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BY TIM EIGOPHOTOGRAPHY BY JOHN BECKETT

ARIZONA ATTORNEY: You left the Arizona Supreme Court and joined the district court in February. How doyou like returning to life as a trial judge?Judge Fred Martone: I’m enjoying it immensely. I enjoy the activity. I enjoy the people. I enjoy thelawyers. I enjoy the variety of the cases. I enjoy the breadth of federal issues.AZAT: What is the biggest change in your move?Martone: I enjoyed being an appellate judge on a court of last resort. But I also enjoyed trialjudging. The fact is, they’re both nice, and I am really lucky to be able to do both.AZAT: The question most people would ask is, Why make the move at all? Whatcompels someone to leave the State’s highest court?Martone: One thing I missed was people. That’s one nice thing about [thedistrict] court, is that you have an opportunity to see more people.

Justice Frederick Martone spent 10 years on the Arizona Supreme Court. Last year, he decided toput his name forward for a federal district court judgeship. When his nomination was confirmedand he began his new position in February, Martone went from one high-profile position toanother. ARIZONA ATTORNEY recently caught up with Justice—er, Judge—Martone toask about his current job—and his most recent one.

Supremely SatisfiedJustice Martone’s Big Move

on the record

The Arizona SupremeCourt can be a pretty lonelyplace, mostly because, as a

court of last resort, it’s relatively small.Two of the five members, at least while Iwas on the Court, lived and worked inTucson, and we had argument just twice amonth. So it was a place where you didn’thave many opportunities to interact withlawyers.AZAT: Your work must be far differenthere.Martone: Here, it’s a little different in thesense that you’ve got a much busier calen-dar, you’re in the courtroom every day, soyou have lawyers appearing every day. Thatpart of it really is nice.AZAT: What do you enjoy about interact-ing with counsel?Martone: You have a chance to talk to thelawyers during argument, pick their brainabout the case, test your theories about thecase against their positions. The beauty ofthis is that I get to do that every day.

I think oral argument—whether in dis-trict court or in the Arizona SupremeCourt—for the most part is an opportuni-ty to have a working conversation withcounsel to get to the bottom of a case.[You are] trying to solve the puzzle that’spresented.AZAT: Was anything else appealing toyou?Martone: I liked the opportunity to be apart of the federal system.

I really enjoyed being a state judge.After 10 years on the Arizona SupremeCourt, I had done just about everything Icould do. There was not much left; therewere no more growth opportunities.

Whereas, coming into the federal sys-tem, the learning opportunities are amaz-ing. I’ve been exposed to whole areas ofthe law that I haven’t thought about inyears: all the federal issues—environmentallaw, immigration law, copyright, trade-mark, federal employment discrimination,patent cases.AZAT: Some court of appeals judgesrecently indicated that they think theArizona Supreme Court takes too fewcases. Do you agree?Martone: I don’t think the Court shouldbe taking more cases. I think the fact it’s

ence.My list would consist of maybe three or

four cases, Justice McGregor’s list wouldconsist of three or four cases. But JusticeFeldman and Justice Zlaket and JusticeJones might have 15 or 20 cases on the list.And many of those cases were cases thathad no effect other than on the partiesthemselves. Some members of the Court… would review a case in which just erroris urged.

So there was a very, very keen differ-ence of opinion about what the role of theCourt was. And many of the debates thatwe had the whole 10 years revolved aroundthat central question.AZAT: Would there be benefits to increas-ing to Court to seven judges?Martone: That would be a tremendousidea. … The mix would be better. You’dhave a broader diversity of views, and youwould minimize the possibility that a smallblock of the Court could always controlthe outcome. … You wouldn’t have threepeople or so controlling both the docket ofthe Court and the outcome of the cases.AZAT: You seem to have mixed feelingsabout your time on the Court.Martone: It’s like so many things in life:There were good things and not-so-goodthings. … The Court during my tenurewas sort of dominated by a majority thathad a different vision about what the roleof the Court was. That made it less funthan it could have been.AZAT: Did being a court of last resortcontribute to that situation?Martone: At a court of last resort at thestate level and the Supreme Court of theUnited States, the same people are lockedinto the same debate year after year afteryear. … You ask capable, intelligent, livelypeople to sit in a room together for 10years and decide cases over which reason-able people can disagree. That’s a chal-lenging thing to ask people to do. It’s notuncommon in state courts of last resortthat there are strained relationships. I thinkeach member of a court of last resort has tokeep in mind always that you must be ableto disagree without personalizing it orbeing disagreeable personally. Some peopleare more able to do that than others.

You don’t get to choose your partners;

taking fewer cases is a good sign, a positivesign, an important sign.AZAT: There was an open debate on theCourt about accepting petitions for review.Martone: There was always a difference ofopinion among the members of the Courtduring the whole 10 years I was there onwhat the appropriate role of a court of lastresort was, what are the standards forgranting or denying a petition for review.

