Superior Court of Arizona in Maricopa County En Banc Vol. 4, No. 2 Newsletter of the Superior Court Law Library October 1999 INSIDE: Law Library News Sandra Perez is our second newest Law Library Aide. Sandra is a native Law Library News . . . . . . . . . . . . . . . . . . 1 National Hunger and of Arizona and enjoys cooking and National Hunger and Homeless Awareness reading. She is attending ASU West Week . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Homeless Awareness Week where she is working on her Library Staff . . . . . . . . . . . . . . . . . . . . . . . 1 bachelor’s degree in Administration of Continuing Legal Education . . . . . . . . . . 1 November 14th through 20th is Justice. Sandra would like to pursue a Superior Court Update . . . . . . . . . . . . . . . 2 National Hunger and Homeless career as a crime scene Judge Edward Burke . . . . . . . . . . . . . . . . 2 Awareness Week. A recent story in Did You Know? . . . . . . . . . . . . . . . . . . . . 2 photographer. the Arizona Republic indicated that Electronic Resources . . . . . . . . . . . . . . . . 2 “thousands in Arizona go hungry” and Internet Site Reviews . . . . . . . . . . . . . . . . 2 that the situation is getting worse. To Publications of Interest on the Internet . . 3 help, the Maricopa County Bar Continuing Legal Education In the Courts . . . . . . . . . . . . . . . . . . . . . . . 3 Recent Arizona Cases . . . . . . . . . . . . . . . . 3 Association’s Young Lawyers Division Committee on Hunger and The Rules of Evidence in Family Law, From Other Jurisdictions . . . . . . . . . . . . . 3 New in the Library . . . . . . . . . . . . . . . . . . 5 Homelessness, the Arizona Coalition which is being sponsored by Book Reviews . . . . . . . . . . . . . . . . . . . . . . 5 to End Homelessness, and the Maricopa County Bar Association, will Article Reviews . . . . . . . . . . . . . . . . . . . . . 5 Association of Arizona Food Banks be presented on Thursday, November Recently Received Books . . . . . . . . . . . . . 6 are sponsoring a food drive. 18th from 1:30 to 5:00 P.M. The Recent Articles: Courts and Court faculty includes Honorable Crane Administration . . . . . . . . . . . . . . . . . . 6 The Law Library will be a drop-off McClennen, Family Law Judge for the Recent Articles: Juries . . . . . . . . . . . . . . . 7 Superior Court in Maricopa County; “Did You Know?” Answers . . . . . . . . . . . 8 location for donations of canned goods and non-perishable food. A Commissioner Leah Pallin-Hill, Family Contributors . . . . . . . . . . . . . . . . . . . . . . . 8 Law Commissioner for the Superior local food bank will then pick up the donations for distribution to the Court in Maricopa County; Honorable community. Please drop off your Nancy Smith, Family Law Judge Pro- donations in the boxes marked “Food Tem for the Superior Court in Drive,” located on the plaza level of Maricopa County; Don Kessler, an the Library. attorney with the law firm of Ulrich, Kessler & Anger; and Jennifer Gadow, a family law practitioner with Library Staff Cohen and Fromm. The attendants of this seminar, which will be held at the Jeff Cobb recently joined our staff as Holiday Inn Conference Center, will En Banc a Law Library Aide. Jeff was born earn up to 3.5 hours of continuing Newsletter of the and raised in Arizona and graduated education credit. Superior Court Law Library from North Canyon High School in 1995. He earned an AA degree from The Maricopa County Bar Association Paradise Valley Community College will present Protecting Trade Secrets Superior Court Law Library and currently attends ASU West and Confidential Information on 101 W. Jefferson where he is majoring in Justice Friday, November 19. This seminar Phoenix, Arizona Studies with a minor in politics. will take place at Arizona State 85003 University’s Downtown Center at the Jeff’s hobbies include watching and Mercado from 2:30 to 4:30 P.M. Maria (602)506-3945 (phone) playing sports. He is also a big Star (602)506-3677 (fax) Nutille and Heidi Richter of the Snell Wars fan and has spent more money, and Wilmer law firm will be leading a than he’d even like to think about on discussion of the use of agreements email@example.com posters and toys. He also collects and the appropriate procedures to World War II soldiers made by G.I. protect your company’s proprietary Joe, Century Toys and Dragon. information, customer relations and P2 En Banc October 1999 P good will using restrictive Judge Burke has held numerous covenants. The attendants will memberships and chairman positions Judicial Statistical Inquiry Form receive up to 2 hours of MCLE with both legal and civic http://teddy.law.cornell.edu:8090/questata.htm credit. organizations, including the Municipal Aeronautics Advisory Board of the This site allows users to compile The State Bar of Arizona will be City of Phoenix and the Lawyer statistics on over 4.2 million Federal sponsoring An Ethical Afternoon at Referral Committee of the Maricopa District court cases terminated the Movies on December 8 from County Bar Association. He is between 1978 and 1997. Users may 1:30 until 4:45 at the Orange Tree currently a member of the Thurgood also search against state court Golf Resort. The Bar encourages Marshall Inn of Court. materials comprising of “about 30 all criminal and civil litigators to thousand