Jack August:
...fourth week, fifth week? Fourth? Okay. All right, I'll start again with my perfunctory note to you, turn off your blackberries or cell phones. KAET is, in fact, taping this and we've already been reprimanded once by our producer over there. I don't want to have to go through that again ‘cause it was pretty rough.

[laughter]

Jack August:
Well, again, I welcome our distinguished guest today and our guests to the Arizona Historical Foundation's 23 rd Annual Barry M. Gold lecture Goldwater Lecture Series and this is one of our many outreach programs in case you don't know by now, I am Jack August and I am director of the Foundation really a great and growing organization. As you know, in 1959, Senator Barry Goldwater who was a rising presence in the U.S. Senate and entering his second term in office addressed what he saw as a pressing need in his home state, the loss of primary source material that docented the history of Arizona and the greater Southwest. He was mad at the Beinecke Rare Book Library, Cal Berkley, Stanford, all these guys coming in and taking our primary source material, and so he founded the Arizona Historical Foundation to collect, preserve and disseminate the history of the state and region. The lecture series which now embodies our the Arizona Historical Foundation's collection development policy it focuses on legal and judicial history, political history and business and economic history. And, as you know, obviously the issue today is the legal and judicial history of Arizona . I certainly have learned a lot already. It's really been a fascinating group of people and information and I think today's program honors Senator Goldwater's motivation and legacy in establishing this unique organization dedicated to preserving our history and our cultural heritage. I would like to thank my staff, nerous Arizona Historical Foundation volunteers, I see Nancy Kenney who's, just like clockwork, always here helping. Chris Schulte and others, my board of directors, KAET, KJZZ which has been a big help in promoting this series, ASU, our host institution, of course, our partner in some new endeavors, the ASU Foundation, and of course, the Kerr Cultural Center staff without whom today's events could not take place.

Jack August:
Now, today's program, “Justice Thomas Zlaket, Common Misconceptions about Judges and the Justice System in Arizona,” just a little bio on Justice Zlaket, he received his BA in political science from the University of Notre Dame in 1962 and his law degree from the University of Arizona College of Law in 1965. Upon graduation from law school, he entered private practice in Tucson with Lesher, Scruggs, Rutger, Kimbal and Lindeman and, it's like a lot of law firms, I guess

[laughter]

Jack August:
lots of names in 1968 before _____ and Zlaket which ultimately became Zlaket and Zlaket in 1992 and it was in that year 1992 that Justice Zlaket was sworn in as Justice of the Arizona Supreme Court and served as the Court's Chief Justice beginning in 1997. He is an award-winning jurist. An innovator in the administration of justice and former president of the State Bar Association of Arizona Justice Zlaket is a recognized judicial pioneer and significantly, his efforts in reforming discovery rules, known as the Zlaket Rules have reduced the cost of litigation and been adopted by many states across the nation. And so, without further ado, Justice Zlaket.

[applause]

Justice Thomas A. Zlaket:
Thank you very much, Jack. Good morning. I I apologize in advance. I've been under the weather for the last couple of days. It's nothing serious, I hope.

[laughter]

But if you can't hear me, just hold up a hand and I'll try to talk a little louder. I don't do talking head presentations very well. I usually enjoy the banter, the dialog back and forth between speaker and audience and normally I invite my audiences to jp in at any time with questions, suggestions, criticisms, observations, whatever. But, today, I've been told by the fine folks at Channel 8 that they would prefer that I go straight through my presentation and then we will have a question and answer session. It makes it easier on their editors.

[laughter]

The traffic was heavy today so I really didn't get much of a chance to rehearse this speech.

[laughter]

I told my wife this morning, if I if I really die of natural causes instead of in a fiery crash in Interstate 10 between Tucson and Phoenix , it will be a miracle.

[laughter]

That highway is getting worse and worse every day. I have had the privilege of being an Arizona lawyer now for 40 years. I've had the honor of serving as an Arizona judge for 10 of those years. When I came to Phoenix to serve on the Supreme Court of Arizona in 1992, I immediately encountered some significant misconceptions among legislators and other high government officials, and names will not be mentioned, about Arizona 's justice system and its courts. Quite frankly, some of these people who occupied responsible, important positions were ignorant about the third branch of government. Here are a few examples of the uninformed criticisms that I heard almost daily leveled by people who should have known better. The justice system in Arizona is out of control. Judges should interpret the laws, not make them. Activist judges should be removed from office, or worse.

[laughter]

Judges are aloof, arrogant and out of touch with the real world. Judges should be popularly elected in partisan political campaigns.

