Robert Robb

Whenever a commentator starts with the “Truth is somewhere in the middle” scenario, you can be assured of one thing:

You’re going to have to work hard to excavate his real thesis, for it’s nearly certain that his preferences lie on one side of the argument over the other.

And that’s the case with Robert Robb’s lecture on merit selection in this morning’s Arizona Republic, titled in a moderation-is-all tone “Small Fix Is Best For Merit-Selection System.” Let’s see his fair-minded lede, shall we?

“Arizona’s merit-selection system for choosing judges isn’t as bad as critics maintain. On the other hand, it’s not as virtuous as defenders assert.”

Holy cow, who could disagree with that? His decades of reporting experience have revealed to him that humans and their positions are flawed.

Gosh darn it, that’s a fair-minded journalist, just telling it like it is, balls, strikes—you know the drill. And that opening prepares you to accept as reasonable the conclusions he draws at the end of his column—if you get there. For many readers, that milquetoast opening will cause them to say, “Nothing to see in merit selection. Sounds like some tweaks are in the works. All is good in the world.”

In that view, his conclusions are more a modest proposal than A Modest Proposal.

But when a polemicist uses that truth-is-in-the-middle rhetoric, it is in the middle—of his column—that you have to read carefully to see what’s up.

And it’s there that Robb goes after the courts with both barrels:

“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that it somehow required the public funding of some abortions.

“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.

“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.

“There is no one left on the current court from those imperial days, and the current court is charting a much more circumspect role.”

Where, as they say, do we begin?

I think it was Henrik Ibsen who said that if a playwright has a rifle over the mantle in Act 1, it is certain that it will be taken down and used in Act 3.

Well, if we’re tossing around terms like an “imperial court,” we’re bound to think that a revolution is in order. We Americans are like that (think “Don’t Tread on Me”).

Robb usually writes with a pretty subtle understanding of what lawyers and judges really do—which is appreciated and pretty rare. But his examples from the “crazy” 1990s leave me underwhelmed. A few anecdotes don’t prove that the Supreme Court got any more “activist” in that time period. And if it was a busier court then, that would coincide with a time when the Legislature—and what it created—grew to be more partisan and imperial. Maybe they had to get active just to keep up with the increasingly active Lege. You know, checks, balances and all that.

And I had to smile when I saw some of Robb’s examples are in education. As we see our state’s race to the bottom of the country’s educational heap, it’s almost a laugh riot that he would spank the Court for its past efforts at equity and efficacy.

In fact, just pages before Robb’s column today, we hear how former Intel CEO Craig Barrett advised the Legislature that if that company were looking today for where to expand, “I hate to say it, but I think Arizona would not be in the top 10 locales to make that investment” (“Former Intel CEO Blasts Education in Arizona”).

Hmmm, it almost sounds like education is related to the economy or something.

On a related matter: As merit-selection issues develop here in Arizona, there is another question that I am interested in.

Thus far, the Arizona Supreme Court and the State Bar of Arizona have been strong partners in working to maintain the merit-selection system. They both are adherents of the maxim, “It’s not broke, so it doesn’t need fixing.”

But as bills get dropped at the Lege, distinctions in their positions may be necessary. For instance, some of the proposals maintain merit-selection with some small changes—one of which is a diminishment in or elimination of the State Bar’s role in choosing judges. That role is already modest, but some lawmakers want it gone, gone, gone.

As the bus rolls past, will the State Bar be under it? And will the Court support bills that save the bulk of the system, even if the Bar is marginalized? That would put the State Bar to a choice: Stand down, or advocate a position that is not on all fours with the Court.

And if the Bar does work to preserve its role, does it do that now, at the Lege, or wait until a ballot resolution is put to the voters?

Either way, the year grows more interesting by the moment.

Read Robb’s entire column here.

Sandra Day O'Connor urges legislative restraint at a Morrison Institute panel on merit selection of judges, Feb. 22, 2011.

Today, the Arizona Republic published an editorial that echoes what Chief Justice Rebecca White Berch has told the Legislature about the judicial merit-selection system: It’s not broken, so why are you tinkering with it?