state tort, contract, and real attend. Judge Burke served as a judge pro- property cases terminated during tem for both the Arizona Court of fiscal 1992 in the general jurisdiction The topic of this seminar is conflicts Appeals and the Superior Court in trial court of 45 of the nation's most of interest, of which the Bar says Maricopa County. He is entering his populous counties.” “half of the lawyers don’t 28th year as an athletic official in understand it - the other half just football, ice hockey and football. Users may search the database by doesn’t get it.” The rules that define “subject matter category (such as conflict of interest are baffling and Judge Burke is located in the Old branches of tort, contract, civil rights, “the case law is often, in a word, Courthouse on the ground floor and is and other areas of law), the conflicting.” This seminar, which assigned to a civil calendar. The jurisdictional basis, the amount may qualify for up to 3 hours of judge lives in Phoenix with his wife demanded, the case's origin in the ethics, will feature film clips and a who the Associate Dean of the district as original or removed or “smart but funny panel.” University Honors College at Arizona transferred, the dates of filing and State University. Judge Burke and his termination in the district, the wife have five children. procedural stage of the case at Superior Court Update termination (including whether it was tried by judge or jury), the procedural Did You Know? method of disposition, and, when a Judge Edward Burke judgment was entered, who prevailed Find out how much you actually know and any amount awarded in damages The investiture ceremony for Judge or other relief.” Edward Burke was held on July 21, about our legal system. Answers are 1999. He was appointed to fill the on the last page of this issue. This is an excellent web site for vacancy left when Judge Nastro anyone who needs to do research on retired. Judge Burke was born and 1. Which five baseball managers in this century have held law degrees? how cases have been decided in the raised in Syracuse, New York and federal court system. It is unfortunate moved to Phoenix in 1969. His 2. In which of the following places did law that the database is no longer educational accomplishments students Bill Clinton and Hillary Rodham growing, but still offers users some include a degree in political science meet: contracts class, the Yale valuable information. from the State University of New Democratic Club, the Yale Law Library? York, a J.D. from the College of Law at Syracuse University as well 3. What board game rewards you for achieving an illegal restraint of trade? as a Masters Degree in Business Administration from Arizona State 4. What do these famous lawyers have in University. common: Patrick Henry, John Jay, Daniel Webster, Abraham Lincoln, and J. Strom Judge Burke began his legal career Thurmond? as assistant corporation counsel for the City of Syracuse. When he 5. When the Library of Congress was largely destroyed during the War of 1812, moved to Arizona, he entered what lawyer sold his library to rebuild the private practice with the firm of collection: Daniel Webster, William Rawlins, Ellis, Burrus & Kiewit. He Blackstone, John Marshall, or Thomas was a founding partner of Norton, Jefferson? Burke, Berry & French. Prior to his appointment to the bench, Judge Burke as a partner with the Electronic Resources Scottsdale law firm of Bennett, Burke, Carmichael & Kennedy. Internet Site Reviews P3 En Banc October 1999 P Publications of Interest on use of ADR in the courts would Lindquist v. Hart, No. 1 CA-CV 98- the Internet benefit from taking a look at this 0323 (1999) comprehensive resource. Alternative Dispute Resolution In December of 1998, the Court of (ADR) in Civil Cases: Report of In the Courts Appeals ruled that the Arizona Mobile the Task Force on the Quality of Home Park Residential Landlord Justice, Subcommittee on ADR Recent Arizona Cases Tenant Act, A.R.S. 33-1401 et. seq., and the Judicial System. did not require park operators to www.courtinfo.ca.gov/reference/documents/a State v. Jones and Tyrus, No. 1CA- justify evictions of month-to-month drreport.pdf tenants. The ruling “shocked” tenants’ CR 99-0087, 1CA-CR 99-0088 (1999) rights advocates and a motion for In 1998 California Chief Justice reconsideration was filed. State v. Thomas Ronald M. George appointed 20 301 Ariz. Adv. Rep. 3 (1999) members to the Subcommittee on The case involved a mobile home ADR and the Judicial System. park in Flagstaff. The tenants, the In these two cases, both divisions of Their charge was to study some of Lindqusts, entered into a one-year the Arizona Court of Appeals have the issues associated with ADR and lease and after its expiration they ruled that first-time drug offenders to make recommendations on how choose not to renew it and became cannot be incarcerated for a violation the courts could best utilize ADR. month-to-month tenants. of intensive probation. Some of the issues the In its December opinion the court In the consolidated Jones and Tyrus subcommittee looked at included: ruled that “under the plain language case, as well as the Thomas case, the effects of ADR on courts; who of the statute, good cause for each defendant was found to have may adopt ethical standards termination