July 9, 2014
Host: Ted Simons
Arizona Supreme Court Chief Justice
- Newly-appointed Chief Justice of the Arizona Supreme Court Scott Bales will discuss the court and his plan for advancing justice.
- Scott Bales - Chief Justice, Arizona Supreme Court
| Keywords: government
Ted Simons: Arizona has a new Supreme Court Chief Justice. Scott Bales took over July 1st after being elected to the post by his peers, and he joins us now to discuss his plans for the court and for advancing justice in Arizona. Good to have you here. Thanks for joining us.
Scott Bales: Thank you for the invitation.
Ted Simons: And congratulations. It is congratulations. Correct?
Scott Bales: It is. It is.
Ted Simons: Okay.
Scott Bales: You know the process for our court is different than the Supreme Court of the United States. Because as you mentioned, I was chosen to be chief by my colleagues. It's under our constitution a choice that the justices make, and there's something of a tradition that we pick the person on the court with the most seniority on our court who's not yet served.
Ted Simons: And that's you.
Scott Bales: That's me.
Ted Simons: All right. And you've now got a new strategic agenda out there. First of all, why is a new strategic agenda needed?
Scott Bales: Well, the strategic agendas have a five-year time span, and that coincides with the tenure of the chief justice, the terms for five years. So it's sort of natural that as a new chief justice takes office, it's a time to reassess the things the court is doing, identify some new initiatives, um give priorities to certain things. And that's really what the new agenda reflects.
Ted Simons: And indeed, it sounds like -- I want to get to some of the finer points here, but the overriding goal seems to be access to justice. Talk to us about that.
Scott Bales: Well, it is the overriding goal. The overall theme is advancing justice together and one distinct goal is efforts to promote access to justice. Ted what that really reflects is a recognition of our circumstances in Arizona. Our state's population is different than the country overall. We're both younger and older. We have a high portion of people in our state who are 18 or younger, a high portion compared to the rest of the country over 65. We also have a large population of people for whom English is not their first language. And unfortunately in our state we have a high percentage as compared to the rest of the country who are poor. And each one of those factors creates distinct demands on the court system. A large population of young people means that we have particular needs in our juvenile courts. A large number of people who cannot afford lawyers means that we need to pay special attention to how we make services available to people who might be self-represented, or better provide lawyers for people who can't afford them.
Ted Simons: As far as those, the modest low-income folks, how do you better serve their needs?
Scott Bales: Well, one thing we're looking at under that part of the agenda is how do you help those people who are self-represented through things like self-service centers, court information available online, one thing that we're hoping to explore is whether non-lawyer assistance of one kind or another might be provided. And one thing we're going to do as part of the plan, and it's actually now in the works, is we're going to establish a statewide access to justice commission and it will be tasked with identifying very discreet strategies of how we can better help people have meaningful access to our courts. And it’s not just in terms of those who cannot afford attorneys, although that’s an important part of it, it’s more broadly people who may choose to represent themselves, or people who in fact have lawyers, but understandably want to see that the process is efficient and as inexpensive as possible.
Ted Simons: And as understandable as possible. I would think the self-represented litigants, one of the biggest things you could do to help them is to help them understand court process; help them to understand even the documents they're dealing with. That -- I would think that would be pretty intimidating for some of -- For a lot of folks.
Scott Bales: You're right. And that's something that we've given attention to, and that we're going to continue to focus on. Over the last several years, we made an effort to simplify the court rules for our justice courts. Took a lot of time, but it was successful. Now we're beginning to look towards other court rules for the same reasons you've mentioned. That the court processes ought to be as simple and understandable as possible.
Ted Simons: For those with limited English proficiency, first of all, don't we already have services there for those folks, and so what needs to be improved?
Scott Bales: Well, we have a range of services, there are interpreter servicers in most of the courts around the state, some of the forms that people use in courts are available in translations. We need to make sure, though, that our reach is statewide and that the coverage in terms of the types of forms that are available cover the range of cases, the range of things that people need to do in our courts. We have over the last year, made great strides in terms of posting online a large number of forms that are translated into Spanish. So in order for people to understand them they can access them, whether it's a family law case, or a contract case, other kinds of cases, and that's been done with the help of the Maricopa County superior court. They've really been leaders in that regard. So you can now go online, either at our court's website or at the website for the superior court, and access that information. There are also court interpreter services available in Spanish, but there are many other languages involved in our court proceedings. Something we're trying to do in that regard is make available more broadly remote video court interpreting. So you could have a person here that might speak a somewhat exotic language but they would be able to participate in court proceeding say up in Mohave County.
