October 2013


judicial elections report cover

Let me talk (for a few days) about judge elections and judicial merit selection.

Before you change the channel, I want to pass on some news that is, y’know, actually new. (Next week, I may write about what I call merit-selection fatigue, which afflicts anyone who has watched its fortunes wax and wane over a generation.)

The news is the release of a new report called “The New Politics of Judicial Elections.” It is a joint effort of the Brennan Center for Justice at the NYU School of Law, the National Institute on Money in State Politics and advocacy group Justice at Stake.

Brennan Center for Justice_logoThe 64-page report paints a pretty bleak picture of the current state of judge elections. In three chapters, the authors explore the money trail, record spending on TV ads, and the sour political climate that surrounds judicial elections.

You can read the complete report here. From the same page, you also can view the TV ads that they examine in the report. (Those videos are available as in video form and as storyboards.)

(Arizona, which has merit selection for appellate courts and the three largest counties, was mentioned in the study in regard to political fights over judicial selection. I wrote about one high-profile judicial retention election here.)

The fight over Arizona's judicial merit-selection model is described in the report "The New Politics of Judicial Elections 2011-12."

The fight over Arizona’s judicial merit-selection model is described in the report “The New Politics of Judicial Elections 2011-12.”

To mark the report’s launch, the groups held a media call last Friday morning. Here’s what they said on the call.

Bert Brandenberg, Executive Director of Justice at Stake, opened the dialogue by calling the politicization of judicial elections “one of the biggest democracy issues flying under the media radar screen.”

In recent years, “Millions of dollars raised by special interest groups were turning judges into fundraisers, raising fears that justice is for sale.”

In 2011-12, a record $56.4 million was spent in judicial elections, which Brandenberg calls “the new normal.” And that has become a trap for the judges, an arms race.

If we imagined that we could view matters transparently, Brandenberg reminded press on the call that 97 percent of all funds raised went to independent groups obliquely supporting or opposing candidates—not to candidates themselves. Those groups have no public reporting requirements.

“We depend on courts to be different from the other branches,” Brandenberg said. “But we ask judges to be Huey Long on the campaign trail, but then turn into Solomon on the bench.”

Justice at Stake logoAlso speaking on the call was Alicia Bannon, counsel at the Brennan Center. She opened by describing the “unprecedented spending” on judge election TV ads, coming in at more than $33 million in 2011-12.

As troubling as the dollar figures, she said, is the subject matter. More and more of the ads are becoming inflammatory—charging campaign opponents of protecting rapists or freeing terrorists. This “carnival atmosphere,” as she described it, is making judicial election ads almost indistinguishable from other political ads.

Bannon described reforms that the Brennan Center seeks: stronger disclosure laws to see who is trying to influence elections; stronger rules surrounding judge recusals; and public financing for judicial races.

At my request, Bannon kindly sent links for more about the Brennan Center’s work on “recusal reform.” Their 2011 report provides model rules for recusal standards. Their website also includes ABA testimony discussing their recommendations. As she said, “This work builds on a 2008 report which provides detailed analysis of the problem and our proposed solutions.”

The dialogue over how to sustain an independent but accountable judicial branch continues. Tomorrow, I’ll share some local news about merit selection. It arose at a recent terrific panel discussion (by coincidence, the same day as the media call), and when the unrelated topic of judicial elections arose, one panelist—a Texas judge—candidly offered his thoughts. And who doesn’t enjoy candid?

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KeepCalmReportPhishingThe following news arrives via John Phelps, the State Bar of Arizona CEO/Executive Director. He writes on a topic that should be of great interest to most all lawyers: scams aimed at those in the legal profession. Such efforts have been around for quite awhile, but as John writes, “This latest twist is just another reminder that you have to be constantly vigilant with your
business practices
.”

Here’s John opening on the topic:

We want to warn you about a phishing scam that is directed at lawyers. The latest twist is that the scam email is mentioning IOLTA accounts. The email implies that the account doesn’t have enough money to pay an outstanding check. It then asks for the attorney to contact the sender to clear up the matter.

