BY LINDA BENTLEY | MARCH 14, 2012

Retired judges with 10-year ‘temporary’ active status raise concerns

PHOENIX – The Arizona Constitution authorizes presiding judges to temporarily call retired judges back to active duty.

However, it does not define what is considered temporary.

In Arizona, active superior court judges earn $150,000 per year. When they retire, they receive 80 percent of their annual salary plus paid medical, dental and vision benefits. They also receive 4 percent per year cost of living allowance (COLA) increases.

When called back to active duty, they are paid the remaining 20 percent of their salary plus expenses.

While looking into this matter, Sonoran News had a passel of questions, some of which resulted in startling answers.

For starters, there is nothing in the Constitution or statute requiring retired judges who are called back to active duty to actually be assigned cases.

In fact, after being apprised of Administrative Order 2011-119, signed by Presiding Judge Norman J. Davis (l) on Sept. 22, 2011, calling 40 retired judges back to active duty, it appeared only two had active cases.

Additionally, it states, “It is further ordered that this Administrative Order expires automatically without further order on a date 10 years from the date of issuance in accordance with Arizona Code of Judicial Administra-tion, Section 3-402(C), unless sooner modified, amended or replaced.”

Section 3-402(C) simply addresses the schedule for retention and disposal of court records.
Speaking of retention, after Maricopa County Superior Court judges are appointed, they appear on the ballot for “retention” by voters after the first two years and then every four years thereafter.

There is no retention process for retired judges called back to active duty. In other words, retired judges called back to active duty can be retained via administrative order for 10 years, while all other active judges are subject to public scrutiny every four years.

So, while retired judges receive full pay, COLA increases, full benefits and expenses, they are not necessarily assigned any cases.

In reality, a retired judge called back to active duty with no cases can earn more than a sitting judge with a full caseload.

In questioning this practice, Karen Arra, director of media relations for Maricopa County Superior Court, was contacted in January.

Arra asked that the questions be put in writing and e-mailed to her.

The practice with respect to AO 2011-062, which was issued in June 2011 and “temporarily” called back to duty 38 of the 40 judges subsequently listed in AO 2011-119, was questioned.

The following questions were asked:
• Are these judges assigned cases on a routine basis as if they never retired?
• Are they paid the difference between their retirement and salary whether or not they are assigned any cases just to be available or are they paid a prorated hourly rate based on time worked?
• Why on earth would an administrative order be issued to expire in 10 years when several of the judges on the list could be in their 90s or dead before the order expires?
• Are there no concerns over the potential for dementia or Alzheimers when issuing a blanket order calling retired judges to active duty for 10 years?

Arra never responded.

A subsequent e-mail sent to Arra was also ignored.

While able to obtain answers to the first two questions without Arra’s assistance, the last two remained puzzling.

AO 2012-016, issued by Davis on Feb. 1, 2012, temporarily called 39 of the same 40 judges, with the exception of William T. Moroney, back to active duty for 10 years.

It’s not clear why Moroney was excluded, although the probate and trust lawyer was originally admitted to practice in 1950, which would seem to put him well into his 80s.

Looking back a few years at similar administrative orders that temporarily called retired judges back to active duty, it appears those orders truly were for a designated temporary period of six months.

Dr. James Houston, a former Northern Arizona University instructor, who is now a licensed special education teacher in Oregon, recently filed a petition for special action with the Arizona Court of Appeals asking it to find the current practice of appointing retired judges to temporary active duty for a period of 10 years unconstitutional.

Houston’s petition stems from his 2009 complaint against the Arizona State Board of Education and Attorney General Tom Horne, in his previous capacity as state superintendent of instruction.

Houston, whose case was assigned to what he claims was a hand-picked reactivated judge, says the practice violates his right to due process and equal protection under the law because such judges have no accountability to the citizens of Arizona, who would otherwise be afforded the opportunity to vote to retain superior court judges for periods of four years.

Houston noted former Maricopa County Attorney Andrew Thomas attacked this very practice, calling it “cherry-picking retired judges” to do the dirty work.

The Oregon teacher said, “I think Thomas has been severely ‘tarred and feathered’ because, among other things, he brought attention to some very disturbing things taking place in the courthouses of Arizona.”

According to Houston, these judges simply judge themselves worthy of continuing their role on the bench.

Houston said the primary legal question before the court of appeals is whether or not the practice of appointing retired judges to temporary active duty for a period of 10 years violates the Arizona Constitution.

He says the radical deviation from the long-established procedure of six-month temporary appoint-ments was made on the heels of cuts made to COLA increases by the board of directors of the Public Safety Personnel Retirement System, which includes judges.

Although the cuts were made because the state no longer has the revenue to pay for such annual increases, the board is now the target of two separate lawsuits filed by retired judges in one complaint and sitting judges in the other, seeking millions in damages.

Houston asked, “Whatever happened to safeguarding the common good?” and stated, “These judges have replaced ‘We the People’ with me, myself and I.”