(The same message has been made by others, including retired Justice Sandra Day O’Connor, at a panel discussion we covered here.)

More specifically, the editorial offered a defense of the State Bar’s role in that process. As it points out, the Bar does not select judges in the state. But it plays a role in selecting lawyers to sit on judicial nominating commissions—where those lawyers sit as a minority alongside members of the public.

Recommendations arising from those commissions then go to the governor, who selects judges to sit on the Arizona Supreme Court, Courts of Appeal, and Superior Courts in Maricopa and Pima counties.

Despite an unfortunate typo, I’m sure the State Bar leadership appreciates the Republic’s touting State Bar involvement, which “ensures the commissions will include lawyers deemed competent by fallow lawyers.”

(Fallow, of course, can mean “undeveloped or inactive, but potentially useful.” For the record, those are not the kinds of lawyers the Bar strives to appoint.)

Read the complete editorial here.

Grady Gammage Jr.

The way we pick judges has all the makings of a yawner, right up there with shareholder voting rules and ski-lift instructions. And yet in Arizona and across the country, the topic is red hot.

This year, as in the past, the Arizona Legislature is considering some bills that would alter what many argue is the flagship method for judicial selection in the nation. As Morrison Institute executive director Sue Clark-Johnson said, “Arizona has been considered a model in the United States.”

In response to the possibility of Legislative action, the Morrison Institute at Arizona State University hosted a panel presentation on the topic on Tuesday, Feb. 22. (I previously posted some event photos at the Arizona Attorney Magazine Facebook page.)

Held at the ASU downtown Phoenix campus, the roundtable included:

  • State Senator Adam Driggs (R-11), a member of the Senate Judiciary Committee
  • Hon. Ruth V. McGregor, former Chief Justice, Arizona Supreme Court
  • Hon. Mary M. Schroeder, Judge, U.S. Court of Appeals for the ninth Circuit
  • Hon. William J. “Bill” O’Neil, former judge, Arizona Superior Court for Pinal County (and now the state’s Presiding Disciplinary Judge; we wrote about him in the January issue of AzAt)

The moderator was lawyer Grady Gammage Jr.

Former Arizona Chief Justice Ruth V. McGregor

The roundtable was great, as far as it went. But events like this come perilously close to the scenario of heartfelt preachers assaulting the ears of the choir: They tend to be slated from a particular point of view, which the audience shares. The only mystery is will there be catering?

Given that, how do you achieve a vibrant evening, one where the assembled learn something new and important about the topic?

Have a great moderator.

Props to all the panelists, but Grady Gammage did his job with elán. He poked, prodded and incited the four panelists. And although he pretty much agreed with them about everything, he spent the evening playing the role not of the agreeable piece of furniture—the death knell for a roundtable—but of the mildly disagreeable event interloper.

Mind you, when I say disagreeable, I heap the greatest of praise. For the moderator who plays devil’s advocate is the audience’s surest friend. His insistence on hard answers from speakers sharpened their presentations and made their positions crystal clear. It made them and their presentation look even better.

The evening opened with remarks by Sue Clark-Johnson and Dr. David R. Berman, an Institute research fellow. Berman gave a historic overview of the state’s merit selection process.

And then Gammage explained the political landscape that faces that process. In the current Legislative session, he said, there are currently 10 House Concurrent Resolutions (HCRs) and one House Resolution (HR) that would alter that process in some way.

  • Most of the proposals would add Senate confirmation.
  • Two would remove the State Bar of Arizona from the process.
  • One would change the length of judges’ terms.
  • One would retain Pinal County as a judicial election county (its growing population would otherwise automatically make it a merit-selection county).
  • One would require the Commission on Judicial Court Appointments to rank the nominees whose names it forwards to the Governor.
  • One would allow the Governor to add names of her choosing.
  • One would require Senate reconfirmation of judges.

Chief Justice McGregor was especially concerned about the Senate confirmation idea: “It seems intended to make the process more political, and nothing else.”

Sandra Day O'Connor makes a point at the roundtable discussion.

She continued, “When people say, ‘Judges are nothing but politicians in robes,’ that is wrong, and not the case in Arizona.”

