Courts


In a video screen-shot, Justice Sandra Day O'Connor (center) describes a proposed judicial selection plan.

In a video screen-shot, Justice Sandra Day O’Connor (center) describes a proposed judicial selection plan.

The dialogue over how we select judges continues in earnest across the country, and retired Justice Sandra Day O’Connor continues to be in the thick of it.

As Justice O’Connor recently said, “The courts are the bulwark of our democracy, and we can ill afford to see them undermined.”

Last week, we read an announcement that a new proposed plan had been released, and it is named the O’Connor Judicial Selection Plan. (The complete plan is here.)

The new proposed plan was issued by the Advancement of the American Legal System.

The new proposed plan was issued by the Institute for the Advancement of the American Legal System.

The proposal comes out of the Institute for the Advancement of the American Legal System (IAALS). You can read more about the news here.

According to plan advocates, the plan “was the outgrowth of work by Justice O’Connor, IAALS and the Advisory Committee to its Quality Judges Initiative, chaired by former Arizona Chief Justice Ruth McGregor, who is a member of the Justice at Stake Board of Directors.”

As described by Justice at Stake, the plan includes:

“a judicial nominating commission to screen judicial applicants and identify the best qualified candidates, appointment by the governor of one of those candidates, broad-based and objective evaluation of judges’ performance on the bench, and periodic retention elections.”

(Yes, that is very much like the Arizona system, at least in three counties.)

Justice at Stake logoWould you like to see where your state stacks up in its judicial-selection method? The IAALS, at the University of Denver, breaks it down here.

In case you’re thinking the conversation is of interest merely to court wonks, read a new study by the Defense Research Institute, which calls itself “the voice of the defense bar.” Its report titled “Economics of Justice” details the facts behind its position that financial blows suffered by the judicial branch are inflicting “widespread economic harm in communities.”

A press release and link to the full report are here.

Finally, for a quick synopsis of the O’Connor Plan, watch this video with the Justice herself, along with retired Arizona Chief Justice Ruth McGregor and IAALS Executive Director Rebecca Love Kourlis.

 

Tucson, Ariz., in 1909 (Wikipedia)

Tucson, Ariz., in 1909 (Wikipedia) (click to enlarge)

Imagine a legal system in which your property rights could not be assured, and where your land holdings could be stripped of you based on your marital status.

That scenario is not beyond imagining. As you might surmise, that situation was faced by approximately half of the U.S. population at one time (and continues for many more globally today).

In the June issue of Arizona Attorney Magazine, we were privileged to feature a story that occurred right in Tucson not so very long ago.

It was titled Anna’s Story, and here is how author and attorney Marjorie Cunningham opened the real-life tale:

“Buying, selling and trading land has been a part of Arizona’s booms and busts since colonial times. One shrewd and successful land speculator during the 1800s was a French woman named Anna Charauleau. Ms. Charauleau also exhibited the strong will and relentless nature needed to pursue the protection of her legal rights. Those qualities became important in Arizona legal history, as she was a party to several landmark cases decided by Arizona’s Supreme Court in the 1870s and 1880s in which women’s property rights were at issue.”

Read the whole article here.

And be sure to read carefully the excerpts from the Supreme Court opinion regarding the land matters. Here is how a wise justice analyzed things:

“Before her marriage, the law presumes [a woman] competent to buy and sell and convey property, and supposes she acts in such matters as intelligently as if she were the opposite sex; but during the existence of the marriage relation somehow this condition of ignorance and stupidity is supposed to settle down upon her, to benumb her faculties, to cast a cloud upon her intelligence, to be lifted only by the death of her spouse or other severance of the marriage. … ”

“We are certain that the presumption contended for by the counsel, that a woman of mature years, and an American wife, ceases from the day of her marriage to know what she is doing in the execution of a conveyance until advised … should no longer obtain in a court of justice.”

Thank you to our author for sharing such a compelling piece of Arizona history.

