Judiciary on Trial


Maricopa County Superior Court Presiding Judge Gary Donahoe

TIME FOR JUDICIAL REFORM

Our sources tell us that the Arizona Supreme Court is currently considering an appeal of a Superior Court decision that disqualified the Maricopa County Attorney’s Office from investigating the Court Tower. Superior Court Presiding Criminal Judge Gary Donahoe refused to let the County Attorney’s Office prosecute the case, yet allowed the Court’s attorney Tom Irvine of the law firm Polsinelli Shughart, who was also representing the Board of Supervisors that authorized the purchase of the Court Tower, remain as legal counsel for both the Board and the Court.  In a shocking display of judicial arrogance, Donahoe torpedoed the investigation to protect the Court Tower (where he will have a penthouse office) and Irvine.

The Goldwater Institute’s Clint Bolick, a nationally renowned attorney who has argued in front of the U.S. Supreme Court, declared that,

    Irvine’s dual representation is “a blatant conflict of interest, one of the first kinds of conflicts you learn about in law school.”

If attorneys in this state realized what was going on, they would be shocked. Irvine is representing both sides of a business transaction – the Superior Court side that asked for the Court Tower, AND the Board of Supervisors side that authorized the expenditure. Irvine never even bothered to disclose his dual representation in the case. In fact, the Republican-dominated Board of Supervisors has actually allowed Irvine, a Democrat activist who used to be the attorney for the Arizona Democrat Party, to become their attorney instead of the Maricopa County Attorney’s Office in violation of the law.

The one-sided decision by Judge Donahue declaring that the County Attorney’s Office has a conflict of interest but the Court and the Board of Supervisors don’t when they’re sharing the same attorney is the most shocking display of judicial arrogance since the Prop. 100 fiasco a couple of years ago, when the Superior Court refused to enforce the new law prohibiting bail for illegal immigrants accused of serious crimes. In that situation, the Arizona Supreme Court had to step in to force the Superior Court to uphold the law. It looks like the Supreme Court is going to have to step in again to clean up this mess.

The appeal submitted to the Supreme Court summarizes the conflicts this way:

The conflicts of interest in this matter are numerous and severe. Shughart [Irvine] simultaneously represented two clients, the Superior Court and the Board, on the very same matter, the Court Tower project. Through this process, Shughart obtained a ruling from one client, the Superior Court, to benefit the other client, the Board. Moreover, in his minute entry, Respondent Judge stated he was releasing the ruling to the public in part to allow Shughart to use it to benefit Mr. Irvine in his other civil litigation. As a result, the minute entry has been used by Shughart not only to shut down the grand-jury investigation of the Court Tower, but also in an unrelated civil lawsuit filed by MCAO against the Board in which Shughart represents the Board. Finally, Shughart provided these legal services with all these multiple conflicts while one of its attorneys was the subject of a criminal investigation related to the Court Tower.

This is the strongest evidence yet that the judiciary is in dire need of reform. The Superior Court apparently thinks it’s above the law. This is the last straw for merit system appointment of judges, real reform will also include a change to electing judges.

Click here for video of Goldwater Institute’s Clint Bolick declaring Irvine’s representation of both the County Supervisors and the Superior Court a “blatant conflict of interest”


Comments

  1. Russell Pearce should be bringing some legislation that will reform the courts and call for the election of judges. Right now smaller counties around Arizona have election of judges, so he would just bring Maricopa and Pima County in line with the other counties. With a more conservative legislature and a Republican governor, I am fairly confident we have the votes to get judicial reform passed finally.

  2. kralmajales says:

    To elect judge is absolutely stupid. Stupid for you as well. We don’t need to be selecting judges because they are “right” or “wrong” on political issues. It brings about a biased judiciary, backed by interest groups, and even campaign dollars that provide an appearance of impropriety to anyone that comes before them.

    Here is an example of why this sort of thinking is so wrong. I heard a lot of conservatives raise hell when Tom Delay was to appear before an elected judge in Texas who was a Democrat. No trust there obviously. Then they noted that the judge had accepted contributions for re-election from liberal groups…more distrust…and so on and so forth.

    This sort of judicial reform will bring both reward to conservatives who might try, like you all seem to advocate, to pack the bench with conservatives. But you will also find many places where liberals will win as well…in Democrat districts. So changing the institution and allowing knee jerk reactions to legal decisions you disagree with drive you vote, will do little but lead to a partisan judiciary.

