Panelists of "Lawyering Political Environment," June 19, 2013

Panelists of “Lawyering in a Political Environment,” June 19, 2013

The State Bar Convention offers a multitude of learning opportunities. But I’m only one guy, so I opted to attend a morning seminar titled “Lawyering in a Political Environment.” It was deemed a President’s Award winner, and it seemed a good way to start my own 2013 Convention experience.

L to R: Kelly Schwab, Joe Kanefield

L to R: Kelly Schwab, Joe Kanefield

Here’s what I discovered: The first seminar in the first day of the annual State Bar Convention largely had to do with a lawyer who had been disbarred by the State Bar. Quite a morning. But in that regard, the educational offering was probably unique among seminars that could be offered at bar conferences nationwide. Arizona is an interesting place.

The conversation was far ranging, but panelists and their moderator Robert Robb found themselves, more often than not, addressing ethical challenges created by former Maricopa County Attorney Andrew Thomas—now disbarred. And because of that, the seminar was a timely and relevant presentation to a packed house of attorneys who had learned firsthand about the risks of blending law and politics.

The panel was a powerhouse one:

  • Former United States Attorney Paul Charlton
  • Former Governor’s Counsel Joe Kanefield
  • Maricopa County Attorney Bill Montgomery
  • Former Pinal County Attorney Jim Walsh
  • Attorney Kelly Schwab

Robb asked panelists to offer their general views about lawyering in a public setting.

Paul Charlton opened by saying that “Public service is a noble enterprise. Every day your one, monolithic goal is to give back.”

L to R: Robert Robb. Jim Walsh, Paul Charlton

L to R: Robert Robb, Jim Walsh, Paul Charlton

He continued by discussing his most difficult decision as United States Attorney—one that had career-changing implications.

“My most difficult decision? Whether to seek the death penalty.”

Charlton made a choice that did not square with the thinking of the United States Attorney General and so, he said, “I got fired for it.”

“How do you deal with those who take a political view of the world, or with those who think the death penalty should be sought—not pursued—in every situation?”

Bill Montgomery stepped into an office in which the top prosecutor had made politicizing legal decisions the norm. Montgomery says his focus has been on changing that atmosphere.

“It’s about knowing what’s right and wrong, not what’s right and left.”

Joe Kanefield recalled the biggest challenge faced by lawyers in state government: “resisting pressure to pursue legal remedies for political challenges.”

Moderator Robb asked the panel if elected attorneys are “special” because they serve voters first.

“Andy Thomas thought he was special,” said Robb. “But who is the client? Should the criminal and civil functions be separated” to reduce the possibility of overreaching?

No, said Charlton. “I’d say that’s a solution in search of a problem,” because instances like that are rare, “except that we do have Andrew Thomas in our recent history.”

“But that was an aberration,” he continued. “Though it was awful for anyone caught in Thomas’ crosshairs,” the legal community generally “catches” such behavior before it becomes egregious.

Robb kept the focus on specifics when spoke about Bill Montgomery’s recent legal advice to County Supervisor Mary Rose Wilcox that she had a conflict in regard to the county’s civil suit involving Sheriff Joe Arpaio. But the focus remained on a former prominent attorney.

Charlton said, “It was right to go after Andrew Thomas; it was right to take his license.”

L to R: Paul CHarlton, Bill Montgomery, Kelly Schwab

L to R: Paul Charlton, Bill Montgomery, Kelly Schwab

The whirlwind seminar included conversation about prosecutions of former Congressman Rick Renzi, Senator Ted Stevens, major league ballplayer Roger Clemens and others. And it extended beyond the practical challenges that prosecutors—especially elected prosecutors—face daily. It winded up with a discussion of possible changes to the Ethical Rules to accommodate the unique situations they may face. And at least one panelist recommended that young line prosecutors need a place to turn when challenges arise.

“We used to call them an ombudsman,” said Jim Walsh. “But whatever they’re called, we need someone in prosecutor offices that those attorneys can go to” when they develop the sense they are being asked to do questionable things to further political ends.

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Project Civil Discourse logoWhat does civic engagement mean to you? Share your ideas. Create a video.

That’s the pitch from Project Civil Discourse, which announced its Student Voices Video Contest.

The contest is open to students and some categories of adults. So if you know of or work with someone who may be interested in creating a video that speaks to the issue of civil discourse, point them here. The deadline is Jan. 31, 2013.

