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Opinions of Judges
 June
14, 2004 - The Arizona Tribune
Judge Pro Tem Kicked Off Bench
By Gary Grado, Tribune
A Chandler attorney was kicked off the bench Thursday an hour
into his first shift as a judge after he announced in writing
that he would disqualify himself from all drug cases because
drug laws conflict with his libertarian principles.
By the end of the day, the Arizona Supreme Court's chief justice
stripped Marc Victor of his authority to work as a judge pro
tem, which are attorneys who serve for free as temporary judges.
"I was pretty shocked," said Victor, 34, a criminal
law defense attorney who also serves on the legal committee for
the National Organization for the Reform of Marijuana Laws, also
known as NORML. "Either you take a certain philosophical
position or you can't be a judge."
Judge Thomas O'Toole, who heads Maricopa County's criminal
law judges, said Victor was using the courthouse as a political
platform, which was "grossly inappropriate" and "bizarre."
"This conduct was a legal blindside," said O'Toole,
who ordered Victor off the bench in the morning. "We were
set up."
Victor, a libertarian who believes drug laws are unconstitutional,
applied for the position and was approved this year.
His position with NORML was reason enough to disqualify himself
from drug cases in order to prevent an appearance of bias, but
he also wanted it known that his views would clash with rulings
by the U.S. and Arizona Supreme Courts upholding the constitutionality
of drug laws, Victor said.
He wrote a six-page explanation that he planned to insert
into the record of each drug case as a minute entry.
Victor was originally assigned to Superior Court's Early Disposition
Court, which is for accused drug offenders, but he switched court
calendars with another judge. Victor said the new Superior Court
calendar had 40 criminal cases, but only about eight involved
drugs, which he planned to send to the judge with whom he switched.
After Victor heard the first two drug cases, a court clerk
informed O'Toole, who read the explanation and sent Victor packing.
O'Toole said judges disqualify themselves from certain cases
all the time, but they don't necessarily have to put their reasons
in writing or even state them for the record.
And O'Toole said there is a chance he will report Victor to
the Arizona Commission on Judicial Conduct, the panel that polices
judges.
"It's a real chilling kind of a thing for one judge telling
another judge what he can say in a minute entry while he's recusing
himself," Victor said. "It's another thing if I decided
to sit on drug cases and started dismissing them."
Contact Gary Grado at ggrado@aztrib.com,
or 602-258-1746
© 2001 - 2004 All Rights Reserved.
Pro Tem Recusal Minute Entry
by Marc J. Victor - May 24, 2003
 A justice system is a necessary
prerequisite to any civilized community of persons. For any justice
system to be effective and just, the judges who work in such
a system must possess a strong sense of justice.
Only human beings have the capacity to possess a strong sense
of justice. An inflexible, rigid and mechanical approach to judging
is not appropriate and has throughout history caused tremendous
injustice. As such, an honorable judge must frequently consult
his or her individual sense of justice.
A judge is obligated to faithfully follow and apply the law.
However, cases may arise where the applicable law is irreconcilably
at odds with a judge's strong sense of justice. In such a case,
the judge is thrust into a moral dilemma. The judge is faced
with either applying a law that is contrary to his or her strong
sense of justice or failing to faithfully apply the law. This
case presents such a moral dilemma for this judge pro tem.
A judge who applies a law which is contrary to his or her
strong sense of justice betrays not only the trust of those in
the courtroom but also the honor of the judicial office. This
judge pro tem will not act in contradiction to his strong sense
of justice. Additionally, a judge who will not faithfully apply
the law cannot preside over a matter in which that law is applicable.
Therefore, recusal is the only option.
However, a recusal without explanation would deprive any interested
party of the reasons underpinning the moral dilemma faced by
this judge pro tem and would wrongly enshrine this court in a
cloud of mystery and secrecy. Free people are entitled to know
and evaluate the motivations, explanations and reasons underpinning
a judge's actions.
The Non-Initiation of Force Principle
This judge pro tem will not use the power of the state to
initiate force against persons who have not trespassed or used
unlawful force or fraud against others or their property. This
judge pro tem has deeply held personal views which are in direct
contradiction to the duties of a judge who presides over non-violent
drug cases. The two positions cannot be reconciled.
This judge pro tem is unaware of Arizona judges recusing themselves
for similar reasons. However, there is evidence to believe that
some Arizona judges have grave concerns about Arizona's ongoing
war on drugs. See, Rudolph J. Gerber, On Dispensing Injustice,
43 Ariz. L. Rev. 135 (2001). Additionally, at least one federal
judge, the Honorable Jack B. Weinstein of the United States District
Court in New York has refused to try minor drug cases.