Are there other historic stories that are evocative to you? Contact me at arizona.attorney@azbar.org.

ethics scales of justice

Today I urge you to consider something that I understand is often on the minds of Arizona lawyers: whether the current ethical rules (among other things) are a help or a hindrance to the practice of law.

For a long time (OK, forever), I have heard some say that the ethics structure fails to keep pace with the realities of law practice. Now, you have an opportunity to offer your views.

Patricia Sallen is the State Bar’s Director of Special Services & Ethics/Deputy General Counsel, but I just call her our ethics guru. And she and others have heard similar statements, and they are examining whether Arizona ethics and the regulatory scheme are meeting all of their multiple challenges. Here is Pat:

“A new Arizona Supreme Court committee will look at whether Arizona ethical and other regulatory rules should be amended because of the changing nature of legal practice in a technologically enabled and connected workplace and the growing trend toward multistate and international law practice.”

“Justice Ann A. Scott Timmer is chairing the new committee. A copy of the administrative order establishing it is here.”

“The committee’s charge specifically includes examining whether the current regulatory model – regulating the practice of law based on a lawyer’s physical location – should be changed and whether conflict-of-interest rules for both private and public lawyers should be clarified.”

“Should the rules be changed? If yes, what would you change? Email your ideas, thoughts and suggestions (as well as any questions!) tochangingpracticeoflaw@azbar.org.”

Time to share your thoughts.

Chief Justice Scott Bales on the Arizona PBS program Horizon, July 9, 2014.

Chief Justice Scott Bales on the Arizona PBS program Horizon, July 9, 2014.

A brief mention on this Change of Venue Friday.Arizona Supreme Court Strategic Plan 2014-19 cover_opt

In case you missed it: On Wednesday, July 9, Arizona Chief Justice Scott Bales spoke with PBS Horizon host Ted Simons about the Court’s five goals, as described in the judicial branch’s strategic plan.

In the interview, Justice Bales touched on multiple subjects, including access to justice, specialty courts (such as drug courts and veterans courts), evidence-based practices, and lawyer discipline.

To see the whole video, go here (the interview with Justice Bales begins at about 10:17).

Download your own copy of the report here.

Have a great—and strategic—weekend.

Arizona Chief Justice Scott Bales, left, speaks with Horizon host Ted Simons, July 9, 2014.

Arizona Chief Justice Scott Bales, left, speaks with Horizon host Ted Simons, July 9, 2014.

Ak Chin Justice Center, whose ribbon-cutting occurred June 6, 2014. Maricopa, Ariz.

Ak Chin Justice Center, whose ribbon-cutting occurred June 6, 2014. Maricopa, Ariz.

Maricopa, Arizona, was the site of a June 6 community gathering that marked the opening of the Ak-Chin Indian Community Justice Center. The 56,000-square-foot building houses the tribal police department, court and detention center, as well as offices for public defenders, prosecutors and probation staff.

That’s the opening to my news story that will be published in the July/August Arizona Attorney Magazine. That’s also where we’ll include a smattering of photos.

But who doesn’t like more photos? So here are a few in this post. And you can see the whole set on our Facebook page here.

Have a great—and justice-filled—weekend.

Basket-weaving, an important component of the Ak-Chin culture, is apparent in the Ak-Chin Justice Center's design and appointments. The photo shows how the design influences the light fixtures.

Basket-weaving, an important component of the Ak-Chin culture, is apparent in the Ak-Chin Justice Center’s design and appointments. The photo shows how the design influences the light fixtures.

Tribal Judge Brian Burke describes features of the new courtroom space at the Ak-Chin Justice Center, June 5, 2014.

Tribal Judge Brian Burke describes features of the new courtroom space at the Ak-Chin Justice Center, June 5, 2014.

Civil Rights Act of 1964 President Johnson signs

President Lyndon Johnson signs into law the Civil Rights Act of 1964.

Beginning Friday and continuing through next week, a series of Arizona events marks the anniversary of the Civil Rights Act of 1964.

