Judge Not

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

Lisa Stevens hadn't a clue what was happening with her child-custody case.

"I just needed an answer from the judge about where my son was going to live during the new school year," says the 32-year-old single mother who lives in Phoenix.

For sure, Stevens didn't know until recently that she and her ex-husband were among many litigants left in limbo by an apathetic Family Court judge and his former judicial assistant.

Phoenix single mom Lisa Stevens found it impossible to get information about the status of her child-custody case.
Phoenix single mom Lisa Stevens found it impossible to get information about the status of her child-custody case.
Phoenix single mom Lisa Stevens found it impossible to get information about the status of her child-custody case.
Paolo Vescia
Phoenix single mom Lisa Stevens found it impossible to get information about the status of her child-custody case.
James McDougall was one of Maricopa County's senior Superior Court judges.
James McDougall was one of Maricopa County's senior Superior Court judges.
Kathy Franklin worked for Judge McDougall for nearly two decades.
Kathy Franklin worked for Judge McDougall for nearly two decades.
Superior Court Judge John Foreman has been apologizing to litigants for the delays in their cases since he took over McDougall's calendar in June.
Superior Court Judge John Foreman has been apologizing to litigants for the delays in their cases since he took over McDougall's calendar in June.
Attorneys and other judges warned associate presiding judge Mark Armstrong about McDougall's tardy calendar.
Attorneys and other judges warned associate presiding judge Mark Armstrong about McDougall's tardy calendar.
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.

The judge, James McDougall, sent a letter of resignation to Governor Jane Hull last Friday afternoon, minutes after responding by fax to questions posed by New Times about troubles in his courtroom.

"Based upon information recently provided to me concerning the administration of cases in my division," the judge said in a public statement released Monday morning, "I have concluded that it is in the best interest of the court, myself and my fellow judges that I retire from the Superior Court bench effective August 29, 2000."

McDougall had been on the bench for 26 1/2 years, and was one of the county's senior jurists. He is eligible to collect $92,400 annually in retirement pay.

He and the judicial assistant, Kathy Franklin, had been enmeshed in a scandal that has been the talk of the county courthouse. In short, McDougall allowed dozens of cases to go unresolved, sometimes for months beyond a mandatory deadline, and Franklin may have been covering up for him.

In last Friday's written response to New Times, McDougall said in part, "I at all times believed I was in compliance with the requirements of the [deadline] statute," and said he didn't have an inkling that Franklin had been doing anything wrong.

However, Maricopa County Superior Court officials placed Franklin on paid leave June 29 after court administrator Gordon Griller personally escorted her out of the building. She was fired August 11, after working for the county since 1971 -- the last 19 years for McDougall. Franklin was paid $41,600 a year at the time of her dismissal. She did not respond to phone messages seeking comment.

The allegations? Among other misdeeds, according to several well-placed courthouse sources, Franklin may have backdated official court documents to make it appear her boss was ruling on cases in a timely manner.

He wasn't, as Stevens and other litigants, attorneys and other judges had known for months.

Documents show McDougall regularly violated state law by signing his name to an affidavit before each pay period, in which he swore he had ruled on his cases within the time limit set by law. The affidavit, issued by the Arizona Supreme Court, says in part, "No cause has been submitted to me for decision which remains pending and undetermined for sixty days or more since the date of submission for decision."

McDougall was tardy -- or didn't rule at all -- within the 60-day window in at least 16 of the 100 cases reviewed by New Times, which were chosen randomly. Many of those cases involved perfunctory legal issues, where little more than the judge's signature was necessary. (If Franklin did indeed backdate court documents, McDougall's caseload was even more behind than it first appears.)

A Superior Court judge's $115,500 annual salary may be withheld entirely if he or she breaks that law. And Yuma County Judge H. Steward Bradshaw was suspended without pay for 90 days in June 1997 for late rulings, according to the Arizona Commission on Judicial Conduct.

The commission concluded Bradshaw had failed "to render decisions within 60 days from the date the matters were submitted or taken under advisement, and for signing 18 salary certificates in which he falsely certified that he had no causes under advisement for more than 60 days."

Arizona Supreme Court justice James Duke Cameron wrote in a key 1983 case on the issue: "The signing of a series of false affidavits by a judge brings the integrity of the entire judicial system into question, and is prejudicial to the administration of justice." Cameron's majority opinion upheld the public censure of a Phoenix Justice of the Peace.

To be fair, McDougall and Bradshaw haven't been the only offenders of the little-known 60-day rule. New Times scanned cases for the other 15 Family Court judges and four commissioners, covering a period from January through May. Five other jurists also violated the rule, but only one other judge -- Crane McClennen -- did so more than once. McClennen was delinquent in five of 16 cases perused by New Times. He, too, signed the 60-day affidavits during the relevant time frame.

