12 A R I Z O N A AT T O R N E Y J U N E 2 0 0 5

Hon. Patrick Irvine was appointed to the Arizona Court of Appeals,Division 1, in 2002. He was born in Arizona and is a graduate of theArizona State University College of Law.

1965-2oo5BY HON. PATRICK IRVINE

Arizonathe

Court of Appeals

Division I, First Judges, circa 1967Francis J. Donofrio, James Duke Cameron, Henry S. Stevens

13J U N E 2 0 0 5 A R I Z O N A AT T O R N E Y

owes its very existence to the state’s evolution from thewestern frontier to one of the largest states in the RockyMountain region. When Arizona became a state in 1912,each of the 14 counties had one superior court judge, andthe three-member Supreme Court heard all appeals. Toaccommodate the increasing workload, the SupremeCourt was expanded to five members in 1949.

With the state’s continued growth in the 1950s, theArizona Constitution was amended in 1960 to authorizethe legislature to create an intermediate appellate court. In1964, legislation creating the Court of Appeals was enact-ed. The Court was given jurisdiction over most appealsfrom the superior court, except criminal cases punishable

by death or life impris-onment (which wouldgo directly to theSupreme Court), andover worker’s compen-sation awards by theIndustrial Commission.

The structure of theCourt reflected thepolitical realities of thetime. Reapportionmenthad not yet shifted

power to the cities, and the non-urban areas were well rep-resented in the legislature. Obviously concerned that mostjudges of the Court of Appeals would come from Phoenix,the Court was divided into two divisions, each consistingof three judges. Division 1 sat in Phoenix and heardappeals from Maricopa, Yuma (and later La Paz), Mohave,Coconino, Yavapai, Navajo and Apache counties. Division2 sat in Tucson and heard appeals from Pima, Pinal,Cochise, Santa Cruz, Greenlee, Graham and Gila coun-ties. To ensure the selection of non-urban judges, the leg-islation required that two of the judges of Division 1 bechosen from Maricopa County, and the third selectedfrom another county within the division. Likewise, two ofthe judges of Division 2 were required to be chosen fromPima County and the other from another county.

The original six judges were nominated in partisan pri-maries, but they were elected in the 1964 general electionwithout party designation. On Division 1, Francis J.Donofrio and Henry S. Stevens were from MaricopaCounty, and James Duke Cameron from Yuma County.On Division 2, Herbert F. Krucker and John F. Molloy

w w w. m y a z b a r. o r g

Court histories can be dull and boring,filled with dry statistics and stories ofinternal disputes over proper record-keeping methods, budgets and opin-ion formatting. Writing about anintermediate appellate court such asthe Arizona Court of Appeals is par-

ticularly challenging. Compared to the drama of a trial orthe finality of a court of last resort, an intermediateappellate court often seems like just another step in thelitigation process—and a not particularly noteworthystep at that. Angry litigants will shout “I’ll see you attrial!” or threaten “I’ll take this case all the way to theSupreme Court.” Noone seriously threatensto take a case “all theway to the ArizonaCourt of Appeals.”Consequently, thisarticle does notaddress the intricaciesof selecting a chiefjudge, or the debatesover how cases areassigned to calendars.It simply outlines some of the basic facts about theArizona Court of Appeals to provide context to the moreinteresting Judicial Memories published elsewhere in thismagazine (see p. 26).

The real importance of the Arizona Court of Appealsis that for 40 years an appeal to the Court of Appeals hasbeen the only appeal that most litigants will get. TheArizona Supreme Court is required to review all deathsentences, and it chooses to consider as direct appeals orspecial actions many issues involving elections, separationof powers, constitutional rights and other important pub-lic policies. Add in the Supreme Court’s supervision of thejudiciary and the practice of law, and other administrativeduties, and it is no wonder that in recent years more than98 percent of the decisions from the Court of Appealshave been the final word. Although many of these casesattract no publicity and address no novel issue of law,many are quite complex, and to the people involved thecase is the most important court case they will ever see.For them, the Court of Appeals is the last stop.

As with many things in Arizona, the Court of Appeals

DIVISION

1Judgesin order of appointment

* deceased

Then & Now . . . . . . . . . . . . . . . . . . . . . . . . . . .19

The State Courts Building . . . . . . . . . . . . . . .20

Court of Appeals Staff . . . . . . . . . . . . . . . . . . .24

Judicial Memories . . . . . . . . . . . . . . . . . . . . . . .26

ALSO IN THIS SPECIAL SECTION

James Duke Cameron*

Francis J. Donofrio*

Henry S. Stevens*

Levi Ray Haire

Eino M. Jacobson

William E. Eubank*

were from Pima County, and James D. Hathaway wasfrom Santa Cruz County. Donofrio, Stevens, Krucker andMolloy were all sitting superior court judges, Cameronhad served on the superior court, and Hathaway was theSanta Cruz County Attorney.

The Court opened for business in January 1965. Thehoneymoon was short. The Supreme Court wasted notime in sharing the appellate workload, transferring hun-dreds of cases to the new Court. Hundreds more werefiled during the first year.