The list of learned judges across this nation who have publicly
objected to the war on drugs is substantial and includes:
- 1. Hon. Juan R. Torruella U.S. Court of Appeals, First
Circuit;
- 2. Hon. Myron Bright U.S. Court of Appeals, Eighth
Circuit; See, 61 F.3d at 1363.
- 3. Hon. Donald P. Lay U.S. Court of Appeals, Eighth
Circuit;
- 4. Hon. Richard Posner U.S. Court of Appeals, Seventh
Circuit;
- 5. Hon. George Pratt U.S. Court of Appeals, Second
Circuit;
- 6. Hon. Robert W. Pratt U.S. Southern District of Iowa;
- 7. Hon. Nancy Gertner U.S. District Court, Boston;
- 8. Hon. John L. Kane Jr. U.S. District Court, Denver;
- 9. Hon. Stanley Sporkin U.S. District Court, D.C.;
- 10. Hon. Whitman Knapp U.S. District Court, New York;
- 11. Hon. Robert Sweet U.S. District Court, New York;
- 12. Hon. Vaughn Walker U.S. District Court, San Francisco;
- 13. Hon. John T. Curtin U.S. District Court, New York;
- 14. Hon. Warren Eginton U.S. District Court, Connecticut;
- 15. Hon. James C. Paine U.S. District Court, Florida;
- 16. Hon. James Gray Superior Court, Santa Ana, CA;
- 17. Hon. Peter Nimkoff Former U.S. Magistrate, Miami;
and
- 18. Hon. Volney V. Brown Jr. U.S. Magistrate, Los Angeles.
Many abbreviated statements of the preceding judges can be
reviewed online.
The well-reasoned views of the honorable judges cited above
in addition to the concurring opinions of people such as Nobel
Prize winning economist Milton Friedman weigh heavily upon the
conscience of this judge pro tem. This judge pro tem will not
participate in administering laws which, for so many reasons,
wreak havoc on our society and conflict with the moral conscience
of this judge pro tem.
Although the above rationale may not mandate recusal, no such
legal mandate is required for recusal. The Arizona Supreme Court
has long held, "[A] judge may on his own motion, if he acts
timely, recuse himself even though the reason given might not
be sufficient to form the basis of a legal disqualification."
Zuniga v. Superior Court, 77 Ariz. 222, 269 P.2d 720 (1954).
See also, State v. McGee, 91 Ariz. 101, 370 P.2d 261 (1962).
Although the deeply held personal views of this judge pro
tem is a sufficient reason to warrant recusal in this case, it
is not the sole reason for recusal.
The Arizona Constitution
There can be no doubt that the Arizona Constitution was instituted
as an attempt to protect and maintain un-enumerated rights which
individuals possess independent of government. Indeed, the Arizona
Constitution specifically states,
All political power is inherent in the people, and governments
derive their just powers from the consent of the governed, and
are established to protect and maintain individual rights. Ariz.
Const. Art. II, § 2.
Further, so there could be no misunderstanding, the drafters
of the Arizona Constitution explicitly stated,
The enumeration in this Constitution of certain rights shall
not be construed to deny others retained by the people. Ariz.
Const. Art. II, § 33.
For a free society to remain free, a frequent revisiting of
the fundamental principles of freedom must never be relegated
to a mere academic discussion. The framers of the Arizona Constitution
understood the importance of a frequent recurrence to fundamental
principles. Such mandate was enshrined in the Arizona Constitution
and is important enough to be restated here:
A frequent recurrence to fundamental principles is essential
to the security of individual rights and the perpetuity of free
government. Ariz. Const. Art. II, § 1.
Based on the Arizona Constitution, there can be no doubt that
individuals have rights which exist independent of government
and that such rights exist despite not being enumerated in the
Arizona Constitution.
Among such un-enumerated rights must necessarily exist the
fundamental and basic right of each adult to control his or her
own body. It is difficult to conceive of or envision any right
more central and essential to a free society than the right to
control one's own body. The right to control one's own body must
necessarily encompass the right to control what foods, medications
and other substances are introduced into the body.
In interpreting the Arizona Constitution, the Arizona Supreme
Court has previously recognized the liberty right of an individual
to refuse the ingestion of unwanted chemical substances. See,
Large v. Superior Court, 148 Ariz. 229, 714 P.2d 399 (1986).
