Archive for the ‘On Judges’ Category


https://upload.wikimedia.org/wikipedia/commons/thumb/4/4c/The_hand_of_god.JPG/320px-The_hand_of_god.JPG“The bench was at an elevation that permitted me to look down on everyone in that impressive room. One has to experience such wondrous looking-down to appreciate it — to have the glorious feeling of being closer to the Divine than anyone else in the room. Having everyone stand up when I stalked onto the bench from my special door, with my black robes flowing, enhanced the exalted feelings.


“I’ve known very few judges who, after sitting on the bench for ten years, didn’t think they were sitting at the right hand of the Divine One.” — the late Hon. John Fitzgerald Molloy, on his installation as a Pima County, AZ Superior Court Judge1

Janie Hutchens Awesome Hairdo | by SportSuburbanAnd all this time I labored under another misapprehension — that ‘the bigger the hair’ brought you ‘closer to God.’

Divinely divined discretion.

Big hair or black robe, if you think you’re at the right hand of the Divine One, then someplace between judicial discretion and mandatory sentencing, there’s room for divinely inspired dispensation of justice.

Take, for instance, what was happening in small town Georgia a few months ago where indigent traffic violators unable to immediately pay fines were threatened with incarceration.

Law 16Called “debtor’s prison” cases, the practice is supposedly common throughout Georgia according to a lawyer from the Southern Center for Human Rights. What is uncommon, though, is getting it on tape since videotaping of court proceedings is routinely and expressly banned as is cellphone use.

But for the embarrassing cell phone video and accompanying national news outing, “A Surreptitious Courtroom Video Prompts Changes in a Georgia Town,” it might still be going on. There is, however, a state supreme court rule pending that would prophylactically put the kibosh on anyone recording court proceedings without obtaining 24 hours permission.

Payment in blood.

Cat nurse and blood donationThen there was the New York Times story about Marion, Ala. Circuit Court Judge Marvin Wiggins with his own version of a so-called “payment-due hearing.” According to a recording of a court hearing, Judge Wiggins told defendants, “For your consideration, there’s a blood drive outside. If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.

“The sheriff has enough handcuffs,” Judge Wiggins also purportedly told the defendants unable to part with either pesos or plasma. Defendants, observers and commentators expressed dismay over what the Southern Poverty Law Center subsequently complained was “a violation of bodily integrity” by Judge Wiggins.

My take-away from the foregoing is that if you’re poor and haled into municipal court in Georgia and Alabama (and I have little doubt in other burghs, e.g. Ferguson, Mo, where budgets depend too heavily on court fines and fees) — best bring your toothbrush, say your prayers, and get ready for a divinely inspired night in jail — when you can’t pay — or in one courtroom, give blood.

Also see “Citation Nation: Towns taxing through tickets” and “New report details the disastrous municipal court system in St. Louis County.”


[1] John Fitzgerald Molloy, The Fraternity (St. Paul, Minnesota: Paragon House, 2004), 63.

Photos: “I think I need no words,” by Molinovski at Wikimedia Commons, public domain by the author; Smeden og bageren by Th. Kittelsen at Wikimedia Commons, public domain; Janie Hutchens Awesome Hairdo, by Ethan at Flickr Creative Commons Attribution.

Read Full Post »

“You can’t fire me — because I quit!” was the old joke until it wasn’t. Now it’s “you can’t fire me — because you’re not the boss of me!”

The Honorable Luis Quintana of the Municipal Court of the Village of Corrales, New Mexico was disbarred a few months ago for not turning over a $4,500 workers compensation settlement check to his client. But because he says the professional conduct violation took place before he was elected judge, he maintains it has nothing to do with his ability to carry out his term. Thus, he says he’s not quitting his berobbed day job.

And besides, New Mexico municipal court judges don’t have to be lawyers so Judge Quintana contends he’s not disqualified — even if the state supreme court pulled his license. Law license? Not required to wear the muni. court robe — so he’s not going.

Non-lawyers can sit on the municipal court bench in New Mexico. The only qualifications are voter registration; being over 21 years of age, and current and continual city residence throughout the judicial term.

They have limited jurisdiction to dispense justice over petty criminal and traffic violations of the municipal code punishable by not more than 90 days in jail and/or a $500 fine and which occur within the municipality’s boundaries. They can also issue subpoenas and warrants to carry out court duties and exact punishment for contempt of court.