Those early years saw the Court of Appeals establishitself as an independent court. Division 2 obtained officespace and a hearing room that became its courtroom inTucson’s State Office Building. It remained in that spaceuntil 1991, when it moved next door to a new buildingand a much larger courtroom.

Division 1 moved into the State Capitol and shared acourtroom with the Supreme Court. Proximity to theSupreme Court led to some tensions. The Supreme Courtjustices tried in several ways to direct the Court of Appealsin how to operate. Chief Judge Henry Stevens informedthem that if the Supreme Court wanted to direct theCourt of Appeals in how it would do its business, theyshould put it in a formal rule, otherwise the Court ofAppeals would manage itself! In 1975, the Court ofAppeals got its own courtroom on the first floor of thenew west wing of the Capitol. As it grew it also usedoffices elsewhere in the building. When the new StateCourts Building opened in 1991, the Court of Appealsmoved there and occupied parts of the second and thirdfloors.

Growth became the hallmark of the Court of Appeals,particularly Division 1. A second three-judge panel wasadded in 1969, a third in 1974, a fourth in 1982, and afifth in 1989. In each case, the original structure of twojudges from Maricopa and one from the other countieswas maintained. In 1995, Division 1 was expanded to 16judges so that the Chief Judge could devote time to thecourt’s increasing administrative workload. The 16thjudge can come from any county within the Division, butthe two appointed under this provision have resided inMaricopa County. Division 2 also has expanded, with asecond panel being added in 1985, with one of the newjudges having to be chosen from outside Pima County.

At age 40, the Court of Appeals currently consists of16 judges in Division 1 and six in Division 2. In additionto the judges from Phoenix and Tucson, current judges

come from Kingman, Yuma, Prescott, Flagstaff, Nogalesand Casa Grande.

The caseload also has increased proportionately. Overtime, the Court’s jurisdiction has been expanded toinclude cases in which the sentence was not death, but lifeimprisonment (the Supreme Court immediately trans-ferred several dozen of these cases to the Court ofAppeals), as well as unemployment insurance appeals fromthe Department of Economic Security and direct appealsfrom the Corporation Commission.

Because of the growth, it has sometimes been neces-sary to take extraordinary measures to handle the caseload.From 1974 to 1986, special actions—which would typi-cally have been heard by Division 1—were heard directlyby the Supreme Court. Numerous cases also were trans-ferred from Division 1 to Division 2. In the 1980s and1990s, Division 1 also made extensive use of pro temjudges (Department S) to speed the processing of cases.Each division has expanded its professional staff andincreased its use of technology. These efforts have largelybeen successful, with significant reductions in the delaysthat were common in the 1970s and 1980s.

Over the years, 50 judges have served on Division 1and 17 on Division 2. The original six were directly elect-ed. With one exception, all others were appointed by thegovernor to fill vacancies as they occurred, to fill new pan-els, or under the merit selection system that took effect in1975. The exception was in 1972 when Jack Ogg ranagainst and defeated Williby Case, who had been appoint-ed to replace James Duke Cameron when he was electedto the Supreme Court (Case would go on to serve sever-al years as a superior court judge in Maricopa County).Another judge to not win re-election was Gary Nelson,who, under the new selection system, failed to be retainedin 1978 (Nelson later served 18 years as the Chief StaffAttorney for the Arizona Supreme Court).

The judges have come from a variety of professionalbackgrounds. All have been experienced in the public orprivate practice of law; some with big firms, some in solepractice; some as prosecutors, some as defense lawyers.Many have been superior court judges.

Many also have served in the armed forces, includingwartime service in World War II, Korea and Vietnam.Herbert Krucker served on the staff of Justice RobertJackson at the Nuremberg war crime trials. Jack Ogg wascaptured by the German army in the final days of the war,but he escaped.

14 A R I Z O N A AT T O R N E Y J U N E 2 0 0 5 w w w. m y a z b a r. o r g

Court of Appeals

Jack L. Ogg

Gary K. Nelson

Donald F. Froeb*

Laurance T. Wren*

Mary M. Schroeder

Joe W. Contreras

Williby E. Case*

16 A R I Z O N A AT T O R N E Y J U N E 2 0 0 5

Some judges have been electedofficials: Gary Nelson as attorney gen-eral, Sandra Day O’Connor as a statesenator, and several as county attor-neys.

Judges also have distinguishedthemselves in academia or elsewhere.Joseph Livermore was the dean of theUniversity of Arizona law school,Rudolph Gerber taught philosophy atthe University of Notre Dame, andRebecca White Berch was the directorof the legal writing program at theArizona State University law school.Williby Case was president of the StateBar of Arizona for 1966-1967. BruceMeyerson founded the Arizona Centerfor Law in the Public Interest. RuthMcGregor served as one of JusticeO’Connor’s first law clerks on theUnited States Supreme Court. As thissample shows, each judge has broughta unique mix of experiences to theCourt.

In many ways the composition ofthe Court has tracked the changes inArizona. Five of the original six judgeswere raised in Arizona. All six weregraduates of the University of Arizonalaw school, the only law school in thestate at the time (Molloy also had a lawdegree from the University of KansasCity).

