Judge


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.

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.

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)

Shawn C Marsh, Ph.D.

Shawn C. Marsh, Ph.D.

Bias? Why should the legal profession be concerned about bias—explicit or implicit?

As surprising as it might be to hear attorneys utter those words, they represent a position firmly held by some.

Meantime, on May 8, lawyers who thought otherwise packed two rooms—in Phoenix and Tucson—to hear an expert discuss implicit bias in the legal profession.

Hosted by the State Bar of Arizona, the presentation by Dr. Shawn Marsh answered my opening question handily: Because, perhaps even more than other professions, the legal profession and the legal system are peppered with decision points, each of which may go horribly awry because human beings are susceptible to bias.

First, let me give you the good doctor’s bio:

“Shawn C. Marsh, Ph.D., is the Chief Program Officer of Juvenile Law at the National Council of Juvenile and Family Court Judges. Dr. Marsh is a social psychologist with research and teaching interests in the areas of psychology and the law, adolescent development, trauma, and juvenile justice. His background includes working with youth in detention and correction settings as an educator and mental health clinician, and he is a licensed school counselor, professional counselor, and clinical professional counselor. Dr. Marsh is affiliated with several academic departments at the University of Nevada, and his publications include numerous articles in scholarly journals such as Youth Violence and Juvenile Justice and Victims & Offenders, as well as chapters in textbooks such as Correctional Psychiatry and Juvenile Crime and Justice.”

His May 8 presentation to a standing-room-only room at the University Club explored the many ways our important decisions are steered by our biases. Spoiler alert: We cannot eliminate them; they are rooted in everyone’s cognitive processes. But we can be more mindful of them, and in so doing, work to minimize their effects.

His approach was humorous and non-confrontational. He shared the many ways we may be seeing the world through skewed eyes. Here is one humorous example that he offered:

Snoop Martha Stewart sterotype

So, Snoop and Martha Stewart give us pause. Excellent. Because pausing before we act is one of the strategy Marsh recommends as you make your way as a human. (Marsh listed about 14 strategies.)

Take a few minutes. Take the Implicit Association Test (which retired Chief Justice McGregor also recommends.) Educate yourself. Expose yourself to other cultures and people.

That last point led to one of the more intriguing anecdotes he shared. He explained that research has shown that relatively brief exposure to praiseworthy individuals in groups that are not yours (“out-group exemplars”) may lead us all to see the entire “other” group in a much more positive light. In fact, even a 30-second positive focus (perhaps in a news or sports story) may yield attitude and behavior changes that last 24 hours.

How can we maximize that effect? Marsh said at least a few courts have uploaded slideshows to serve as the screen-savers on the computers of judges and court staff. In a nation that exhibits disparate treatment (even in sentencing) based on race, viewing a continual slideshow of admirable people of color may have a long-term effect.

(That and other strategies are listed in this National Center for State Courts report.)

Finally, Marsh points out that though attitudes matter, so do behaviors. And those behaviors are often exhibited through our selection of words. So I leave you, as he did, with a great short video on the power that words may have on the actions of us and those around us.

 

 

JAGC tour of superior and municipal courts, May 8, 2014.

JAGC tour of superior and municipal courts, May 8, 2014.

This morning, I am pleased to share a news story that was sent my way by attorney Debbie Weecks. It involves a visit by members of a Judge Advocate General Corps to a civilian court.

If you have law-related news you’d like to share, send it to me at arizona.attorney@azbar.org.

Here’s Debbie:

Our Luke AFB’s JAGC Corps broke with its quarterly Friday classroom from its own court setting and tradition this week. The JAGC instead enjoyed a local field day morning with a tour of the courts on Thursday, May 8. The group kicked off at Surprise Municipal Court at 7:45 a.m., where the Honorable Presiding Judge Louis Frank Dominguez gave a formidable overview of the municipal court system. Judicial Administrative Supervisor Lynn Mikus assisted in creating an instructional handout.

Next, the JAGC was greeted at Superior Court by the Honorable Presiding Judge Eilleen Willett for an overview of operations and court departments. Judge Willett was kind enough to lend her clerk out for the balance of the tour, so the members enjoyed the company and some insights courtesy of clerk John Charles Laws (a 3L at Summit Law). Thanks go out to all four NW Superior Court judges for spending time greeting and on Q&A (Judge Willett, and also Judge Jose Padilla, Judge Michael Kemp, and Commissioner Jacki Ireland), and to all their staff who pre-arranged and facilitated the tour.

The Maricopa County Sheriff’s Office graciously provided its escort, which gave the JAGC the opportunity during a snack break between courtrooms to learn about courtroom and courthouse security from Deputy Tony Jacobs. (A thanks is due to the Surprise location Paradise Bakery’s manager Cheryl for the cookies!)

