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S    tate courts participate in the “laboratory of federalism” just as other state institu-
     tions do. Although they share many common traits, state courts also differ in
some important ways, notably, procedure and jurisdiction.
       The Arizona Court of Appeals, on which I sit, is in many respects typical of an
intermediate appellate court. As usual, most of its jurisdiction is mandatory, so the
court cannot choose its cases for review as does the Arizona Supreme Court. Its juris-
diction broadly encompasses nearly all civil and criminal cases, unlike the situation in
the few states that divide appellate jurisdiction between civil and criminal courts. In
other ways, however, the court differs dramatically from most others. Perhaps the most
notable difference is the role of professional staff. The court employs staff attorneys
and judicial law clerks, as do other courts, but distinguishes itself in how it uses staff.
       Rare is the appellate court, for example, in which both staff attorneys and law
clerks are present when the judges confer before and after oral argument.1 However,
in the Arizona Court of Appeals, staff are not only present, but also have an active
role. Staff orally summarize the appeal and act as resource persons in the ensuing dis-
cussion, providing a detailed knowledge of the trial court record and of case law.
These oral presentations are responsibilities correlative to drafting proposed written
decisions. Staff attorneys prepare such discussion drafts in about one-third of the
cases and circulate them to the judges before the conference; law clerks, supervised
by their judges, do so in the remainder. These drafts substitute for bench memoran-
da, which are rarely used.
       Despite the important role of staff, it is a supporting one. The judges dominate
the discussion in conferences and are very active in oral argument.2 Judges do not
hesitate to depart from the reasoning or result in a staff draft when preparing a final
       The preargument draft decisions are used somewhat differently in division one
of the court (Phoenix, sixteen judges) from the way they are used in division two
(Tucson, six judges). In the latter, the court distributes the proposed decision to
counsel before oral argument. The advantage is believed to be that counsel’s knowl-
edge of a tentative decision enhances the argument. Division one does not circulate

1  See Roger A. Hanson, Carol R. Flango, and Randall M. Hansen, The Work of Appellate Court and Legal Staff
(Williamsburg, VA: National Center for State Courts, 2000), pp. 51-52 (appellate staff reported in a survey that
they spend only a small fraction of their time attending decisional conferences).
2 See Jefferson Lankford, “Judicial Law Clerks: The Appellate Judge’s ‘Write’ Hand,” Arizona Attorney 19 (July

1995): 21.
102                                                                       THE JUSTICE SYSTEM JOURNAL

the draft because it does not reflect the tentative position of the court and reveals
only the thoughts of one staff attorney or one judge and his or her law clerk.
      Division one utilizes staff attorneys differently from most other appellate courts.
A typical pattern is that the staff works on motions, Anders criminal appeals,3 the eas-
iest appeals, and highly specialized or complex appeals, and often continue in postar-
gument work with the authoring judge in preparing a final decision. Contrary to this
archetype, division one employs staff to work on the middle-difficulty appeals and
some specialized appeals, and uses the staff only through the conferences. Staff sup-
port motions work only when the motion is filed before the assignment of a case to a
particular panel of three judges, an event occurring shortly after the last brief is filed.
After assignment, the panel is responsible for all motions. Nor do staff work on Anders
appeals. Thus, judges retain sole responsibility for finalizing all written decisions and
bear the burden of the most complex cases.
      Another distinction is the court’s exercise of its extraordinary writ jurisdiction.
Formerly denominated as writs of certiorari or mandamus, our writs are now com-
bined in a single form of action, the “special action.”4 Special actions are one of only
two types of cases in which the court of appeals has discretionary jurisdiction.
Arizona courts at times have treated special actions as if they were interlocutory
appeals. That practice contrasts with the extraordinary nature of the procedure and
arguably conflicts with the prerequisite that alternative remedies be inadequate.
Partly at the insistence of the supreme court, the Arizona Court of Appeals has
curbed its appetite for interlocutory appeals masquerading as special actions; this has
resulted in fewer petitions for such relief, and the ones filed are more appropriate.
      The court of appeals sits in panels of three, which is ordinary enough. However,
quarterly membership changes at random ensure that neither boredom nor compla-
cency creeps in. Unlike many intermediate appellate courts, the Arizona Court of
Appeals is forbidden by statute from sitting en banc. The absence of en banc procedure
led the court to monitor published dispositions for conflicts between proposed opin-
ions. The selected method is a prepublication distribution of draft opinions by the
authoring judge to the full court. Although intended to reveal conflicts, this process
evolved into something even more valuable: an opportunity for an author to receive
helpful comments from the full court. Authors often fine-tune or even extensively
rewrite opinions after receiving suggestions from colleagues.
      Until recently, division one was also distinctive in its method of selecting its
own leaders. The vice chief judge would begin a climb up the ladder by an election,
typically unopposed and secured by one-on-one lobbying of other judges. By custom,
after serving two one-year terms, the incumbent vice chief judge was elected chief
judge without opposition. A statute requires annual elections, but by tradition an