is required only if there is violated the terms of intensive governing arbitrators; what ethical a rental agreement in existence.” probation after being found guilty of standards should be adopted; and Further, it is well settled that in a drug offenses. Thomas’s probation the standards governing court “month-to-month” agreement, the was revoked and he was sentenced referral of disputes to private judges tenancy ends and recommences at to a 2 ½ year prison term which he or attorneys. the end of each month. timely appealed. In the Jones and Tyrus case, the State appealed the This report takes an in-depth look at Upon reconsideration, the appellate trial court’s ruling not to sentence the each one of these issues, and court ruled that good cause must be defendants to prison for the violation. makes some recommendations as shown to terminate a month-to-month to how the California courts can use tenancy and said the new ruling “is in The Court of Appeals affirmed the trial ADR more effectively. Some of the harmony with the spirit of the act.” court in Jones and Tyrus and recommendations: create a list of The law was designed to give some overturned the Thomas case. In both ADR neutrals to whom the court stability to the tenants of mobile home cases, the appellate court said the can refer potential litigants; parks because of the high cost voter-enacted Drug and enhance the provisions for associated with moving mobile Medicalization, Prevention and enforcing agreements; develop an homes. Control Act of 1996 “made it clear that education program for judges and drug offenders were not to do time in court staff on the effective use of The defendants-appellants now prison after a first or second ADR; and develop ethical standards contend that the issue must be conviction. “ for mediators. resolved by the Arizona Supreme Court and have filed a petition for Division Two made its ruling first and The report is comprehensive and review. after ascertaining the “electorate’s includes numerous appendices intent” in approving Proposition 200, such as sample ethical standards, a From Other Jurisdictions stated that “courts may not new judicial canon of ethics, survey circumvent the mandate of the Act but results, and some testimony offered B.C. v. Plumas Unified School only alter or add conditions of at public hearings. At over 240 District, No. 97-17287 (9th Cir., 1999) probation.” pages, this report cannot be considered light reading. However, The 9th Circuit has upheld the rights Division One reached the same there is an excellent executive of students against random searches conclusion and wrote that its summary that clearly outlines the by drug-sniffing dogs by ruling that “confidence in that conclusion is main points and recommendations such a search is an “unreasonable bolstered by the fact that Division Two of the report. Anyone who is violation of Fourth Amendment of this court recently reached the involved in developing a court protections.” same conclusion...” mediation program or improving the P4 En Banc October 1999 P In 1996, students at Quincy High murder of Sandy Owen. Each that the police acted in bad faith by School were told to wait outside a defendant eventually confessed, not preserving the evidence that he classroom while dogs sniffed implicating the other. The trial court contends would have proved his backpacks, jackets, and other ordered two juries and although both innocence. belongings left in the room. As the juries would hear some of the same students were leaving the evidence, each jury was also excused The United States Supreme Court’s classroom, one of the dogs when testimony about the other leading opinion on this issue - lost or “alerted” it’s handler to one defendant was presented. Both destroyed evidence - is Arizona v. particular student. After the Lambright and Smith were ultimately Youngblood, 488 U.S. 51, 109 S.Ct. classroom search and as the convicted of first-degree murder and 333, 102 L.Ed. 2d 281 (1988). In students returned, the dog once sentenced to death. Youngblood the high court ruled that again alerted the sheriff to the same “unless a criminal defendant can student. The student was taken In its opinion, the 9th Circuit said that show bad faith on the part of the away and searched. No drugs were “trial judges have inherent power and police, failure to preserve potentially found on the student or in the high discretion to adopt special, useful evidence does not constitute school that day. individualized procedures designed to denial of due process of law.” promote the ends of justice in each In its opinion, the court wrote that case that comes before them.” In The Tennessee Supreme Court has “[T]here can be no dispute that ordering a dual jury in this case, the rejected the United States Supreme deterring drug use by students is an trial judge did not exceed his Court’s holding in Youngblood as important - if not compelling - authority. In fact, the court continued, have a number of other states. The government interest.” But absent a “many experiments lead to better and Tennessee court is quoted as saying drug crisis in the high school, the stronger institutions.” “that the due process principles of the random and suspicion less search Tennessee Constitution are broader was unreasonable given the than those enunciated