[laughter]

And finally, judges have too much power. Sound familiar? It might have already occurred to you that some things change and some things never change. Never one to overlook the obvious, I sensed a rather chilly relationship between the State Legislature and the Supreme Court during my first two years as an associate justice. My first clue came when the governor gave his annual State of the State speech and the Supreme Court was assigned seats far back in the balcony of the house chamber.

[laughter]

Justice Moler who is here will remember what I'm talking about. Our seats were behind legislative staff behind the Veterans of Foreign Wars.

[laughter]

Behind the Doctor of the Day.

[laughter]

And behind a TV camera that was sitting on a pedestal.

[laughter]

I will never forget that day.

[laughter]

I cannot now recall whether they ever introduced us, but I do know they introduced the Doctor of the Day.

[laughter]

Now, I had been told by senior citizens of the bar, senior citizens of the bench and people long familiar with the political process in this state that the relationship between the courts and the legislature was not always bad. It had not always been strained. I was told that if you would go back to the days of Burton Barr and before, the relationship was dignified, was workable, was efficient and operated as branches of government should operate in their relationships with one another. Well, I decided to see if I could make a difference when I became the Chief Justice in, I guess it was 1997 that I finally assed that position. In order to improve things, I made it a point to call on every single legislator and I did it on their turf. I would call, I would make an appointment. I would then go over and see each legislator one on one and spend time introducing myself and visiting with them. I wore out a couple of pairs of shoes, I think, walking across the Wesley Bolin Plaza back and forth, back and forth for those visits with legislators. I don't want to paint with too broad a brush and so, before I get too deep into this subject, I will tell you that I did meet some fine people. I met some legislators who were knowledgeable, who were informed, who were honest and who were competent. But I must also tell you that I immediately became convinced that far too many of the people over there occupying a seat in the second branch of government were really ignorant about how this government works. They had no idea what or who a Chief Justice was. To them, I was just another lobbyist. One nice legislator that I remember gave me a nber of religious pamphlets and she suggested that I read them for answers to the tough questions that face the court.

[laughter]

Another gave me a copy of the United States Constitution and suggested that I might want to familiarize myself with it.

[laughter]

I was constantly told about pending or anticipated court cases in which a particular legislator had an interest, even though, I continually made it clear that I was ethically precluded from talking about such matters, I could not discuss with them pending cases. I could not give them any indication of how the court would rule. That would detract from my impartiality. They didn't understand. They wanted to lobby me. In short, I came away disheartened. I was disheartened in the sudden realization that many of the folks I had spent time with didn't know the difference between a justice of the Supreme Court and a justice of the peace.

[laughter]

What they all insisted on doing, however, was to repeat in almost mantra-like fashion criticisms that they had somehow picked up along the way. Criticisms of the justice system, criticisms that I have already mentioned to you earlier in this talk and they would utter them as though they were the gospel truth. So, what I've decided to do today for a few minutes is to talk about those criticisms. I know that this audience is a knowledgeable informed audience and I cannot believe that you believe any of those criticisms, but just in case

[laughter]

Just in case now it has been 4 years since the left the the job of Chief Justice. While I was in that position, my responsibility under the Arizona Constitution was to administratively oversee the activities of almost 7,000 employees operating 183 courts in all 15 counties of this vast geographically diverse state. I was always proud, and I still am, to tell you that our court system was and is consistently recognized across this country as one of the most innovative and best run court systems around. From discovery reform to technological advances, from jury reform to providing access to citizens to the court, from streamlining case processing to the enlightened use of specialized courts and in many other important areas, we have been recognized as a leader and an award winner for many, many years. I used to tell people, all they had to do was place a call to the National Center for State Courts which is situated in Williamsburg, Virginia, and ask the person who answered the phone to name the top five most innovative, progressive, efficient court systems in the country and I would bet them any amount of money they wanted, that Arizona was always in that top five. Ladies and gentleman, despite what you may have heard, we are recognized in the court communities of this land as people who move forward, as people who process cases in a fair and just way. It has long been true that we elicit praise and admiration for this system. We are emulated by other jurisdictions on a regular basis and we have been for years. So, what is there to be unhappy about? When I hear the critics talk about this court system, I always want them to be specific and they never are. What is it that they are unhappy about? I rather suspect that what it is, is that sometimes a decision comes out of the court system that they don't like, or they don't agree with. But that's not a legitimate criticism. In every case that our judges decide, there is one side of the case that goes away unhappy. It is in the very nature of being a judge that 50% of the litigants don't like you.