Ted Simons: I was going to ask about that, the idea of remote electronic court appearances, just in general, where does that stand and even for like filing documents, E-filing, and maybe filing payments and these sorts of things, is that developing? Where are we with that?
Scott Bales: Well, it is developing. It's hard for courts or for any other public entity to keep up with the technology, because it's always changing and the costs are a challenge. We are working towards implementing E-filing more broadly across the state. It's available for some courts, for example, in our appellate courts things are electronically filed routinely. But we haven't achieved that at every level of the courts statewide. In terms of an E-payment system, that's one of the things we're going to work towards under the new agenda so that the payment of fines and traffic tickets, for example, could be done in a purely electronic way.
Ted Simons: Is there a concern for privacy when it comes to all this technology?
Scott Bales: That is a– that’s a fair point. Something we've wrestled with as we moved towards providing for electronic access to documents is what kind of information should be shielded? Because in court cases, obviously sometimes sensitive information is put into the court documents. And we've actually adopted some rules that would limit remote access to certain kinds of sensitive information, sensitive personal information. But you know it's a fair concern that comes up in many contexts now as the internet has become prevalent and as E-technology is basically pervasive in our lives.
Ted Simons: And we occasionally hear of folks getting to places where they shouldn't be. The idea of expanding problem solving courts, first of all, what are problem solving courts, and why are they necessary, why should they be expanded?
Scott Bales: Well, what you're asking about is an aspect of the second goal that's identified in the new agenda, and that is protecting children, families, and communities. And this is something that like promoting access to justice is long been an important concern for our courts. Problem solving courts are usually some type of specialty court that recognizes that beyond deciding a particular case, the court might be able to deal with the issues that gave rise to the case in the first place. And a good example is a drug court. A person might be arrested for a low-level drug offense, and one way to handle it would be to simply process the case and send the people on their way. Another approach, and one that's been successfully implemented in Arizona and in other places around the country, is to say, well look, that might reflect an underlying problem of substance abuse for which the person needs to have some counseling or some other services, if we can help them get that, it might deal with the problem as opposed to just dealing with the symptom. And we've experimented with those kinds of courts in the area of drug courts and mental health courts. We have pilot projects around the state for veteran’s courts. And in Arizona, that's an important issue, because there's something on the order of a half million veterans in our state. And when they get involved in certain low-level offenses, again, it may reflect a different problem, a need for certain services that if you want to deal with the problem, you need to help them identify and receive those services. So that's the problem solving court approach.
Ted Simons: Okay. And that -- looking to expand that?
Scott Bales: Yes.
Ted Simons: What is evidence-based practice? What are evidence-based practices, and why is that in your agenda, and why is that important for us to know?
Scott Bales: Well, that's a fair question cause it's sort of a fancy term for making decisions or adopting practices based on actual data as opposed to just the way people have always done things or hunches. So evidence-based practices really describes looking at evidence and using that as a guide for your practices in a particular area. We've been very successful in the area of probation. And looking at what kinds of conditions actually prevent people from recommitting an offense from you know remaining productive in their communities, and based on that evidence, we've narrowed how we identified the conditions for probation. And what we found is, it actually is more successful in protecting communities and preventing recidivism and avoiding unnecessary re-incarceration, which creates jail costs and often itself is associated with a recurrence of crime once a person’s released. So we're going to try to use that approach to look at other aspects of court operations, such as pretrial release.
Ted Simons: Interesting. I would imagine all sorts of -- The seriously mentally ill, getting their hands on weapons, all of these aspects, again, it sounds like it's a more scientific approach, less open to the vagaries of what someone is thinking at the time kind of thing? Is that what we're talking about here?
Scott Bales: Well, and it is a scientific approach in that it says, let's assess what has or hasn't worked based on the empirical record, or based on the evidence. As opposed to relying as I said, on hunch, or just the way things have always been done.
Ted Simons: The a -- I know regulating attorneys is always a big one when we do these programs, everyone wants to know, how are they watching. So how do you regulate attorneys and how best do you promote higher standards?
