Pro Tem Recusal Minute Entry

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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.


     

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