[laughter]

Because you held against them. That's just the nature of the beast. And so, it is not a legitimate criticism when somebody doesn't like a decision of a particular judge or a particular court. I tell you now and I say it as a retired judge, I have no ax to grind anymore. I don't have to say nice things about our court system, but I do tell you in all sincerity, there is nothing about our courts that is out of control. The only thing out of control is our burgeoning population. That our court system has been able to contend with the population growth in this state and still garner national praise and recognition is amazing. That our court system continues to operate well on the relatively small budget increases that it receives annually from the legislative branch of state, county and city governments, is nothing short of a miracle. Each of your Superior Court judges here in Maricopa County , each one handles well in excess of a thousand cases at a time. Think about that. I want you then to contrast that with the case load of the average federal judge in this state and in this county. The average federal judge handles less than half that nber, has a lifetime appointment and earns far more salary than any state judge. It is clearly the state court system in this country that bears the brunt of all of the cases, of the heavy case load. It is the state court system that is expected to dispense justice in mass voles; in voles too big to even imagine. The entire judicial branch of the State of Arizona which, remember, according to the Constitution, is an equal and independent branch, spends the tiniest percentage of funds that are budgeted annually for state government. It is teeny-tiny. I have seen pie charts repeatedly drawn that show how much the third branch of government spends out of funds that are allocated for your government. The piece of the pie that the courts take is so small you can hardly see it. It is nothing compared to what the executive branch takes. It is nothing compared to what the legislative branch takes. The third branch of government runs an operation in this state that is truly lean and mean. It's free of fat and it's free of pork barrel spending. I know, because I had the honor of presenting the whole court's budget to the legislature each year during my five years as Chief Justice. And I gotta tell you, that was always some experience. I distinctly recall one year when we had to tell the appropriations committee, we had to remind them that we were presenting the budget for an entire branch of the government, not just a department. They had given us 20 minutes to present our branch's budget. Just like they gave to the Department of Transportation, the Department of Commerce, the Department of Real Estate, they gave us 20 minutes and they said, put your budget on. And we had to say, excuse me, we are an equal and independent branch and we are here to present the whole unified budget for 7,000 employees, 183 courts sitting in 15 counties. And they finally relented.

[laughter]

But I think they they bore a grudge after that. Because we asked them for more time. Anyway, I'm I'm done harping and giving that cheer leading speech. I can tell you that that we have a first class justice system and judiciary in this state and I would hope that you are as proud of it as I am.

Getting back to my legislative visits, one of the things I continually heard and I continue to hear it from national politicians, I hear it everywhere I go. Judges should interpret the law, not make it. Oh really.

[laughter]

That statement that is bandied about so often by politicians and other ideologues, those who have an agenda, that statement reflects a clear misunderstanding of our courts and how they have always operated. That statement reflects a misunderstanding of our history, our legal history. Judges have always made law. Now if I've stunned any of you with that statement, let me know. We won't pay any attention to Channel 8.

[laughter]

Judges have always made law. Judge made law is call the common law. And it has evolved slowly on a case by case basis since we adopted the common law of England on the birth of this country. There are three types of law. There's Constitutional law and that needs no explanation. There is codified law, which includes statutes, rules, regulations adopted by the legislator or other administrative bodies and there is thirdly the common law, which fills in the unexplained or ambiguous gaps in the other two forms of the law. Sometimes, believe it or not, and I'll know you'll find this hard to believe, legislative enactments and even constitutional provisions are not all that clear.

[laughter]

It is the common law, the judge-made law. It is the reasoning of judges applied to a particular fact situation that tends to crystalize the meaning of these statutes or reules or regulations or constitutions. Sometimes, you know, there are no legislative enactments, even though this legislature drops God knows how many bills in the hopper each and every legislative session, it still cannot be said that all of han conduct is covered by state statutes. Thank God!

[laughter]

When there are no legislative enactments to solve han problems, judges must apply precedents, judge-made law, in resolving han disputes. The courts cannot turn anybody away and say I'm sorry, we don't have any statutes on the books that cover this particular dispute, so go out in the street and fight it out.