    The current system does not pick liberals, does not pick conservatives, it picks the best qualified persons to be on the bench. It is not without politics, but informm yourselves a little about it before you rail on it and blame it for a judge when that judge makes a legal decision you don’t like.

    Folks, what we are talking about, by the way, is why the US Consitution gives judges life appointment after appointment and confirmation. It was so that the political ire driven by the outcome of a decision, did not affect the judge who looks at the law and makes a decision based on it.

    You all seem to want the opposite? How come?

  3. Kraj, are you kidding? Go to azjudgesreview.blogspot.com and look how many far left judges have been appointed by DEMOCRAT governors. For example, Napolitano appointed far left activist and former legislator Bill Brotherton to the Superior court. Most of the rest her appointees had strong far left credentials as well. Electing judges comes with its own problems, but at least they’re not all going to be extreme partisans appointed by a governor.

  4. Hey, what happened to Coughlin’s (Roger) rants about Chewie? I guess he is too busy helping with Brewer’s unelection campaign. I’m sure he’ll show up.

  5. Hi Billbo, just sitting here wondering when you’ll actually email me and call me yourself. I mean, Billbo is your name right?? Weird that I haven’t heard from you. roger32phx@gmail.com is my address in case you misplaced it.
    This is a retread of a press release by the GI. Same old “I hate the BOS” crap so I really only read it until it all sounded familiar from the first time it was posted.

    On the topic of electing judges- it’s dumb. There’s the same liklihood to elect even more liberal judges then we have now. At lest there is balance now.

    Just imagine if Joe wouldn’t have backed Napolitano. She would have lost, we probably wouldn’t have had so many liberal judges appointed and we definitely wouldn’t be in the situation we are in now. Brewer would be the SOS and we’d be talking about who would step up in the open primary.

    Sadly though, we’d probably still have the Chewie’s of the world trying to eat our own and we’d still be in the midst of the AZ Republican Civil War.

  6. As much as the current system has problems it is still preferable to electing Judges. Judge Donahoe is a pompous idiot but electing Judges will not prevent this. If the electorate can not be bothered to make informed decisions in retention campaigns why are we suddenly confident elections solve the problem. Fund raising for elections would cast a cloud over every Judge. One poor decision by one bad Judge does not mean elections are the answer.

  7. Ahhh Chuck…you never disappoint. Love your fake email account. Gmail is so authentic. I would be happy to meet you in person anytime.

    Along with the prediction your boss will be unemployed, I predict we will have election of judges. Unless Jan vetos the bill, adding to her other blunders. Chuck should like more elections, more opportunity to suck down campaign donations from the Chamber.

  8. Ah the classic dodge. Email me and we’ll hook up for coffee. I’m not posting my phone number on a comment section.

    Needless to say, I won’t hold my breath.

    I wasn’t aware of any bills to make judges elected officials but okay. See a pattern here in my opinions. I mean I’m flattered since Coughlin is obviously a big figure but I think it’s becoming clearer and clearer who likes to hide behind anonymous names and who is honest here.

  9. kralmajales says:

    I have read Judicial Reform Now’s blog a few times and the analysis is tantamount to knee jerk labelling of judges which does nothing but make the bench more partisan…the end goal…partisan elections. I have never heard or seen a shred of proof that the merit selection commissions are stacked or otherwise seriously politicized. They are balanced by party and ultimately do a fantastic job screening candidates. Yes, the Gov chooses and gets to choose off a list that is screened…so what? And yes, they likely choose someone of their own party. But quality is insured and rarely do you get an ideologue. I don’t even find Brotherton to be an ideologue. Democrat yes, ideologue no.

    The point I am making, and what ultimately discredits the line of argument by those of Chewie and Judicial Reform Now is this…

    You WANT partisans on the bench. You dont want people that will faithfully interpret the law. You WANT elections because you want to be able to put conservatives on the bench who will actively make conservative policy. THAT is an inappropriate as doing so in a liberal fashion. It flies in the face of all you stand for.

    A few facts. The Pima Commission recently sent a list of 5 choices to the Gov. 3 GOP 2 Dems. They could have easily sent two Dems and one GOP to tie the Govs hands. Instead, there was discussion about “fair is fair” to give the Gov. more of a choice. It was also because there were 5 excellent candidates that could have all been great judges. No electoral process would have gotten us there. The new judge by the way is Richard Gordon (R).

