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VOTERS V. JUDGES

The Case of the "Stop Juvenile Crime Initiative"

11:00 PM, Nov 24, 1996 • By ANDREW PEYTON THOMAS
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Anyone glumly anticipating another four years of Clinton judicial appointments and continued expansion of criminals' rights can find cheer in a little-noticed initiative just adopted in Arizona. Despite a fierce opposition campaign run by injudicious judges and lawyers and abetted by a hostile press, citizens of the Grand Canyon State voted overwhelmingly to require the adult prosecution of certain juvenile offenders and to curb overweening judges.


The initiative was a local response to the wave of juvenile crime that afflicts the whole nation. Between 1989 and 1994, Arizona's juvenile arrest rate for violent crimes rose a staggering 527 percent; for murder alone, it more than doubled. In response to these trends, Gov. Fife Symington and victims' fights advocates launched the Stop Juvenile Crime Initiative, or Proposition 102. The measure proposed that all juveniles age 15 and older who are charged with murder, rape, or armed robbery be prosecuted as adults.


In addition, the initiative proposed an amendment to the state constitution with broad implications. Arizona's constitution, adopted in 1910, vests the courts with "exclusive original jurisdiction" over abused, neglected, and delinquent juveniles. Progressive-era judges were expected to oversee the treatment and rehabilitation of wayward youths.


While this approach may have made sense back when juvenile crimes were relatively minor and judges were elected, it has given Arizona's latter-day juvenilecourt judges, who are mostly appointed, a veto over the transfer of serious juvenile offenders to adult courts. Juveniles not tried as adults must be released from state custody upon turning 18, regardless of their crimes. In numerous and locally notorious cases, Arizona judges, citing the prospects for rehabilitation, have declined to transfer heinous young offenders to adult court.


Prop. 102 revoked the courts' exclusive jurisdiction and allowed the state legislature to make policy for juvenile justice. On Election Day, 63 percent of Arizona voters supported the initiative.


Still, this happy outcome was achieved only after a blistering counteroffensive from judges and lawyers. Press releases and pamphlets denouncing Prop. 102produced and distributed at taxpayers' expense -- were fired off from judges' chambers. Leading the charge was Stanley Feldman, chief justice of the Arizona Supreme Court. Feldman publicly proclaimed the initiative "frightening" and personally orchestrated the campaign to defeat it. When the supreme court heard arguments on whether the initiative should be thrown off the ballot, Feldman's conflict of interest was so glaring that, in an extraordinary step, he recused himself. Facing a popular backlash, the court gingerly declined to assert jurisdiction.


Other judges joined the fray with equal gusto. John Foreman, Maricopa County's presiding juvenile-court judge, was ubiquitous, stumping against the initiative despite the obvious conflict of interest (never noted in the press) . As the election approached, his countenance seemed to grow grimmer by the day -- which was hardly surprising, given Foreman's philosophy. In a memo to " concerned citizens" earlier this year, he wrote: "The juvenile-justice system properly understood is a mechanism to redress the unequal availability of wealth, good schools, stable families and health care that tends to push minority children toward the juvenile-justice system. Denial of the opportunity for rehabilitation in the juvenile-justice system for those minority children who are amenable to treatment exacerbates the discrimination that they suffer in contemporary society." In other words, juvenile-court judges should shield minority youths from criminal punishment to try to make up for the white racism that forced them into lives of crime.


Even the likes of Foreman, however, could not have engaged in open electioneering as sitting judges without recent, conveniently timed changes to the state's code of judicial ethics. In August, as the opposition's campaign was heating up, the committee of judges who incestuously determine the canons of judicial ethics for Arizona ruled that -- presto! -- judges could engage in all the activities of politicians without the burden of running for office. As a result, judges could speak at partisan events, raise money, and generally spearhead the opposition's campaign without fear of professional censure.


Still, no less a figure than the very conscience of the county, Judge Foreman, ran afoul of these liberalized rules. In October, he admitted sheepishly to the local press that he had sent an e-mail to county prosecutors-including those who appear in his court -- soliciting contributions for the anti-initiative campaign.


Arizona's lawyers, for their part, joined in circling the wagons, for less ideological but equally self-serving reasons. The legal profession underwrote the opposition campaign in a manner befitting one of the state's most powerful special-interest groups.


The bar association recognizes, of course, that greater judicial power is good for its members' business. The more disputes must be settled in court, the more work and income flow attorneys' way. It was with therefore predictable hyperventilation that Michael Kimerer, outgoing president of the Arizona state bar association and a criminal defense attorney, termed the initiative's modest limitations on judges nothing less than "a deliberate and calculated move to destroy the constitutional power of the courts."


In response to Prop. 102, the bar mobilized a welloiled political machine more typical of a corrupt labor union than a high-minded association of legal professionals. Arizona has an "integrated bar," which means that a lawyer must join the lawyers' guild and pay annual dues in order to practice in the state. Despite a string of recent U.S. Supreme Court decisions barring the use of mandatory dues by unions and state bar associations for political purposes, the Arizona bar voted to donate $ 20,000 in mandatory dues to the fight against the juvenile-justice initiative. The bar justified this violation of its members' First Amendment liberties by calling the defeat of Prop. 102 essential to the "administration of justice." A Phoenix-area newspaper quoted court officials as saying it was a "demonstrable fact" that the initiative would damage the state's juvenile-justice system. Meanwhile, a drug-legalization measure also on the ballot, which could require the early release of almost 1,000 incarcerated drug offenders, drew nary a penny -- or a rebuke -- from the state's juridical establishment.


Like the teachers' unions in California, which sank that state's voucher initiative in 1993 with TV commercials warning that covens of witches would soon be running voucher-supported schools, the opposition to Arizona's juvenile-crime initiative took to spreading preposterous falsehoods. One was the contention, first put forth by Chief Justice Feldman, that the initiative would permit the legislature and government agents to round up wholesome youngsters against their parents' wishes with no court hearing. Such a practice is, among other things, forbidden by the due process guarantees in the state and federal constitutions. Nonetheless, the newspapers gave prominent play to this and other outlandish claims.


Yet despite the tsunami of disinformation, the initiative passed. Almost two-thirds of Arizona voters endorsed these overdue reforms. Public trepidation over high juvenile-crime rates undoubtedly concentrated the voters' minds. But there was another, broader civics lesson to be learned from the exercise. Arizonans saw for themselves the danger to society when government's least responsive and arguably most powerful branch is controlled by a single special-interest group -- lawyers.


When unelected judges wield their great and solemn powers irresponsibly, the public is liable to rise up and assert its legitimate concern for public safety. Eventually, as Proposition 102 shows, frustrated citizens will organize and lay down the law themselves.




By Andrew Peyton Thomas; Andrew Peyton Thomas, a Bradley fellow at the Heritage Foundation, is deputy counsel to the governor of Arizona