Chief Justice Ruth McGregor is fighting the legacy of a judge's transgressions two decades ago
Twenty years ago, Superior Court Judge Philip Marquardt got busted while attempting to sneak a smidgen of dope past customs officials after a Mexican vacation. That netted him a misdemeanor conviction, a $500 fine, a year's suspension from his job — and quite the scandal.
But Marquardt managed to hang onto his seat, at least temporarily. In the venerable judge's sole ballot appearance after the arrest, Maricopa County voters agreed to retain him by a 1 percent majority. It wasn't until Marquardt was busted again, this time for having weed delivered to his Phoenix home a year later, that he resigned from his post.
It's a bizarre story. (Who tries to buy pot by mail and seriously thinks he'll get away with it?) But what's even more bizarre is that, 20 years after his initial bust, Judge Marquardt has become Exhibit A in the fight to overhaul the way judges are selected in Arizona.
I'm not kidding. A group of socially conservative Republicans in the Legislature have mounted a major effort to scrap the state's 30-year-old judicial-merit selection system by arguing that, back in 1988, a stoner judge managed to hang onto his seat.
Never mind that our system is widely considered a model for other states. Never mind that an overhaul could cost $17 million, at a time when everyone in the state is feeling a budget crunch. Never mind that Judge Marquardt's case is so old that he was selected for the bench before the current system was put into place.
Hey, the dude smoked pot and still got retained as judge. The system must be broken!
It's about the strangest argument I've ever heard down at the Legislature — and that's saying something.
Indeed, I sat through the committee hearing on this issue, waiting for details of a broken system, waiting for someone to provide a good example of out-of-control judges.
It never happened.
Appearing before the committee, Ruth McGregor, the chief justice of the Arizona Supreme Court, seemed similarly befuddled.
"I think you have to have a really good reason to move away from a system that's working really well," McGregor told the legislators. "I'm in the business of evidence. And I'd have yet to see evidence, other than Judge Marquardt, that we kept a judge who should have been removed."
Fact is, the fight at the Legislature isn't really about Judge Marquardt. It simply can't be.
Even the people leading the effort to overhaul the judicial system aren't that stupid. They know you don't scrap an entire system because, two decades ago, one judge managed to fool 51 percent of the voters.
Anybody who knows anything about Arizona politics will tell you this fight is really about illegal immigration. This year, anyway.
Arizona's current merit-based selection system was put in place in 1974, based on the idea that most voters in metropolitan areas don't have the time or inclination to study up on judicial races. In small counties, judges are elected. But in Maricopa and Pima, a bipartisan committee does the work for us. The committee takes applications, sorts through résumés, and interviews applicants. Their recommendations go to the governor, who ultimately narrows the list to make appointments.
The voters' only choice is whether or not to "retain" those judges when they come up on the ballot every four years.
As evidenced by the vote on Judge Marquardt back in 1988, even that may be asking a lot. In the vast majority of cases, none of us pays the slightest attention to these retention votes, and so a judgeship often really is an appointment for life, or at least until 70, when retirement is mandated by state law.
And I don't blame us. It's hard enough keeping track of the elected officials we've got. Who has time to wade through a dozen races on top of that? Then consider that, other than Judge Marquardt, we simply haven't had many examples of flagrantly screwed-up judges. We don't have to throw the bums out because, for the most part, we aren't getting bums in the first place.
The system is working!
But still, every year, we get another attempt to scrap it.
"I came to the court of appeals in 1989," Chief Justice McGregor tells me, "and every session since, we've had some kind of bill to change it."
The legislators have claimed a change is needed because of abortion. (Once, a judge gave a minor permission to go out of state to get one — legal, but a bad move politically.) They've said it was to keep Arizona safe from gay marriage. (No judge has ever sanctioned it here, but the legislators wanted to be ready.)
This year, naturally, the issue is illegal immigration.
Representative Russell Pearce and Senator Chuck Gray, two of the biggest opponents of illegal immigrants in town, are leading the charge. Also officially in support are Sheriff Joe Arpaio and County Attorney Andrew Thomas, two increasingly unpopular pols who know that grandstanding about immigration is the only thing standing between them and electoral defeat.