    And…the Appellate Court Commission just put up 3 excellent names and the Gov. just chose John Pelander for the Court. A Republican and very very well respected intellect and jurist. She complimented the Committee especially, after critizing the process before that it brought her excellent candidates and that it made her decision process more efficient.

    There is a LOT more to the merit system than knee jerk reactions like this post, Senator Pearce, and others bring to the table. They bring to the table partisanship and a view of the judiciary that would be a partisan one…you can’t argue against that. It is the motivation.

  10. kralmajales says:

    Roger,

    Just to help…year after year Senator Pearce and Gray and a few others put in proposed constitutional amendments to bring elections to judges and to give the Senate a confirmation vote on who the Gov. selects. Year after year they fail to get passed because people see the motivation behind the bills. The are crafted by the Center for Arizona Policy with a belief behind it that they could “do better” with elections…better meaning use their money and campaign organization to elect conservative activist judges. The system now gets good, solid, excellent jurists that are not ideologues. They also have no influence in this type of a system. They can’t give to the campaigns (nor can liberal groups), they can’t buy ads (nor can the liberal groups), they can’t field candidates other than to encourage candidates to apply.

    They want to control how judges are selected for a reason…and it is one that could easily backfire on them as was said so well by Larry B and Roger.

  11. New Handle says:

    Makes no sense to send 5 candidates and only 3 GOP. That leaves Brewer only three choices when she deserves five.

    On what planet would you have to live to think Brewer would consider a D?

    Look, we don’t have a judicial election, but thankfully we do have a remarkably partisan process.

  12. Carlist says:

    BTW Rog, Kral and other judicial appointment enthusisasts, Maricopa County and State Judges WERE elected until 1976.

    It seems that the folks got “irritated” in 1974 and conducted an “enema” of liberal judicial incumbents in party primaries and general elections.

    This scared the bejeezuz out of the Bar Association, media and the usual locusts on law school faculties who quickly came up with the “Missouri Plan” which was pushed non stop by the Republic and the Central Corridor establishment to curb the electorate’s wrath!

    Of course we still get to vote, but only to retain a sitting member who is appointed by the “right people”.

    And the “right” people have been constantly pushing the envelope to appoint J.P.’s and heretofore elected County line officers!

    The cesspool of self-interest always seeks to prevent decontamination and fumigation efforts.

    And as to the Federal Bench, if its members seek to use their positions to legislate let them bear the scrutiny and accountability they assign to others.

    A five or ten year term followed by a Senate reappointment process would suffice at present to allow the arrogant to see some light.

    As things now stand, we live in an Imperial Judiocracy!

  13. Enjoy the dance Chuck, you are running out of time. My email is Roger33phx@gmail.com I’ll be at Coach and Willies Friday after work at 5:30. I usually have thew outside table up on the steps in the corner. If that’s is taken I’ll be at the bar. You can’t miss me. I wear a brown Stetson. I’ll buy the first round.

  14. kralmajales says:

    Carlist,

    Come on! We do NOT live in any thing close to a imperial judiocracy. YOu sound smart, so I can’t imagine how you could say that with a straight face. The judicial branch remains the “least dangerous branch” as Hamilton intended. They have neither force, nor will, but only judgment (to paraphrase him). A courts only real power is the power to persuade. They cannot enforce their own judgments, there are multitude of legislative and executive checks on them…in short…they typically do what the people want…most of the time. It is only when they make the occasional decision that angers a liberal (or in this case a conservative) that people get riled and angry. The beauty of our system is that the framers INTENDED that…and INTENDED that insulation. They believed that the powerful elected branches could become so powerful that individual rights and freedoms could get lost. The courts, as weak as they really are, were established to be sure that a counter majoritarian decision could be issued…against the will of the people…but based on the principles of law. That happens rarely…but when it does, it should remind you and all here of the fact that Iraq, most countries in S. America and a host in the former Soviet Republics CRAVE a truly independent court that can and does have the power to at least say no…and not fear losing their jobs.

    I cant say this anymore eloquently…when we are angry at the court, it is most likely doing its job. It is tempting to me, and to you, to strike at it when we disagree with their decisions. That is the very reason why the Framers…and this system in Arizona…was established…to keep the whims of the people from stamping out all that is good about this democracy.