[laughter]

And when there is no statute that governs a particular point, a judge is called on to apply precedent, judge-made law, in resolving that dispute and getting those people back to their normal lives. It is true, of course, that where there is binding, clear, constitutional or statutory rules of law, judge-made common law must yield and I am not saying anything to the contrary. All to often, however, there are questions raised by sloppy draftsmanship of statutes or rules or inconsistencies in statutes and rules and only a judge can address those drafting problems or those inconsistencies. The thing I find most horous about all of this discussion, and the reason I think there is so much misinformation is that some legislators don't read their own statutes. There is and has been since statehood, a statute in Arizona that adopts the common law as the law of this state. So, the next time you hear somebody say judges are supposed to interpret and apply the law, but aren't supposed to make it, ask them to explain that. See if they really understand what the role of a judge is. I venture to say they repeat that mantra well, but they don't understand it and they cannot explain it and they've never thought it through. I am also constantly amused by the charge that those who make law are the dreaded activist judges. I make it a point every time I hear somebody talk about activist judges, I turn to them and I probably make an ass out of myself, but I I ask them to tell me what does that mean? What is an activist judge and nobody has yet answered it. Nobody has ever given me a definition of an activist judge and were it not for Channel 8, I would ask you to hold up your hands now and start giving me definitions.

[laughter]

And I want you to do that when the television is finally over and we're in the question and answer period. I would welcome a definition of an activist judge. In any event, all I know is that the politicians and those who utter the term activist judge, they want them removed from office, whoever they are. Whatever they do, they should be out of office. They shouldn't be judges. Have you ever noticed that conservatives equate activist judges with liberals? Have you ever noticed that liberals equate activist judges with conservatives?

[laughter]

I started asking the question, I mean, is Justice Ginsberg a liberal activist? Well, what does that make Justice Scalia? Is he a conservative activist? And are both of them bad because they are activists? God knows they seldom agree on any issue. Certainly not on anything other than a simple issue. I suppose there can be activist judges on both sides of the spectr, but I don't know how we identify those people. Quite frankly, I come back to the same point. People level the charge of activism against a judge who decides a case in a way that they don't like. That's what activist judge means when most people use it. Because they can't define it any other way. And if the judge is an activist on one case, out of all of the hundreds and thousands that they judge sees and decides, if the judge is an activist on one case, is he thereafter branded an activist for the rest of his career? Is he worthy of consistent rebuke and damnation because on one case that we didn't agree with him on, he got it wrong? Or is he or she like most professionals entitled to be judged on a body of work, a lifetime body of work? Produced hopefully, throughout a long and distinguished career on the bench. Folks, I submit to you the label of activist is generally meaningless and among thoughtful people, it does not deserve the political traction it sometimes gains. I always ask people and I frequently ask legislators who complain about activist judges if they ever read a written opinion by that judge. Or, when people complain about a particular decision, why, that's the stupidest thing I ever heard, I said, did you read the opinion? Did you read the judge's opinion? Did you read the judge's opinion that was 35 pages long that took the judge and the court six months to produce? Six months of drafting and re-drafting and negotiation and drafting and re-drafting. Some of these opinions have been drafted and re-drafted so many times you can't imagine. And so, now I run into the critic. That's the stupidest decision that I've ever heard. Really? What part of the opinion didn't you like? Well, I didn't read the opinion.

[laughter]

Well, what did you read? Well, I read the newspaper account of the opinion.

[laughter]

All three inches of it!

[laughter]

And that's where the dialog breaks down. That's where the discussion breaks down. As for the charge that a judge's political affiliation has anything to do with his or her performance on the bench, I say bunk. I am here to tell you that that as a 40-year lawyer, a 10-year judge, I have never seen any judge influenced by his or her political party affiliation in deciding a case where real people were involved. Where real rights were being decided. Where rights and obligations were being discussed. I never heard one of my colleagues on the Supreme Court in my 10 years, in all of the conferences we had to discuss cases, I never once heard a political statement come from any justice during our discussions of the case. We discussed law, yes, some of us had different views of what the law was, but in terms of a political statement, it never existed, it never was said. And so, the misconception that somehow my political affiliation, whatever it might be, influences my determination of legal questions that are presented to the court, it simply is not true. I can't prove it to you. I can only tell you that if you believe that I'm a fairly honest person. Take it at face value, because I can't invite you into the discussions, into the conferences of the Arizona Supreme Court or the Court of Appeals or into the chambers of a Superior Court judge who handles more than a thousand cases at a time and is buried in paper and tries to do the best job he or she can. The criticism that judges are aloof and out of touch with the real world, I've never understood and I'm going to tell you now that the people who wear black robes live in the same communities, they pay the same taxes, they raise the same kids, they're stuck with the same tuition expenses, they have the same neighbors, they breathe the same air, they suffer the loss of their loved ones, they love their spouses. They breathe and bleed and suffer pain and laugh and cry just like you do. They live in the real world. And so anyone who suggest that they're aloof is simply ignorant. These judges carry tremendous responsibility around on their shoulders. They have literally the power of life and death. Not just financial life and death, but life and death. They work hard, they grow old and they die, just like you and I. What they cannot do, unfortunately, but I can do it now, they cannot defend themselves from attack. They cannot publicly speak out on controversial issues. They cannot participate in community fund raising events. They cannot openly participate in politics. They cannot socialize with those who might appear in front of them. They cannot engage in ex parte communications with one side or the other in a pending case. In other words, no lobbyists allowed. They cannot play favorites. They are han beings operating in a han system, but with strict rules and constraints placed on their activities. They may seem removed from the fray of daily living. I promise you, they're not. They just participate in relative anonymity. Some of them even have wonderful senses of hor and if we had enough time, I would tell you a few stories, a few horous stories about judges that I have known over the years, but let me move on because I'm talking too long.

