How does a state Supreme Court shape a state’s constitution?

That may sound an odd question, for the constitution likely preceded the supreme court. That and other brain-teasers will be addressed in a seminar tomorrow, sponsored by ASU Law School.

The event will be from noon to 1:30 p.m. on Tuesday, Feb. 14, Arizona’s statehood day, in the Jury Assembly Room of the Sandra Day O’Connor U.S. Courthouse on 401 W. Washington St. in downtown Phoenix. It is open to the public.

A panel of distinguished scholars and practitioners will explore “The Arizona Supreme Court and the Arizona Constitution: The First Hundred Years.” Among the things they will discuss are what elements make Arizona’s Constitution distinct. And what role has our Supreme Court played in forming the state and interacting with the Constitution.

Paul Bender

All of the panelists are writing an article for an upcoming special issue of the Arizona State Law Journal.

The panel will be moderated by ASU Law Professor and Dean Emeritus Paul Bender. The panel will be:

More on the panel discussion is 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.

Lynda Shely speaks on the ethical rules

This week, I posted some more photos from a great past event—the State Bar of Arizona Solo and Small-Firm Conference. And then I read a story in the New York Times that got me thinking about law school and law practice, which reminded me of the conference all over again.

The conference was last November 18 and 19, and it brought together presenters who could speak best to issues that affected those lawyers.

It kicked off with co-chair Paul Ulrich describing the conference goals:

  • “To help us all in our practice in these changing times.”
  • “To achieve a more focused, profitable practice.”


Chief Justice Rebecca White Berch at the conference

Arizona Chief Justice Rebecca White Berch also spoke at the conference opening. She talked eloquently about the dire economy the nation faces, in the face of which many new lawyers decide to open up their own shop.

“I encourage all of you with experience to take these new folks under your wing. Times are tough, and they’ll need your help.”

This weekend’s New York Times told a sad tale of the legal marketplace. Titled “Is Law School a Losing Game?” the story explained how “Since 2008, some 15,000 attorney and legal-staff jobs at large firms have vanished, according to a Northwestern Law study. Associates have been laid off, partners nudged out the door and recruitment programs have been scaled back or eliminated.”

In the face of these facts, any conference dedicated to solo lawyers is especially well timed.

Slide from the Solo and Small-Firm Conference

Based on other data, Chief Justice Berch noted that most people who require a lawyer’s services will likely hire a solo lawyer or small firm. And that comes with a responsibility.

“Arizona citizens must depend on you for the bulk of legal services. Their image of the justice system is formed by their interactions with you.”

Presenters at the two-day conference included lawyer Lynda Shely, law firm marketer Jeff Lantz, the State Bar’s Susan Traylor, and Catherine Sanders-Reach of the American Bar Association. They headed up panels on topics as diverse as ethical marketing tips, fee agreements. Going paperless, and even a program titled 61 Tips in 60 Minutes. And Tucson lawyer Kathleen McCarthy gave a variety of ergonomic and exercise tips to improve your day (and your posture).

Here’s hoping that this becomes an annual event.

Kathleen McCarthy gives the audience her all

More photos are here.

Arizona Supreme Court Chief Justice Rebecca White Berch at Law School for Legislators, Jan. 6, 2011

Last Thursday, January 6, the State Bar of Arizona hosted its fifth annual Law School for Legislators. I attended for the first time, and it was an insightful way to kick off a new legislative session, especially for the freshmen who are beginning their first term.

Held every two years at the House of Representatives, the school covers a variety of topics, including federal–state relations, how judges decide cases, and how the path can always be made smoother between branches of government.

Presenting were State Bar President Alan Bayham Jr. Bar CEO/ED John Phelps, Arizona Supreme Court Chief Justice Rebecca White Berch, and lawyer (and former newsman) Michael Grant. Keeping speakers on track was the Bar’s Chief Communications Officer, Rick DeBruhl. And Kathleen Lundgren, the Bar’s longtime Government Relations guru, put the event together.

U.S. Supreme Court Associate Justice Sandra Day O'Connor (ret.) and Arizona Justice Scott Bales, Law School for Legislators, Jan. 6, 2011

Following the morning session, attendees strolled down the Capitol Mall into the Supreme Court. (Surprisingly but perhaps symbolic, there is no sidewalk that takes you directly between the Legislature and the Court. The path meanders, and more than one walker teetered on a curb, looked for oncoming cars, and dashed across the street. Thus the phrase “checks and balances.”)

At the Court, attendees enjoyed lunch while keynote speaker Sandra Day O’Connor addressed them.

Everyone recalls O’Connor as an Associate Justice on the U.S. Supreme Court. But she reminded those gathered that she had been a legislator herself. Thus, she was able to sympathize with the lawmakers and the hard road that lay ahead of them in regard to the budget.

In that vein, she told them that she was surprised to see that the state’s restrooms were closed for business on the freeways throughout Arizona.

“There must be some way to get those open again.” Justice O’Connor said. “Goodness. Maybe make them pay-as-you-go. Think about that, please.”

