On June 12, 2005, Arizona Chief Justice Charles E. Jones will reach the constitutionally mandated retirement age of 70 for the state’s Supreme Court justices. Private attorney Jones, a Republican, was named to the high court in 1996; he was named vice chief in 1997 and then elevated to chief justice by his peers in 2002.

Ruth V. McGregor, a Democrat and judge on the state Court of Appeals, was named to the Supreme Court in 1998 and has served as vice chief since 2002.

Since joining the Supreme Court, both justices have had parts in rendering dozens of opinions, ranging from the constitutionality of death sentences imposed by juries, to the sources of funding for public-campaign funding, to the power of the governor to restore funding to the state budget, and the obligation of the state to pay the cost of medically necessary abortions for poor women.

It was the latter decision (Simat v. AHCCCS, 2002) that in part led some members of the Republican majority in the Legislature in 2003 to propose a host of measures they said were needed to curb the tendencies of courts “to legislate from the bench,” as Rep. Russell Pearce, R-18, put it at the time. Although none of the four proposed concurrent resolutions made it to the ballot, similar measures may very well pop up in the current legislative session.

The chief justice and vice chief justice sat with the Arizona Capitol Times on Jan. 10 to discuss a range of issues.

Arizona Capitol Times: What do you think your legacy will be as chief justice and as a justice on the court?

Chief Justice Jones: I hear people asked that question and I don’t think I’ve run into one yet who really likes it. I don’t know. The decisions that have been made while I’ve been here, most of which I’ve joined in, some of which I’ve disagreed with, will tell that story. There have been some important cases come through the courts, cases that have affected our institutions of government and our criminal justice system and our civil justice system as well. My experience is that we work these cases up, learn as much about them as we can, try to identify the precise legal or constitutional issues that are involved and make the best decision we know how. And then we move on to the next case.

Have the five of you met and chosen a new chief justice yet?

Mr. Jones: No. That will happen pretty shortly.

In the next week?

Mr. Jones: Probably this month.

What about the way the Supreme Court or the courts in general are organized, because I know that’s something you’ve spent a lot of time on.

Mr. Jones: I think that the key component of a good court system is training and education of judges. We have implemented new education programs, new training programs for our courts all up and down the line, particularly our lower courts of limited jurisdiction. And those programs seem to be producing good results. We have a brand-new curriculum for the training of new judges. There are of course many other things that go into a good court system. This is a court that is full of industry. When we come to the table to make decisions it is my sense that every member of the court is extremely well prepared and has done much work in developing and studying the issues involved.

What about the number of justices [five] ? It’s been the same number, I think, since statehood. Arizona obviously is a much bigger state now than it was at statehood.

Mr. Jones: Well, we started with three. And I don’t recall the precise date on which the court went to five, but that is a legislative issue; the Legislature can increase the size of the court. The Constitution mandates a minimum of five. Most states with a population base as large as ours are functioning with seven — a couple of states even function with nine — members on the supreme court. But five has served us well.

Ms. McGregor: I think pretty much as the chief stated. It’s something I think members of the court would welcome if the Legislature chose to increase it to seven. I don’t think it’s something high on our list of things that the judicial system most needs. We have a hard-working court and everybody carries a heavy load, both administratively as well as in writing opinions. We’re able to function with five justices. If we had one member of the court who didn’t work very hard it would be difficult. There are just areas where, rather than spend money to get two more justices, we have other needs that are much greater.

Why don’t you go ahead and talk about those.

Ms. McGregor: One of the things is our continuing need to improve our technology. Our funding available for technology has been reduced the last several years. We’re like any other organization; we depend more and more on technology. That’s one area where we need more funding. The other area is developing our specialty courts — our drug courts, for instance, which have had wonderful results in reducing recidivism by combining treatment and encouragement along with the specter of punishment. It’s such a benefit to the public as well as to the system. Rather than have a new colleague down the hall I’d rather see more money going into drug courts. And we have a mental health court going now. Those kinds of specialty courts really deserve more funding.

