Jessica M. Karmasek Aug. 9, 2013, 2:35pm

TUCSON, Ariz. (Legal Newsline) -- The Brennan Center for Justice and Justice at Stake filed an amicus brief this week in support of a petition asking the Arizona Supreme Court to overturn a new law that changes the selection process for judicial candidates.

For nearly 40 years, Arizona has used a merit selection process for nominating judicial candidates.

Under the system, a nominating commission provides at least three qualified candidates to the governor for appointment to the state's appellate or superior courts.

Although an attempt to change this system by referendum failed in November, the Arizona Legislature recently approved a bill, signed into law by Gov. Jan Brewer, requiring the commission to nominate at least five judicial candidates.

Now, four members of the commission that nominates judges to the state's appellate court are asking the state's high court to throw out the law.

They contend the Legislature's writing changes the state's constitution, which "may be amended only by a vote of the People."

"In addition to the constitutional harm caused by overriding the voters' clearly-expressed wishes, the enactment of legislation increasing the governor's influence over the makeup of the judiciary risks violating fundamental separation of powers principles," the Brennan Center and JAS wrote in their brief, filed in Dobson v. State of Arizona Wednesday.

"It also risks undermining the public's confidence in the independence of the judiciary in the process -- which itself raises independent constitutional concerns."

The groups argue that the new law takes power away from the nonpartisan, 15-member vetting commission.

In enacting the law, "the legislature brushed aside the will of Arizona's citizens in a brazen, unlawful attempt to inject the political dynamics of the legislature into the apolitical process of judicial selection," they wrote in their 22-page brief.

Acting JAS Executive Director Liz Seaton noted that the legislation was passed despite voters' overwhelming disapproval -- 72 percent of residents voted down the constitutional referendum, known as Proposition 115.

On Wednesday, the Arizona Center for Law in the Public Interest, or ACLPI, also filed an amicus brief in the case.

The petitioners -- Carey D. Dobson, William Ekstrom, Ted A. Schmidt and John Thomas Taylor III -- are represented by a legal team that includes former Arizona Supreme Court Justice Ruth McGregor and Phoenix attorney Mark Harrison, a partner at the law firm of Osborn Maledon PA.

McGregor belongs to the JAS Board of Directors and Harrison is the JAS board's chairman; however, both are counsel in the case in their individual capacities, not as board members. Neither participated in the formulation or approval of the brief.

Attorney General Tom Horne is representing the defendants.

From Legal Newsline: Reach Jessica Karmasek by email at

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