Republican who was appointed to the Court of Appeals by then-Gov. Fife Symington, was appointed to the Supreme Court by Gov. Jan Brewer.

Brewer spokesman Matthew Benson said the governor stands behind Pelander.

"The governor has not agreed with every decision he has made, but she continues to believe he is impartial and guided by the law and Constitution in his rulings," Benson said.

The issues in the Supreme Court ruling had to do with circulation of petitions for Prop. 121. The initiative would replace the party-primary system with one that puts all candidates on a single primary-election ballot. The top two vote-getters would then oppose each other in the November elections regardless of their party affiliations.

Opponents of the initiative sued to keep the measure off the ballot, pointing out that some of the petitions did not have requisite signatures by the petition circulator and that other circulators were unqualified because they had felony convictions. Maricopa County Superior Court Judge John Rea threw out the questioned signatures but ruled that there were still sufficient signatures to place the initiative on the ballot.

The opponents appealed the decision to the Supreme Court, saying in part that they did not have enough time to present their case. A three-judge panel that included Pelander, Chief Justice Rebecca White Berch and Vice Chief Justice Scott Bales reviewed transcripts and pleadings and upheld the lower-court decision. Bales wrote the opinion.

Earlier this month, Pelander got a call from a friend in Tucson who had come across a flier calling for Pelander's ouster. Republican Party officials began disseminating the information with voter materials.

Karen Thomas, founder of the Sun City West and Sun City Grand Republican Women, said her GOP district chairman passed out cards for voters to take to the polls, including the information about judges.

Thomas created her own list of judges to retain and vote out, which she sent to the Republican Women organizations and legislative districts. It was republished online. Pelander's name was prominently displayed as a judge to vote against.

Critics of the effort question its facts. The literature describes petition signatures deemed as invalid as "fraudulent." The conservative Newsmax website reported that Pelander "supported" the controversial proposition, instead of that he had upheld the lower- court decision allowing the measure to go on the ballot.

It would take a majority of voters to vote Pelander or any other merit-selected judge out of office.

Supreme Court justices, Appeals Court judges and Superior Court judges in Maricopa, Pima and Pinal counties are appointed by the governor from a list of nominees vetted by special selection committees. Judges in other counties are elected.

If a merit-selected judge is voted out, a new judge is appointed by the governor to fill the vacancy. Only two judges have lost retention elections since merit selection began in 1974; none has lost since 1978.

This year, nine Appeals Court judges and 76 Pima and Maricopa County Superior Court judges are up for retention. Pelander is the only Supreme Court justice on the list.

Those judges are evaluated by the Arizona Commission on Judicial Performance Review and are available online. But with every election, independent lists by self-proclaimed judicial-watchdog groups, usually conservative, circulate their own evaluation lists.

Arizona is not the only state where judges are being challenged because of rulings that angered politicians. Conservative groups are lobbying against retaining an Iowa Supreme Court justice who was among a panel that allowed same-sex marriage in that state. Three Florida Supreme Court justices are being targeted in retention elections for rejecting a ballot initiative against the federal Affordable Care Act.

Some of those pushing Pelander's removal also supported another ballot initiative this year that would give the governor more control over the merit-selection process and remove the requirement of nominating judicial candidates from both parties. Pearce sponsored the bill to put the measure on the ballot.

Some of the Arizona judges targeted for removal are nonchalant about the tea party lists.

"There have been lists in the past," said Judge Roland Steinle of Maricopa County Superior Court. "If I wake up the day after the election and the tea party votes me out, I guess I'll find something else to do."

County Superior Court Judge Timothy Ryan is identified in one list as a liberal Democrat; the list refers to his 2007 battles with then-County Attorney Andrew Thomas over a law denying bail to illegal immigrants. Ryan was a Republican when he was appointed to the bench. The new list, he said, is a "cut-and-paste" from the last time he was up for retention.

Arizona Appeals Court Judge Peter Swann also is condemned in several of the campaign fliers, but he said, "The fact that I was appointed by Janet Napolitano does not illustrate my ideology."

Swann said 99 percent of the court's decisions are unanimous, even though the panels are made up of judges from both parties. The judges, he said, "leave their politics in the garage."

"If the voters think our decisions are out of step, then they have a right to complain," Swann said. "But not one of these attacks has cited a decision that they find objectionable."

However, Thomas, of Republican Women, said Pelander should be ousted because he "was one of three judges who could have stopped that proposition from going on the ballot."

Pelander said his campaign is aimed at protecting the justice system. "Some people think judges should be surrogates of their political agendas, and judges cannot, simply cannot, decide cases based on political factors or personal policy preferences," he said. "The day we do that, our justice system will collapse."

Reach the reporter at michael.kiefer@arizonarepublic.com.

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