The mess in McDougall's court has left his successor, Judge John Foreman, saddled with problems. Foreman has been apologizing in court to litigants almost daily for the emotional and financial burdens caused by his predecessor's dereliction of duty. He does so without using McDougall's name, or giving specifics.

It's impossible to say how much money the delays have cost litigants in extra attorneys' fees, or how much they have cost taxpayers in added court expenses in time and paperwork.

Judges and attorneys notified supervisory court officials about McDougall's late rulings, but he continued unabashed until the end of his tenure in Family Court on June 12. Specifically, four divorce attorneys and three judges tell New Times they complained to then-presiding Family Court judge Mark Armstrong, but he apparently did nothing about the deteriorating situation.

Some complaints were specific, and others were general, but the fact that officers of the court made them shows how serious the situation had become. Attorneys gripe with the best of them, but usually draw the line at officially bad-mouthing judges.

"If I complain to the p.j. [presiding judge] about Judge A, the good-old-boy network is going to kick in, and it's going to hurt my client," says a lawyer, who says that she, too, complained to Judge Armstrong about McDougall. "Family Court judges have tremendous latitude in making decisions, more so in some ways than in the other courts."

That attorney, and others, agreed to speak with New Times only if promised anonymity for fear of that kind of retribution.

Bob Schwartz, a highly regarded Phoenix divorce attorney, is one of few barristers contacted for this story willing to speak for attribution. "I've always had great respect for Judge McDougall's legal opinions, even when they haven't been in my clients' favor," he says. "But what we could never figure out is why they took him so long, if he got them done at all."

In keeping with the circle-the-wagons mentality among the court's upper echelon on this matter, Armstrong -- now the Superior Court's associate presiding judge -- declined to comment about any aspect of this story. And Judge Foreman changed his mind overnight last week about discussing the issue, after saying he didn't know how his supervisory colleagues let things fester for so long in McDougall's courtroom.

"I just can't talk about this," Foreman said.

In his response to New Times, McDougall conceded that "on occasion, I have had discussions with presiding judicial officers concerning the administration of cases in my court, including the issue of timeliness."

One of those judges surely was Robert Myers, the county's former presiding judge, and the man who appointed Armstrong to head Family Court. Myers also said he could not comment about the McDougall affair.

When asked why, the usually blunt Myers -- who as chief judge pushed Superior Court into becoming a more user-friendly and open place -- repeated, "I cannot talk about this."

Judge Foreman referred further questions to Family Court administrator Carla Boatner, saying Boatner could provide valuable information about the McDougall situation. Boatner later seemed surprised to get a visit from a reporter, and referred inquiries to the court's director of communications, J.W. Brown. Brown provided Franklin and McDougall's salaries, Franklin's dates of employment, and information about certain court procedures.


The morass at Family Court was news to Lisa Stevens, a divorced mother of a 13-year-old boy. About all she knew until recently was that Judge McDougall never did rule on her child-custody dispute with her ex-husband -- even though it had been sitting unresolved on his desk for more than 90 days.

Stevens also knew that McDougall's staff hadn't responded during that three-month stretch to her incessant telephone reminders that she and her ex-husband Phillip desperately needed an answer.

Stevens had been wrangling with her ex over where their child, Vincent, should live during the school year. Phillip Stevens is stationed at a naval base in San Diego. Lisa Stevens works as an attendance clerk for a Valley school district.

Phillip wanted the boy to live with his current wife while he's deployed on a six-month mission; Lisa wanted Vincent to stay with her in Arizona. The argument heated up in February, but there seemed to be time to sort things out.

If Judge McDougall ruled in Lisa Stevens' favor, Vincent would enroll in a year-round Phoenix school in July. In that case, the boy would live until then with his father. If the judge ruled in Phillip Stevens' favor, the boy would enroll in San Diego starting in late August, and would spend most of his time before then with his mother.

Records show the ex-spouses spoke last February 11 to an evaluator for the court's conciliation services unit. The evaluator's mission was to make a recommendation to Judge McDougall. She did so in March, suggesting the child would be better situated with a natural parent, the mother.

But neither father nor mother would know that for months, as they awaited McDougall's decision. Meanwhile, Vincent continued to stay with his mother in Phoenix, something that Lisa Stevens says turned out to be unfair to her ex-husband.

"If we had known that the court was siding with me, Vincent would have gotten to spend more time with his dad before school started," she says. "We may be fighting about some things, but what's right is right."