3  See Anders v. California, 386 U.S. 738 (1967).
4  See generally Arizona Rules of Procedure for Special Actions, esp. Rules 1 (nature of the special action) and
7 (special appellate court provisions).
THE ARIZONA COURT OF APPEALS                                                                         103

incumbent first-term chief judge or vice chief judge was elected without opposition
to a second term. The result was that the vice chief judge was assured of serving in
that post for two years, plus two more as chief judge. Election outcomes were thus
foreordained years in advance, disenfranchising new judges. Worse still, the court—
again by custom rather than statute or rule—limited the service of its officers to two
one-year terms, depriving itself of the opportunity to retain experienced, proven lead-
ership. In 2004, however, the court changed its election procedures to emphasize the
ballot rather than the backroom, choice rather than custom. It created a nominating
committee that is required to nominate at least two judges for each office.
Incumbents are neither term limited nor assured of a second term.
       The Arizona Court of Appeals has been an innovator in dealing with appellate
delay. When I joined the court in 1990, division one frequently did not decide
appeals within a year, and occasionally not within two years. As the saying goes,
necessity was the mother of invention. The court instituted several procedures to
reduce delay, including transferring cases to the less-laden division two, constituting
special panels with two lawyer-members as judges pro tempore, and expanding an
accelerated civil appeal procedure in which decisions were issued within days of oral
argument. The court was one of the first adopters of an accelerated civil appeal
experiment in the mid-1970s.5
       Yet these measures were not enough, as case filings increased and the number of
judges did not. In 1995 a study committee appointed by the Arizona Supreme Court
recommended additional measures to attack the delay problem in the Arizona Court
of Appeals. Both in anticipation of and in reaction to that report, our court stream-
lined its procedures and created new time guidelines for issuing decisions. Among the
steps adopted by division one was a highly successful settlement program in which
active and retired judges act as mediators. Nearly two-thirds of cases selected from
the program are settled, resulting in a stipulated dismissal of the appeal. Staff attor-
neys also were appointed as judges pro tempore to rule on routine motions, such as
first-time motions to extend the time to file a brief.
       The court also restricted continuances by lawyers and trial court reporters, who
had become accustomed to receiving generous and repeated extensions of time for
their briefs and transcripts. The court automatically grants brief, one-time extensions
to counsel, but generally refuses subsequent extensions. Court reporters and counsel
who fail to meet deadlines may receive an order to appear to show cause why they
should not be sanctioned. Corresponding to the reduction of extrajudicial delay
attributable to counsel and court reporters, the court has reduced the time from con-
sideration at conference to written decision. For example, in a recent year, nearly
two-thirds of civil appeals, about three-quarters of criminal appeals, and nearly 85
percent of juvenile appeals were decided in less than sixty days. In part because of

5 Joy A. Chapper, “Fast, Faster, Fastest: Appellate Courts Develop Special Tracks to Fight Delay,” Judges’

Journal 20, no. 2 (Spring 1981): 53-54.
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the success of these measures, division one was able to eliminate transfers of cases to
division two and reliance on judges pro tempore.
      The court’s culture has been and is one of evolution, not stasis. Both senior and
junior members of the court face problems realistically and embrace positive change.
We look to our brothers and sisters on similar courts for progressive changes we can
model, and offer our own experience for the logbooks of the federalism laboratory. jsj