Fill-in judge fired; refused to hear court's drug cases
The Arizona Republic
Mar. 27, 2003 06:15 PM
A judge pro tem was fired Thursday, his first day on the job at a
courthouse, for refusing to hear drug cases.
Arizona Chief Justice Charles Jones fired Marc Victor, a Mesa
attorney, saying Victor "expressly declared his inability to be
in the application of the law and the disposition of cases before
But Victor, a marijuana legalization activist, said he recused
only on drug cases, not all cases.
"I thought it was the honest, up-front thing to do," said Victor,
brought a six-page proposed "minute entry" with him to Maricopa
Superior Court, outlining why he believes drug laws violate the
Victor is a member of the National Organization for the Reform of
Marijuana Laws' legal committee. NORML supports legalization.
Victor's document stirred a hornet's nest when it reached Chief
Criminal Judge Thomas O'Toole and Presiding Superior Court Judge
After conferring with Campbell, O'Toole called Victor at the Mesa
courthouse and dismissed him, saying "we're not happy with your
performance," Victor said.
Pro tem judges are unpaid attorneys who fill in for full-time
"It made me feel there is no room for dissent on the bench,"
"That's what shocked me, how quick they threw me off the bench."
He said the incident shows there is a litmus test that bars
oppose drug laws.
J.W. Brown, a Superior Court spokeswoman, said judge pro tems
the pleasure of the court and his services were not needed."
Jones rescinded Victor's appointment as the judge pro tem at
request, according to a brief court document.
Commissioner Elizabeth Arriola had agreed to handle the court's
calendar and the seven drug cases on Victor's routine morning
Reach the reporter at
Judge pro tem kicked off bench
By Gary Grado, Tribune
A Chandler attorney was kicked off the bench Thursday an hour
first shift as a judge after he announced in writing that he
disqualify himself from all drug cases because drug laws conflict
By the end of the day, the Arizona Supreme Court's chief justice
Marc Victor of his authority to work as a judge pro tem, whi ch
attorneys who serve for free as temporary judges.
"I was pretty shocked," said Victor, 34, a criminal law defense
who also serves on the legal committee for the National
the Reform of Marijuana Laws, also known as NORML. "Either you
certain philosophical position or you can't be a judge."
Judge Thomas O'Toole, who heads Maricopa County's criminal law
said Victor was using the courthouse as a political platform,
"grossly inappropriate" and "bizarre."
"This conduct was a legal blindside," said O'Toole, who ordered
the bench in the morning. "We were set up."
Victor, a libertarian who believes drug laws are
for the position and was approved this year.
His position with NORML was reason enough to disqualify himself
cases in order to prevent an appearance of bias, but he also
known that his views would clash with rulings by the U.S. and
Supreme Courts upholding the constitutionality of drug laws,
He wrote a six-page explanation that he planned to insert into
of each drug case as a minute entry.
Victor was originally assigned to Superior Court's Early
Court, which is for accused drug offenders, but he switched court
calendars with another judge. Victor said the new Superior Court
had 40 criminal cases, but only about eight involved drugs, which
planned to send to the judge with whom he switched.
After Victor heard the first two drug cases, a court clerk
O'Toole, who read the explanation and sent Victor packing.
O'Toole said judges disqualify themselves from certain cases all
but they don't necessarily have to put their reasons in writing
state them for the record.
And O'Toole said there is a chance he will report Victor to the
Commission on Judicial Conduct, the panel that polices judges.
"It's a real chilling kind of a thing for one judge telling
what he can say in a minute entry while he's recusing himself,"
said. "It's another thing if I decided to sit on drug cases and
PRO TEM RECUSAL MINUTE ENTRY
(Updated 3/28/03 2:37 PM)
A justice system is a necessary prerequisite to any civilized
persons. For any justice system to be effective and just, the
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
appropriate and has throughout history caused tremendous
such, an honorable judge must frequently consult his or her
sense of justice.
A judge is obligated to faithfully follow and apply the law.
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
a moral dilemma. The judge is faced with either applying a law
contrary to his or her strong sense of justice or failing to
apply the law. This case presents such a moral dilemma for this
A judge who applies a law which is contrary to his or her strong
justice betrays not only the trust of those in the courtroom but
honor of the judicial office. This judge pro tem will not act in
contradiction to his strong sense of justice. Additionally, a
will not faithfully apply the law cannot preside over a matter in
that law is applicable. Therefore, recusal is the only option.
However, a recusal without explanation would deprive any
of the reasons underpinning the moral dilemma faced by this judge
and would wrongly enshrine this court in a cloud of mystery and
secrecy. Free people are entitled to know and evaluate the
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
against persons who have not trespassed or used unlawful force or
against others or their property. This judge pro tem has deeply
personal views which are in direct contradiction to the duties of
who presides over non-violent drug cases. The two positions
This judge pro tem is unaware of Arizona judges recusing
similar reasons. However, there is evidence to believe that some
judges have grave concerns about Arizona's ongoing war on drugs.
Rudolph J. Gerber, On Dispensing Injustice, 43 Ariz. L. Rev. 135
Additionally, at least one federal judge, the Honorable Jack B.
of the United States District Court in New York has refused to
The list of learned judges across this nation who have publicly
to the war on drugs is substantial and includes:
1. Hon. Juan R. Torruella -- U.S. Court of Appeals, First
2. Hon. Myron Bright -- U.S. Court of Appeals, Eighth Circuit;
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
The well reasoned views of the honorable judges cited above in
addition to the concurring opinions of people such as Nobel Prize
economist Milton Friedman weigh heavily upon the conscience of
pro tem. This judge pro tem will not participate in administering
which, for so many reasons, wreak havoc on our society and
the moral conscience of this judge pro tem.