I was always of the opinion that a courtof last resort is not just another tier ofappellate review, that the Court of Appealsis the court of error in Arizona. That’swhere the direct right of appeal begins andends, and further review in the SupremeCourt is discretionary. In accordance withboth the standards of the American BarAssociation and the Court’s own rules onpetitions for review in both civil and crim-inal cases, the mere existence of error isnot a sufficient reason to grant review.Otherwise, you’d have two courts of error.AZAT: But what’s the danger in taking toomany cases?Martone: A court of last resort has to bevery careful about how it uses its time. It’snot a very resource-rich court in the sensethat there are only five members. Duringthe years I was there, deciding which casesto take fully consumed at least half ourtime.AZAT: What kinds of cases should theCourt take?Martone: Cases in which there are con-flicting opinions in the court of appeals orconflicting opinions between the divisionsof the court of appeals, cases in which theconstitutionality of a statute has beenthrown into question, cases in whichsomeone is asking us to overrule one ofour cases, which the Court of Appeals ispowerless to do, or other cases of statewideimportance raising legal issues that arebroader than the issues that separate theparties—those are the kind of cases a courtof last resort is supposed to be looking at.AZAT: How did the disagreement playout?Martone: When 100 cases were circulatedfor review by the five members of theCourt, each member of the Court would,after careful review, send a list of thosecases that one wanted to discuss in confer-

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on the record

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it’s not like a law firm.AZAT: Can any other elements help theArizona Supreme Court? For instance,Justice Ryan, a former trial judge, recentlyjoined the Court.Martone: He is an absolutely excellentaddition. When I sat there, I was the onlytrial judge in the last four or five years orso. That’s a dimension that’s important. Idon’t mean to suggest that every memberof the Court needs to be a trial judge, butyou need to have some members of thecourt of last resort who have been trialjudges.

Those who have been trial judges havehad to sit as a neutral, dispassionate magis-trate, have had to listen to both sides, doyour sincere best to reach the correct out-come.

Justice Ryan can express a viewpointthat’s missing right now, … not only interms of dogged neutrality but also interms of having a keen understanding ofthe limitations imposed by the system on atrial judge—large numbers of cases, limit-ed resources and you’re deciding thesecases and moving on to the next one.

You have to go into it with the idea thatpresumptively the trial judge is correct,and it’s the obligation of the appellant toshow there was error. In my experience,some—not all—of the members of theArizona Supreme Court brought with

them their experience as trial lawyers firstrather than as judges, and almost lookedfor error with a magnifying glass.AZAT: Can you describe the process ofyour becoming a federal judge?Martone: It’s almost an exhilaratingprocess. It’s very demanding. It’s a verypersonal experience in looking at how ourgovernment works, because you’re dealingwith all three branches.

Going back to Washington to be inter-viewed by White House Counsel RobertoGonzalez was an interesting experience. Heis a very impressive and talented person.

Being ushered into the west wing onmy interview—it’s a special experience.And then going back for hear-ings before the Senate JudiciaryCommittee—again, very special.AZAT: What was it like to be inthe White House as a nominee?Martone: No matter how oldyou are or what your experi-ences have been, just as anAmerican it’s a special thing,because it’s our house. I remem-ber sitting in the waiting areaand Condaleeza Rice walked in,so I knew then that I was in theright place.AZAT: So the process was a pos-itive experience?Martone: It was very positive.

S E P T E M B E R 2 0 0 2 A R I Z O N A AT T O R N E Y

EDUCATION: B.S., College of the Holy Cross, 1965; J.D., University of NotreDame Law School, 1972; LL.M., Harvard Law School, 1975

CLERKSHIP: With Hon. Edward F. Hennessey of the Supreme Judicial Courtof Massachusetts (1 year)

LAW EXPERIENCE: Associate with Jennings, Strouss & Salmon, 1973–77; staff attorney with the Supreme Judicial Court of Massachusetts,1974–75; partner with JSS, 1978–85; Maricopa County Superior Court judge, 1985–92; Arizona Supreme Court Justice, 1992–2002

SERVICE: U.S. Air Force, 1965–69, took commission as 2nd lieutenant

FAMILY: Wife, Jane, is a medical social worker at Mesa Lutheran Hospital; son Jonathan, 29, a broadband specialist with Time–Warner; daughter Anne, 26, a special-education teacher in the East Valley.

INTERESTS: Running; active in a book club; hiking and camping; founding Master of the Horace Rumpole Inn of Court

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After that, I went over to the SupremeCourt and had lunch with JusticeO’Connor, who was kind enough to servelunch in her office. We looked out overthe Capitol.AZAT: It sounds like the move to districtcourt was the right move at the right time.Martone: It’s been a wonderful learningexperience so that I can grow again.That’s really exciting. I’m learning thingsall the time that I didn’t know anythingabout. I’ve got so much to learn here. Itwill take me years just to be exposed toeverything. I’ve discovered in life thatwhen you’re learning, you’re excited andgrowing.