In March, Stevens phoned conciliation services for information. The evaluator told her she couldn't reveal the unit's recommendation, because the judge had the report on his desk.

She soon called McDougall's office for the first of what she estimates was about 100 attempts at getting an answer about her son's status.

"One day early on, I got through to a woman who was rude and obnoxious with me," says Stevens, adding that she talks with parents of students every day, and knows her phone manners. "She told me that the judge would make his ruling when he made his ruling. I said okay."

Weeks turned into months, but McDougall still didn't rule. Calling the judge's office became part of Stevens' morning routine, though she usually spoke to an answering machine, not a person.

"I don't have a lawyer and neither does the father," she says, "so I was winging it. I'd leave my name, number and a brief message, just like the machine told me to. I was never rude -- you never get anywhere that way. I said I just needed to know if I had to get my son's school records from California, and so forth. They never called back. Never."

Stevens again called conciliation services, asking if she had recourse. She says someone told her to file a complaint with the Arizona Commission on Judicial Conduct.

"Yeah, right, file a complaint when I have a case in front of him," Stevens says, echoing the fears of far more seasoned Family Court attorneys. "I wasn't trying to cause problems. I just wanted him to make up his mind, so we knew what was going to happen with our child. A judge is supposed to be a judge, you know."

Suddenly, it was July, and the first day in school for Vincent -- if he was going to live in Phoenix -- was at hand. Stevens kept Vincent out of school for the first week -- "I didn't have his school records or shot records from California," she says -- and kept calling McDougall's courtroom.

Then, in mid-July, Stevens learned by coincidence that McDougall's court calendar had been shifted on June 12 to Judge Foreman. She quickly left a phone message with Foreman's judicial assistant.

"A nice lady got right back to me," Stevens says. "She told me the court computer said McDougall had signed an order on May 2 that said Vincent should live with me during the school year. But I still couldn't find the actual paperwork, which I needed to make it official, and so I had something to show the dad."

Foreman's staff did some more homework, and the judge issued a terse memorandum July 13 that revealed the findings:

"After a thorough search of the files and materials available to this court, the court can find no evidence other than the computer notation that [McDougall's order] was ever generated, or that an order approving the recommendation of conciliation services was ever made."

In other words, McDougall hadn't actually signed the seemingly routine paperwork.

Speaking generally, J.W. Brown, the Superior Court spokesperson, says the Automated Computer System (ACS) functions as an internal tracking system for court personnel. Judicial assistants are given a code that enables them to input rulings and other actions in cases before their judges.

"But the official file is the actual file itself," Brown says.

It's uncertain why Kathy Franklin -- if it was Franklin -- typed in the erroneous information about Lisa Stevens' case. But McDougall never did issue an official ruling in the Stevens case, even though he'd had the evaluator's recommendation for about 90 days when he moved to the court's Criminal Division.

If the Stevens case had been an exception, it could have been chalked up to an unfortunate glitch, an aberration. But it wasn't. McDougall's calendar became the talk of Family Court as early as mid-1999, as the costly delays affected dozens of litigants, many in the mold of Lisa Stevens.


Judge James McDougall has been on the Maricopa County Superior Court bench as a judge or commissioner since 1974. According to a court-produced biography, McDougall was instrumental in creating the court's first domestic-relations division -- now called Family Court. Later, he served as the chairman of both the Maricopa County Bar and State Bar of Arizona committees on family law.

McDougall became a judge in 1981, at which time he hired Kathy Franklin as his judicial assistant. The pair later moved to Juvenile Court, where McDougall became presiding judge for a six-year stint starting in 1989. There, he became the first judge to win the Freedom of Information Award given by the Society of Professional Journalists.

McDougall is known as a likable man with a quick legal mind, but one who has isolated himself in recent years from other judges. It's possible, says one of his peers, that McDougall didn't have a clue until too late that his flagging attention to his calendar had become a regular topic of courthouse gossip.

The best indicator of Franklin's reputation around the courthouse was her moniker: "Judge Kathy." She first earned that reputation at Juvenile Court, where McDougall was chief judge and Franklin ran the courthouse with an iron fist. She also was known for playing favorites.

"She thought she could tell anyone to do anything because her judge was The Man at Juvenile," says a sheriff's deputy once assigned to the Durango Avenue court complex. "If she liked you, she liked you, and if she didn't . . . and if you even looked at her judge the wrong way, she'd eat you alive."

That's a theme echoed by everyone contacted for this story. Says a veteran practitioner, who serves as a judge pro tem in Family Court: "I can see Kathy getting in over her head, and the judge getting in over his head with paperwork, because that can happen to anyone in DR [domestic relations] court.

"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."

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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