The Phoenix events are covered in some detail on a dedicated Facebook page. They include:

  • The unveiling of a commemorative mural, Burton Barr Library, Friday, 10 a.m.
  • Voter registration/civic engagement event, State Capitol lawn, Saturday, 9 a.m.
  • Celebration dinner, First Institutional Baptist Church, Saturday, 5 p.m.
  • Community celebration, Carver Museum and Cultural Center, Wednesday, 5:30 p.m.

Civil Rights Act of 1964 newspaper headlineAs the site describes the legislation:

“The Civil Rights Act of 1964 (Pub.L. 88–352, 78 Stat. 241, enacted July 2, 1964) is a landmark piece of civil rights legislation in the United States that outlawed discrimination based on race, color, religion, sex, or national origin. It ended unequal application of voter registration requirements and racial segregation in schools, at the workplace and by facilities that served the general public (known as ‘public accommodations’).”

“Powers given to enforce the act were initially weak, but were supplemented during later years. Congress asserted its authority to legislate under several different parts of the United States Constitution, principally its power to regulate interstate commerce under Article One (section 8), its duty to guarantee all citizens equal protection of the laws under the Fourteenth Amendment and its duty to protect voting rights under the Fifteenth Amendment. The Act was signed into law by President Lyndon B. Johnson on July 2, 1964 at the White House.”

2014 State Bar of Arizona Convention brochure cover hires_optIn advance of the Bar Convention, I contacted seminar chairs seeking their response to four questions about their upcoming panel. Here are the questions I sent:

  • Who should attend this seminar?
  • What is the one main takeaway a lawyer will gain by attending this seminar?
  • How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)
  • What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

Today, I share the responses of those whose seminars are calendared for tomorrow, Wednesday, June 11. (Note: Not all seminar chairs responded.) Click on the seminar title to read more detail as published in the Convention brochure.

Wednesday, June 11, 8:45

W-3: Hot Topics in Public Law

Chair: Regina L. Nassen,Deputy Pima County Attorney

The civil law portion

Who should attend this seminar?

Regina_Nassen

Regina Nassen

If you represent government entities, whether you’re privately or publicly employed, you will find this presentation useful. (Public lawyers in offices that do both criminal prosecution and civil government representation will want to attend both sections.)

What is the one main takeaway a lawyer will gain by attending this seminar?

There is a good chance that you will learn something you did not know and probably should, but it may be something different for each person.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

We will highlight issues of particular interest to government lawyers that have been addressed in recently-issued court opinions or new legislation, or are the subject of developing litigation. For example: fees & taxes (Biggs); first amendment rights for gov’t employees (Lane); gift clause restrictions (PLEA); gov’t immunity and tort liability (Glazer, Guerra, Peralta); eminent domain (Rogers, Garretson); claims statute (Ponce); campaign finance (McCutcheon).

The criminal law portion

Who should attend this seminar?

Criminal defense lawyers, prosecutors, and civil government lawyers who represent and advise law enforcement agencies. This seminar is so relevant that even the NSA will eavesdrop.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

When it comes to the 4th and 5th amendments, are the lines now blurred or bright?  How are courts confronting new technologies?  Topics include Katz and dogs, cellphones and cellblocks, border searches and computer seizures, and the latest decisions from the US Supreme Court.  We will talk about new search and questioning tests, effective police tactics and ineffective representation, recording of confessions, restitution to victims, and probable cause determinations.

Wednesday, June 11, 2:00

W-8, Administrative Law: 2014 Statutory and Case Law Update

Chair: Timothy J. Sabo, Roshka DeWulf & Patten, PLC

Faculty: Camila Alarcon, Withey Morris, PLC; Gregory Y. Harris, Lewis Roca Rothgerber LLP

Who should attend the seminar?

Anyone interested in new developments in administrative law, particularly lawyers who appear on behalf of clients in connection with administrative law matters.

What is one main take away a lawyer will gain by attending this seminar?

