By Michael Kiefer, The Republic
It was a custody case in Family Court last year, and custody cases are often contentious. But the contention usually does not come from the judge. Maricopa County Superior Court Judge Benjamin Norris, who was voted out of office Tuesday, was on the bench as lawyers for a divorced mother and father made their arguments. The mother's attorney was trying to convince Norris that the father should not have unlimited access to his two daughters, but Norris had quashed the subpoena of the Child Protective Services caseworkers who were supposed to testify.
Then, when the mother's attorney asked if Norris had watched a video of an earlier hearing in which a judge had imposed a protective order against the father, Norris flew into a rage.
"I work 12-hour days," he said. "And if you start making me watch two hours of video for every hour hearing, I don't have 36 hours in a day."
"Why are you yelling at me?" the lawyer asked.
"Because I'm upset by this."
The hearing stormed on. Nothing was accomplished.
However, it was an example of why Norris will no longer be on the bench after the end of the year when his term expires. Other Family Court attorneys had noticed Norris' lack of civility. It resulted in a bad review of his performance as judge, then to a virtually unprecedented rejection by the Maricopa County electorate on Tuesday.
No appointed Arizona judge had been voted out since 1978, which has been a thorn of contention for those politicians who would prefer to see judges elected to the bench. There was no way to hold judges accountable, they said, because the electorate didn't pay attention to the judges' records.
But in the Internet age, that might be changing. The ratings are available online, and the commission that evaluates judges has been working to disseminate that information to the public.
Norris' loss at the polls was seen by many in the legal community as a validation for the judicial retention ballot.
The Arizona Commission on Judicial Performance Review rates the judges. Mike Hellon, chairman of commission, said, "I personally place a very high value on the notion that everyone who appears in court ... needs to walk away confident that his version of events has ... been listened to by the judge and evaluated."
The commission conducts surveys, asks for self-evaluations and holds interviews with judges.
When the commissioners tallied up the data as to Norris' qualifications to remain on the bench, they rated him at the bottom. Twenty-three of the commissioners voted that he did not meet adequate standards; only three supported him.
So, on Election Day, Norris became the first Arizona judge in 36 years voted out of office in a retention election.
It was perceived as a victory by proponents of the way that Maricopa and two other counties select judges in the first place, as well as how they fire them.
Maricopa, Pima and Pinal counties use a "merit selection" process, in which candidates are vetted by a committee and then submitted to the governor for approval.
In the other 12 Arizona counties, judges are directly elected by the voters.
Many Republican state legislators, however, have repeatedly lobbied for more say in the selection process. One of their contentions is that merit selection amounts to a life-time appointment with no way to remove bad judges from the bench.
Judge with pot retained
The Commission on Judicial Performance Review was established by the voters in 1992.
Every two years, half of the sitting judges are evaluated and then placed on the ballot in general elections, under the question, "Shall the following judges of the Superior Court be retained in office?"
But only two judges had been voted out in a retention election since it was instituted in 1974, and none since 1978.
Even a judge who was arrested twice for marijuana possession was retained in the 1988 election. He resigned only after being convicted.
When this election's judicial performance ratings came out, attorneys and judges called it to the attention of the media and encouraged spreading the word to vote against the judges with poor ratings, just to prove that the system actually works.
"While obviously painful for Judge Norris, the event, in my opinion, serves to validate the process," said Mark Harrison, an attorney who specializes in attorney ethics. "This indicates that the public is paying attention to these recommendation."
And without referring to any particular judge, Scott Bales, chief justice of the Arizona Supreme Court, said, "Hundreds of thousands of Arizona voters exercised their right to determine if judges should retain their offices.
"The results reflect that voters considered the information provided by the Commission on Judicial Performance Review and that we have made progress in encouraging voters to finish their ballots. Forty years after its adoption, Arizona's merit-selection system is continuing to serve the state well.”
According to officials at Maricopa County Superior Court, Norris will serve out his term, which expires at the end of the year. Other courthouse observers speculate that he could opt for retirement before that time.
Norris did not respond to a request for comment.
Critics of merit selection
Courts are not supposed to be political, but legislators, who are political, have gone after the merit-selection process to exert more political control.
In 2005, a citizens initiative wanted to change the system to give the governor carte blanche in appointing judges. In 2012, another initiative sought to give the governor more control and remove requirements of selecting candidates from all political parties.
The Legislature tried several times to raise the threshold population, 250,000, at which counties have to shift from elected to merit-selected judges, especially as Pinal County was approaching that benchmark in recent years.
Various political groups have targeted judges for rulings they made against politically or socially controversial issues like redistricting or abortion.
State Rep. Eddie Farnsworth, R-Gilbert, has championed reform of the system over the last decade.
Farnsworth did not return calls for this story, but in the past he has said that the State Bar of Arizona had a "stranglehold" over judicial appointments.
"Right now the people who control this process have no relationship with the people," he told The Republic in 2012.
Gov. Jan Brewer, another critic of merit selection, also declined comment.
Hellon, a non-lawyer, has been on the Judicial Retention Commission since 2005. He said that over the last three elections, there has been a growing correlation between the commission ratings and the retention-election results. Judges who receive more votes of no confidence from the commission receive fewer votes to retain from the voting public, he noted.
Another Maricopa County Family Court judge, for example, Gerald Porter, received 11 votes from the commission saying he did not meet standards against 18 approvals. He barely squeaked through the general retention election on Tuesday with 51percent of votes to retain him on the bench.
On the other hand, Pima County Superior Court Judge Catherine Woods, who also received a majority of judicial performance commission votes against her, breezed through the retention election in that county.
Karen Clark, an attorney on the commission, chalks that up to "the Gila River Divide," joking that Tucson and Phoenix have always been at odds on judicial matters.
Hellon, who lives in Tucson, agreed.
"Historically, there's a stronger bias among the voting public (in favor of judges) in Pima County than in Maricopa," he said. In Maricopa, he said, "it's a throw-them-all-out mentality."
Indeed, across the board, nearly all judges in Maricopa County received 25-30 percent "no" votes in this week's retention ballot, as if that percentage of the population automatically votes against all of them.
Disapproval votes against the nine Pima County judges up for retention were slightly lower, ranging from 20 to 28percent, though most were below 25percent. The sole exception was Woods, the judge panned by the commission, who was retained, but with 41percent "no" votes.
But Hellon believes the public increasingly is paying attention to the findings of the commission. And much of that can be attributed to the ability to look up the rankings on the Internet, something unavailable 20 and 30 years ago.
And Clark said the commission process, which places an emphasis on remediating bad judicial performance, educating judges and making them explain themselves before the commission, has an effect on the process.
"There are instances where judges retire from the bench" rather than face the commission or the voters, she said.
The bottom line, Hellon said, "We're seeing more and more that judges who get seven or eight votes against them are getting much lower scores" in the polls, he said. "Which tells me over time, the public is paying attention to what we do."