The bar complaint against lawyer Luis Quintana was filed in 2013 but in New Mexico, it appears disciplinary justice turns on wheels in a ditch full of prickly pear molasses. He was finally disbarred in July.

All the same, you’d think the New Mexico Supreme Court and its Judicial Standards Commission would have something more to say about it — even if the misconduct admittedly occurred before he became a judge. I’m unaware of a similar case in Arizona.

Justices of the peace here are elected. They don’t have to be lawyers. But I’ve not heard of an Arizona lawyer elected justice of the peace who subsequently gets disbarred for a lawyerly ethical violation but who nevertheless keeps his job on the bench. Then again most elected Justices of the Peace around here are non-lawyers and that might explain why it hasn’t come up. Moreover, they get removed when they run afoul of the code of conduct while in office.

hiding from the paparazzi | by The Shifted Librarian

   Talk to the hand.

Otherwise, my only recollection of an Arizona municipal court judge in hot water was a jurist in Tucson. But in that case, the Honorable Theodore Abrams who was also a lawyer didn’t tell the court or the state bar to ‘talk to the hand.’  Plus the ethical violations occurred while he was a judge not a prior act as a lawyer.

Judge Abrams resigned from the bench and stipulated to violating the Code of Judicial Conduct based on allegations of having repeatedly sexually harassed an assistant public defender for more than a year.

But because Judge Abrams resigned, the Arizona Supreme Court could only censure him and prohibit him from ever seeking or holding judicial office.

And Arizona’s lords of discipline drop kicked him like a football through Bobby Bare’s goalpost of life.

https://upload.wikimedia.org/wikipedia/commons/thumb/7/75/Standing_dropkick.jpg/375px-Standing_dropkick.jpgMeantime, back in the Village of Corrales, New Mexico, Judge Quintana remains nonplussed despite the now national notoriety. And because he’s an elected official and because he’s committed no malfeasance as a judge, the village council has no authority to remove him.

https://lawmrh.files.wordpress.com/2011/05/office-stress-62.jpg?w=157&h=178And while some residents and officials are increasingly restive, at least the mayor appears supportive. Judge Quintana told Mayor Scott Kominiak his disbarment was a private matter concerning his private law practice. So as far as Judge Quintana was concerned, it’s business as usual on the municipal bench. And Mayor Kominiak, whose post is not full-time, told the Albuquerque Journal, “The analogy is that if I were to lose my job, would I be required to resign as mayor?”

Ironically, when Judge Quintana ran for judicial office in 2008 in response to a question, he discussed access to the court. At that time, he cracked he would “always look for ways to make any improvements needed and create new programs to allow greater access (except when the villagers come after me with their torches).”  Barring any torch-carrying villagers, his four-year term expires next year.


Photos: “Shawn Spears executes a standing dropkick on Pepper Parks, GCW, 16th September 2011” by Tabercil at Wikipedia Commons via Flickr Creative Commons Attribution-Share Alike license; hiding from the paparazzi by The Shifted Librarian at Flickr Creative Commons non-commercial share-alike license, kid photos via Morguefile.com, no attribution license.

Read Full Post »

Big Finish! | by massless

A while back, someone recommended John Molloy’s 2004 book, The Fraternity: Judges and Lawyers in Collusion. Molloy? I wondered. Wasn’t that the guy who wrote the now dog-tired advice book on sartorial corporate success?

Wrong guy I discovered. The Fraternity was written by the late John F. Molloy — not John T. Molloy. That’s a world of difference. The former was a lawyer-turned-judge-turned-lawyer and the other was a researcher and consultant who first made his bones advising New York City law firms on how clothes could enhance the credibility and authority of young lawyers before judges and juries.

Nevertheless, I finally read The Fraternity. But as it turns out, the old Dress for Success guru’s book, which I read two lifetimes ago was eminently more useful by comparison.

Instead, I was disappointed by the self-proclaimed “confessional diatribe” by the late Tucson, Arizona jurist John Fitzgerald Molloy. Long on confession and short on redemption, it was also empty of promise. With so much discussion about the Fraternity’s self-serving, profit-seeking grip on the legal system, where were the practical prescriptions?