Administrative law is dynamic. Legislative changes and judicial decisions that apply or construe the Administrative Procedures Act and the judicial review laws have important implications for practitioners.

How is this seminar timely?

Timothy_Sabo

Timothy Sabo

This seminar will identify and discuss legislation just enacted after the 2014 legislative session and cases decided in the past year.

What is the most common misconception about this issue?

A common misconception is that a single set of laws and rules applies to all agency matters. Municipal agencies, certain personnel matters, and many school boards are not governed by the APA. This seminar will cover recent legislation and case law that highlights this point.

Wednesday, June 11, 2:00

W-9, Appeals of Administrative Decisions

Chair: Timothy J. Sabo, Roshka DeWulf & Patten, PLC

Faculty: Hon. Samuel A. Thumma, Arizona Court of Appeals, Division One; Hon. Michael O. Miller, Arizona Court of Appeals, Division Two; Susan M. Freeman, Lewis Roca Rothgerber LLP

Who should attend this seminar?

Anyone who practices before state, county or local agencies, boards, or commissions.  Unless you win every case and no appeal is taken, eventually you may be faced with an appeal, and anyone with an administrative appeal will benefit from this fast-paced discussion.

What is the one main takeaway a lawyer will gain by attending this seminar?

You will hear directly from two Court of Appeals judges and an experienced appellate practitioner speaking candidly about practical and legal issues for appeals of agency decisions.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

Electric competition? Problems at BOMEX? Will people with solar panels have to pay more for access to the “grid”?  Some of Arizona’s biggest news stories in the last year have been administrative law issues.  Learn the do’s and don’ts of anticipating and litigating appeals in administrative law cases.

What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

Thinking that you can fix everything when you get to court.  You need to “build the record” before the agency, and learn when and how to “exhaust your remedies” at the agency level.

State Bar of Arizona SBA_Logo_ColorSo would you like to know who won the State Bar of Arizona annual awards? Or would you rather be surprised when you settle into your luncheon seat at the annual Convention? (Don’t forget to register.)

Just in case: Spoiler alert! Stop reading if you’re in the second group.

Chief Justice Rebecca White Berch, to be honored with the 2014 James A. Walsh Outstanding Jurist Award

Chief Justice Rebecca White Berch, to be honored with the 2014 James A. Walsh Outstanding Jurist Award

The State Bar of Arizona has announced the winners of its prestigious annual awards. Here is the news from the State Bar:

The State Bar of Arizona will recognize eight individuals and one state agency for their contributions to the legal profession at the 2014 State Bar of Arizona Annual Convention at the Westin La Paloma Resort & Spa in Tucson, June 11-13.

  • Member of the Year Award – Amelia Craig Cramer
  • James A. Walsh Outstanding Jurist Award – Chief Justice Rebecca White Berch
  • Tom Karas Criminal Justice Award – Stanton Bloom
  • Michael C. Cudahy Criminal Justice Award – Theodore Campagnolo
  • Sharon A. Fullmer Legal Aid Attorney of the Year Award – Ellen Sue Katz
  • Award of Appreciation – John J. Sullivan
  • Award of Special Merit – William W. Owsley
  • Hon. John R. Sticht Excellence in Disabilities Accessibility Award – Arizona Attorney General’s Office
  • President’s Award – Patricia Lee Refo

Online bios and photographs, along with award descriptions, are available here.

Amelia Craig Cramer, to be honored with the 2014 Member of the Year Award

Amelia Craig Cramer, to be honored with the 2014 Member of the Year Award

A complete historic list of award winners is here.

Patricia Lee Refo, to be honored with the 2014 President's Award

Patricia Lee Refo, to be honored with the 2014 President’s Award

John Gotti Meets Sammy the Bull in Court by Ruth Pollack courtroom sketch artist

John Gotti grimaces as Sammy “the Bull” Gravano testifies against him, the first Mafia underboss to do so. Work by Ruth Pollack.