The Self Service Center is an important service member resource when pro per, so the brief instructional by SSC clerks Marta and David was very useful!

Farther down the hallway, the JAGC was greeted by a prior JAGC officer, now Justice of the Peace, Gerald Williams. The four hour-plus tour ended with the JAGC members observing brief proceedings and interacting with North Valley J.P. Judge Williams and Hassayampa J.P. Judge Chris Mueller. With Judge Williams’ background prior to civilian life, the JAGC members were provided a comparative analysis of how certain matters are treated in the two court systems, including prepared handouts and thorough explanations on some more subtle criminal charge matters. Judge Mueller invited everyone to observe an interpreter in-custody plea bargain.

Overall, a great day for all involved!

Al Jazeera America logo AJAMBeginning this Sunday, May 18, cable news channel Al Jazeera America launches an all-new original documentary series that “explores the state of our legal system.”

Titled “The System with Joe Berlinger,” the eight-part series is directed by documentary filmmaker Joe Berlinger.

The series begins with an examination of the justice system’s use of confessions. The other topics will be: mandatory sentencing, forensics, eyewitness identification, juvenile justice, policing strategies, parole and prosecutorial integrity.

Joe Berlinger

Joe Berlinger

More information is here.

Before I hear from concerned readers (whose hackles may rise at mention of the Al Jazeera brand), I add: I have not been privy to any preview tape, so I cannot prejudge whether and how a balanced presentation is achieved. The director, Joe Berlinger, is an experienced journalist, so I’ve got my fingers crossed.

You may want to read a Q&A with Berlinger.

Here is a trailer for the series. (It is long on production values and short on substance, so it may not tip your viewing habits one way or the other.)

By entering your ZIP Code on the website, you can determine if the channel is available in your viewing area.

Do any of you intend to watch? I am (gasp!) cable-free, so I am unlikely to find a way to see it. But if you do watch it, I’d appreciate hearing your response to the first one that airs Sunday. Write to me at arizona.attorney@azbar.org.

access to justice lady justice scales

An Arizona Access to Justice Statewide Forum was held in Phoenix, May 1, 2014.

Law Day may be celebrated numerous ways. Legal advice may be offered; educational seminars may be staged. Or the yawning gap between aspiration and reality may be highlighted.

The third approach was selected on Thursday, May 1, at a statewide forum hosted by the Arizona Foundation for Legal Services & Education and the Arizona Supreme Court. For a variety of reasons, it was an inspired choice. And given the realistic topic of discussion, it also turned out to be a surprisingly inspiring morning.

To begin at the end: Vice Chief Justice Scott Bales announced the formation of a new Access to Justice Commission, which will be headed by Court of appeals Judge Larry Winthrop.

Justice Bales said that there have been significant successes in Arizona’s goal of increased access. But this new commission will recognize current challenges, and “It will help to focus and achieve tailored plans for success.” As an example of a possible success, he pointed to a renewed focus on a tax credit to assist the working poor.

“If just half of all Arizona’s attorneys contributed to it,” Justice Bales said, “that would amount to $2 million.”

Arizona Vice Chief Justice Scott Bales, May 1, 2014.

Arizona Vice Chief Justice Scott Bales, May 1, 2014.

He said that the Arizona Supreme Court is renewing its commitment to access issues, and its soon-to-be-released strategic plan will move that goal to be the Court’s primary strategic aim.

He recalled the way students begin their day, and reminded a packed room at the Court, “It’s not reciting the Pledge of Allegiance that defines us as Americans; it’s the progress we’ve made to achieve its ideals.”

Those ideals can be difficult to reach, Chief Justice Rebecca Berch said.

Despite significant innovations in Arizona, “Access to justice is an area in which we are not living up to our potential. It is always painful to examine areas in which you’re not as good as you should be. But it’s helpful.”

The Chief Justice then described the substantial barriers to achieving fuller access to justice: poverty, limited-English proficiency, and huge numbers of self-represented litigants.

Arizona Chief Justice Rebecca White Berch, May 1, 2014.

Arizona Chief Justice Rebecca White Berch, May 1, 2014.

Statistics for all three challenges are sobering:

  • The child poverty rate in Arizona is 27 percent.
  • The senior poverty rate is 13 percent.
  • Despite Arizona lawyers giving hundreds of thousands of hours of pro bono legal help (ranked sixth in the nation), the unmet need is staggering.
  • The percentage of pro se litigants rose from 24 percent in 1980 to 88 percent in 1990. Justice Berch said the number could be in the 90 percent range now.

In response, Arizona has nurtured the growth of various solutions, including self-help centers, specialty courts, attorney volunteerism, and a transparent judicial merit-selection system.

The Law Day keynote was delivered by Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

She reminded attendees that legal aid can be “critical and life-changing.”

Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

Karen Lash, Senior Counsel for Access to Justice at the U.S. Department of Justice.