She told the legislators that she did not envy them the job of balancing a budget that is reported to be more than $1 billion out of whack.

“Maybe you’ll find a path. I hope so.”

She added her memory of the many affiliated tasks that lawmakers must take up.

“I remember being annoyed that the Legislature had to make the bola tie the official state neckwear. ‘Is that what we’re here for?’ I asked. I guess so.”

O’Connor ended her remarks by talking about her appointment to the Court by President Ronald Reagan. “It was a shock” when Reagan telephoned her, she said, and not an entirely welcome one. Though gratified to be selected, she did not look forward to relocating her family back east.

But when she recently attended oral argument at the Court as a spectator, she found reason to be pleased with the number of women Justices.

U.S. Supreme Court, 2010

“I looked and saw a woman on the far right, and a woman on the far left, and a woman in the middle. It was an amazing sight, and I’m glad that we’ve graduated to that level.”

More photos from the event are here on the Arizona Attorney Magazine Facebook page.

Memorial Hall, Phoenix Steele Indian School Park

Yesterday the Arizona Supreme Court and the State Bar of Arizona collaborated on a great event: a commemoration of the centennial of the Arizona Constitution.

It was held at the historic Memorial Hall at the Phoenix Steele Indian School Park. The wonderful venue was where a crowd of attorneys, judges and other history-lovers gathered to hear a variety of speakers on the topic of the state’s top code. (CLE and COJET credit were also available.)

Arizona Chief Justice Rebecca White Berch

Speakers included U.S. Supreme Court Associate Justice Sandra Day O’Connor (ret.), Arizona Chief Justice Rebecca White Berch and former Arizona Chief Justice Ruth V.  McGregor.

Justice Sandra Day O'Connor (ret.)

Presenters were Judge Penny Willrich (ret.), now a Professor at the Phoenix School of Law; Judge Michael Daly Hawkins, Senior U.S. Circuit Judge for the Ninth Circuit Court of Appeals (who just wrote for Arizona Attorney Magazine on Jacob Weinberger, a lawyer who served as a constitutional delegate); Paul Bender, Professor at the Sandra Day O’Connor College of Law; attorney Paul Eckstein, Perkins Coie Brown & Bain PA; and Clint Bolick, Litigation Director at the Goldwater Institute’s Scharf–Norton Center for Constitutional Litigation.

More coverage will follow (online or in Arizona Attorney Magazine). In the meantime, here are some photos from the event.

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Whew! Few days are more representative of quintessential Arizona legal politics than today.

Today was going to be all about the Chief Justice’s State of the Judiciary speech. That was to be delivered at the Legislature, and would be followed by posting the complete report on the Court’s spanking-new Web site (

But after the speech by Chief Justice Rebecca White Berch, there were the inevitable questions, and one just had to be on the matters regarding Maricopa County Andrew Thomas. What about this new Special Counsel who had been named, Scott Rhodes? someone asked. Hadn’t Mr. Thomas complained that Rhodes, too, had conflicts and should be de-selected?

You may recall that Scott Rhodes, an attorney at Jennings, Strouss & Salmon, had been named independent counsel only about a week and a half before. His selection had followed the State Bar’s request to the Chief Justice that she might consider naming an independent counsel. The Bar said it believed it could do its job fairly, but the appearance of a conflict might undermine the process, so how about naming someone who does not work at the Bar?

C.J. Berch agreed, and that’s when she named Rhodes.

But all good things must come to an end. The Chief replied to today’s questioner that Rhodes had decided to withdraw from the position. So now the Court will have to name someone else—someone somewhere in Arizona who knows a lot about the Ethical Rules, but has never had any significant interaction with the County Attorney, the County Sheriff, or the County Supervisors. Tough one, that.

Later in the day, the Court’s Chief Communications Officer, Jennifer Liewer, sent the media a statement from the Court on this newest Andrew Thomas development (see below). The Court recognized it had to address the story, so it did, head on.

And the “State of the Judiciary,” a well-written document that will guide Arizona courts for the coming year? It was an attachment.

That was a tough communications day for the Arizona Supreme Court.

Here is the Court’s statement:

“Statement from the Arizona Supreme Court regarding appointment of Scott Rhodes as independent counsel to review allegations of misconduct against Maricopa County Attorney Andrew Thomas

“The Chief Justice selected Scott Rhodes to investigate allegations of ethical misconduct by Mr. Thomas, because Mr. Rhodes is a well-respected and knowledgeable expert in the field of attorney discipline. The Chief Justice believes Mr. Rhodes would have conducted a fair and unbiased investigation. However, after a meeting recently convened by Chief Justice Rebecca White Berch with Mr. Rhodes and legal counsel representing County Attorney Andrew Thomas, Mr. Rhodes chose to withdraw as special counsel because of the objections raised to his appointment and to avoid those objections becoming a distraction to the investigation.

“Chief Justice Rebecca White Berch states, “I respect Mr. Rhodes’ decision to withdraw and will appoint a different individual to look into the allegations against Mr. Thomas.””