    And believe me the Roberts Court tempts many of us on the left to call for the constitutional checks to be used on them!

  15. Cathi Herrod says:

    Clarification: Center for Arizona Policy has not supported any proposals to require election of judges. We have supported a modified federal system where the Governor appoints and the Senate confirms.

  16. Alicia Gegner says:

    t

  17. New Handle, the law calls for that breakdown- she’d never get all 5 R’s. The point is to balance it.

    Billbo- I’ll be there and look forward to a good conversation.

  18. James Davidson says:

    Election of judges is not a good idea, unless you want to put the trial lawyers in the driver’s seat. The bench in Maricopa County has nearly 100 judges. There is no way the public is going to know the reputations of the lawyers running for 100 judgeships in a county this size. But the trial lawyers will spend tons of money to get their friends and allies elected.

    It will be the law of unintended consequences at work. Just like the liberal Democrats thought that the redistricting commission and Clean Elections would give them a majority in the Legislature, only to see both “reforms” make them worse off, so it would be with electing judges. The trial lawyers make a living off the judicial system. They have lots of money to spend electing their friends, and they are very smart at getting their friends elected.

    Elections have consequences. When Big Sis squeaked through in 2002 by the skin of her teeth, due to the sheriff’s support, that put us in for six years of liberal judgeship appointments (as well as big spending and bankruptcy.) The election to win is the governor’s race. If we elect a conservative, we will get conservative appointments to the bench. It’s as simple as that.

  19. Carlist says:

    Kral:

    The “straight” faced comment works both ways!

    Unfortunately, the “least dangerous branch of government” advertised by Hamilton in the Federalist papers was altered in the first decade of the 19th Century (see “Marbury vs.Madison”)

    The Constitution says absolutely nothing about judicial review but John Marshall seized the power and things have’nt improved since.

    The only President who challenged this new state of affairs was Andrew Jackson, and he was successful in doing so!

    Whatever constraints the Court had were discarded during the post WWII period. The concept of Stare Decisis was thrown out the window.

    With the effective powers of the States within the Federal system diminished by the 17th Amendment, the Senate no longer served as an adequate “watch dog” and monstrosities such as Baker vs. Carr emerged whereby the Court was telling the States how to organize their respective governments!

    Using the Commerce Clause of the 14th Amendment along with the “General Welfare” clause of the Constitution (which Hamiltonians said would never be utilized in such a manner) the Court “trumped” the 9th and 10th Amendments and started legislating rules as to commerce.

    This encapsulated everything from the demographic make up of neighborhood schools to legislative distribution of public funding.

    There’s absolutely no doubt that over the past half century, Federal Courts have entered the legislative process with a vengeance. And they’ve openly admitted to, and defended the practice since Congresses and Legislatures were not speedily responding to the “needs” of the era!

    So be it, but as some the N.Y. sages of my youth would put it: “You wanna jump in da pool, you gonna get wet!”

    Elect ‘em, or come up with a Congressinal review system of accountability.

    Political aristocracies have no place in a Republic!

  20. kralmajales says:

    Carlist,

    The data just plain don’t back any of what you said about judicial review and its prevelance and use.

    First, scholarship has shown over and over again that judicial review was intended by the framers…it was almost a foregone conclusion. Otherwise, why give the power to interpret the constitution to the Supreme Court of the US and not give them the power to say that the govt. stepped out of bounds and declare the law null and void. You can’t POSSIBLY not support this…especially now…when the govt. is controlled by liberals and the Supreme Court is the only thing watching your conservative back???? What if govt. passed a law that we could only have free speech on Fridays? It is only the law and the Supreme Court that has that last ditch power to say “uh uh…NO…that violates the first amendment.”

    Don’t be silly.

    And on judicial review and its exercise…study after study says it is used, but rarely. The vast majority of cases interpret the law…they may constrain it or broaden it…but they rarely ever strike laws completely down as unconstitutional.

    It is…a paper tiger at best…and many hear rail on it, want to control it, and now are in position where you do control the federal bench. Enjoy it!

  21. Carlist says:

    Mr. Davidson raises some interesting points.

    However, I in turn would point out that the trial lawyers have a HUGE say in the current appointment process!

    Furthermore, while the public traditionally lags behind special interests in policy knowledge, communications and publicity begin at some point, to level the field.