Clarks Pie | by Capt' Gorgeous

Among Judge Molloy’s pie-in-the-sky suggestions: Eliminate the exclusionary rule. Reduce peremptory challenges. Keep lawyers out of juvenile courts in favor of trained social workers. Take away the plaintiff’s first and last argument in a civil trial. Stop random selection of juries in favor of jurors selected by public officials. Limit the bench to only those with trial experience. Ban judges from working as lawyers after serving on the bench.

In whose lifetime will those sky pies be eaten?

To be fair, there’s enough in Judge Molloy’s wisp of a 244-page memoir sans index to justify the book’s subtitle, “Lawyers and Judges in Collusion.” But the problem is that it mostly reeks of cognitive dissonance, i.e., the conflict that results from simultaneously holding inconsistent beliefs and attitudes. It’s like the chow hound who complains about his meal while asking for a third helping.

Out of both sides.

On the one hand, Judge Molloy regales his readers with how much money he made as a trial lawyer after leaving the bench, even admitting “We were infatuated with the flow of delightful cash.” And to make certain you’re suitably impressed, he goes as far as helpfully calculating the present value of his old law firm earnings.

But then on the other hand and only at the end of his career, does the 74-year old former trial and appellate judge belatedly call for incremental reform of a legal system that’s been “massaged” by “a Fraternity composed of lawyers and judges . . . into something quite different from what was intended — one that derives powers from claiming to have come from our Forefathers, but which in fact is a system that has been restructured, almost beyond recognition, by the Fraternity, for the benefit of the Fraternity.”

NYC: New York Supreme Court, Appellate Division | by wallyg

Indeed, concluding his recollections of his service on Arizona’s appellate bench, he writes, “In reviewing this chapter, I realize that I may have given the impression that as an appellate judge I was a brave dissenter, always leaning against the tornadic winds of the Fraternity’s movement toward more litigation and more lawyer-profit. The written record gives lie to such a claim.”

Sort of undercuts the argument for reform, that it’s made — only after you’ve gotten yours. Better I think what Edna St. Vincent Millay said long ago about penance, “But if I can’t be sorry, why I might as well be glad.”

Photo Credits: “Big Finish” by Chris Wetherell at Flickr Creative Commons Attribution; other photos via Morguefile.com;”Clark’s Pie,” by Ben Salter at Flickr Creative Commons Attribution; “NYC: New York Supreme Court, Appellate Division,” by Wally Gobetz at Flickr Creative Commons Attribution.

Read Full Post »

Law 17A Vermont man, was dismissed from jury duty this month when he showed up at the courthouse jury assembly room wearing a prison-striped costume and matching beanie. After being noticed, the judge met with him privately and asked him to leave. The Vermonter, James Lowe, was only too happy to oblige.

Some jury-selection experts think being verbal, subtle and biased are good ways to avoid getting picked. And then there’s Lowe and his costume.

Not so fortunate by comparison was Henderson, Nevada lawyer Kurt Smith who spent a night in jail over his attitude. “Thanks a lot,” he said after being chosen to serve on the jury for a scheduled three-day trial. Unfortunately, it was loud enough for District Court Judge Ron Israel to hear. Judge Israel called it a breach of the peace and held him in contempt.

The judge then ordered that Smith either watch the rest of the trial from the gallery or spend a night in lockup. Smith apologized and chose the gallery instead of a night in the pokey. But when the following day Smith showed up half-an-hour late for the resumption of the trial, the judge ordered him jailed for 48 hours. He was released after serving 24 hours.

Bad Dog! | by http://www.petsadviser.com

Rare indeed apparently is the lawyer unconvinced of their professional indispensability. That stuff may sell someplace else. But in one Nevada courtroom, the judge wasn’t buying it.

Many called, few chosen, and even more try to evade.

Clearly, George Bernard Shaw was wrong when he said “only lawyers and mental defectives were automatically exempt from jury duty.” Lawyers obviously get called although I can’t speak for the “mental defectives.” On the latter, some may have their suspicions.

As for myself, I’ve been called several times. Each time I was obediently poised to do my civic duty — but I was never chosen. The last time was a year ago here where a local newspaper previously headlined, “Most People Don’t Show Up For Jury Duty in Maricopa County.” Since then the local courts have cracked down on no-shows with a “get tough” policy. I can’t say how well it’s working.