Senator Driggs tried to give some insight into the thinking of his colleagues, especially in regard to the Senate confirmation idea.

“I think some may have visions of C-SPAN in their heads, a big vetting process [like U.S. Senate confirmation]. It’s a little bit of a fantasy, like all of a sudden everyone will be down there and paying attention.”

McGregor added what became a recurring theme of the evening—what exactly is broke that requires fixing?

“Most who have studied the Arizona merit-selection system say that it is the best. Even the U.S. Chamber of Commerce has said [to other states], ‘We don’t take a position, but if you have merit selection, follow Arizona.’”

Gammage got some laughs and raised eyebrows when he asked Judge O’Neil if Pinal County was resisting “becoming a grown-up county” and adopting merit-selection. O’Neil took issue with the question—not the “grown-up” moniker, but with the inference that residents wanted to keep judicial elections. He said that the majority of the county would like to be a merit-selection jurisdiction.

O’Neil added that in preparation for the move to merit-selection, the court there began performing trial-run internal reviews, which would become the norm under the new process. And in a county where the judges have always been elected, he said that “not all did that well.”

Judge Mary Schroeder shared more background about merit selection. She reminded everyone that Judge Thomas Tang, a respected jurist, was thrown out of his elected judgeship because of a single criminal case.

In response, “The business community got merit-selection passed in a referendum.”

She also was troubled by the seeming hostility toward any organized bar association. She recalled a previous battle over splitting the Ninth Circuit Court of Appeals. In testimony to Congress, Microsoft General Counsel Bill Neukom spoke in favor of the current Circuit. Many advised him to “play up” his Microsoft connection, and to downplay the fact that he was the President-Elect of the American Bar Association.

Gammage did not let the group off that easy, though. He urged them to discuss the ballot that contains “all those names” of judges standing for retention election.

“No one knows what to do with all those names. What an insulting process. If we agree that it is meaningless, and that it is not likely to have much impact, what is it for?”

“What is the effect on civic expectations,” he continued, “in what amounts to an essentially meaningless exercise? If the result is that 1 out of 50 gets marginal ratings, why send the names to the ballot at all?

Of course, panelists did not agree with his premise. But they did acknowledge that it creates a challenge for voters.

McGregor, Schroeder and O’Neil agreed that merit-selection’s very existence may serve to persuade those with more meager skills from seeking a judgeship in the first place. And that would mean those seeking to be retained would likely have high ratings

And Senator Driggs also spoke in favor of merit selection.

“I don’t care if someone is charismatic and goes to neighborhood picnics. I want them to know the Rules of Evidence.”

Finally, in the audience Q&A portion, a slight woman raised her hand and patiently waited her turn. When Gammage called on her, Sandra Day O’Connor, former Associate Justice of the U.S. Supreme Court, spoke loudly enough for everyone in the room to hear.

“I grew up on a ranch, and we followed the motto of, If it ain’t broke, don’t fix it. Well, it ain’t broke, and I don’t know what changes they’re going to implement.”

Judge Pendleton Gaines, 1944-2011

It was reported this week that Judge Pendleton Gaines has died. That is a tremendous loss to many here in Arizona and around the country. And on this Change of Venue Friday, I recall an entirely enjoyable encounter I once had with Judge Gaines.

The occasion was Law Day in 2008. I had been asked by the State Bar of Arizona to moderate a panel discussion on the Rule of Law. (You always know a topic is important if it gets All Initial Caps.) It was to be held at the Maricopa County Supervisors’ Auditorium in downtown Phoenix, right next to the Superior Court.

Now, I enjoy that kind of gig, but I had to pause. The Rule of Law? The likely audience was (1) students from area elementary schools and high schools, (2) some lawyers, (3) some homeless people who like cookies, and (4) Superior Court Judges in need of COJET credit.

And, as they say, in no particular order. Would they even enjoy this?

I had to ensure that the panel would reflect a variety of viewpoints, for as panelists chatted about a political hot-potato like merit selection of judges, audience members might get riled if all the views were on one side. (“Merit selection” had been fighting words for a while by then, so much so that we titled our February 2006 cover of Arizona Attorney Magazine “Fair Courts Under Fire.” A few months later, another state bar magazine not too far away ran almost the identical cover—but that’s a story for another day.)