Quoting Robert F. Kennedy, she said, “Unasserted, unknown and unavailable rights are no rights at all.” A crucial development in shifting access to those rights, she said, is the formation of access to justice commissions across the country—from zero in 1993 to 33 of them today, “five in the last year.”

Reflecting on Justice Berch’s remarks, Lash said, “Arizona is doing what many states only wish they could pull off.” She admired “a State Bar that embeds access to justice in its core mission,” as well as the Court’s “appetite for new collaborations and a righteous anger” about enduring poverty.

The forum also included a panel discussion about sustainable and repeatable best practices that make justice more available. Moderated by Kelly McCullough, the panel was comprised of Gregg Maxon (veterans courts), Anthony Young (volunteer lawyer partnerships), Barbara Howe (state libraries), and Carol Mitchell (video remote interpretation project).

We will continue to track the launch of the new commission. If you have particular questions or suggestions about best practices that should be covered, write to me at arizona.attorney@azbar.org.

Hon Michael D Ryan portrait

A new portrait of Hon. Michael D. Ryan, dedicated on April 25, 2014.

On Friday, April 25, a terrific lawyer and judge was honored with the dedication of an oil painting depicting him. The jurist recognized was Justice Michael D. Ryan.

You can read Justice Ryan’s obituary here. I wrote about him in Arizona Attorney Magazine here.

Today, I share a great story about the event written by the staff of the Superior Court for Maricopa County. I was very sorry to have to miss the event, but I am pleased that Mike Ryan’s friendly visage has become a permanent part of the courthouse.

Here’s the story:

On April 25, Superior Court celebrated the distinguished career of The Honorable Michael D. Ryan with a portrait dedication ceremony.

Justices, judges, former judges, court staff, friends and family attended the ceremony at the Old Courthouse in Phoenix to pay their respect to a brilliant legal mind who dedicated 24 years to working in the Judiciary. Justice Ryan served as a Superior Court Judge, a Court of Appeals Judge and an Arizona Supreme Court Justice.

During the ceremony, Justice Ryan’s wife, Karen, and son, Kevin, unveiled the portrait and Presiding Judge Norman Davis, Commissioner R. Jeffrey Woodburn and Retired Judge Ron Reinstein spoke on behalf of their friend and former colleague.

Justice Ryan was known as a fair and thoughtful jurist who managed his courtroom in a firm but respectful manner. He was respected by all who appeared before him as well as those who served beside him.

As a Superior Court Judge, he presided over high profile cases such as AzScam, the Phoenix Suns drug case and the criminal trial of Governor Evan Mecham. Prior to joining the Bench, he served as a Maricopa County prosecutor.

Justice Ryan received his Juris Doctorate from Arizona State University. He also was the recipient of two Purple Hearts and the Bronze Star for his service as a United States Marine Corps platoon commander in the Vietnam War.

A nose for news could be turned to other pursuits wine

A nose for news could be turned to other pursuits. True?

Writing a daily blog yields many advantages. You’re forced to read widely, listen intently, and converse often with readers near and far. And sometimes, you feel compelled to travel overseas.

Well, not often. But I’d appreciate your insight on that last element.

Happy Change of Venue Friday, a day a legal blogger might fantasize about taking a wine tour of France. No, I probably won’t be going. But the idea has a great nose.

My usual invitations are along the lines of a lawyer CLE staged in a wood-paneled conference room: “Nuts and Bolts of Administrative Law,” “What Attorneys MUST Know About the New UCC Changes” “Everything They DON’T Want You To Know About the Revised Securities Regulations”

You get the picture. Important. Significant. A bit drowsy.

So when I received another note headed “Press Invitation,” I did not expect much.

But then I spied the words “international wine competition held in France.”

It’s on April 5. And did I mention it’s in FRANCE? Could I go? Dare I go?

Here’s a piece of their marketing.

wine competition invitation for Bourg, FranceBut … How could I miss the administrative law extravaganza? The insurance business coverage limits analysis? And that panel discussion on employment law tips for the feedlot industry? How could all of that odorous content remain uncovered? Sacré bleu!

Ah, how beautiful Bourg, France, must be in the spring. Don’t we all deserve a junket?

Here is my analysis thus far. I would like you to chime in on whether a legal commentator should travel for a wine competition:

  • Pro: A wine competition and the legal industry both relate to the work of judges. I mean, that’s super-obvious.
  • Con: A junket of this sort might lead a writer to consider other paths and to desert equally deserving “serious” (“non-wine”) professions.

So you see my dilemma.

Let me know what you think. In the meantime, I will use the weekend to develop my nose on a variety of vintages and varietals. I await your counsel.

wine animated: Developing a new writing beat requires dedication, discernment.

Developing a new writing beat requires dedication, discernment.

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