Siege Mentality

County Attorney Andrew Thomas is attempting to capitalize on a national trend by attacking local judges

Ruth McGregor, chief justice of the Arizona Supreme Court, says politicians and special interest groups are attacking the independence of the judiciary like never before.

"What just happened with those judges in Pakistan may seem distant from our experience," she tells New Times, "but it speaks to what a free justice system truly means to a society."

Justice McGregor is referring to Pakistan president Pervez Musharraf, who summarily dismissed the chief justice and 11 other Supreme Court judges in his country last month after declaring a "state of emergency."

Musharraf has blamed the judiciary there for "working at cross-purposes with the executive and legislature in the fight against terrorism and extremism."

In other words, the judges weren't going along with his game plan. Instead, they seemed to be making rulings based on the law, which the Pakistani president apparently perceived as a threat.

This is precisely what has been going on in Maricopa County between the courts and County Attorney Andrew Thomas.

Just as in Pakistan, this county's judges haven't marched in lockstep with the overarching arm of local law enforcement.

But as much as he surely would love it, Thomas still doesn't have the authority to dismantle the county's Superior Court.

Still, his bulldog barrister Dennis Wilenchik went so far as to claim in court that none of the county's 95 judges would be fair and impartial in ruling on the motion to remove associate presiding criminal Judge Timothy Ryan from hearing all matters involving the County Attorney's Office.

The claim was absurd, and Thomas surely knew it wouldn't pass muster in court. But it did demonstrate the lengths that this elected official will go to grandstand with voters. His intent was to make Judge Ryan a metaphor for the local judiciary's alleged coddling of illegal aliens and to make it clear that the County Attorney's Office is doing all it can to eliminate the perceived problem.

As for Sheriff Joe Arpaio, many judges consider his November 5 shutdown of the Superior Court's criminal calendar (his office refused to transport inmates for hearings that day) a power play designed to intimidate. Sheriff's officials claimed an MCSO financial crunch caused the shutdown, along with a miscommunication with court administrators.

Thomas ran for office in 2004 on a platform of stopping illegal immigration, a novel political concept for a County Attorney's Office not traditionally involved in enforcing federal laws.

His pandering to local fears about the incoming hordes of immigrants struck a chord, and Arpaio, who previously had steered clear of the debate, joined the front line, providing television viewers with incessant busts of illegals at "drop houses" and arrests of sad-eyed corn vendors in south Phoenix.

Soon after his election, Thomas helped craft laws and ballot initiatives to prosecute human smugglers (and, in a legal twist, the immigrants, for smuggling themselves into Arizona). He also moved to deny bail to migrants accused of committing serious crimes.

The latter was called Proposition 100.


What's going on in Maricopa County is part of a national, and as Pakistan proves, international trend.

Retired U.S. Supreme Court Justice Sandra Day O'Connor wrote last year that "the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous 'activist judges' who 'legislate from the bench' have become central villains on today's domestic political landscape. Elected officials routinely score cheap points by railing against the 'elitist judges.'"

Justice O'Connor might well be talking about her old stomping grounds at the Maricopa County Superior Court, which has become the epicenter of an ongoing showdown between Thomas/Arpaio and the judiciary.

For various reasons — including the public fall of Dennis Wilenchik in the New Times case — the latest clash concerning Judge Ryan ended without a surrender of authority by the county's judges.

But Justice McGregor, as well as many others contacted for this story, agreed that the increasing number of political attacks on judges here and elsewhere do not bode well.

"When I see attacks on the court, I don't always think they come from bad motives," McGregor says. "But when I hear talk about 'judicial activism,' I think, 'You really don't want to lose our impartial courts.' We are institutionally independent and make individual decisions on a neutral basis. If we don't have that impartiality, we don't have a system."

She declines to speak directly to the ongoing war between the county Superior Court and the County Attorney's Office because, if ethics complaints against Wilenchik and Thomas move forward and the state's Disciplinary Commission calls for censure, suspension, or disbarment, she and her Supreme Court colleagues would sit as an appellate body.

Whatever happens with the complaints, Thomas and his representatives continue to claim that judges have subverted the will of the "people" by ignoring the law or interpreting it to suit their personal platforms.

"We are not doing anything of the sort, nor would we ever do that," says presiding Superior Court judge Barbara Mundell, who has found herself on the defensive from the verbal attacks of Thomas and his crew since becoming the county's top jurist in July 2005. "Our judges are good and honest people who have a job to do, and that is to apply the laws in front of them as they see fit. But to make them seem otherwise — agenda-driven and all of that — is not even close."

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