Such a pronouncement is merely an illustration of the more fundamental
and basic right to control one's own body. Consistent with this
constitutional right to refuse ingestion is the reciprocal right
to voluntarily ingest chemical substances into one's own body.
Considering that the human body is entirely composed from items
which are ingested, the fundamental right to control one's own
body would be rendered meaningless without the right to control
what is ingested.
Furthermore, a constitutional right to ingest a substance
into one's own body necessarily implies a related right to manufacture,
transport, sell, purchase or possess such a substance or ancillary
items. Therefore, this judge pro tem cannot reconcile the current
drug prohibition laws with the constitutional right to control
one's own body. The drug prohibition laws appear to this judge
pro tem to be in violation of several provisions of the Arizona
Constitution including Ariz. Const. Art. II, §§ 4,
8, 33.
As with virtually all other rights, the right to control one's
own body is not absolute. However, the current drug prohibition
laws deprive all citizens of rights without any finding of prior
criminal conduct or other circumstances justifying a restriction
or deprivation of such a fundamental right.
This judge pro tem is bound to faithfully support the Arizona
Constitution. Ariz. Const. Art. II, § 26. However, this
judge pro tem acknowledges that the Arizona Supreme Court has
previously determined that possession of marijuana in a person's
own home is not a basic constitutional right. See, State v. Murphy,
117 Ariz. 57, 570 P.2d 1070 (1977). As such, there can be no
doubt that the Arizona Supreme Court and this judge pro tem disagree
about the meaning of the Arizona Constitution. As a Superior
Court Judge Pro Tem, it would be wholly inappropriate to enter
an order in direct contradiction to the Arizona Supreme Court's
clear precedent. Therefore, recusal is the only appropriate course
of action.
The United States Constitution
Similarly to the Arizona Constitution, the United States Constitution
also contemplates that people have rights independent of government
which they retain despite the fact that such rights are not enumerated
in the constitution itself. See, U.S. Const. Amends. IX, X. Indeed,
the United States Supreme Court has previously identified particular
fundamental constitutional rights which are not enumerated. See,
Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965);
Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705 (1973).
This judge pro tem concludes that, based on the same reasoning
as applied to the Arizona Constitution above, there exists a
fundamental constitutional right to control one's own body which
is protected by the United States Constitution and is applicable
to the State of Arizona via the Fourteenth Amendment's Due Process
Clause. Although this judge pro tem is not aware of any binding
decisions which have recognized the existence of such a federally
protected right, this judge pro tem is equally unaware of binding
decisions specifically finding that no such right exists.
However, more particularly relevant to this case is the fact
that the Arizona Supreme Court has found that no violation of
a defendant's federal constitutional rights occurs when the state
criminalizes the mere possession of marijuana in one's own home.
State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977). Additionally,
the United States Supreme Court specifically recognized the power
of state governments to make possession of narcotics a crime.
Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243 (1969). That
being the case, it would be wholly inappropriate for this judge
pro tem to enter an order which contradicts in any way the precedents
established by either the Arizona Supreme Court or the United
States Supreme Court. Therefore, recusal is the only appropriate
course of action.
NORML
The Code of Judicial Conduct requires a judge to disqualify
himself or herself when the judge's impartiality might reasonably
be questioned. Sup.Ct.Rules, Rule 81, Code of Jud.Conduct, Canon
3 E (1). The mandates involving recusal in the Code of Judicial
Conduct apply with equal force to part time judges pro tem. Sup.Ct.Rules,
Rule 81, Code of Jud.Conduct, Application § D.
This judge pro tem is currently a member of the legal committee
for the National Organization for the Reform of Marijuana Laws
("NORML.") This organization has as its policy statement
the following:
NORML supports the right of adults to use marijuana responsibly,
whether for medical or personal purposes. All penalties, both
civil and criminal, should be eliminated for responsible use.
Further, to eliminate the crime, corruption and violence associated
with any "black market," a legally regulated market
should be established where consumers could buy marijuana in
a safe and secure environment.
As a member of the NORML legal committee, this judge pro tem
believes that in a matter such as the one at hand, the impartiality
of this judge pro tem might reasonably be questioned. As such,
recusal is required.
Therefore, for all the reasons detailed in this minute entry,
this judge pro tem recuses himself.
May 24, 2003
Marc J. Victor is a practicing criminal defense attorney with
the law firm of Victor & Hall, P.L.C. in Mesa, Arizona. He
can be reached through his law firm website at www.victorandhall.com.
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