Scammers are always looking for new ways to find victims. They’re hoping that by creating confusion, you’ll provide them with information they can use to access your account and steal your money. Always take a moment to read the email carefully. If it claims you have an outstanding problem, contact your own banking institution. If you do contact the sender, do not give them any account information.

Read the entire article here.

Here is what an engaged organization looks like:

A crowded University Club for an annual Arizona Women Lawyers event, in Phoenix, Oct. 24, 2013.

A crowded University Club for an annual Arizona Women Lawyers event, in Phoenix, Oct. 24, 2013.

Not such a great picture, eh? Well, that’s what I get for attending a function put on by an active group of lawyers.

Last Thursday, I stood in a packed-to-the-gills University Club in Phoenix. There, the Arizona Women Lawyers Association gathered to mingle and to honor a great judge, Roxanne Song Ong.

Judge Roxanne Song Ong spoke briefly, describing her path toward her current position as Presiding Judge of the Phoenix Municipal Court, “the State’s largest limited jurisdiction court and among the top ten busiest municipal courts in the United States,” as the court’s website says.

The judge spoke of her challenges as a young lawyer who was also a young mother. On that path, she would work part-time as a prosecutor, meeting her office’s needs by increasing her work-week from one day, to two, and so forth, until she found herself a full-time employee. On many of those days, she would rush home to breast-feed a young child. The trek repeated itself as she moved from being a part-time pro tem judge to becoming a full-time jurist.

The popularity of the AWLA annual event is conveyed somewhat by my bad crowd photos. Here’s another. The diminutive Judge Song Ong is way up there, in the back of the photo.

Judge Roxanne Song Ong speaks at the AWLA event, Oct. 24, 2013.

Judge Roxanne Song Ong speaks at the AWLA event, Oct. 24, 2013.

Even more evocative than the number of attendees, though, is the engagement I witnessed. Here’s an example.

I spoke with many folks at the event, and by the time the prepared remarks began, I found myself toward the back of the room, standing near a group of six or so young women lawyers (that was a coincidence, I assure you).

judge roxanne song ong headshot

Hon. Roxanne Song Ong

As Judge Song Ong spoke about her life’s path, I was able to see the reaction among those young women. The judge’s description of her challenges in balancing life’s needs was met by multiple nods by the women. Time and again, they smiled at her remarks. Most telling, they caught each others’ eye, smiled broadly and nodded.

Having spoken with a few of the women at the evening reception, I know that they don’t all have growing families or spouses. They are not (yet) toiling as judges pro tem or presiding judges. And yet the judge’s remarks resonated with them. In her story, they could spy parts of their own path.

As I left the University Club that evening, I walked to the parking lot with a young lawyer who had been among that group. I was not so surprised to hear that she was headed back to the office for more work. That is not very uncommon in law. I’m confident that Judge Somg Ong’s remarks cheered her, just for a bit.

I wrote last Friday about the multiple values of diversity, among them an actual increase in quality in the legal profession. That quality was transmitted by Judge Song Ong, and appreciated in the young lawyers who seek guidance in a challenging profession. Well done.

Arizona Women Lawyers Association logo pin

Have you gotten your AWLA pin yet?

John Jay College of Criminal Justice logo 2014In case you missed it, as they say: Reporter Michael Kiefer opened a four-part series yesterday about the prevalence (or its opposite) of prosecutorial misconduct.

That is bound to be a controversial issue, but I’m sure many will read this week’s Arizona Republic coverage closely.

His first piece is here.

That is certainly relevant to my legal audience, even if the topic will rankle some (if you want to see how much, just scroll down past his article to the reader comments beneath. Sheesh!). But besides the article’s substantive value, I also was intrigued by an acknowledgment included with it:

“This series was researched and written as part of a fellowship with The Guggenheim Foundation and the John Jay College of Criminal Justice in New York City.”

Arizona Attorney Magazine January 2012 cover criminal sentencingHey, I know the John Jay College—because I also had the opportunity to be named a Guggenheim Fellow a few years ago. As such, I traveled to New York for a targeted symposium on crime in America.

