Judge Not

By letting cases languish, a veteran Family Court judge and his assistant created havoc in the lives of parents and children

"I can also see Kathy doing just about anything for her judge. Anything. But what really bothers me is that Jim had to have known that things were way behind in his court. He's just too bright not to have."

Opinions are mixed about Franklin's competence on the job.

"I know she was a stickler for being on time and for us checking in with her personally before going into court," says another experienced Family Court attorney. "But did you ever see her office? Piles of files everywhere -- on the floor, the credenza. I asked her one time how she ever kept track of everything."

The mess in Judge McDougall's court has been a hot topic at downtown Phoenix's Superior Court.
Paolo Vescia
The mess in Judge McDougall's court has been a hot topic at downtown Phoenix's Superior Court.

Maricopa County Superior Court judges rotate every two years, from Criminal to Civil to Family Court. James McDougall returned to Family Court in mid-1998. Many of his colleagues abhor the assignment because of the relentless workload and the sadly antagonistic nature of many cases.

Time is of the essence in Family Court, more so in some ways than in the other Superior Court divisions. Paternity issues must be decided, child custody, visitation and support issues resolved, emergency orders issued, and more. Many estranged husbands and wives can't afford to hire attorneys, and are at the mercy of judges to rule swiftly and justly.

At best, it's a taxing assignment, with just not enough hours in the day to get everything done.

But it became clear to many as McDougall entered his second year on the Family Court bench that he was perilously behind on his caseload. One attorney, for example, says he tried for months to get the judge to sign a standard order that sanctioned the lawyer's withdrawal from a case. That put the already protracted case on hold, and with it kept the lives of litigants in limbo.

It's uncertain when court administrators finally started to investigate McDougall's court. New Times started its review to scan the judge's files in May, about a month before McDougall and his fellow judges were scheduled to rotate into a new assignment. But well before then, it was clear the judge's caseload was overwhelming him.

In late June, the Arizona Commission on Judicial Performance Review issued its findings on the 33 Maricopa County Superior Court judges up for "retention" before the electorate this November. The 29 voting commission members --which include judges, attorneys and members of the public -- concluded after months of research that each of the judges meets the standards for retention. But seven of the 29 said McDougall "does not meet" the standards. Only one other judge, Cheryl Hendrix, received more negative votes, eight. (Twenty-six of the 33 jurists got no negative votes.)

Even more telling was the analysis of the judges' administrative performances. Sixty-four percent of the responding attorneys anonymously rated McDougall's "promptness in making rulings and rendering decisions" as poor or unacceptable. That compares with the average Family Court judge's poor or unacceptable rating of 18 percent.

By contrast, the attorneys were far kinder to John Foreman -- the judge who has taken over McDougall's Family Court calendar. None of the 115 lawyers who responded to the commission deemed Foreman's performance in the "promptness" section as unacceptable, and just two of them called it poor.

Judge Crane McClennen -- the other Family Court judge who violated the 60-day rule more than once in New Times' review of cases --also fared poorly in the commission's administrative performance section. Fifty-four percent of the attorneys who responded rated McClennen's job performance in the "promptness in making rulings" section as poor or unacceptable. (McClennen's inferior ratings in that category are ironic. As an assistant attorney general, he frequently decried the turtlelike pace at which death-penalty appeals wind through the system.)

And 27 percent of the poll's respondents rated McDougall as poor or unacceptable in demonstrating "conduct that promoted public confidence in the court and judge's ability," compared with 14 percent for the average Family Court judge.

Among the commission's voting members is Judge Armstrong, who supervised McDougall as the presiding Family Court judge. It isn't known if Armstrong cast one of McDougall's seven negative votes.

Last week, Judge John Foreman refereed a brawl between an estranged couple dueling over everything from who should get the family Buick to the cost of a face-lift.

Foreman displayed remarkable patience with the pair -- the woman had an attorney representing her, while the man spoke on his own behalf. He asked them to try to resolve the big issues themselves, or he would have to make the decisions for them.

The judge then promised to try to move the case through the system as quickly as possible.

"I've just inherited a couple of thousand cases," Foreman said, shaking his head at the thought of the work ahead of him. "We're trying our best."

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