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."


Death wishes and threats aimed at local judges — such as ones in Internet comments against Timothy Ryan after Andrew Thomas and Dennis Wilenchik tried to have him removed in October (see "Power Play") — have occurred nationally.

For example, U.S. Supreme Court Justice Ruth Bader Ginsburg revealed last year an anonymous post in an Internet chat room to "commandos" aggrieved by Ginsburg's rulings and those of her court colleague at the time, Sandra Day O'Connor.

"This is a huge threat to our republic and constitutional freedom," the person wrote, referring to a High Court opinion interpreted as relying too heavily on international law. "If you are what you say you are, and not armchair patriots, then those two justices will not live another week."

Beyond the physical threats, judges around the nation continue to face impeachment attempts over decisions involving religious and moral issues.

In 2005, a judge in Colorado faced great criticism from the Religious Right after ordering joint custody to the mother and her former lesbian partner who had become a Christian.

Though an effort to impeach the judge led by the Christian Coalition of Colorado and a state legislator ultimately failed, the legislator later bragged to the Denver Post, "The judicial branch in the state of Colorado and around the country got this message, which was intimidation."

In the same case, a senior public policy director of the special-interest group Focus on the Family said, "When opportunities arise, we would like to impeach judges" who rule in favor of same-sex marriages or for abortion rights.

Other religious groups have disseminated questionnaires to judicial candidates around the nation. In Iowa last year, the consortium Iowans Concerned About Judges sent questionnaires to all jurists facing retention.

Among the queries was whether a candidate supported "a judge's choice to display the Ten Commandments in his or her courtroom." Another concerned the landmark Roe vs. Wade decision that recognizes the constitutional right to privacy — which includes abortion.

The questionnaire also asked the name of each candidate's church.

In response to the questionnaire, Iowa's chief justice wrote, "The public should be wary of voting for a judge who promises to rule a certain way." But the justice himself felt the need to respond for political reasons.

Another recent attempt at controlling judges has been the Congressional Accountability for Judicial Activism Act. It would allow Congress, by a two-thirds vote, to overturn any Supreme Court decision that invalidates a law on constitutional grounds.

The federal bill so far is languishing, but its conservative Republican sponsors have not given up hope.


Not everyone in Maricopa County is a flame-thrower like Andrew Thomas and Joe Arpaio. But there are plenty of like-minded political activists who abhor what they consider dangerous overreaching by judges.

Cathy Herrod, an avid Thomas supporter and the executive director for the Center for Arizona Policy, wrote last year that "policy organizations, elected officials, and citizens have watched with growing concern as state and federal judges enact public policy from the bench to the exclusion of the legislative and executive branches of government. Most frustrating in this process is that the judicial branch is largely cloistered from the influence of the electorate."

Efforts continue at the Arizona Legislature to change how the state's judges are chosen.

Andrew Thomas would like nothing better than to see the appointment of judges either controlled by a conservative legislative committee or elected by largely anti-immigrant voters.

Before 1974, all Arizona judges, including those on the appellate level, were elected (Superior Court jurists for four years and appellate judges for six years). Since then, judges in the state's two largest counties (Maricopa and Pima) have been chosen through a system called "merit selection."

It works like this:

Committees made up of lawyers appointed by the State Bar and non-lawyers appointed by the governor screen judicial applicants, and send three to the governor for appointment to each vacant seat. Only two of the three finalists can be of the same party as the governor, who then chooses one of them.

Superior Court judges in the two big counties and appellate judges statewide occasionally come up for retention on an electoral ballot, which simply asks for a yes or no vote by voters.

The thinking on keeping the state's 13 other counties as they were — judges still running for election (though they are unopposed more often than not) was that they are small enough in population that voters generally have a better idea of who's running.

No judge in Maricopa County has failed to win retention since 1974, including one convicted of a marijuana charge. Voters retained that judge, Phil Marquardt, by the narrowest of margins, though he resigned from the bench in 1990 after a second pot conviction.


Even its adherents agree that the merit system isn't perfect. Mediocre, uninspired judges have been retained for years, as most voters haven't a clue about who their judges are or what kind of job they are doing.

But Mike Dann, a former presiding Maricopa County judge who now lives in Virginia and writes extensively about judicial matters, says he often hears kudos nationally about Arizona's courts.

"I tell people it's not the margaritas, it's the merit system," Dann says. "Arizona is considered a backwater state politically, but it's in the lead on so many of its court programs. I think it starts with merit selection. Merit selection does not necessarily produce a better judiciary, but it does produce a different kind of judge and bench.

"There are always some judges who can legitimately be criticized," Dann continues, "but even then, it's important that judges not have to pander to the public and to law firms and not have to raise large amounts of money to fund their campaigns."

Judicial candidates in other states often have to spend millions of dollars on campaigning (the Illinois Supreme Court race in 2004 cost more than 18 of the 34 U.S. Senate contests that year).

But while Andy Thomas might prefer to choose judges in ways other than merit selection, his political allies have flexed their muscles successfully within that system.

Last summer, several state legislators urged the county commission on Trial Court Appointments to kill the application for a judgeship of presiding Initial Appearance Court Commissioner Sheila Madden. Her sin: allegedly going out of her way to undermine implementation of Prop 100.

Among the legislators vigorously opposing her application was Russell Pearce, a former chief deputy under Joe Arpaio and one of Andrew Thomas' most vocal supporters. The powerful Representative Pearce and the other legislators, all Republicans, also questioned whether four of Madden's commissioner colleagues were fit to become judges.

None of the five made the cut.

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