University of Arizona graduatesstill account for just more than half(34) of the 67 judges who have servedsince 1965, but currently only three ofthe Division 1 judges and four onDivision 2 come from that school.Arizona State University law school,which graduated its first class in 1970,has had 11 of its graduates appointedto the Court of Appeals, with four cur-rently on Division 1 and one onDivision 2. The other judges receivedtheir legal educations at 18 differentlaw schools from all over the country:

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Robert J. Corcoran

Sarah D. Grant

J. Thomas Brooks

Bruce E. Meyerson

Thomas C. Kleinschmidt

D. L. Greer*

Sandra D. O’Connor

Court of Appeals

1980

1983

1985

1989

DIVISION ONE

“It is unlikely that any intermediate

appellate court in the country has as

distinguished a group of alumni as the

Arizona Court of Appeals.”

Stanford (3), Cornell (2), BrighamYoung (2), Harvard, Yale, Fordham,Georgetown, Virginia, Duke,Michigan, Notre Dame, Ohio State,Chicago, Iowa, Colorado, Wyoming,U.C.L.A. and California Western.Along with thousands of others, manyof the Court of Appeals judges movedto Arizona in search of opportunityand warm weather.

Also reflecting Arizona and the barin the 21st century are the increasingnumbers of women and minorityjudges. Mary M. Schroeder becamethe first woman to join the Court ofAppeals when she was appointed toDivision 1 in 1975. Joe Contrerasbecame the first Hispanic judge onDivision 1 in 1979, and was followedon Division 2 by Greenlee CountySuperior Court Judge LloydFernandez in 1985. Cecil B.Patterson, Jr., became the first African-American appellate judge in 1995.

Most judges of the Court ofAppeals have served until their retire-ment, and many continued after retire-ment to make significant contributionsto the legal system as lawyers, arbitra-tors or pro tem judges. Others haveleft the Court for bigger things.Indeed, it is unlikely that any interme-diate appellate court in the country hasas distinguished a group of alumni asthe Arizona Court of Appeals. Bestknown is United States SupremeCourt Justice Sandra Day O’Connor,who first served as an appellate judgeon the Court of Appeals from 1979 to1981. O’Connor replaced MarySchroeder, who was appointed to theNinth Circuit Court of Appeals andnow serves as its Chief Judge. Also inthe federal courts are John Roll, wholeft Division 2 upon his appointmentas a United States district court judge,and Edward Voss, who was appointed

17J U N E 2 0 0 5 A R I Z O N A AT T O R N E Yw w w. m y a z b a r. o r g

Rudolph J. Gerber

Edward C. Voss III

Susan A. Ehrlich

Ruth V. McGregor

Noel Fidel

Melvyn T. Shelley*

1991

1992

1997

2000

2004

DIVISION ONE

John L. Claborne*

18 A R I Z O N A AT T O R N E Y J U N E 2 0 0 5 w w w. m y a z b a r. o r g

John F. Taylor

Philip E. Toci

William F. Garbarino

E. G. Noyes, Jr.

Sheldon H. Weisberg

Jon W. Thompson

Jefferson L. Lankford

as a federal magistrate judge after his retirement fromDivision 1.

Three of the current members of the ArizonaSupreme Court served on the Court of Appeals: RuthMcGregor from 1989 to 1998, Michael D. Ryan from1996 to 2002, and Rebecca White Berch from 1998 to2002. Two other Court of Appeals judges also went onto the Arizona Supreme Court. James Duke Cameronwas one of the original members of Division 1, taking hisseat only after defeating opponents in both the primaryand general elections of 1964. In 1970 he successfully ranfor a seat on the Arizona Supreme Court, where heserved for 22 years. Robert J. Corcoran served on theCourt of Appeals from 1981 to 1989 before beingappointed to the Supreme Court, where he served until1996.

Some judges have left the Court to return to thepractice of law. John Molloy left Division 2 in 1969, andby the time of his retirement from the active practice oflaw in 1989 headed one of the largest firms in Tucson.Bruce Meyerson resigned from Division 1 to becomeGeneral Counsel to Arizona State University, and later

returned to private practice, where he is a recognizedleader in alternative dispute resolution. Meyerson andLawrence Howard of Division 2 continue to be main-stays of the appellate mediation programs of their respec-tive divisions.

As you can read in the Judicial Memories, the Courtof Appeals has been a good place to work. Many peoplehave devoted their careers to making it work well, includ-ing dedicated staff members, who are not responsible (orto blame) for the decisions, but without whom very fewcases would ever be decided (see sidebars regarding Courtstaff on p. 24). Sometimes this has been easy; sometimesnot. There have been conflicts within the Court, betweenits divisions, with the Supreme Court, and with the supe-rior court, but these have not prevented the Court fromfocusing on the job of deciding real disputes involvingreal people.

The real history of the Court is in its decisions,which are generally made with little fanfare and reflect agenuine desire to arrive at the best possible result. Thishas been the Court’s mission for 40 years, and it is likely to remain so for the next 40.

THEN

NOW

DIVISION TWO

Court of Appeals

AZAT