The Jury by John Morgan.jpg

Chief Justice in the Jury Box.

Earlier this year, I read “A Justice on the Jury” in the Nevada State Bar’s, Nevada Lawyer. It was Nevada Supreme Court Chief Justice Mark Gibbons’ first person account of being called and picked for jury service. According to court records, it was the first time a Nevada Supreme Court Justice had ever been seated as a juror in a jury trial in the state. Judge Gibbons served during a criminal trial in Carson City.

https://upload.wikimedia.org/wikipedia/commons/thumb/1/19/Jury_duty.jpg/320px-Jury_duty.jpgHe related how “waiting outside the courtroom, a newspaper reporter joked with me that I would probably be the first juror excused. To my great surprise, I was seated as juror number five, when the court resumed proceedings.” I don’t think he should have been surprised, though. After all, when you have the chief justice of the state supreme court in your jury pool, a lawyer is going to be hard-pressed to strike him with a peremptory challenge.

Courtroom 98Justice Gibbons said he learned a lot from the experience. And unlike some folks, he says he’d welcome a subsequent summons for jury duty.

And while he was gracious about how the proceedings were conducted, telling the judge afterward that he agreed with all of his rulings on objections during the trial, he nonetheless wasn’t shy about offering helpful tips and procedural improvement prescriptions for trial judges. These included creating “a checklist of all mandatory jury instructions that need to be submitted to the jury” and giving “special emphasis” to the juror admonishment instruction prohibiting independent research. Additionally, before commencement of deliberations, he would require jurors to re-read the jury instructions. And during the opening charge, he says he would acquaint the jury on basic courtroom procedures, including the use of expert witnesses and hypothetical questions.

So much for all those overly busy indispensables, including lawyers, if the chief justice can serve, well . . . .


Photo credits: “The Jury by John Morgan” painted by John Morgan, uploaded to Wikipedia by Swampyank – The Jury by John Morgan.jpg. Licensed under Public Domain via Wikimedia Commons – https://commons.wikimedia.org/wiki/File:The_Jury_by_John_Morgan.jpg#/media/File:The_Jury_by_John_Morgan.jpg; “Bad Dog!” by Pets Adviser at Flickr Creative Commons Attibution; “Jury Duty” by Steve Bott at Wikipedia via Creative Commons Attribution License.

Read Full Post »

I had bats on my mind yesterday. First there was the report Thursday about bats causing pandemonium sending people screaming from an Arkansas courtroom. I’ve been in really old courthouses and know that rodents live there but this was a first concerning bats. Bats in the belfry Then also last night, I read not about bats but brickbats thrown by the Ninth Circuit over another case of prosecutorial malfeasance. Railing as I have over time, about the persistence of prosecutorial misconduct, for instance, here, here, here, here, here and here, all those posts have started to seem “like the [impotent] vaporings of the fellow with a large flock of bats in his belfry.”


Prosecutor punishment rare.

So here I am back in the same belfry. The problem is that state judges rarely punish the misconduct by at the very least, referring the wrongdoing prosecutors to state disciplinary authorities or at best, by sanctioning the transgressors by reversing the convictions. Furthermore, state bars hardly ever bring disciplinary complaints on their own against prosecutors. Consequently, state supreme courts almost never disbar prosecutors for dereliction, lying, or for failing to disclose evidence to the defense that deprives defendants of a fair trial. Baca v Adams. Courtroom 93The Los Angeles Times’ always insightful Legal Affairs Reporter reported last night about a January 8, 2015 Ninth Circuit hearing and the stern admonishment from the 3-judge panel about prosecutorial lying and the heedlessness of watchdogs in bringing misconduct to heel. See “U.S. Judges see ‘epidemic’ of prosecutorial misconduct in state.” Citing Napue v. Illinois, 360 US 264 (1959), which held that “the failure of the prosecutor to correct the testimony of the witness which he knew to be false denied petitioner due process of law in violation of the Fourteenth Amendment, the three judges were not amused in the unheralded case of Johnny Baca v Derral Adams, which was the subject of the hearing. Per Napue, prosecutors cannot suborn perjury — or lie as happened in the Baca case. 1152762_left_hand_silhouette-_womanAnd questioning why bad things don’t happen to people doing bad Judge Alex Kozinski declared, “You know it’s a little disconcerting when the state puts on evidence, the evidence turns out to be fabricated and nothing happens to the lawyer and nothing happens to the witness. So I have to doubt the sincerity of the State when it says it was a big mistake.” It was hardly a surprise, then, that given the findings of the state appeals court that the prosecutor lied and their own readings of the Baca file, that the judges wanted the State to back off. Judge Kozinski additionally noted that though the state appellate court found the prosecutor lied — since no discipline had been meted, then he opined that prosecutors “got caught this time but they are going to keep doing it because they have state judges who are willing to look the other way.” Watch the videotaped hearing below at about the 28:30 minute mark for equally biting criticisms, including Judge Kozinski questioning the absence of any inquiry or discipline by the state attorney general into the misconduct.