As a working writer, it is quite a luxury to have a trip dedicated to learning—especially when your expenses are paid. In an annual conference, the Guggenheim Foundation brings a parade of national experts before a group of 25 or so journalists to help dissect the criminal justice system. (I got to attend another Guggenheim workshop, in Reno, on incarceration and release issues, in 2008).

The repayment you make to that cutting-edge learning is that you commit to coverage of a related topic. My coverage—on criminal sentencing and the political possibilities for change—appeared in the January 2012 Arizona Attorney Magazine.

Kiefer’s a great reporter, and I can picture the Manhattan room he sat in; I wonder if it snowed during his East Coast trip too. I look forward to what he can accomplish this week (with the Gannett machine behind him!). Write to me at arizona.attorney@azbar.org and let me know what you think of the coverage.

Guggenheim acknowledgment

In the January 2012 issue, I thanked the John Jay College and Guggenheim folks for a terrific learning experience.

old classroom photo students: Over the years, we students of legal education have changed. Have the teachers changed?

Over the years, we students of legal education have changed. Have the teachers changed?

Yesterday, I mentioned a terrific educational program that explored recent decisions of the U.S. Supreme Court. Assuming it’s offered again next year, I would recommend you attend.

I tend not to immerse myself in the mechanics of event planning. After all, what I don’t know about that topic is a lot, and those issues may not be of great interest to attorney and other legal readers.

But on this Change of Venue Friday, I do pass on a few notions that implicate the quality and attractiveness of programs.

One of those suggestions I heard from multiple attendees, and it boiled down to: If attorneys have to forego a day of work to attend a 9:30 to 3:00 seminar, couldn’t it be extended slightly so six or so hours of CLE would be available? Traveling to a location (whether in Peoria or in Scottsdale) to get four hours makes the decision to attend a tough one.

I know CLE staff heard that suggestion too, so I leave that to them to consider.

The second issue is a bit touchier, but it is a topic that has struck me at numerous educational events, whether hosted by the State bar or anyone else: Where is the diversity on the speaker panel? Wednesday’s event had none. (In fairness, the keynote speaker is from Pinal County, so there was that geographic diversity.)

I anticipate and acknowledge the fact that in past years, this particular program had some gender and geographic diversity.

So my remarks here are not aimed at one program, but they frame a general question:

As we attend seminars that touch upon virtually all areas of life’s experience, and those programs have non-diverse faculty, how is our educational experience not harmed?

Every one of us has sat through CLEs that touch on all elements of the human condition. The Supreme Court itself regularly passes on the constitutionality of laws that disparately affect significant portions of the population. Can all of those topics be discussed comprehensively by a faculty lacking in diversity—whether gender, race, ethinicity, geography, or anything else.

The State Bar has a real commitment to diversity; it’s even in its core values. And it faces a challenge to effectuate that mission. But for all associations, the pace needs to accelerate. We often are reminded that all associations are in a battle for relevancy, and relevancy is related to accurate and cutting-edge industry information. Our industry is legal, and we count on education that explores cases, laws and policies in a robust, vibrant and diverse way. Anything less is short shrift.

To suggest the seriousness of the issue, I point to a Twitter stream I recently followed as the annual meeting of the Online News Association occurred. As that meeting progressed, I was intrigued by a dialogue that sprang up there.

Megan Finnerty, an Arizona Republic reporter, was tweeting about the ONA meeting, and she retweeted the following about feminist writer Jessica Valenti:

.@jmfbrooks: #ONA13 MT @NABJDigital: .@JessicaValenti & others refuse all-white panels. Individual actions make a difference #mediadiversity

— Megan Finnerty (@MeganMFinnerty) October 19, 2013

So here was a national speaker who indicated a panel’s diversity—or lack thereof—could be a deal-killer for her. She apparently would decline to sit on panels that did not represent the organization’s makeup.