We are accustomed to vigorous debates over the value of allowing cameras in courtrooms. (There’s even a seminar at the upcoming State Bar Convention on the topic.) But amidst the conversation, many miss a longtime courtroom element that becomes more and more rare as cameras enter.

Have you already guessed? I’m talking about the courtroom sketch artist.

Many of us (OK, us older folks) are accustomed to viewing courtroom proceedings through the eyes of such artists. But as we are increasingly able to view “the real thing” through camera lenses, fewer news outlets will shell out the expense of a pen-and-ink (or other) artist.

It’s hard to overstate the shame of that. Photography is a terrific medium, but the best courtroom artists use all their skills (and some artistic license) to convey a narrative rather than just a snap of a moment in time.

The remarkable New York Times series called Op-Docs tells the tale of one longtime sketch artist—and the diminishment of media interest in his craft.

If you’d like to see some examples of what we lose when we lost sketch artists, go here.

Finally, go here to read about (and maybe buy) a new book about some of the greatest courtroom artists. It’s called, naturally, The Illustrated Courtroom.

Illustrated Courtroom book cover sketch artist

And here’s a great post describing the work of many courtroom artists.

Do you have favorite sketch artists? Will you miss them? Let me know about the most visual trials you never attended in person.

Former Justice Ruth McGregor speaks at the 2013 State Bar of Arizona Convention -- and now in the Washington Post.

Former Justice Ruth McGregor speaks at the 2013 State Bar of Arizona Convention — and now in the Washington Post.

On Sunday, readers of the Washington Post were treated to an opinion piece co-authored by Arizona’s own Ruth McGregor, a retired Chief Justice of the Arizona Supreme Court.

Titled “Keep politics out of the courthouse,” the essay was co-written by Randall Shepard, a fellow retired justice of the Indiana Supreme Court.

The news hook for their salvo against improper political influence was a recent awful occurrence in Oklahoma. As they describe it:

“The chaos surrounding the execution of convicted murderer Clayton Lockett was not just a wake-up call on capital punishment and how it is administered. The final hours also saw political efforts to bully and weaken Oklahoma’s courts. Similar battles are playing out around the country, threatening the ability of our courts to be fair and impartial.”

“When Lockett’s attorneys filed a lawsuit seeking information about the drug mixture that ultimately failed, the Oklahoma Supreme Court issued a stay to grant more time for review. But the governor announced that she would disregard the court’s ruling. A legislator introduced a resolution to impeach the five justices who had voted for the stay, alleging ‘a willful neglect of duty and incompetence.’ The Supreme Court ultimately dissolved its stay and allowed Lockett’s execution to proceed.”

Did you get that? The governor looked at a court-issued stay and said, “Nope. Not gonna do it.

(You may recall reading that Lockett’s subsequent execution went terribly wrong.)

Justice at Stake logoWe cannot get into the Oklahoma justices’ heads. Perhaps they dissolved their own stay to avoid a continued head-to-head with the governor. Or perhaps they feared the impeachment resolution. But whatever their thinking, the ultimate decision did more harm to the independent judiciary than almost anything else, as it merely encouraged the further bullying of courts.

Justice McGregor and her co-author are board members of Justice at Stake, “a nonpartisan network working to keep courts fair and impartial.” You really should read their op-ed all the way to the end. Start here.

Reading the well-drafted opinion piece, I was reminded of an editor’s column I wrote back in 2009. In it, I commended to the consideration of the new U.S. President a jurist worthy of the United States Supreme Court. To my knowledge, President Obama never followed up and contacted Ruth McGregor (and he has not contacted me). But I thought you might enjoy what may be the one and only Arizona Attorney column that was also an open letter to the POTUS.

My SCOTUS recommendation opened Dear President Obama.” Keep reading here.

In the meantime, the retired justices suggest, if we needed more evidence of the real-life fallout that may come from the politicization of courts, an Oklahoma lethal injection provides it.

Below is an image of my 2009 column.

AzAt Editor's Letter May 2009 Ruth McGregor_opt

(click to biggify)

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