Friday, May 6, 2005
Francisco Grande Hotel & Golf Resort
26000 West Gila Bend Highway
Casa Grande, Arizona

MEETING MINUTES

Present:
Margaret Kenski (Chair), Roberta Voss (Vice Chair), Judge Daniel Barker, Judge Ted Borek, Thomas Bowen, Sylvia Brandfon, Robert Clements, Richard Cosgrove, Judge Pendleton Gaines, Barbara Glenn, Gene Goldsmith, Mike Hellon, Marc Lieberman, Rick Naimark, Ron Ober, Judge John Pelander, Carl Piccarreta, Bill Poorten, Judge Charles Sabalos, Raymond Sachs, Dee Sirkis, Tom Smith, Henry Varga, Judge Maria Verdin

Absent:
Kevin DeMenna, Jeff Nordensson, Mary Beth Pfister, Claire Scheuren, Ronald Watson

Staff:
Judy Pfau, Eric Carlson

I. CALL TO ORDER:

Margaret Kenski called the meeting to order at 9:10 a.m. A total of 24 voting members were present, which constituted a quorum under Rule 2(d) of the Rules of Procedure for Judicial Performance Review.

II. APPROVAL OF MARCH 4, 2005 MEETING MINUTES:

III. JPR STAFF REPORT:

Judy reported that the Superior Court litigant/witness/pro per and juror surveys are being printed on all judges under review, and that the survey period will run from August 29, 2005 through December 30, 2005.

Eric reported that the Supreme Court is working with consultants to evaluate the Commission's communication initiatives. The strategy is to implement an approach which will further the Court's strategic agenda while educating the public regarding the process and the judges standing for retention. The workgroup assigned to review a publicity campaign strategy will be convened shortly to begin reviewing current processes and proposing changes to the processes.

IV. 2005 LEGISLATIVE SESSION:

Margaret reported that the compromise on SCR1038, calling for Senate confirmation of judges and justices, had died. Judge salaries will be raised effective 2007, but at a lower rate than that recommended by the Commission on Salaries.

A question was raised as to the status of the Commission's legislative members. It was noted that the issue of legislators holding dual office was reviewed by the Attorney General's Office and a memo issued, but that further clarification has been requested.

V. RULES CHANGES:

A proposed Rules change document was presented showing changes based on decisions reached at the March 4, 2005 meeting. It was agreed to take the Rules out of order.

Rule 2(e):
After review, Rule 2(e) is acceptable as changed to delete references to judges or justices appearing in person before the Commission at the Public Vote meeting.

Rule 2(g)(3):
The Commission members discussed what constituted public comment at the Public Vote meeting. It was generally felt that there needed to be a change to the Rule to allow Commission members flexibility to discuss business regarding judges and judges standing for retention. Mike Hellon proposed language which would allow Commission members to comment, but would eliminate public comments from persons who were not Commission members.

Rule 2(d):
The proposed language was reviewed regarding the majority vote required to conduct business. As a part of the changes to the Rule, the Commission members also reviewed the language of Rule 6(e)(3) regarding the Public Vote provisions.

It was discussed that in order to decide an issue there should be a majority vote of 50%+1 of the members present and eligible to vote, and that a cross-references be made in Rules 2(d) and Rule 6(e)(3) .

Continuing March's discussions regarding the Commission's vote on judges standing for retention, staff reported that after researching the issue of what methods other merit selection states used when voting on retention judges, it was found that Arizona is unique in its Commission makeup and voting rules. The only other state that uses a 50%+1 majority vote on retention is Alaska, which has a 3 non-attorney member, 3 attorney member commission with the Chief Justice as Chair. Alaska's commission has the dual role of acting as the appointing commission and also does the performance reviews prior to retention elections. The Chief Justice only votes if there is a tie.

Colorado's Rules do not specify how to vote. Both the local and State commissions hold closed meetings to review and discuss the data. They make a recommendation whether to Retain, Do Not Retain or No Opinion as a result of the closed meeting. Each commission appoints one of their members to write the narrative report that appears in the voter guide.

It was further discussed that the vote of the Commission was not to determine whether to retain a judge, but was to determine whether a specific judge or justice was meeting judicial performance standards based on the Commission's Threshold Standards. The language of the Voter Information Guide indicates that the vote is on the issue of whether or not a judge meets standards, not whether a judge should be retained. The voters make the ultimate decision on whether to retain a judge or justice, not the Commission.

Judge Barker raised the issue as to whether the Commission should revise the percentage necessary to determine whether a judge or justice meets performance standards pursuant to previous discussions. He commented that he preferred to leave the vote at a 50%+1 majority, but use a three-tier category of voting. The three-tier category method would allow a member to vote one of three categories rather than straight up or down.

Judge Borek queried what problem the Commission was trying to fix. He commented that it is important to fix a problem if there is a problem, but that he did not feel there was a problem.

Ron Ober commented that the Commission should not approach the vote from a negative stance. He feels the public should be encouraged to learn more about judges and that we also need to encourage people to apply for judge positions. He personally would have a hard time voting from a middle category and suggested using the four categories of Exceeds Standards, Meets Standards, Meets Minimum Qualifications But With Reservations, and Does Not Meet. He feels the Commission's role also is to state when someone is really qualified and doing a fine job, and the Commission needs to be careful and not just pick a category that meets qualifications with reservations because that is really serious.

Judy pointed out that in the Colorado model the commission spelled out in a narrative form the reasons the judges received the ratings they were given. She suggested using the website as the medium for providing this type of information.

Roberta Voss commented that the Commission would need to add entirely new language to 2(d) when a decision was made, and that Rule 2(g)(1) would need to be reviewed to see if there was an impact to that Rule.

After further discussion of the pros and cons of using a three-tier system, Judge Barker asked for a vote on his proposal:

Ron Ober moved to table the motion and send it back to the Voting Process workgroup for further review. Judge Maria Verdin requested a Role Call vote. After discussion:

Judge Charles Sabalos moved that Motion JPR-05-009, regarding the issue of what constitutes a voting majority for purposes of determining who Meets and Does Not Meet Judicial Performance Standards at the Public Vote Meeting, which was tabled at the March 4 meeting, be brought back to the table:

The Chair announced that the Motion JPR-05-009 which calls for a 2/3 vote of those present and eligible to vote before the Commission reports a judge meets judicial performance standards, was back on the floor for discussion and voting. Judge Sabalos asked for a Role Call vote:

The motion to change the 50%+1 majority of those present and eligible to vote to 2/3 failed.

Rule 5(c)(2):
After review, Rule 5(c)(2) is acceptable as changed with the addition of "himself or herself" when referring to a judge or justice.

Rule 6(d):
After review, Rule 6(d) is acceptable as revised.

Rule 5(e)(2):
After review, Rule 5(e)(2) is acceptable as revised.

Rule 5(e)(3):
After review, Rule 5(e)(3) is acceptable with the addition of the cross-reference to Rule 2(d).

VI. NEXT MEETING:

September 16, 2005
Francisco Grande Hotel & Golf Resort
26000 West Gila Bend Hwy.
Casa Grande, AZ
9:00 - 11:45 AM

VII. CALL TO THE PUBLIC

No members of the public were present.

VIII. ADJOURNMENT

The meeting adjourned at 12:10 p.m.