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Fill-in judge fired; refused to hear court's drug cases

Jim Walsh

The Arizona Republic

Mar. 27, 2003 06:15 PM

A judge pro tem was fired Thursday, his first day on the job at a Mesa

courthouse, for refusing to hear drug cases.

Arizona Chief Justice Charles Jones fired Marc Victor, a Mesa defense

attorney, saying Victor "expressly declared his inability to be impartial

in the application of the law and the disposition of cases before him."

But Victor, a marijuana legalization activist, said he recused himself

only on drug cases, not all cases.

"I thought it was the honest, up-front thing to do," said Victor, who

brought a six-page proposed "minute entry" with him to Maricopa County

Superior Court, outlining why he believes drug laws violate the U.S. and

Arizona constitutions.

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 Presiding

Criminal Judge Thomas O'Toole and Presiding Superior Court Judge Colin


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 judges.

"It made me feel there is no room for dissent on the bench," Victor said.

"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 judges who

oppose drug laws.

J.W. Brown, a Superior Court spokeswoman, said judge pro tems "serve at

the pleasure of the court and his services were not needed."

Jones rescinded Victor's appointment as the judge pro tem at Campbell's

request, according to a brief court document.

Commissioner Elizabeth Arriola had agreed to handle the court's drug

calendar and the seven drug cases on Victor's routine morning calendar.



Reach the reporter at

jim.walsh@arizonarepublic.com or

(602) 444-7984.





News Update

Judge pro tem kicked off bench

By Gary Grado, Tribune

A Chandler attorney was kicked off the bench Thursday an hour into his

first shift as a judge after he announced in writing that he would

disqualify himself from all drug cases because drug laws conflict with his

libertarian principles.

By the end of the day, the Arizona Supreme Court's chief justice stripped

Marc Victor of his authority to work as a judge pro tem, whi ch are

attorneys who serve for free as temporary judges.

"I was pretty shocked," said Victor, 34, a criminal law defense attorney

who also serves on the legal committee for the National Organization for

the Reform of Marijuana Laws, also known as NORML. "Either you take a

certain philosophical position or you can't be a judge."

Judge Thomas O'Toole, who heads Maricopa County's criminal law judges,

said Victor was using the courthouse as a political platform, which was

"grossly inappropriate" and "bizarre."

"This conduct was a legal blindside," said O'Toole, who ordered Victor off

the bench in the morning. "We were set up."

Victor, a libertarian who believes drug laws are unconstitutional, applied

for the position and was approved this year.

His position with NORML was reason enough to disqualify himself from drug

cases in order to prevent an appearance of bias, but he also wanted it

known that his views would clash with rulings by the U.S. and Arizona

Supreme Courts upholding the constitutionality of drug laws, Victor said.

He wrote a six-page explanation that he planned to insert into the record

of each drug case as a minute entry.

Victor was originally assigned to Superior Court's Early Disposition

Court, which is for accused drug offenders, but he switched court

calendars with another judge. Victor said the new Superior Court calendar

had 40 criminal cases, but only about eight involved drugs, which he

planned to send to the judge with whom he switched.

After Victor heard the first two drug cases, a court clerk informed

O'Toole, who read the explanation and sent Victor packing.

O'Toole said judges disqualify themselves from certain cases all the time,

but they don't necessarily have to put their reasons in writing or even

state them for the record.

And O'Toole said there is a chance he will report Victor to the Arizona

Commission on Judicial Conduct, the panel that polices judges.

"It's a real chilling kind of a thing for one judge telling another judge

what he can say in a minute entry while he's recusing himself," Victor

said. "It's another thing if I decided to sit on drug cases and started

dismissing them."





(Updated 3/28/03 2:37 PM)

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


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


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 at





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,

"=85[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, =A7 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, =A7


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, =A7 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, =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 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, =A7 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

precedence 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 =A7 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


Therefore, for all the reasons detailed in this minute entry, this judge

pro tem recuses himself.


an old article, but shows how such a site could help reporters. ALso, we

could archive news stories like this.




·         James Gray, presides over the Orange County, California Superior Court,


"Drug Prohibition has failed from every standpoint imaginable: unnecessary prison growth, increased taxes, increased crime and corruption here and abroad, loss of civil liberties, decreased health, [and] diversion of resources," he said.

"I could go on and on. Much of what I see as a judge brings a tear to my eye. The drug war is destroying the fabric of society."

Gray acknowledged that drugs are dangerous, but said, "Many things in our society are dangerous, but making them illegal is not the answer. Does anyone really believe that making tobacco illegal would reduce the harm it causes? What about glue, gasoline, chain saws, and high-cholesterol foods?"

In fact, Gray said he took his anti-drug war position not because he advocates using drugs -- but because he is so opposed to them.