The suggestion that judges should be elected in partisan political contests to me reflects a clear misunderstanding of the way courts are supposed to work. Unlike politicians, judges have no constituency. They are not permitted to extend political favors. They cannot play favorites. They are the consmate neutrals. The third branch of government, remember, is apolitical, apolitical by design. The two other branches are clearly political with all that that implies. Lobbyist, constituents, contributions, fund raising, wheeling and dealing, call it negotiation, party identity, party loyalty, supporters, campaigns, promises, both kept and unkept

[laughter]

accusations, mudslinging, media advertising and a glut of public appearances, all of those things are antithetical to the essential role of a fair and neutral judge who decides cases based on the law and the facts without outside pressures or influences. I do not want to see judges taking note of which way the political wind is blowing or the popular wind is blowing before making a tough decision. And neither, I suggest, do you. When that happens, when judges decide real cases involving real people on the basis of popular majority opinion, this republic is in grave jeopardy. More than that, minorities are in great danger whether those minorities are racial, political, religious, geographical or gender based. All minorities are in trouble when judges decide cases based on the popular feeling of the day. In Texas where judges are elected in partisan political races, I seldom cite Texas for anything

[laughter]

it costs between three and six million dollars to get the job that I held for five years in this state, to get the job of Chief Justice of the Texas Supreme Court. Three to six million dollars. Where do you think that money comes from? I didn't hear?

Question: Political parties?

Political parties? Correct. Lawyers. It comes mostly from lawyers. It also comes from the business community. It also comes from the big corporations, but most of it comes from the lawyers. I always wondered what it would be like to be in a courtroom with my rights on the line or my life on the line and to turn to my lawyer and say how much did you give that judge up there?

[laughter]

And my nightmare is that he says, “I gave him $100.”

[laughter]

And then I say, “How much did those folks give him over there?” “They gave him a hundred thousand dollars.” Wow! I think I would bolt from the courtroom.

[laughter]

The appearance of justice for sale, whether true or not, necessarily taints the public's confidence in this process and I have just touched upon some of the evils of judges running for office in a partisan political against a partisan political backdrop.