Mr. Jones: I agree completely, because we’ve seen the results. And we’re not alone in this state. There are states across the country that have developed their own individualized programs for drug courts, family courts, mental health courts or complex civil-litigation courts and have had positive results in doing that. Particularly in the family court area and in the drug court area, it moves courts into a therapeutic-type role which is not the traditional role the courts have played. Courts of law normally deal with past deeds, past acts that have been committed one way or another, and we try to bring people to justice and render decisions. But here, we’re moving into an area where people actually get help to solve their problems through the judicial process. From New York to California we’ve had reports all across the country about how this program is progressing, and it’s really doing very well, helping a lot of people overcome some of their problems.

How do you address the philosophical-political concerns that some people might have that, regardless of the source of the problems of offenders, the backgrounds of offenders, the purpose of the justice system is to punish criminals?

Mr. Jones: Those are policy decisions that, in the end, must be sorted out by the policy-makers, the legislators. We are available as a resource to provide much information about what’s happening in courts here and elsewhere. There are some things we can do internally. For example, we’ve done a great deal of streamlining our family courts. We also initiated a pilot family court program in Coconino and Pinal counties. We can do much of that internally. But anytime funding might be required to initiate a new type of court we have to go to those who appropriate the money. What I’m saying is it requires a joint effort. Several years ago we initiated a program called Model Court in our juvenile court system, designed to deal with dependent and neglected children. It required a joint effort between the Legislature and the court. I can remember Senator [Randall] Gnant standing on the floor saying this was the most important legislation in which he had participated during his entire time in the Senate. The Model Court program produced astonishing results in the lives of children, where they don’t now languish in foster care, moving from one place to another for a period of years. Decisions are now made in a matter of weeks. The kids are settled qu
ickly. It took some legislative effort.

Ms. McGregor: There’s another answer to the people who say the function of criminal justice is to punish. I think the function of criminal law to some extent also is to protect the public. The drug courts are only available for people charged with and convicted of personal possession and use. These are not violent criminals. There have been some studies — not out of Arizona but in other parts of the country — that suggest that for every arrest made for personal possession and use, there probably have been 64 crimes committed to get money to support a drug habit. So if we can take each of those people who can be rehabilitated through drug courts — really, the combined efforts of all these different entities — the number of crimes that we can prevent from being committed against the public just grows exponentially. In that sense, getting people on a road where they stop committing these crimes is very much a public safety issue. And that’s something the drug courts have just been better at doing — preventing recidivism — than our more traditional method of convicting and punishing.

Mr. Jones: One of the things we in society have to remember is that when we incarcerate someone for a drug crime, that person is going to be released from the prison system at some point. The question that is paramount is: what will be the attitude of that person when he or she comes out of the system? What we don’t want to do is “educate” them into the attitude of the criminal mind. We want some reasonable measure of — and I’m speaking more now as a member of society rather than as a judge — of rehabilitation; to come out [of rehabilitation] as a person with some hope for the future of his or her life. Keep in mind that of all the people placed in prison, and we have somewhere between 35,000 and 40,000 in our state prisons, the vast majority are going to be released some day.

At the same time that you’re trying to get more money for these specialized courts, you’re going to have to deal with some of the same lawmakers who, as they see it, want to make the judicial system more accountable to the public through such measures as a referendum on whether appellate court judges should be elected instead of appointed. How do you approach that?

Ms. McGregor: [Laughs] That’s the way the system works. The Legislature has its role to fill. I think we approach it by trying to provide the best information we can from the staff of the entire judicial system and give them our best reasons for trying to approach a problem in a particular way. But it is, as you point out, an interesting atmosphere. There are some things the Legislature may do that we think would be very helpful to the judicial system and some other things legislators want to do that we think will be detrimental. We keep our lines of communication open, and certainly many of the legislators are very receptive to hearing our concerns and looking at information we provide. It’s the system we all get to work in with three branches of government.

