PHOENIX - A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his job.
Justice John Pelander said he is upset by "hit pieces" being put out by groups urging he not be retained on the bench this year. He said information being circulated about a September ruling is "misleading" at best.
Pelander is worried, though, about the problems of mounting an active campaign, a first for a Supreme Court justice since direct elections were scrapped in 1974. Rules for judges on political activity would constrain what he can say, and Pelander is precluded from soliciting the necessary funds himself.
But attorney Paul Eckstein said he may run his own independent campaign in support of the judge, despite the fact he is a Democrat and Pelander is a Republican appointed by Gov. Jan Brewer.
Campaign materials being put out by groups as diverse as the Williams Tea Party and Legislative District 18 Republican Committee are urging a "no" on Pelander's retention.
The anger is focused on Pelander because the Supreme Court earlier this year ruled Proposition 121 can be on the ballot. Proposition 121 would create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.
It's not just that these groups oppose an open primary. They point to testimony some petition signatures were forged. But Maricopa County Superior Court Judge John Rea limited testimony to just two hours for each side, leaving anti-Prop. 121 attorney Mike Liburdi without time to introduce all his evidence.
Three justices of the Supreme Court, including Pelander, refused to overturn the two-hour limit.
Virtually identical statements on mailers and some political websites said Pelander should be removed from the bench for upholding Rea's ruling "in the face of overwhelming evidence of fraudulent signatures ... including thousands submitted by a convicted forger."
Under the system approved by voters in 1974, judges of the Supreme Court, Court of Appeals and counties of more than 250,000 are appointed by the governor from a list of nominees screened by special panels. The judges stand for election on a retain-or-reject basis; for Supreme Court justices, that occurs every six years.
There has never been an active effort to deny a new term to a sitting high court judge.
Brewer, who put Pelander on the bench, does not support the effort to remove him, even though she is opposed to Proposition 121.
Pelander said those seeking his replacement should review the order upholding Rea's decision to understand why the court ruled the way it did.
"Our decision had to be based on the trial court record," he said. And Pelander said the Sept. 6 ruling came as county officials said they had to start printing the ballots. The order also said Liburdi knew ahead of time he had only two hours to make his case and that Rea did nothing wrong in cutting him off when his time was up.
"Whether we agreed or disagreed with the proposition has no bearing on it at all," Pelander said.
Calls and messages seeking comment from the various organizations circulating the anti-Pelander materials were not returned.
Pelander said on one level he wants to mount a defense because it is natural to want to defend yourself against "mischaracterizations or misinformation." But he acknowledged no judge at any level has been denied a new term since 1978, and it may be preferable to say nothing and presume he'll be retained.
Did you know?
Since the retain-or-reject system was adopted, only two judges have been turned out of office. In 1978, state voters turned Gary Nelson out of his post on the Court of Appeals. That same year, Maricopa County voters removed Superior Court Judge Fred Hyder.