My last point and then I'll quit, is something I heard from the president of the State Senate almost every day during her term and my term. And she was a good friend of mine. And she used to look me in the eye and say judges are too powerful and I would say to her, “Madam President, can you tell me why you feel that way?” And I never could get an answer out of her. She just kept saying over and over, “Judges are too powerful. Judges are too powerful.” Well, it's hard to have a debate or even a discussion if if the person you're talking to won't tell you why that feeling exists or from what it emanates. All I know is this, Alexander Hamilton told us a long time ago in the Federalist Papers that the third branch of government was easily the weakest of the three. He said that the executive had the power of the sword, the legislative branch had the power of the purse, but the judicial branch had nothing to sustain it, to give it life, to keep it alive and to nurture it except for one thing, the trust and confidence of the public it serves. The trust and confidence of each of you you are the only reason why the third branch of government exists. We have seen plenty of totalitarian societies where where those who control the sword, the military, or the purse, they money, have effectively neutered, have effectively killed the third branch of government, have taken away the people's rights and their right to get a fair shake in a neutral tribunal. We have seen that over and over in history. Those who believe that judges should be stripped of whatever power they possess, I believe they fail to understand the beauty of a system in which a non-political branch of government, a non-political independent branch of government, a branch consisting of independent arbiters who provide a check and balance upon the other two political branches, can go about its business without interference, without favor to anyone in a neutral and impartial way, can administer justice and can hold the other two branches in check just a little bit, just a little bit to make sure that those two political branches don't use the powers that were given to them in an arbitrary and a capricious in an unfair way. Well, I think I think I probably used my 25 minutes. I suggest that each of you be eternally vigilant. There are forces right now in business and government that are endeavoring to weaken the third branch. There are legislative bills that – and and I understand Justice Chief Justice Ruth MacGreggor is coming. If she hasn't already been here and she may talk to you about the threats to the judiciary this legislative sessions and it seems lately every legislative sessions it's it's like a plague and we can't get rid of it. But there are forces threatening to weaken the third branch, but I believe they will respond to your pressure if you properly apply that pressure. While it's not perfect, the judicial system in this state works just fine. But it needs your continuing support. It needs you to tell the politicians, leave it alone. Stop it. The third branch exists for a reason. It is responsible and in this state, we should be proud of it. So, leave it alone. If you find something that really needs correcting, let's talk about it. We have always been very responsive to criticism and try to improve the operation of the third branch, but short of that, it is an independent branch of government that deserves its existence without interference from the other two. You want an example in closing? These folks now have a bill in the hopper to allow the legislature to draft and to adopt all of the rules that govern the court system. The rules of procedure and the rules of evidence. Now I'll give you one example. I lost my cool when I was the Chief Justice in in my closing year. I had been there 4 ½ years. I had been in front of the legislature nerous times. I had spoken to committee after committee after committee, not just with respect to our budget requests, but also on certain bills. Now I had watched the way that the committee members treated people who had come from a very long distance to say something to them, to have a hearing where they could be heard. To sign in on the sign in sheet. To wait two or three hours before their name was called. And then to be treated rudely or to be cut off at the knees completely after about 60 seconds. One day they made me wait 2 ½ hours and when I finally stood up, I said, I have this idea. And I'm taking it back to my court today. The next time you folks have an important case in front of us, in front of the Supreme Court of Arizona, which you periodically do, the next time you have one of those cases where you are vitally interested in the outcome, I think during oral argent when your lawyer is standing in front of the five of us and is making an impassioned plea about the law and justice, I think I might just in the middle of it, stand up, walk right off the bench and five minutes later come back with a cup of coffee and a newspaper and sit down in my chair and open up the newspaper and start reading it and lean over to my colleague on the right and tell him a little funny story and he'll start laughing and I'll start laughing and then I'll open my laptop and start sending emails to people around.

[laughter]

All during your lawyer's presentation. How would you like that? Well, I got their attention.

[laughter]

It didn't last very long, but I got their attention!

[laughter]

Thank you very much.

[Applause]

Thank you. Fire away.

Question: First of all, a comment. I I hope you'd go around the state to other groups and give this talk or similar talks and I it really resonated with me. And for the non-lawyers, my question, those Zlaket rules, for non-lawyers – I know we have lots of judges and attorneys here, but for the the uninformed, what were the Zlaket rules?

Well, they're misnamed

[laughter]

I am not going to my grave with that etched on the headstone. But that's colloquially, that's what they are called and I will never forgive a particular Superior Court judge here in Maricopa County that gave them that name. In in the late 1980's, the Supreme Court of Arizona, and I was not on the Supreme Court at the time, but Court decided that there was too much discovery abuse in the state. Now, discovery as some of you know who have been involved in civil litigation, it's discovery is the way that a lawyer on side of the case finds out about the other side's case. Discovery enables a lawyer to take depositions of the other side or of witnesses, to serve written questions called interrogatories, on the other side. To have the other side examined by a doctor, for example, in a personal injury case. I mean, there there are exquisite discovery procedures that we've had with us now for about 40 or 50 years at both the federal level and in the state courts, but they have been overused, quite frankly, and the Supreme Court was concerned that the overuse of all of these discovery procedures by lawyers was costing clients a lot of money. And so the Supreme Court formed a committee, it was called the Committee on – Justice Moler may have to help me, I think it was Costs, Delay and Discovery Abuse or something like that. It it dealt with it dealt with how much it was costing the system and the clients to do all of this discovery. Much of it was unnecessary, by the way, although I suppose I would get a fight with some lawyers about that. In any event, the Supreme Court appointed me to chair the committee. I got a letter one day, I'm sitting in my office minding my own business down in Tucson , and I got a letter from the Chief Justice saying, here's your charge. You've got six months, we want you to come back to us with a solution to this problem. Here's your committee. And they had named all of the committee members. I didn't have to select them. I didn't do anything except send out a notice and say the committee's gonna meet in Casa Grande. We had all of our meetings in Casa Grande thinking that that was fair to both the Tucson people and the Phoenix people. It probably wasn't fair to the Flagstaff people, but