Project Civil Discourse is “a special initiative of the Arizona Humanities Council.” The Council builds a just and civil society by creating opportunities to explore our shared human experiences through discussion, learning and reflection.”

arizona humanities council logoAlso note: The Project is holding a panel discussion on February 19 on the topic of politics and religion. It will be held at the Phoenix Burton Barr Public Library, and among the panelists will be lawyer Bob McWhirter. We’ve featured Bob’s work and career a number of times in Arizona Attorney Magazine, and he’ll be in there again in our February issue, on the topic of lawyer writing.

AZ Supreme Court logoI began an earlier draft of this blog post with the encouraging message: We all should go to judicial investitures. That followed on the heels of two great judge swearings-in—for Court of Appeals Judges Randall Howe and Sam Thumma. For my time and money, there may be no events that provide more insight into what makes judges tick than those events. And I believe that is true for all attendees, whether they are a lawyer or not.

But then I read a news story this week that reminded me it will take more than a heartfelt gathering to remind Arizonans that we have a terrific judiciary (perhaps the finest in the country). Being cynical and all, I’m not convinced we voters are up to the task of understanding and preserving what we’ve got. But I’m hoping I can be proven wrong.

The news story was penned by longtime reporter Howard Fischer, of Capitol Media Services, and it’s titled “Groups Campaign To Oust Supreme Court Judge.”

Right off the bat, let me assure you I’m not urging a vote one way or another on the Justice’s retention. That is between you and whatever data you have available. This post is about the data.

Anyway, as Howie describes it:

“A loosely organized effort to oust a state Supreme Court justice is forcing him to consider an unprecedented campaign to keep his post. … The anger is focused on [Justice John] Pelander because the Supreme Court earlier this year ruled that Proposition 121 can be on the ballot. That measure, if approved, would amend the state Constitution to create an open primary system where all candidates run against each other regardless of party affiliation, with the top two advancing to the general election.”

Hon. John Pelander

Hon. John Pelander

Again, you should vote in the retention election however you’d like. But this whole dustup is about … Prop 121?

Really? REALLY?

For a treatment of the subject that is far more compelling and eloquent than my two-word screed, you should read Chief Justice Rebecca White Berch’s commentary in the Arizona Republic from this past Monday. She also is careful not to urge any particular vote, but she does point us all to some sources of actual data that might inform our ballot choice: The Arizona Commission on Judicial Performance Review, and the Arizona General Election Guide, which is mailed to each registered voter.

As always, the Chief is judicious (part of the job title, I think). But the op-ed does reveal some raised hackles:

“[U]nfortunately, in this age of social media, blogs and e-mail, anyone can post anything concerning a judge without regard to accuracy. Judges may be unfairly portrayed or information about rulings may be misrepresented by people who have an agenda or have simply misunderstood an opinion.”

That takes us back to Howie’s article, which you can read here.

So let’s examine that “Top 2” primary issue, which is ostensibly the sole source of upset against a Supreme Court Justice. You may recall that it was just back on September 6 that the Court ruled that the item could be on the ballot.

Chief Justice Rebecca White Berch

Chief Justice Rebecca White Berch

I would urge the following for anyone “on the fence” due to this ruling: As the Chief says, review the data at the website of the Arizona Commission on Judicial Performance Review, and read your own voter pamphlet.

And then, go the extra step: Read the ruling itself.

I’m confident that my lawyer–readers will not moan about having to read a 6-page ruling. But if you have non-lawyer colleagues who ask about this issue, urge them to read it, too.

I can suggest that for one big reason: It’s well written (by Justice Bales, the order’s author), which means it is accessible to many, not merely to lawyers.

I also can suggest it because reading the actual ruling will remind us all that the Court (and Justice Pelander) did not affirm or deny the merit of Prop 121; it handled the election question—judiciously—as it does with countless other ballot-measure cases, year after year.

As a voter service, I’ve posted the ruling here. But because I have no interest in creating a firestorm of partisan claims, I’ve also posted the appellant and appellee briefs. I suppose if you want the full picture, you may want to read those too. But do start with that ruling.

That’s in the short term. But in the long term, one wonders what kind of Pandora’s box has been opened. We need only look to Texas, or Iowa, or numerous other states to see the insertion of political pressure into judicial retention elections. In those places, justices may sit stonily and ethically silent amid an onslaught of public critique. But the result may be the ouster of good people, along with a further coarsening of the discourse.