Although the above rationale may not mandate recusal, no such
mandate is required for recusal. The Arizona Supreme Court has
"=85[A] judge may on his own motion, if he acts timely, recuse
though the reason given might not be sufficient to form the basis
legal disqualification." Zuniga v. Superior Court, 77 Ariz. 222,
720 (1954). See also, State v. McGee, 91 Ariz. 101, 370 P.2d 261
Although the deeply held personal views of this judge pro tem is
sufficient reason to warrant recusal in this case, it is not the
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
possess independent of government. Indeed, the Arizona
All political power is inherent in the people, and governments
their just powers from the consent of the governed, and are
protect and maintain individual rights. Ariz. Const. Art. II, =A7
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
construed to deny others retained by the people. Ariz. Const.
Art. II, =A7
For a free society to remain free, a frequent revisiting of the
fundamental principles of freedom must never be relegated to a
academic discussion. The framers of the Arizona Constitution
the importance of a frequent recurrence to fundamental
mandate was enshrined in the Arizona Constitution and is
to be restated here:
A frequent recurrence to fundamental principles is essential to
security of individual rights and the perpetuity of free
Const. Art. II, =A7 1.
Based on the Arizona Constitution, there can be no doubt that
have rights which exist independent of government and that such
exist despite not being enumerated in the Arizona Constitution.
Among such un-enumerated rights must necessarily exist the
basic right of each adult to control his or her own body. It is
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
one's own body must necessarily encompass the right to control
medications and other substances are introduced into the body.
In interpreting the Arizona Constitution, the Arizona Supreme
previously recognized the liberty right of an individual to
ingestion of unwanted chemical substances. See, Large v. Superior
148 Ariz. 229, 714 P.2d 399 (1986). Such a pronouncement is
illustration of the more fundamental and basic right to control
body. Consistent with this constitutional right to refuse
the reciprocal right to voluntarily ingest chemical substances
own body. Considering that the human body is entirely composed
which are ingested, the fundamental right to control one's own
be rendered meaningless without the right to control what is
Furthermore, a constitutional right to ingest a substance into
body necessarily implies a related right to manufacture,
sell, purchase or possess such a substance or ancillary
items. Therefore, this judge pro tem cannot reconcile the current
prohibition laws with the constitutional right to control one's
body. The drug prohibition laws appear to this judge pro tem to
violation of several provisions of the Arizona Constitution
Ariz. Const. Art. II, =A7=A7 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
citizens of rights without any finding of prior criminal conduct
circumstances justifying a restriction or deprivation of such a
This judge pro tem is bound to faithfully support the Arizona
Constitution. Ariz. Const. Art. II, =A7 26. However, this judge
acknowledges that the Arizona Supreme Court has previously
possession of marijuana in a person's own home is not a basic
constitutional right. See, State v. Murphy, 117 Ariz. 57, 570
(1977). As such, there can be no doubt that the Arizona Supreme
this judge pro tem disagree about the meaning of the Arizona
Constitution. As a Superior Court Judge Pro Tem, it would be
inappropriate to enter an order in direct contradiction to the
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
contemplates that people have rights independent of government
retain despite the fact that such rights are not enumerated in
constitution itself. See, U.S. Const. Amends. IX, X. Indeed, the
States Supreme Court has previously identified particular
constitutional rights which are not enumerated. See, Griswold v.
Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965); Roe v. Wade, 410
113, 93 S.Ct. 705 (1973).
This judge pro tem concludes that, based on the same reasoning as
to the Arizona Constitution above, there exists a fundamental
constitutional right to control one's own body which is protected
United States Constitution and is applicable to the State of
the Fourteenth Amendment's Due Process Clause. Although this
tem is not aware of any binding decisions which have recognized
existence of such a federally protected right, this judge pro tem
equally unaware of binding decisions specifically finding that no
However, more particularly relevant to this case is the fact that
Arizona Supreme Court has found that no violation of a
constitutional rights occurs when the state criminalizes the mere
possession of marijuana in one's own home. State v. Murphy, 117
570 P.2d 1070 (1977). Additionally, the United States Supreme
specifically recognized the power of state governments to make
of narcotics a crime. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct.
(1969). That being the case, it would be wholly inappropriate for
judge pro tem to enter an order which contradicts in any way the
precedence established by either the Arizona Supreme Court or the
States Supreme Court. Therefore, recusal is the only appropriate
The Code of Judicial Conduct requires a judge to disqualify
himself or herself when the judge's impartiality might reasonably
questioned. Sup.Ct.Rules, Rule 81, Code of Jud.Conduct, Canon 3 E
(1). The mandates involving recusal in the Code of Judicial
apply with equal force to part time judges pro tem. Sup.Ct.Rules,
81, Code of Jud.Conduct, Application =A7 D.
This judge pro tem is currently a member of the legal committee
National Organization for the Reform of Marijuana Laws ("NORML.")
organization has as its policy statement the following:
NORML supports the right of adults to use marijuana responsibly,
for medical or personal purposes. All penalties, both civil and
should be eliminated for responsible use. Further, to eliminate
corruption and violence associated with any "black market," a
regulated market should be established where consumers could buy
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
this judge pro tem might reasonably be questioned. As such,
Therefore, for all the reasons detailed in this minute entry,
pro tem recuses himself.