[laughter]

there were only a few of them and

[laughter]

and we met weekly, every Saturday for the better part of six months and we hammered out the rules, which were really just changes to the to the Civil Procedure Rules in this state that placed some limits on how long a deposition could last. On who you could take a deposition of. Whose deposition you could take, in other words, without prior approval of the of the judge in the case. And that would require some showing that the depositions were necessary, not just that you wanted to take them. They were designed to put some limits on this discovery process that lawyers were employing in our judgment far too loosely. And so, we still have those rules. They were adopted finally by the Supreme Court in July of 1992 and so for the last 14 years, we have operated with these limits on discovery that very few other states have. And that's why I said earlier, innovations in discovery and disclosure. These rules require one side in the civil case to pony up all of the information that it knows about the case, all witnesses, all witness statements, all facts, whether favorable or unfavorable, to pony those all up to the other side. And each side is to make a mutual disclosure within 40 days of the time the case starts and that – the idea of that is maybe we can save the client some money by doing all this hide the ball stuff where if you ask me the right interrogatory, I might have to disclose what I know about this case, but you better frame the question properly. So, you'll frame it six different ways and cost everybody a lot of money and time. That's that's what the rules are. They're not, if you ask me are they successful, that's another subject for another lecture. I'm rather disappointed in what has happened to those rules and the way they have they have been employed by by lawyers. And I am one, so I can make that criticism. Questions? Comments? Suggestions?

Question: Are the are the people are people still ________ the verdict on the Supreme Court or is the __________ court. I think the community has the perception that they've got _____ in their hip pocket and I you hear a lot of questions asked in the various dialogs and people have __________believe ________________are there any controls over that or ?

That's a very good question. And it's and it comes back every year when somebody wants to tamper with the the system we have. We pick our judges in this state at least in the two urban counties, Maricopa and Pima, we pick our judges by a system called merit selection. And it was originally taken from the state of Missouri . They call it the Missouri plan. And I think we've now had merit selection since, I'm going to say 1974, and I think that's pretty close to when it came into being. So, all of our Superior Court judges in Pima and Maricopa and there are now more than a hundred. You have more than a hundred Superior Court judges in this county. Those are the most powerful judges in the state because they are judges of general jurisdiction. They can resolve cases from the smallest amount of money to a figure that you cannot even imagine. What is the largest amount that you could ever conceive, they have the power to dispose of that kind of a case. They also have the power over misdemeanors on the criminal side and all the way up to capital cases. So, Superior Court judges carry all the heavy – do all the heavy lifting in this state. They are the work horses in our system. They deserve all of our praise and support and I'm I'm saying that not just because Judge Rose was a Superior Court judge,

[laughter]

But I'm saying it because it's true and those judges are picked by this merit selection process as are all of the appellate judges in the state. Now, there are 22 Court of Appeals judges, 16 of whom sit here in Maricopa County and 6 sit down in Pima County where I live. And that's the intermediate Court of Appeals and then there's the Supreme Court which is 5 justices. All of those appellate judges who do nothing but decide appeals, they are they sit in panels and they decide cases as one wag once said, appellate judges are like dogs. They're okay one on one, but dangerous in a pack.

[laughter]

They're picked by the merit selection process as well. So now you've got you've got most all of the judges in the two main counties are picked by merit selection. That means they've – if you want to be a judge, you fill out a complete application and it's really quite an exhaustive application. You submit it to a Constitutional Commission that has more lay people on it than it does lawyers. By Constitution, it provides how many lay people, non-lawyers, there are to be just citizens from every walks of life and how many lawyers are going to be on it. That Commission -- there are 3 commissions. One deals with the Superior Court in Pima County , one deals with the Superior Court in Maricopa County and one deals with all of the appellate court appointments. Those commissions meet and screen all of the applications and interview the applicants and then send names to the Governor. They must send a minim of three names, no more than two of which are from the same political party, and they must maintain that ratio if they send more than three. So the same ratio of political party affiliation goes if they send four or five or six or how many. They can send any amount they want, except they must send a minim of three. The Governor then appoints. Those judges are appointed to the bench. They must stand for retention election with the people, with you. In the case of a Superior Court judge, every four years. In the case of an appellate court judge, every six years. They're on the ballot with the question, should Judge Zlaket be returned to the Supreme Court, yes or no. If you say, if a majority says no, then Zlaket's out and the process starts all over again. Now, is it a perfect process? No. But it's so far superior to the direct election of judicial candidates in a partisan political election, I can't even begin to describe it. And I'm old enough to remember when Superior Court judges were elected. And I remember some of the characters we had on the bench during those days.