I’m sure some readers will note that the original post was made via the Twitter feed of the National Association of Black Journalists (who are here and here), and it was re-posted by a feminist writer. So doubters may pooh pooh the importance of this whole issue and say, Consider the source. But they’d be mistaken.

I have heard similar critiques from Arizona lawyers—and not just those from the “sister bars.” More and more, non-diverse panels are an arresting vision, ones that attendees connect to a tone-deaf and declining viewpoint.

This week, a colleague shared with me a great article that touches on this topic. It was written by Jan L. Jacobowitz, Director of The Ethics and Professional Responsibility Program Center for Ethics and Public Service at the University of Miami School of Law. And she wisely connects two things that many would keep separate: professionalism and cultural competency.

You can read her whole article here, but it contributes to a conversation about how the quality of education is connected to diversity. And we must wonder: Can we ever achieve (or even approach) cultural competency if multiple viewpoints are not welcomed as participants?

What is your view? Does a diverse panel add value to the information you receive?

Have a great—and diverse—weekend.

ASU's Paul Bender as a bobblehead. My memory of law school professors is more head-shaking than nodding, but whatever.

ASU’s Paul Bender as a bobblehead. My memory of law school professors is more head-shaking than nodding, but whatever.

Yesterday, I spent much of the day hearing about last Term’s Supreme Court cases. The panel of lawyers and scholars was a good one, and, when it comes to the Court (and Shakespeare), it’s clear that the past is certainly prologue.

The speakers covered more than a dozen significant cases, and it’s certainly true that many issues will recur in the next or upcoming Terms.

Tomorrow, I may share a few thoughts about what works in this kind of program. For now, here are a few photos from the event. First, though, the event included a few unique elements, rarely if ever spotted at a CLE:

  • There was a magician. Yes, an actual illusionist. His name is Shawn Greer, he is quite good, and you can read more about him here. I haven’t been able to identify whose idea it was to include a magician’s skills during breaks and lunch, but I suspect it had something to do with the imaginative panel chair, Judge George Anagnost. Kudos.
Paul Bender and Hon. George Anagnost, Oct. 23, 2013.
Paul Bender and Hon. George Anagnost, Oct. 23, 2013.
  • There were bobbleheads. I suspect (but haven’t confirmed) that each panelist received a bobblehead in his own likeness. What I do know is that ASU Law Professor Paul Bender got one, and it was charming. Apparently each speaker was asked for a head-shot in advance, but they didn’t know why they were providing one. Now they know. (Professor Bender, nearly always right, so far as I can tell, muttered his cavils: The hairstyle was wrong, he doesn’t typically wear a tie, and the bobblehead was smiling. Very true, Professor. The smile was a deal-killer.)

Here are some photos:

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ADL awards header 2013

Today, I’m pleased to report about a great lawyer (and fellow) who is about to be honored. It only adds to the news that this occurs during Pro Bono Week, for which this attorney could be equally recognized.

The lawyer is David Bodney, the talented partner at Steptoe’s Phoenix office. And the organization honoring him is the Anti-Defamation League, which has recognized David as a leader for many years.

David Bodney

David Bodney

This Thursday evening (Oct. 24), the Arizona Region of the Anti-Defamation League will bestow on Bodney its Torch of Liberty Award. He has much leadership experience with the ADL, including service on the National Legal Affairs and Civil Rights Committees and National Commission. In addition, the ADL announced that Bodney “recently co-authored ADL’s amicus brief in the U.S. Supreme Court challenge to Arizona’s SB 1070.”

As the ADL describes the award:

“The Anti-Defamation League’s Torch of Liberty Award was established over 40 years ago to recognize individuals who have exhibited extraordinary humanitarian concerns and whose everyday actions exemplify the principles on which the ADL was founded—diversity, civil harmony, social justice and respect for human dignity.”

ADL logoMore detail about David and the award are here.

And tickets are available for sale here.

I had anticipated going, but a family conflict prevents that. So I’m hoping one of you gadabouts will send me a note (arizona.attorney@azbar.org) to report how the evening went. Photos? Always welcome.

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