Many, many people in Arizona (including a majority of the voting public) support Arizona’s current system of merit selection for certain judges and justices. But even if that system is retained going forward, how will it be altered if groups—“loosely organized” or not—mobilize to transform retention elections into a shouting match? How many people will be interested in the job of judge when the quality of their work is assessed not on the swath of legal output that fills volumes like sea foam covers a beach? Instead, it could be upended by a single, particular ruling in which you’ve joined, a ruling that grabs the popular imagination for misunderstood reasons—a single seashell on a vast coral reef.

Arizona, at a turning point.

Yale Law School Library Reading RoomOver at the Wall Street Journal Law Blog, reporter Sam Favate asks the question, Are you looking for a law school to fit your politics?

The rather atonal question arises because The Princeton Review has now included among its many categories the odd terms “most liberal” and “most conservative.” You can read Favate’s article here.

I may sound naïve when I suggest that I’m not sure what that means. I know the phrases never were part of my decision-making when I selected a law school back in 1989 or thereabouts.

My “blindness” on that score may rankle some readers, who instead recall law school as a time of struggling through their days as one-sided ideology was crammed down their throats. The law school they suffered was a curricular version of one political platform or another.

Sorry I missed all that. I was too busy thinking that the faculty were hell-bent on their mission to obfuscate what could have been clear. Through the fog, I completely missed the indoctrination. (Except, of course, the pedagogical imperative that we accept as normal and right the status quo—in business, and law, and public policy).

Should prospective law students select schools based on politics? Probably not—but what do I know. I think being around folks who think differently from you may be a good thing.

Recently, I read some commentary about the news sources we all select. No more must we all imbibe from the network nightly news fountain; instead, there are multiple streams from which to drink.

That’s great, but it has a downside. If we shun sources that don’t agree with our worldview, are we just insisting on being a choir that is preached to?

This fall, another media critic pointed out a common phenomenon on Facebook: As “friends” offer views that others find disagreeable or worse, people “unfriend” each other. Pretty soon, our Facebook feeds are cleansed of contrary views—especially in an incendiary presidential election year.

I don’t argue that any of us should have to weather a storm of offense in Facebook—or in law school. But a little diversity of opinion can’t possibly be a bad thing. Can it?

Arizona Senate President-Elect Russell Pearce

Controversy continued to build this morning over the proper role of various state players in the Independent Redistricting Commission.

Or should I say, the “Independent” Redistricting Commission. Whether quotation marks should be appended in future news stories remains to be seen.

The past week has seen the tension escalate, as state Republican leaders made known their distaste for the choices that would be forwarded their way. Publicly, they went after three nominees—two Republicans and one Independent. Read more about that here.

The public request to withdraw came from House Speaker Kirk Adams and Senate President-elect Russell Pearce. And the three who were “invited” to withdraw are Mark Schnepf and Steve Sossaman (Republicans) and Paul Bender (Independent).

Since that news story yesterday, we’ve learned even more.

Arizona House Speaker Kirk Adams

This morning, the Arizona Supreme Court announced that two of those nominees—the Republicans—had tendered their withdrawal to the Supreme Court Chief Justice, Rebecca White Berch. Here is the letter from Mark Schnepf.

December 26, 2010

The Hon. Rebecca White Berch;

Members of the Commission on Appellate Court Appointments

1501 W. Washington St. Suite 221

Phoenix, AZ 85007

Dear Chief Justice Berch and Members of the Commission:

This letter is in regards to my application to serve on the Independent Redistricting Commission.  I have received and reviewed email copies of the letters written by Speaker Adams, President-Elect Pearce and Paul Bender.

I disagree with the Speaker and the President-Elect regarding my qualifications to serve on the IRC.  As I understand the definition of “public office” as explained by the Commission on Appellate Court Appointments I don’t believe that service on the New Magma Irrigation Board disqualifies me to serve on the IRC.

However, since the Speaker and President-Elect appoint the two Republican members and since I am one of the Republican nominees and they both oppose my application, it seems futile to remain a candidate.   I am respectfully withdrawing my application to serve on the IRC.

Thank you for the time and effort you are spending on this selection process.  Please accept my appreciation for your consideration and support of my application.   

Sincerely,

Mark Schnepf

So Schnepf did not reassess the facts and the law and conclude that the Republican leadership was right. He looked at the political landscape, counted votes, and saw that the jig was up.

What part of “keeping politics out of the process” does this serve?