Calif Attorney General Kamala Harris

However, given the keen political shrewdness of California State Attorney General Kamala Harris who now aspires to succeed Barbara Boxer in the US Senate, she spared her office further embarrassment by timely accommodating the strong judicial intimations to stand down. Last Thursday when the bats were flying in De Queen, Arkansas, she and the new Riverside County D.A. filed the following motion: As for myself, unlike one optimistic commentator, who opined after the hearing, “Prosecutors who suborn perjury may finally have to pay the piper,” here in my belfry, I’m still skeptical.

Photo Credits: New Bat, by Windell Oskay at Flickr Creative Commons Attribution License; Bat in Belfry at The Phrase Finder http://www.phrases.org.uk/meanings/bats-in-the-belfry.html; Round Rock, TX: Mexican Free-Tailed Bats by Roy Niswanger at Flickr Creative Commons Attribution License; Kamala Harris, by http://oag.ca.gov/about, official photo, California State Attorney General, Wikipedia Commons, public domain; kdjfdkjdkl.jpg by greyerbaby at morguefile.com license .

Read Full Post »

Wisconsin lawyer Michael Cicchini dropped another provocative “truth bomb” this week at The Legal Watchdog entitled, “The lawyer job market.”


Cicchini posted about how ridiculously difficult it still is for jobless lawyers who are forced to choose self-employment when they’re unable to find full-time paying law firm work. An advertisement he recently received for work at the pleasure of the Racine Circuit Court made his point.

Despite an improving economy, new lawyers face daunting challenges. Blame the continuing glut of lawyers as well as irreversible changes to 21st century client expectations impacting the legal profession’s cost, profit and pricing structures.

While the good news is that the number of persons taking the Law School Admission Test has reached record lows, the transformative economic strictures continue to hold sway.

Preposterously penurious pay.

As for the advertisement Cicchini received, the County Circuit Court in Racine, Wisconsin is looking for an “advocate counsel” and the pay is an unbelievable $25,000 per year. Don’t expect expense reimbursement or job security. It’s terminable at-will.

The ad then goes on to state that “attorneys may be assigned any type of felony [including homicide], misdemeanor, juvenile, criminal traffic, and probate cases and any other action as the court orders . . . It is estimated that there will be about 70 – 80 assignments in 2015 per attorney.” Read the rest of Cicchini’s post here.

The quality of unfairness.

As an experienced criminal defense lawyer, Cicchini properly points out that this kind of caseload is “nearly impossible” for any lawyer — let alone a newbie hoping to do thorough, ethically unimpeachable legal work for clients.

Admittedly, there was more than enough in the court’s advertisement to annoy any lawyer — not the least being the overt professional discourtesy of lawyers trying to screw over other lawyers, i.e., those desperate enough to apply for such a demanding job at such penurious pay.

And who were the one’s being so discourteous? Cicchini speculates “this proposal was presumably authored with input from the Racine County judges themselves.”

But beyond exploiting economically hard-pressed young lawyers, there’s another even more disturbing consideration. What does this job say about exacerbating the continuing disparities of justice meted out to indigent defendants by overburdened, under-resourced public defenders? Studies have amply demonstrated that “public defenders do not have enough time to conduct thorough investigations, or meet with and provide quality representation for their clients – many of whom are low-income earners and people of color.” See, for instance, System Overload: The Costs of Under-Resourcing Public Defense.”