in the United circumstances. State v. Ferguson, No. 03-S-01- States Constitution.” According to an 9803-CR-00029 (Supreme Court of article in the October 4th edition of Tennessee, 1999). Lawyers Weekly USA, “many experts Lambright v. Stewart and Smith predict that the trend of states v. Stewart, Nos. 96-99020 (9th The main question presented to the providing greater protection to Cir., 1999) court in this case was “what are the defendants than the U.S. Supreme factors which should guide the Court is likely to continue.” In a case that has received much determination of the consequences attention in several legal that flow from the State’s loss or The Tennessee Court, instead, newspapers, the 9th Circuit has destruction of evidence which the applied a “balancing approach.” ruled 10-1 that “there is no per se accused contends would be Once the court determined that the constitutional error in trying two exculpatory?” State had a duty to preserve the defendants before two juries in the evidence the court then looked at “the same courtroom.” The defendant, Ferguson, was found degree of negligence involved...the on a freeway ramp slumped over the significance of the destroyed Agreeing that the use of dual juries steering wheel of his van. When a evidence... and the sufficiency of the is experimental, Scott Bales, city police officer opened the door to other evidence used at trial to support Solicitor General for the State of Ferguson’s vehicle, he detected a the conviction.” After careful Arizona said, “[A] dual jury allows strong odor of alcohol and noted that consideration, the court concluded you to avoid some of the the defendant’s speech was slurred. that the defendant received a fair trial inefficiency and delay that come A field sobriety test was conducted and that he “experienced no from separate trials, but gives each and the defendant was subsequently measurable disadvantage” because defendant a jury that will only hear arrested. Upon his arrival at the of the lost evidence. evidence admissible to that police station, additional tests were defendant.” But in a dissenting conducted and videotaped. Later, Although the defendant’s conviction opinion, Judge Stephen Reinhardt however, the videotape was was upheld, the court ruled that by described the use of dual juries by inadvertently taped over. applying the Youngblood analysis, it saying “to conduct unauthorized “substantially increases the experiments in capital cases is to At trial, the defendant presented a defendant’s burden while reducing demonstrate a disdain for human medical expert to support his defense the prosecution’s burden at the life.” that he suffered from “vascular or expense of the defendant’s migraine-type headaches that fundamental right to a fair trial.” The defendants in this case were included scotoma which affected his charged with the kidnap, rape and vision and coordination.” He argued P5 En Banc October 1999 P In re the Marriage of Kohring, No. and Quality: A New Perspective Juror: Why Are There Not Enough 81139 (Supreme Court of from Nine State Criminal Trial Available Jurors?” 20 Justice Missouri, 1999) Courts. National Center for State System Journal 203 (1999). Courts, 1999. KF 8727 .O88 1999 The Supreme Court of Missouri has A recent study of the jury system of upheld the constitutionality of that Researchers at the National Center the Superior Court of the District of state’s child support statute which for State Courts and the American Columbia and the United States permits awards for college Prosecutors Research Institute District Court for the District of expenses. Missouri statute examined nine criminal trial court Columbia, showed that only “18 §452.340.5 specifically states that systems, looking at the pace of the percent of potential jurors actually the “...parental support obligation criminal trial process and the balance serve.” Nationally, the juror no-show shall continue, if the child continues between time and other percentage stands at about 55 to attend and progresses toward considerations such as due process, percent. Working with the nonprofit completion of said program, until protection against double jeopardy, organization, Council for Court the child completes such program and excessive bail. At the end of the Excellence; a Washington, D.C. jury or reaches age twenty-one, study, the authors note, the basic project concluded that “the court whichever first occurs.” challenge confronting the criminal should consider other positive, justice system remains: “Is it possible nonmonetary inducements” to deal The parties were divorced in 1989 to resolve cases expeditiously without with its problem of juror nonresponse. and upon a subsequent child sacrificing the quality of justice?” support modification hearing, the The study cited four main reasons appellant was ordered to pay The study looked at trial courts in why people evade jury duty. Money $900.00 a month for the support of Albuquerque, Birmingham, Cincinnati, is the number one reason for juror no- the couple’s two children. In 1997, Grand Rapids, Hackensack, Oakland, shows. Lost wages and low jury fees when the daughter applied to the Sacramento, Austin, and Portland. discourage potential jurors. Other University of Missouri-Columbia, Some of the questions raised by the factors include lengthy