[laughter]

They were not much as judges, but they were great politicians. I mean, we have had some very skilled politicians get onto a bench where they could do real harm. Get onto a bench and and and serve as a judge simply because they knew all the way to do that. They they shook hands well. They looked good. I mean, they kissed babies.

[laughter]

They passed out pamphlets. They – I know some judges that couldn't get elected dog catcher, but they're damn good judges, if you know what I mean. I mean, they don't have any of that political power, but they are really smart, they're really fair, they're really thoughtful, they're all the things you want in a judge. I used to tell my wife, she got mad at a doctor that was taking care of one of our kids and and he had a lousy bedside manner. The guy was just a jerk. And

[laughter]

But he was really good with his hands and he really skilled. And I kept saying to her, you know what? I don't care about his bedside manner. What I care about is does he know what he's doing when he picks up that knife and and that's more important to me. And I kinda feel the same way about judges. Ideally, we would like judges who have both. A nice demeanor, a nice appearance, a good way with people as well as the legal knowledge and skills and temperament and ability to reason through really complex problems. If we could get all of that, a person might become the Chief Justice, who knows!?

[laughter & applause]

But the system is not perfect and there is still some politicking that goes on. I'm not going to deny that. The kind of politicking now that goes on is where people call the commissioners on the commission -- the the selection commission and say, hey, I want you to give a hard look to this fella or this lady because she is first class, first class lawyer, she'll make a great judge and heartily recommend her to you. That kind of politicking goes on. But the commission, these commissions are really very thoughtful. I have chaired all three when I was the Chief Justice, I chaired all three for awhile until I could no longer do it and had to delegate some of those commissions to my colleagues one ore more of my colleagues. But, They are thoughtful, they are people who really care and the names that they submit to the Governor are really good names. But, of course, they are restricted by the pool of applicants. If you don't get great lawyers applying to be judges, they're they're stuck. They're they have to pick from that pool. And I must tell you that, given what lawyers are making in private practice versus what judges make, who ascend to the bench, there's a lot more prestige here, but you can't eat prestige and it's hard to send your kids to school if you got young kids on a judge's salary. So, we're not getting some of the lawyers that I would like to see and that I think our commissions would like to see putting their names in the hat, because they simply can't afford it.

Question: I want to speak about the Justice of the Peace. It was my understanding over the years that this was a court for small claims and and small amounts of money and an opportunity for a layman to come and make his own case and have an opportunity to be heard on a small claims issue. I had an experience wherein a $500 claim of mine was presented to a JP and I felt that I had a good reason to get the large trucking company who damaged my property. I started getting mail from an attorney that was brought into the picture. I was told by him that we're going to petition this to be moved to the Civil Division and that this was automatically granted by the JP and I learned later that now I was going to be faced with an attorney throughout the process and he was sending six page discoveries and have you ever had a ____, yeah, you know, and that sort of thing and it surprised me and I had an experience before in the JP court, but this was not the case and I had a suspicion that the system had been changed so that lawyers could now inject themselves into a $500 claim. I was faced with having – if I failed in my effort I was faced with being billed for my my defen – my opposition to defense this. Which led me to abandon the whole effort. And I wonder what happened to the small claims the fellow with the small amount of money that wants to take his case in front of a judge.

Well, you ask a good question. A couple of things have happened. Nber one, I need to say this the right way. Justices of the Peace are no longer content to handle small claims. And and if you go to the legislature today, you will find bills in the hopper to expand their jurisdiction even beyond where it is now, which is, I think, ten thousand dollars. There is some suggestion in the legislature that justices of the peace should have jurisdiction equivalent to Superior Court judges. Now justices of the peace are not lawyers. They don't have to be lawyers. When our Constitution was formed, in the early 1900's, we were a vast geographical state with not a lot of lawyers, with needs in small counties. You know, we still have counties where there's only one Superior Court judge, I mean, for example, Apache County has one Superior Court Judge. Greenlee County has one Superior Court Judge. Contrast that with Maricopa that has over a hundred Superior Court judges. So, for a long time, the JP's were the were the rulers of the roost in many of these counties. They sat in precincts, but they wanted more responsibility and I can't fault them for that. And so, their jurisdiction has gone up. More and more lawyers are now being proliferated throughout the state and they're appearing in court and so we created this small claims area where lawyers were not to practice, but what I see and I especially see