Ethical hazards.

But beyond the above-mentioned concerns, it was the potential ethical minefields created by the job that also got my dander up. As one commentator observed, “the deck is stacked” against solos as it is. Writing at “Ethical Hazards of Solo and Small Firm Practice,” Benjamin Cowgill axiomatically notes that nationwide, solos and small firms bear the brunt of most bar complaints. One reason, among many, arises from their chosen areas of practice, criminal defense being one of the riskier.

So what does this lousy job in Racine with its heavy caseload at rock-bottom pay say about how far ethical concerns are discounted in Cheesehead Land?

Politics Law & Finance 43Just a few years ago the Milwaukee Journal-Sentinel ran an excellent comprehensive investigative report about the sorry state of Wisconsin’s attorney discipline system. The newspaper reviewed almost 24,000 Wisconsin lawyers against state and federal court records and “found that lawyers who are convicted of crimes are then subjected to a slow-moving disciplinary system that operates largely behind closed doors.” It went on to underscore the patently obvious that “Wisconsin appears to be comparatively lenient in dealing with lawbreaking lawyers.

“Unlike many other states, where the licenses of lawyers convicted of serious crimes such as fraud are immediately suspended to give regulators time to determine the proper sanction, Wisconsin sometimes allows criminals to keep their law licenses even while they are behind bars.”

Hilariously hubristic hypocrisy.

So front and center comes this challenging low-paying job in Racine that just reeks of potential ethical hazard for the unwary and overburdened.

And yet, maybe I’m overstating the hazard? After all, it appears not much has changed since 2011, at least when it comes to lawyer discipline in Wisconsin. Indeed, earlier this summer there was a lawyer discipline case reported by “The Legal Profession Blog” ironically highlighting “Calls to Reform Wisconsin Attorney Discipline” made by none other than Chief Justice Shirley Abrahamsom and Justice David Prosser. Given the facts of that case, both expressed agreement on the need to study and reform the Wisconsin attorney discipline system.

But here was the irony and the not insignificant brass. Along with Justice Ann Walsh Bradley, the Wisconsin high court has hardly been an exemplar of professional comportment.
Some 6 months after the Milwaukee Journal Sentinel ran its investigative series on the state’s embarrassing absence of meaningful attorney discipline, Justice Bradley made headline-grabbing allegations involving her purported physical altercation with Justice Prosser. See “Bradley says Prosser choked her.”

But after all the he-said/she-said, no criminal charges were ever filed although Justice Prosser did get charged with ethics violations. However, lo and behold and consistent with how things apparently roll in Wisconsin, multiple recusals led to no quorum, which meant no determination of discipline could be made against Justice Prosser. So, the charges were dropped. Later the same year, he eked out a 7,006 reelection win over Joanne Kloppenburg.

And so he sits on the high bench in 2014 opining along with his chief justice who he previously disrespected about how Wisconsin’s attorney discipline system needs reform.


Photo Credits: Talking with Hands, Wikimedia Commons; Half the pay, twice the work by Truthout.org at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License; Defense Counsel by Matt Freedman at Flickr, Attribution; bad jpg file in encrypted folder by Mike at Flickr via Attribution-NonCommercial-NoDerivs 2.0 Generic License.

Read Full Post »

https://lawmrh.files.wordpress.com/2010/09/politicians-34.jpgOn Sunday, the local paper ran an editorial long on conceit but short on illumination. “Kick these judges off the bench” proclaimed the Arizona Republic’s Editorial Board. The Op-ed was a day ahead of its own news story declaring, “Arizona commission deems 2 judges unfit for bench.”

I reckon the paper’s commentators couldn’t wait to join the “Amen” choir hallelujahing two non-retention recommendations by Arizona’s Commission on Judicial Performance Review (JPR).

child silly faceAccording to its website, “The JPR Commission is responsible for developing performance standards and thresholds, and conducting performance reviews of justices and judges who are merit selected and subject to retention elections.”

So with early voting in full swing, the Commission’s judicial evaluations are supposed to help voters wade through a morass of some 50+ judicial unknowns on their ballots.