trials and the mother petitioned the court to study include: What do the nine long, boring waits in “noisy, crowded, once again modify the appellant’s criminal court systems look like? Why unclean, and inconvenient to financial obligation. The father, in are some felony cases resolved faster transportation” courthouses. turn, filed a motion to dismiss the than others? Is there a local legal Disbelief in the justice system was the mother’s petition along with a cross- culture that fosters timeliness and third finding of the project followed by motion to terminate the child quality? yet another disbelief - that jurors who support for the college-bound fail to show will not even be punished. daughter. The trial court overturned The study measured the timeliness of the father’s petitions and ordered trials in each court by counting the him to pay 80% of the daughter’s number of days from indictment or The study was constructed in five college expenses. bindover to final resolution. The parts. In each part, the objectives quality of case processing was were stated followed by the The father argued that the statute measured using Standard 3.3 of the methodology used. In one part, for “burdens a previously unrecognized Trial Court Performance Standards to example, the intention of the study suspect class of unmarried, “develop a measure of case was to determine why 150 potential divorced, or legally separated processing quality that relates directly juror questionnaires were returned as parents and imposes on them a to timeliness.” The authors conclude “undeliverable.” The decision was to monetary obligation that does not that “the evidence from this study make “one-to-one” contact with each exist for married parents.” suggests that well-performing courts juror. The study group used phone should be expected to excel in terms books, directory assistance, criss- In its ruling, the court said that “the of both timeliness and quality.” cross directories and credit reports to state has a legitimate interest in find current addresses. Once securing higher education A description is included of each contacted, the jurors were interviewed opportunities for children from court’s environment, organization, and asked for their thoughts about broken homes.” staffing, and felony adjudication jury duty and what, other than a process. An appendix lists the current address, might get them to questions asked of prosecutors and respond in the future. Likewise, those New in the Library defense attorneys in each of the nine who did serve on juries were courts. interviewed about their experience as Book Reviews well as their thoughts about what Article Reviews improvements might be made. Ostrom, Brian J. and Roger A. Seltzer, Richard. “The Vanishing The interviews and results showed Hanson. Efficiency, Timeliness, P6 En Banc October 1999 P that the “focus group kept coming Recently Received Books Uses of Criminal Statistics back to the theme of ‘make it Ashgate Publishing positive’.” The committee Aids & The Criminal Justice System: HV6024.5 .U69 1999 concluded that juror empowerment Dealing with HIV-Positive Clients and and education were the first steps in Other Issues Peer Justice and Youth affecting such a change. When The County Empowerment: An Implementation jurors understand, though ARIZ KFA2757.8.A35 A25 1993 Guide for Teen Court Programs education, how important their National Criminal Justice Reference service is they become empowered Alternative Dispute Resolution: A Service and show an increased rate of Handbook for Judges KF9795.A1 G63 1998 participation in the process. The American Bar Association committee recommends that motor KF9084 .A97 1987 Radnor, Alan T. vehicle and voter registration lists Cross-Examining Doctors: A Practical be cleaned up but admits it is not Arizona DUI Trial Book Guide sure how best to accomplish this. State Bar of Arizona ALI-ABA Further, the jury project says that KFA2497.8.A9 A75 1999 KF8964 .R33 1999 courts should be responsible for educating citizens about the California Marital Settlement & Other Under Construction importance of jury duty and what Family Law Agreements, 2nd ed. American Bar Association Forum on impact their service can have on California CEB the Construction Industry the justice system. KFC126.A65 C352 KF297.C55 U6 California Durable Powers of Attorney Universal Citation Guide California CEB American Association of Law KFC336 .C352 Libraries, Committee on Citation Formats Clifford, Denis REF KF245 .U58 1999 Estate Planning Basics: What You Need to Know and Nothing More Nolo Press Recent Articles: Courts and PLAZA KF750.Z9 C585 1999 Court Administration Family Violence: A Model State Code Armstrong, Jason W. “Man National Council of Juvenile & Family Sentenced for Threatening Judge.” Court Judges 112 Los Angeles Daily Journal 2 KF505.5 .F355 1992 (August 25, 1999). Gima, Patricia Bartlett, Lauren. “County Can Be The Trademark Registration Kit Sued for Death at Courthouse: Nolo Press Appeals Panel Rules That Lack of PLAZA KF3181.Z9 G56 1999 Security Could Create Risk.” 112 Los Angeles Daily Journal 1 (July 22, A Handbook of Jury Research 1999). ALI-ABA KF8972 .H35 1999 Beckman, David and David Hirsch. “Paper Glitches in Digital Mancuso, Anthony Courthouses.” 85 ABA Journal 85 Your Limited Liability Company (August 1999).