All four have railed about the "activist judiciary," which this year basically means judges who refuse to strip Mexican immigrants of their constitutional rights. And they would love nothing better than a series of high-dollar judicial campaigns in which candidates vow to outdo each other on the issue of who can throw the most immigrants in the clink.
I can see where this is going: Judges issuing booklets to talk about how to fend off Mexican street gangs. Judges advertising on billboards, vowing to be tough on crime. Even, perhaps, judges holding press conferences at the Pink Taco.
My head aches.
"Folks, it's about accountability," Pearce told the committee examining the issue. He said that voters passed Proposition 100 in 2006 to bar illegal immigrants from being released on bail — yet the court operated under a "don't ask/don't tell" policy for months and let the immigrants go anyway, until anti-immigration activists raised hell. "I can guarantee that, had they been elected, they would have given a lot more thought to the will of the people."
But here's where Pearce is completely, and undeniably, wrong.
Judges chosen through the merit selection system didn't set bail in the cases Pearce is referring to. That was actually done by commissioners — court employees who wouldn't be elected even if the entire merit system were overhauled under Pearce's plan.
No wonder we're forced to hear so much about poor dope-addled Judge Marquardt.
Despite my inherent cynicism, I have a hard time believing this is going to go anywhere.
There are a few reasons for that.
One is that Pearce's proposed changes would cost an estimated $17 million in Clean Elections money. That's a ridiculous waste, even for people who believe in Clean Elections.
The other reason is that so many people in Arizona are transplants. Some of us have lived under the thumb of elected judges — and we know just how screwy that system can be.
Back in Cleveland, where I'm from, it was common knowledge that you had to be a Corrigan or an O'Malley to be elected judge. Didn't matter how lousy your credentials or how slow your intellect. In the ridiculously long ballots we got stuck with every election, everyone knew that large quantities of Clevelanders would simply look for Irish surnames and check the boxes accordingly.
And the Corrigan problem was nothing compared to the corruption issue.
In Ohio, races became so expensive that Supreme Court candidates routinely were forced to raise more money than candidates for governor — and faced "Swift Boat"-style ads from hostile advocacy groups on top of whatever their opponent funded. Even the most political Ohio residents got sick of seeing commercial after commercial depicting various justices as on the take, or in favor of child molesting, or just plain evil.
Most of the financing came from lawyers and political action groups with business before the court, and the result was troubling to anyone who cares about justice. The justices never bothered to recuse themselves from cases in which they'd taken money from the litigants, and they didn't seem too eager to bend over backwards to prove they couldn't be bought, either. In 2006, the New York Times found that one justice ruled in favor of his contributors a staggering 91 percent of the time.
That's not an appearance of a conflict of interest; it literally is a conflict of interest, of gigantic proportions. Of course we want judges accountable to the people, but we don't want judges too accountable to people, particularly not people with chicanery on their minds.
Anyone who's moved here from Cleveland or Chicago or Detroit knows this. We know how imperfect pure democracy can be when it involves a dozen obscure positions and a bunch of desperate lawyers.
More than anything, we know that, in Arizona, we've got it pretty damn good.
It's interesting that one of the shrillest voices in this year's debate has been Carol Turoff. She was a member of the commission that helped select judges in Maricopa County, but now she's claiming that the system is biased and hopelessly partisan.
Frequent readers will remember that New Times was facing an out-of-control special prosecutor last year after we published the sheriff's home address on our Web site. Turoff attempted to contact the judge on the case on behalf of the prosecutor. That type of ex parte hearing is totally unethical — which is why we were all so relieved when the judge put an instant stop to Turoff's machinations and exposed them in open court.
Now, I know Turoff isn't agitating against our current judicial system simply because an ethical judge called bullshit on her. But it's still pretty ironic.
You can see why Carol Turoff doesn't like it, but for anyone who believes in civil liberties, the judicial system in Arizona seems to be one thing that's working just fine.