Mr. Jones: We get along well with the vast majority of legislators. Admittedly, there are a few who would make significant modifications to the system on this argument of accountability. I would just say about that, that one of the indispensable components of an open democracy is an independent judiciary. The last thing that a litigant wants to have happen is to come away from court on the losing side of an issue feeling as though he or she had been the victim of a decision that was politically motivated. The last thing. And so when I hear the word “accountable,” I say, “Accountable to whom?” We will continue to attempt to educate people on the need for an independent judicial branch of government. I heard a lecture given by Justice [Anthony M.] Kennedy of the U.S. Supreme Court, who had traveled throughout some of the European countries. He met with a group of judicial officers at The Hague, Netherlands, and there were people there from Asian countries as well. What they want most is an independent judiciary, first and foremost. The debate over that issue ensued at the Philadelphia Convention in 1787, whether courts should be seen as an appendage to the legislative branch. And it was determined that they should be independent — a third, separate branch of government. We have to maintain a certain healthy distance, because we do see ourselves as a co-equal, independent branch of government.

Plans after retirement — are you going to teach, write, go fishing, all of those, none of those?

Mr. Jones: I’ve made no firm plans. I have felt some interest in doing some teaching and I think those opportunities will be there. But we’re busy here right now. [Laughter]

Ms. McGregor: No time just to contemplate!

Mr. Jones: That’s right. The tenure, not quite 10 years, the nine-plus, that I’ve spent on the court have been rich and rewarding years, a tenure that I will look back on, in all my days, with fondness, particularly — and I say this with or without my colleagues present — particularly the opportunity to work with these colleagues. They’re just wonderful people; they’re bright, they’re family oriented and they’re solid, good Americans. They have a great understanding of our system’s government, our history, our constitutional underpinnings.

How do you feel about the mandatory retirement age? Do you think it ought to be upped or repealed altogether?

Mr. Jones: I’m not troubled with it. It probably at this point in our longevity is a little on the low side, if we compare ourselves with other states. On the other hand, judging is a little bit different than it was in the days of Oliver Wendell Holmes, who served into his 90s. It’s very taxing work, it is stressful from an administrative standpoint in ways that it wasn’t before. The administrative side of this court is huge. We are responsible to manage courts across the entire state; all of them. We’ve got some 480 or so judges. There are always problems to deal with, personnel problems, organizational problems, and we’ve got to manage that, it takes a lot of time. As Justice McGregor said, we’ve got to spread the responsibility all up and down the corridor here. Age 70, from my standpoint, is fine.

Ms. McGregor: We lose some very good people to the retirement age; we’ve lost Justice Feldman; we’re losing Chief Justice Jones. But over all, I think it’s good to have a mandatory retirement age. I don’t know where the line should be drawn. No matter where it’s drawn, you will have people come up to it that you wish could stay beyond. But I don’t have any problem with it.

Are there any other issues you would like to comment on that I haven’t asked you about specifically?

Mr. Jones: Courts are vulnerable. If you look at the court system and what the ethical responsibilities of judges really are, we speak only through the opinions that we hand down. We don’t speak on political issues; we can’t, we shouldn’t. Those rules are in place for a very wise purpose. So when we are attacked, if you will, by some of those in the Legislature who want to do away with merit selection of judges or otherwise change the system, if you analyze them, they really amount to desires for political control of an independent branch of government. Those efforts must be resisted because they are not consistent with the principles on which the Constitution was drafted and ratified. We don’t know what may be coming down the pike in the session. We are responsible for the administration of justice, so on the issues that seem to affect that or even undermine that responsibility, then we have to speak out. But we don’t like t
o do that; we prefer to play the judicial role as conceived by the Founding Fathers and the framers of the Constitution. It all goes back to the fountainhead of American constitutional law, which is Marbury against Madison. In that decision, then-Chief Justice John Marshall said that it is emphatically the province and duty of the judicial department to say what the law is. We have to be ready to interpret and apply constitutional language. As long as the republic remains in its present form, that will be the responsibility of the judicial branch. —