Scott Bales: Well, your question reflects that one of the responsibilities of the Supreme Court is regulating the practice of law in our state. And we do that with the goal of protecting the public. And one thing that we're going to do under the new agenda is look at whether some of the rules that you know determine who can practice and under what circumstances should be perhaps amended or rephrased in light of how the legal practice is changed with other changes in our economy and technology. One of the other justices Ann Tenor is heading a commission that we've just formed that will be looking at that over the course of the next several months with the goal of coming up with some recommendations by the end of the year. We also over just the last year or so, under Justice Burke, the former chief justice, under her leadership, we restructured the attorney disciplinary system, and that seems to have improved how quickly the process works, and I think both from the perspective of the clients and the lawyers who are subject to discipline, I think the system is more transparent and more timely in its resolution of cases.
Ted Simons: We’ve got about a minute left here, this doesn't necessarily deal with the agenda, but just in general, this is a highly partisan era we're living in right now. And how do you keep that from trickling into the judiciary? Especially when the public, the people that are supposed to be being served, lots of folks out there seeing agenda. They see the court did this because of that as opposed to finding justice. How do you keep that separate?
Scott Bales: Well, I think within our court that's actually not been an issue. Our court has a high degree of collegiality, we have relatively few dissenting opinions when the court divides, it's very rarely on partisan lines. I think our unanimity reflects that we're committed to trying to find the right resolution and that it doesn't relate to politics or partisanship. I think our challenge as a court, and this is another issue we're trying to address in the agenda, is helping the public understand how we're different than other branches of government, which might appropriately be divided on a partisan or political basis. But that's not how the courts are meant to work and that's not how our court in Arizona does work.
Ted Simons: And do you think that message is getting out there with people?
Scott Bales: I think it's begun to get out, but we as the courts need to work harder at getting that message out.
Ted Simons: All right, very good. It's great to have you here. Thank you so much for joining us.
Scott Bales: Thank you again.
Same-sex Marriage Lawsuit
- Both sides in a lawsuit over Arizona's gay marriage ban want a federal judge to decide the case himself without having to go to full trial. Associated Press reporter Bob Christie, who is covering the issue, will discuss the lawsuit.
- Bob Christie - Journalist, Associated Press
| Keywords: government
Ted Simons: Both sides in a lawsuit against Arizona's same-sex marriage ban want a federal judge to decide the case without having to go to a full trial. Associated Press reporter Bob Christie is covering the story. He joins us now. It's good to have you here. Now give us the background on this case. This was what a filed in March of -- Who did the filing?
Bob Christie: This was filed by Randall Legal on behalf of seven same-sex couples in Arizona who want to be able to be allowed to be married. There's a second case that’s also working its way through in Arizona is filed a couple months earlier involving another group of couples. They're both relatively raise the same issues. The bottom line is that they believe that it’s unconstitutional that they – that they are banned from being married, they believe the state law that prevents that which is in the state constitution is -- Should be overturned based on constitutional grounds.
Ted Simons: Basically equal protection and due process, those clauses of the U.S. constitution violated they say --
Bob Christie: Correct the Fifth Amendment and the 14th amendment.
Ted Simons: Now again, this law goes back to what 1996 or something along those lines. Correct?
Bob Christie: Correct. The law was passed by the legislature in 1996. It was challenged in the federal, in the state courts, the Arizona Court of Appeals said it was ok several years later, and then in 2008 voters approved a constitutional amendment, which basically put it in the state constitution. So it's enshrined there which makes it even, you know, the legislature would be able to get rid of it anyway unless it went back to voters.
Ted Simons: So once upheld and then the voters put it into the constitution. Interesting scenario there. Also interesting is that both sides want the judge to decide and not go to a full trial. What's that all about?
Bob Christie: Well, in this case the facts really aren't at issue. I mean everyone knows that -- Everyone knows what the basic facts are. This has been argued quite a lot around the United States over the last couple years, so there aren't any real facts that need to be decided by the judge other than does it actually fail the constitutional test as set up by the U.S. Supreme Court. And that's what's interesting, because last year the Supreme Court struck down a major portion of the Defense of Marriage Act, that's a federal act, on constitutional grounds, on Fifth Amendment grounds. And since that time, federal judges across the United States in I believe 11 states in the last year and a half, have struck down state bans. Those are all being appealed right now. Arizona is kind of slow to the game, ours didn't get filed, a lot of those cases were filed the last couple three years, and are working their way closer than ours are now.
Ted Simons: So and again, it sounds like the ninth circuit is already considering a couple of these cases, Idaho I think in Nevada, something like that. I think on one of the cases a ban was struck down by a judge and another was upheld. But regardless, the ninth is looking at this, is the idea of not going to a full trial, is that the judge will find out what the ninth says and kind of get the hint?