I also had to think hard about how we could make this interesting for a diverse group of people.

As it turns out, I think we got a “C+” on the first criterion; most of the panelists came down on one side of the issue. But on the second, we got a (self-graded) “A.” And Judge Gaines played a huge part in that.

The panel I moderated that day in April 2008 had panelists:

  • Barbara Rodriguez Mundell, Presiding Judge, Superior Court for Maricopa County
  • Maurice Portley, Judge, Arizona Court of Appeals
  • Pendleton Gaines, Judge, Superior Court for Maricopa County
  • Dan McAuliffe, State Bar President
  • Ed Novak, State Bar President-Elect

That’s a great group of folks to sit around and talk about anything. But on an issue like merit selection, they were fantastic.

Except for Penny Gaines, I had met and worked with all the panelists before. Judge Gaines, I met that morning.

Maybe that accounts for my pleasant surprise at the Judge. What he exhibited that day was a jurist’s calm, even when fellow panelists (yes, Dan, that would be you) grew impassioned and inflamed at some of my questions. (My favorite was when I asked why we couldn’t add Senate confirmation to merit selection. After all, “Our current system comes from Missouri, not from Moses.” Dan McAuliffe nearly leaped out of his seat at that one.)

Judge Gaines also brought a scholar’s dedication to the task. He had done a remarkable amount of research, and was able to provide facts, figures and anecdotes to our presentation. That took the conversation far beyond opinions and into the realm of education.

He had a courteous and courtly demeanor. Like other effective lawyers before him, he knew that his arguments carried more persuasive value when uttered with a considerate tone.

Finally, he had a dry sense of humor that lightened what could have been a dreary lunchtime meeting. But don’t take my word for it. Read (below) Judge Gaines’ 2006 “Rules on Pending Motions,” specifically his ruling on “Plaintiff’s Motion to Compel Acceptance of Lunch Invitation.” And do not skip the footnotes.

(A hat tip to Udall, Shumway & Lyons attorneys Candyce Pardee and Brian Allen for reminding me of this classic bit of legal humor from Judge Gaines.)

All of these are qualities that seem in short supply these days. I count myself as privileged to have gotten to work with the Judge on that occasion.

As we reported the other day, details on a memorial service for Judge Pendleton Gaines will be released soon by the Superior Court.

In the meantime, here is Judge Gaines, in his own writing:



CV 2003-020242


Docket Code 019

CLERK OF THE COURT: A. Beery, Deputy


FILED: 07/21/2006


Counsel (Plaintiff): DAVID A SELDEN

Counsel (Defendant): DOW GLENN OSTLUND




STE 380



The Court has reviewed the pending motions. Two will be granted. The others will be deferred.

Plaintiff’s Motion to Compel Acceptance of Lunch Invitation

The Court has rarely seen a motion with more merit. The motion will be granted.

The Court has searched in vain in the Arizona Rules of Civil Procedure and cases, as well as the leading treatises on federal and Arizona procedure, to find specific support for Plaintiff’s motion. Finding none, the Court concludes that motions of this type are so clearly within the inherent powers of the Court and have been so routinely granted that they are non-controversial and require no precedential support.

The writers support the concept. Conversation has been called “the socializing instrument par excellence” (Jose Ortega y Gasset, Invertebrate Spain) and “one of the greatest pleasures in life” (Somerset Maugham, The Moon and Sixpence). John Dryden referred to “Sweet discourse, the banquet of the mind” (The Flower and the Leaf).

Plaintiff’s counsel extended a lunch invitation to Defendant’s counsel “to have a discussion regarding discovery and other matters.” Plaintiff’s counsel offered to “pay for lunch.” Defendant’s counsel failed to respond until the motion was filed.

