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:
- Hon. Juan R. Torruella — U.S. Court of Appeals, First Circuit;
- Hon. Myron Bright — U.S. Court of Appeals, Eighth Circuit; See, 61 F.3d at 1363.
- Hon. Donald P. Lay U.S. Court of Appeals, Eighth Circuit;
- Hon. Richard Posner — U.S. Court of Appeals, Seventh Circuit;
- Hon. George Pratt U.S. Court of Appeals, Second Circuit;
- Hon. Robert W. Pratt — U.S. Southern District of Iowa;
- Hon. Nancy Gertner — U.S. District Court, Boston;
- Hon. John L. Kane Jr. — U.S. District Court, Denver;
- Hon. Stanley Sporkin — U.S. District Court, D.C.;
- Hon. Whitman Knapp U.S. District Court, New York;
- Hon. Robert Sweet U.S. District Court, New York;
- Hon. Vaughn Walker U.S. District Court, San Francisco;
- Hon. John T. Curtin — U.S. District Court, New York;
- Hon. Warren Eginton U.S. District Court, Connecticut;
- Hon. James C. Paine U.S. District Court, Florida;
- Hon. James Gray — Superior Court, Santa Ana, CA;
- Hon. Peter Nimkoff — Former U.S. Magistrate, Miami; and
- 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.
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.