Bob Christie: Part of it is that. Part of it is that, like I said, it's all legal arguments that really don't have any facts that require a finder of fact judge to hear new evidence. It's going to be filed -- The judge in the case, it’s pretty interesting, he’s an Alaska U.S. district judge who’s sitting and happens to have the case in Arizona, he's on senior status which mean he's been around a long time and he’s technically retired but in the federal system you never really retire unless you’re incapacitated. You keep taking cases. And he has this case, because Arizona has more cases than Alaska does. And he's a George H.W. Bush appointee; he's known to make his decisions off of paperwork. Rather than – doesn’t necessarily think that trials are necessary in a lot of civil cases. He likes to do what they call summary judgments, which is giving the pleadings, let me read the documents, give me all the paperwork and I'll tell you what the law is. So he will -- If he takes the suggestion from the parties, he will not have to have a trial. And he could rule -- The schedule right now is to get all the filings by the end of October. The second case I told you about is closer to being briefed, both of them are in Judge Sedgwick's hand, he’s the federal judge in Alaska, one would think he would wait until he has briefings on both of those to pop out rulings, but who knows?
Ted Simons: And again, we're talking about, real quickly, oral arguments, there is a split regarding whether or not there should be oral arguments? Why?
Bob Christie: There is, well it's kind of interesting, the land of legal lawyers say we don't need oral arguments, there are several motion issues which have to do with technicalities that the state wants to argue. I don't know if the judge will go along with that or not. For the plaintiffs and the defendants, it's probably not necessary at this point. I wouldn't think to have oral arguments. But you know it's up for the judge to decide.
Ted Simons: And as far as a time line is concerned, this Utah ban seems like that's the one that's headed toward the Supreme Court. We've had Supreme Court shows here, Paul Bender here basically saying this is very likely the Supreme Court will look at this U.S. Supreme Court will look at this next year. How does that play into all of this?
Bob Christie: Well you know, it's kind of funny, if you watch the news over the last year since the Defense of Marriage Act decision by the Supreme Court, there are federal judges all the way across the country who are striking down these bans. The ninth circuit as we said is going to take it up, the fourth circuit in Denver struck down or upheld Utah's -- Upheld the federal judge who struck down Utah's, Utah today appealed that directly to the U.S. Supreme Court. There's another district – I’m sorry it’s the fourth district in Virginia is next up; they have a case about ready to decide. The Supreme Court generally doesn't take cases unless they're split circuits so if we get every circuit around the country who all says, yes, these are unconstitutional, I don't know if the Supreme Court will weigh in or not. I mean nobody wants to second guess judges as the next guest will tell you probably.
Ted Simons: Yes, so bottom line, I mean the Arizona ban could be gone by the end of the year.
Bob Christie: Absolutely. When Judge Sedgwick rules, what's been happening with these cases around the country is once the federal judge strikes it down he puts it on hold, he or she puts it on hold, until it’s up to the Appeals Court. But with the Utah direct appeal to the U.S. Supreme Court today, and with the Virginia fourth circuit decision due out at any time and the ninth going to hear arguments in September, they I wouldn't think they've already had a – you know last year the U.S. Supreme Court upheld California's same-sex marriage overturning Proposition 8 in California, so I would think that -- that's prime and ready to go too, I wouldn’t think the ninth needs a lot. The reason the ninth took that case by the way is because in 2012 Nevada, this is before DOMA, the federal judge of Nevada upheld Nevada's same-sex ban and then after DOMA a separate judge in Idaho struck down Idaho's ban. So that's why they took that case, because there is a split in the circuit.
Ted Simons: And again, because Idaho was struck down and Nevada was upheld, the idea perhaps is you know forget the full trial, forget the jury, we're going to find out what the ninth circuit is going to say with both of these cases, let the judge go ahead and do a summary judgment and we'll move on.
Bob Christie: Absolutely. I think that’s what it is.
Ted Simons: And when -- what are we looking for time line here as far as this case?
Bob Christie: Well like I said, the one case should be fully briefed by the other, this month the second case that I wrote about yesterday will be fully briefed by the end of October. I would suspect the judge has no reason to wait after that. He could -- We could get a decision on the second case early in November if they have arguments.
Ted Simons: Wow. Bob good stuff. Good to have you here. Thanks for joining us.