Defendant’s counsel distrusts Plaintiff’s counsel’s motives and fears that Plaintiff’s counsel’s purpose is to persuade Defendant’s counsel of the lack of merit in the defense case. The Court has no doubt of Defendant’s counsel’s ability to withstand Plaintiff’s counsel’s blandishments and to respond sally for sally and barb for barb. Defendant’s counsel now makes what may be an illusory acceptance of Plaintiff’s counsel’s invitation by saying, “We would love to have lunch at Ruth’s Chris with/on . . .” Plaintiff’s counsel.1

[FN1: Everyone knows that Ruth’s Chris, while open for dinner, is not open for lunch. This is a matter of which the Court may take judicial notice.]

Plaintiff’s counsel replies somewhat petulantly, criticizing Defendant’s counsel’s acceptance of the lunch invitation on the grounds that Defendant’s counsel is “now attempting to choose the location” and saying that he “will oblige,” but Defendant’s counsel “will pay for its own meal.”

There are a number of fine restaurants within easy driving distance of both counsel’s offices, e.g., Christopher’s, Vincent’s, Morton’s, Donovan’s, Bistro 24 at the Ritz-Carlton, The Arizona Biltmore Grill, Sam’s Café (Biltmore location), Alexi’s, Sophie’s and, if either counsel has a membership, the Phoenix Country Club and the University Club. Counsel may select their own venue or, if unable to agree, shall select from this list in order. The time will be noon during a normal business day. The lunch must be conducted and concluded not later than August 18, 2006.2

[FN2: The Court is aware of the penchant of Plaintiff’s counsel to take extended cruises during the summer months.]

Each side may be represented by no more than two (2) lawyers of its own choosing, but the principal counsel on the pending motions must personally appear.

The cost of the lunch will be paid as follows: Total cost will be calculated by the amount of the bill including appetizers, salads, entrees and one non-alcoholic beverage per participant.3 A twenty percent (20%) tip will be added to the bill (which will include tax). Each side will pay its pro rata share according to number of participants. The Court may reapportion the cost on application for good cause or may treat it as a taxable cost under ARS § 12-331(5).

[FN3: Alcoholic beverages may be consumed, but at the personal expense of the consumer.]

During lunch, counsel will confer regarding the disputes identified in Plaintiff’s motion to strike Defendant’s discovery motion and Defendant’s motions to quash, for protective order and for commission authorizing out-of-state depositions.4 At the initiative of Plaintiff’s counsel, a brief joint report detailing the parties’ agreements and disagreements regarding these motions will be filed with the Court not later than one week following the lunch and, in any event, not later than noon, Wednesday, August 23, 2006.

[FN4: The Court suggests that serious discussion occur after counsel have eaten. The temperaments of the Court’s children always improved after a meal.]

Defendant’s Motion to Strike Proposed Amended Complaint

To demonstrate to counsel that the Court has more on its mind than lunch, the Court has considered Defendant’s motion to strike Plaintiff’s proposed amended complaint. The motion will be granted.

Plaintiff’s proposed amended complaint is 56 pages long and has 554 separately numbered paragraphs. It contains 19 counts. It is prolix and discursive in the extreme. It violates the Court’s order of July 22, 2005, permitting the Plaintiff to file “an agreed-upon form of Amended Complaint to clean up housekeeping matters.” It is not the “short and plain statement” required by Rule 8(a)(2). It is a pleading of a type specifically condemned in Anserv Insurance Services, Inc., vs. Albrecht, 192 Ariz. 48, 49-50 (1998) (trial court should have stricken 269-page, 1322-paragraph complaint). Most importantly, it violates the observation of French philosopher Blaise Pascal, who concluded a long letter with an apology, saying he “had not the leisure to make it shorter.” Since this is a 2003 case with no end in sight, Plaintiff’s counsel has the leisure to make his complaint shorter.


1. Plaintiff’s motion to compel Defendant’s counsel’s acceptance of lunch invitation is granted on the terms and conditions set forth above.

2. The parties are directed to file the joint report referred to above.

3. Further action on the parties’ pending discovery motions is deferred pending receipt of the joint report.

4. Defendant’s motion to strike Plaintiff’s proposed amended complaint is granted.

5. The oral argument set in this division on August 2, 2006, at 9:15 a.m. is vacated.