    This precisely what happened during the 1974 election cycle when a high percentage of judicial incumbents were flushed.

    The Trial Lawyers, Bar Association, Newspaper publishers and Leftist law profs saw the handwriting on the wall and took corrective measures.

    And Maricopa County is now saddled with them!

    If anything, with communications technology far superior to that of 35 yrs. ago, (this blogsite being a perfect example) the “word” concerning trial lawyer and “insider” operations will disseminated even more effectively and this in turn will complete the job that voters began in 1974, by returning to a publicly accountable judiciary!

  22. New Handle says:

    Right, the law requires the party mix in the nominations. That’s just stupid, because it actually gives the selection commission more power, not less. Gov is forced to make a narrower choice, not a wider one.

  23. Electing judges is a bad idea, as anyone who has ever practiced in front of elected judges can attest (“So which one of y’all represents our side? Um I mean the plaintiffs.”) The quality of judges in the rural counties is very low, with a couple of notable exceptions. The quality of elected judges in other states is low, in my experience. The elected superior court judge system, which was dumped in 1976, produced Raul Castro and Sandra Day O’Connor.

    With regard to Donahoe, I’ve practiced in front of him far more than Clint Bolick or anyone else on this post, he’s ruled against me plenty of times and he’s a solid judge with no great partisan agenda (though an earlier poster is correct, he can be a little pompous at times).

  24. James Davidson says:

    I don’t remember there being a problem with judge appointments when Symington was Governor. I will grant you Big Sis appointed liberals. What do you expect? Liberal governor appoints liberal judges. The lesson is not to elect a liberal governor.

  25. Weird how people don’t quite understand that James. They really gloss over Joe’s endorsement and the damage that did to the state and now the country.
    Keep the infighting up and just wait for the judges Terry Goddard will appoint!!

  26. Carlist says:

    Ah Rog!

    You’ll never forget Joe’s 2002 endorsement as if that were the only reason Janet found itself in the governor’s chair!

    Perhaps we can look at the pathetic campaigns which were run against her and the issues “the stupid party” chose to run on, e.g. Indian Gaming revisitation and War Memorials!

    Maybe we should take a closer look at the quality of “campaign consultants” the party has produced over the past fifteen or so years to find real culprits!

  27. Carlist says:

    Kral:

    If as you say, “Judidical Review” was accepted by the Founders and a foregone conclusion in Philadelphia, why was it ommitted by in the final draft, composed by Hamilton ally, Gouverneur Morris?

    And judging by the reaction of the Jefferson-Madison incumbents to “Marbury”, one can see why it wasn’t brought up a decade and a half prior in Philadelphia.

    The Supreme Court was “sold” as an instrument to handle disputes between states and little more.

    The bulk of its current domain was acquired via political convenience and an implicit desire to remove major social/politica decisions from public scrutiny and accountability.

    Hopefully, things will change!

  28. Didn’t say it was the only reason but it UNDENIABLY was a huge difference. How many other Republican Elected’s could get such a free pass on such a blatant stab in the back.

  29. AllUsBadGuys says:

    The US Constitution guarantees a republican form of government for the states. Until the 17th Amendment (the demise of prudence in the US Senate), the direct election of anything or anyone, except the state legislature, was prohibited.

    Now any idiot can vote for any idiot or ballot initiative/referendum and win or lose by a couple of sound bytes.

    Cathi Herrod of CAP takes the pre-17th Amendment approach by advocating gubernatorial appointment and subsequent Senate confirmation to mirror the current federal practice. There’s not enough room in the comment section to “laudly” cheer her on!

  30. AllUsBadGuys:

    Not a bad suggestion on Cathi’s part, but I’d add that Gubernatorial appointments be restricted to State judges and that the State Senate not only confirm them but review judicial performances on a time set basis (perhaps 5 or 10yrs).

    As to the County, let residents decide. Like U.S.House members, the constituencies are limited in size and public information outlets have technologically advanced whereby the electorate will have a fairly decent working knowledge of the judges’ performances and operating ideologies.

    We could even create judicial districts within the county to fine tune accountability.

    As to the 17th Amendment, it’s repeal should be a priority.

    In effect, it broke the bond between U.S. Senators and State Government and essentially created a band of free agents competing for the apporoval of well heeled, D.C. based, lobbyists and power brokers!

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