"I hate drugs so much that I want to change our policy so that we can reduce drug usage and the other harms these dangerous drugs are causing," he said. "These drugs could not be made more available than they are under our present system. We can't even keep them out of our prisons, much less off our streets."


·         Eric E. Sterling was counsel to the U.S. House Committee on the Judiciary, 1979-1989 and participated in the passage of the mandatory minimum sentencing laws. Currently, he is President of The Criminal Justice Policy Foundation, Washington, DC and Co-Chair of the American Bar Association, Committee on Criminal Justice, Section of Individual Rights and Responsibilities.


The ignorance about what's going on exists on a bunch of different levels. Number one, the offenders themselves are ignorant of what the penalties are that they could incur. Congress says, "We're going to pass these tough laws to send a message to the criminals to stop." But there's a complete disconnection between what Congress hopes and what criminals actually understand. They don't watch C-SPAN, they don't read "Congressional Record." They simply don't know. They're astonished when they get punished. Congressmen also don't know what the laws are. Many of them don't even know that parole was abolished. The public doesn't know what the laws are. The public still believes that people are getting slapped on the wrist. These are examples which then allow a member of Congress to say with a straight face, "We need to get tougher."

·         Judge Robert Sweet, United States District Judge, Southern District of New York


It's a travesty. Fundamentally, I think the idea of using criminal law for this purpose is wrong. But, past that for the moment, if you are going to make this kind of conduct criminal, then at least the punishment ought to be fair. And the idea of an arbitrary, absolutely arbitrary, no escape mandatory sentence [that] fits all [cases]... I myself, feel that that is not due process.

I think it's when you get to sentencing that you find it's extremely hard for judges when they have to impose these arbitrary sentences. The surveys indicate that something like 80%-90% of the judges are opposed to mandatory minimums because they have seen them at work. And they know that injustice results. Now that's a very troublesome thing for a judge.

Prop 215- concerning medicinal use of marijuana


·         Chief judge Mary Schroeder, Ninth U.S. Circuit Court of Appeals

Writing for the Court, Chief Judge Mary Schroeder opined that the federal government's threats to sanction doctors who advised their patients about medical marijuana struck "at core First Amendment issues of doctors and patients."

"The government's policy in this case seeks to punish physicians on the basis of the content of their doctor-patient communications," she wrote.  "Only doctor-patient conversations that include discussions of the medical use of marijuana trigger the policy.  Moreover, the policy does not merely prohibit the discussion of marijuana; it condemns an expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient.  Such condemnation of particular views is especially troubling in the First Amendment context."

Schroeder further added that a doctor's recommendation "does not itself constitute illegal conduct," and therefore "does not interfere with the federal government's ability to enforce its laws."

·         Judge Alex Kozinski, United States Claims Court (1982-85); Ninth Circuit (1985-present)

Justice Alex Kozinski said the government's policy threatens to deny patients "information critical to their well-being."  Kozinski also noted that locally grown medical marijuana "does not have any direct or obvious effect on interstate commerce;" therefore, federal efforts to prohibit it exceed Congress' power under the Commerce Clause of the Constitution.

"[As] much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so," he wrote.

·         U.S. District Judge Fern Smith

"The government's fear that frank dialogue between physicians and patients about medical marijuana might foster drug use ... does not justify infringing First Amendment," Judge Smith wrote in a 43-page order. "It is important to recognize what this case is about. It is not about doctors prescribing, growing, or distributing marijuana; nor is it about giving free rein to patients to make massive purchases of marijuana for distribution. Instead this case is about the ability of doctors, on an individualized basis, to give advice and recommendations to bona fide patients suffering from serious, debilitating illnesses regarding the possible benefits of personal, medical use of small quantities of marijuana."

·         Randall Samborn, "7th Circuit Concludes Drug War Is Lost Cause," National Law Journal, 6/7/93, p. 6- Highly regarded Judge Richard Posner said he would favor immediate legalization of marijuana and hallucinogens. Posner, likely to be the next chief judge of that court, was responding to a question May 25, and added that legalization was not politically feasible. http://www.ndsn.org/july93/lost.html

·         Chief justice Ronald M. George

·         Irving, J. Lawrence U. S. District Court, Southern District of California

·        Judge James P. Gray - Superior Court, Orange County, CA

·        Judge James Smith - Superior Court

·         Judge Charles W. Froelich Jr. - San Diego, CA Appealate Court

·         Judge William A. Newson - San Francisco, CA Appeallate Court

·         Remarks By Senior Judge John L. Kane of the U.S. District Court of Denver, Colorado


“Not all people who drink alcohol or smoke tobacco are killed or seriously injured as a result, nor are all voluntarily obese people fatalities. The same is true of those who take illegal drugs: not all, nor even most who use them are killed, seriously injured or addicted. Yet it is our stated national policy to imprison all those who possess, sell or use illegal drugs. That policy is pure folly.”