But what made news was that the Commission actually found two judges worthy of non-retention recommendations. They were Maricopa County Superior Court Judge Benjamin Norris and Pima County Superior Court Judge Catherine Woods — both deemed well below the Judicial Performance Review Standards used to evaluate judges.

Sure the newspaper editorial quoted the Commission’s Chairperson who called the two non-retention votes “historic.” But too bad the paper didn’t adequately explain how truly historic — as in rarer than a Phoenix snowball.

“Everyone’s special . . . .”

https://i2.wp.com/upload.wikimedia.org/wikipedia/commons/thumb/8/88/A_Rubber_stamp_stand.JPG/640px-A_Rubber_stamp_stand.JPGFor all its self-congratulated value during its 22 year existence, the JPR Commission has generally functioned as an election cycle rubber-stamp consistently grading judges with mean evaluation scores well above 98%. Everybody’s not just special — but really special.

And since like most of Arizona’s legal establishment, the Commission’s hardly a paragon of transparency1, it’s tough to nail down precisely how rarefied these two non-retention recommendations were. Depending on the source, it’s either been once or twice before that Commission members have found pluck enough to recommend a judicial non-retention. According to one source, it’s happened only once before — in 1998. Yet another source claims it also happened in 2008.

No matter, though, as in each case the public didn’t pay any mind. Regardless of the recommendations, voters retained the judges anyway!

Since Arizona merely requires “a majority of those voting” to retain a judge, newspaper Op-ed and Commission votes notwithstanding — I won’t be surprised if it happens again this year. So much for achieving its intended purpose with all the efficacy of a hamster on a broken wheel.

Nothing succeeds like self-congratulation.

Entertainment 606In September, in a laudatory Op-ed to commemorate this year’s 40th anniversary of Arizona’s judicial merit selection system, Arizona’s State Supreme Court Chief Justice self-interestedly explained “Why Arizona has some of America’s best judges.”

While passing praise all around, at least Chief Justice Bales parenthetically conceded that “Some have observed that Arizona’s voters do not often reject judges who are up for retention.” Talk about understatement.

In 40 years, the scorecard is 99% get retained. Since 1974, only two judges have lost a retention election in Maricopa County. Also see research cited at “Job security means working for the feds or sitting for judicial retention elections”

Additionally, a law review article recently noted that “A few have argued that the JPR program does not work to “weed out” bad judges, because the Commission rarely votes that a judge “Does Not Meet” standards, and when the Commission does issue such a vote, the voters nonetheless retain the judge.

“Although that is one way to evaluate the data,” the authors explained, “an alternative assessment is that the data demonstrate the merit-selection system’s success in appointing high-quality judicial applicants. That is, the data may instead show that the merit-selection system is attracting and retaining highly competent judges who are performing well and do not deserve “does not meet standards” votes or to be voted out of office.”2

Frankly, this “alternative assessment” is probably a stretch. The problem with drawing such conclusions is best summed up by the aphorism, “the absence of evidence is not evidence of absence.”  Or in other words, we’re expected to accept the fallacious logic that X is true because there’s no proof X is false.

https://i0.wp.com/upload.wikimedia.org/wikipedia/commons/4/43/Stick_figure_-_choosing.jpgThat the Commission almost always fails to muster “Does Not Meet” standards votes — or that it rarely votes to non-retain — or that an overwhelmed electorate has to play Eeny, meeny, miny, moe” on scores of judicial unknowns — hardly amounts to proof positive that merit selection cornered the market on the high performing and highly competent.

What it does mean, however, is that after 40 years, merit selection is tantamount to lifetime appointment.


(1) Try searching for meeting minutes or judicial performance report data older than 4 years on the Commission’s website at http://www.azcourts.gov/jpr/NewsandMeetings.aspx?nt=4

(2) See Judicial Performance Review in Arizona: A Critical Assessment.
Berch, Rebecca White; Bass, Erin Norris // Arizona Law Review; 2014, Vol. 56 Issue 2, p353

Photo Credits: Rubber Stamp Stand, by Thamizhpparithi Maari at Wikimedia Commons;Robo Dwarf Hamster, by Sarah , Flickr Creative Commons Attribution; Stick figure – choosing, by Obsidian Soul by at Wikimedia Commons.


Read Full Post »

Older Posts »


Get every new post delivered to your Inbox.

Join 131 other followers