Is There A Secret Society Amongst Us?
Editors’ Note: Certainly the recent trial and Donald Trump in New York points out in the starkest terms that state judges have their own strong political leanings, and those prejudices emerge in their legal decisions. But the electoral system is run as if the political affiliation of a judge either does not exist or does not matter. Both assumptions are patently wrong. Yet when voters wish to find data on how to vote for judges, there is scant information available about their judicial decisions or philosophy. In many cases, we don’t even know which party appointed them, and thereby intuit from that appointment some notion of the judge’s legal philosophy. Usually, there are no alternatives to vote for on the ballot. Further, their code of ethics makes it difficult to determine their judicial philosophy. It thus is a valid question to ask: how as voters are we supposed to make rational decisions when choosing judges when we are deprived of necessary information? Why should we as voters be “choosing” judges when we neither have the data to do so and rarely is there an alternative to choose from?
Has our Yavapai Chapter of AZRA discovered a secret society within our judicial system? You decide.
As we continue our vetting of candidates, we recently sent out our survey questions to those judges up for re-election as well as an attorney running as a candidate to become a judge here in Arizona. As is always the case, we asked them to first respond to our questions and then to have an opportunity to sit for one-on-one interviews.
Surprisingly and completely unbeknown to myself and our vetting committee, Judges and attorneys are apparently precluded from answering survey questions as it would be considered a violation of their Cannons of Ethics. Here are three of the responses we received back.
Response from Hon. Judge Krista Carman:
“Thank you for the opportunity to participate. I always enjoy getting out in public and speaking to people about the third branch of government and the good work being done in the courts. I invite members of the public and your organization to come and see what’s happening in the court system. Our courts are open to the public and all are welcome. I did review the questions that you provided, however, the Code of Judicial Conduct prohibits me from participating in this survey. Thank you again for including me.” Judge Krista Carman
Response from Hon. Debra R. Phelan:
“Interviews are fine. The issue is the subject matter: judges cannot comment on political issues, issues that are, or could be, before the court for a judicial determination, etc. We are prohibited from doing anything, or saying anything, that would in any way compromise the integrity, independence, or impartiality of the court.
We can discuss the court, the court process, the justice system, etc. We are encouraged to do so as that educates the public about what we do as judges and the court system in general. But discussing personal views or personal policy preferences is prohibited”. Arizona Code of Judicial Conduct.pdf (azcourts.gov) Hon. Debra R. Phelan Division 8 Yavapai County Superior Court
Response from Hon. Judge Savage:
“Good afternoon Mr. Segall.
Thank you for your email. The Judicial Code of Conduct governs Judicial conduct and prevents me from participation in your survey”. Judge Savage
Response from Attorney Henry Whitmer, seeking to unseat Hon. Judge Savage:
“Regarding the survey, I believe only Question 10 is one that wouldn’t get the judges in hot water with the Judicial Commission. The answer is pretty straight forward too. The Supremacy Clause of the US Constitution means it is the supreme law of the land and where any other laws conflict with the Constitution, the Constitution wins. In areas where the Constitution delegates powers to the States (i.e. how to form or structure the State’s government, what criminal laws a State has, what manner of service is required for law suits, etc…), the State Constitution will prevail. In legal circles, the questions that really show where you land on the conservative/liberal spectrum are what tools you use to interpret constitutional provisions. I’m an Originalist for Constitutional issues, and a Textualist for statutory/regulatory issues. In other words, Justice Scalia was one of my role models.
Attorney: Henry Whitmer”
Reference: Question 10 of the original survey:
10. If confronted with a decision on any matter of law, is it the US Constitution or the Arizona Constitution which should prevail in your decision making?
Personally, I wish to thank the Honorable Judges: Phelan, Karman, Savage and Attorney Whitmer for bringing this to my attention. Each of them was kind enough to respond. I was very disappointed Honorable Judge Bluff never responded.
When asked of each of the judges to sit for a one-on-one interview only Attorney Whitmer was kind enough to respond and did so. See his interview.
In fairness to each of the sitting judges, perhaps their schedules would not allow for them to take the time for a one-on-one interview, yet shouldn’t they provide at least a response? Or maybe they don’t feel the need to address the voters, as it is very seldom that a judge, seeking re-election is ever being opposed.
It is extremely rare that judges, when up for re-election, actually need to campaign. Most of the time they run without any opposition and the position of judges usually gets very little attention. Why is this? As with any elected official, shouldn’t “We the People” know how they think on matters of importance, on issues regarding case law or more importantly, their personal positions and beliefs as related to Constitutional issues?
Let us not foul ourselves: As much as Lady Liberty is supposed to be blind, the reality is that each and every one of us has a bias. Judges are no different. When they dawn the black robes and take the bench, are they truly being a neutral arbiter and properly interpreting the law as they bring down the gavel? Or are they advocating from the bench and allowing their personal bias to guide their rulings. Perhaps even worse are our elected judges or those initially appointed to a judgeship, allowing their own political persuasions to influence their decisions?
Isn’t it time that we the voters demanded more transparency from a system that apparently provides little to none. Think about it, The Canons of Ethics are written for judges and attorneys by judges and attorneys. Certainly, sounds to me as though the proverbial fox is in charge of the proverbial hen house.
So next time you cast a vote for a sitting judge, especially if they are running opposed, ask yourself: What do I really know about this judge? What do I know about their opposition candidate?
We the voters, must stop blindly checking boxes, just because we are expected to. We must encourage, no, we must demand attorneys, judges, and our legislators provide us the voters greater access and insight to what certainly seems to be a Secret Society.
Please help us hold our elected officials and candidates accountable to “We the People.” Go to: Membership application and short questionnaire | AZRA Yavapai Chapter (azraaz.org)
We hope you will consider joining.
See many more of our video interviews with candidates and elected officials, and read the responses of those who returned our survey questions. It might change your mind as to who you will vote for if you vote in Yavapai County.
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David (Cowboy Dave) Segall is President of the Yavapai AZRA.