ASU Law Professor Paul Bender, Dec. 2, 2010, speaking at an event honoring the Arizona Constitution Centennial

The Arizona Republic ran an editorial this morning titled “Keep politics out as Arizona draws new voting lines.” It urged the Commission on Appellate Court Appointments (which drafts the list of nominees for the Independent Redistricting Commission) to maintain its independence:

“You have the deep responsibility to Arizonans to maintain your independence and objectivity. In appearance as well as action. Normally, your commission deals with judicial appointments, which are far less fraught.”

“Now, the political heat is intense. And you must assert your independence.”

The complete editorial is here. You know it’s an important issue when it gets its own editorial (and when the Republic is breathless enough to use a sentence fragment).

Some may believe that this is a controversy that only nerds and wonks could love. Others may roll their eyes and say that everything about redistricting is political, so what is everyone complaining about?

But redistricting—while not forever—is for a long time. And the legislators who have the power to “urge” withdrawals today may be unhappy in 10 years, or 20, when their political opponents wield the same persuasive big stick.

Of course, that would be taking the long view, an unlikely outcome in a short-sighted state.

The Commission meets tomorrow. Let’s hope we can keep the quotation  marks out of Independent.

Minneapolis protest against Arizona immigrant law SB 1070 (Wikimedia Commons, Author Fibonacci Blue from Minnesota, USA)

SB1070 is said to bring out the venom. But in some ways, it brings out the saccharine.

I was out of the office Thursday last week for Veterans Day. And that’s why I had to miss a panel discussion on Arizona’s polarizing immigration–criminal statute. It was hosted by the Phoenix School of Law and was titled “SB1070: Its Beginnings to Its Future.”

Pretty generic stuff—from the title onward, they sought not to alienate anyone scattered along the political spectrum.

And then in the press announcement, I caught two interesting points:

1.Event is NOT open to the general public.

Yes, it was underlined and in red.

Odd, I thought, that a discussion touching on a matter of massive public interest would be open to law students and media only.

The second unique feature came next:

2. “Discussion is expected to be academic and an opportunity to be the ‘voice of reason’ on what has become a polarized piece of legislation.”

I cannot remember the last time event organizers sought to increase attendance by reassuring potential attendees that the occasion would be “academic” and devoid of controversy.

But then I remembered, That’s not entirely true. The last time I saw the same behavior was … the last time a conference on SB1070 was held.

ASU Law School’s October 8 conference will be the focus of a short item we are running in the December issue of Arizona Attorney Magazine (mailed this week). But those conference leaders, like their counterparts at Phoenix Law, also sought repeatedly to douse any flames of partisanship or controversy. Attendees were assured, more than once, that they were committed to looking at the law and its effects, reasonably and rationally. They would leave aside any protests and hysterics.

As if protest and hysteria are the same thing.

I have some sympathy for that approach, because I have participated in just that kind of firestorm-avoidance therapy.

Last April, I moderated a panel discussion on SB1070. The organizers who asked me to play the role were almost painfully committed to a discussion that was reasoned and drained of any of the anger that can be felt almost everywhere in Arizona—outside academic discussions.

In at least two of these panel discussions, the participants were largely people who were opposed to SB1070 (as I did not attend the Phoenix Law event, I can’t claim a sweep). But they worked mightily to preserve the impression that there was a huge space between academics who largely opposed the law and street protestors who did the same.

I draw two tentative conclusions about this strange dynamic.

1. Based on the results of this month’s elections, there is a difference between those who stand by their partisan rabble-rousers who stake out perhaps peripheral positions that may be occasionally discourteous and loud—and those who distance themselves from those obstreperous protestors and act like they may have stepped in dog feces. There is a difference between people who understand that their grassroots base may be noisy but helpful, and those who think that the base must be discarded and dissed because elections are won in university lecture halls.

They are called, respectively, Republicans and Democrats. Or, if you’d like, winners and losers.

One group views its base as passionate activists, and the other sees them as hysterical discontents.

2. It is easy to mistake passion for hysteria, as women’s history makes clear. My wife and I just saw a play that demonstrates that in a vibrant way. “In the Next Room (Or the Vibrator Play),” by Sarah Ruhl, is a Tony Award-nominated play that is “a comedy about marriage, intimacy and electricity.” It shows behaviors that some of its Victorian characters view as deranged and even hysterical. The period piece shows that many behaviors were commonly acknowledged to be better ignored and marginalized.

Of course, we laugh now at that misguided approach, which led to entire generations that ignored women’s contributions. If this year’s election lends any lesson, it may be a reminder that ignoring the colorful and passionate side of yourself is not the path to success—of a person, a society, or a party.