39O C T O B E R 2 0 0 7 A R I Z O N A AT T O R N E Y

S P E C I A L F O C U S

L E G A L H I S T O R Y

ven more than most vocations,law is a field that builds on his-tory—through precedent—to

foster a future. That history is a collectionof steps and missteps that often controlsthe path on which our legal system treads.

Knowing your history is one thing,but making history is quite another. Wemay all strive in our own lives and prac-tices to make a mark and leave a legacy,but we know that our actions will beerased with the passage of time.

A recent development in the ArizonaCode of Judicial Administration provides anew way to make a little history—or atleast to designate something as historic.By filing a motion with a court, you canrecommend that any case be designated

“historically significant.” And any personcan take part.

We heard something about this processin a seminar at the June State Bar conven-tion. To learn more, we sat down withthree people who helped shepherd thenew rule to fruition:

Dr. Melanie Sturgeon,Director of the State Archives (in the

History and Archives Division of the Arizona State Library, Archives

and Public Records)

Carol Schreiber,Associate Clerk, Maricopa County

Clerk’s Office

Jennifer Greene,Esq., Policy Analyst, Administrative

Office of the Courts

ARIZONA ATTORNEY: I understand thenew historic designation process was cre-ated as part of a review of the recordsretention policy in the Arizona Code ofJudicial Administration. How did yourreview process work?

CAROL SCHREIBER: This process beganwhen the Supreme Court put together astatewide committee to review the currentrecords retention schedule and update it.During that three or four years that thecommittee was doing its work, we realizedthat there was no statewide written proto-col for the process of designating a case ashistorically significant—though there mayhave been local protocols. But the com-mittee wanted something in writing for astatewide standard and process.

The new records retention schedulewas approved by the Supreme Court onMarch 21, 2006. That was the firstSupreme Court document that providedthe guidelines for the process. Jennifer,Melanie and I have now gone out to tryto “advertise” that there is a SupremeCourt process, with buy-in from theArchives.

AZAT: So you need to alert lawyers andothers about the new way of designatingcases as historic.

SCHREIBER: Yes. We want to get the wordout that it’s so easy to ask the court to des-ignate a case. And if you do that in accor-dance with these guidelines, then theclerks around the state will ensure thatthey will take care of it.

JENNIFER GREENE: Before this, there wasa lot of preservation going on, but not allturned over the State Archives. Part of thecommittee’s goal was that the countiescould turn the records over to a profes-sional archives.

AZAT: When you first began looking, wereyou pleased to discover that a lot hadalready been saved?

GREENE: Under the previous standards,they were required to hang onto most oftheir case files permanently. Not every-thing was well preserved, but it was notbeing thrown away.

SCHREIBER: But the goal was that, ifsomething had been microfilmed, theoriginal case would come to the Archives,not the microfilm.

Our hope is that if a case is designat-ed as historically significant, we can thenhave the county attorneys turn over all ofthe evidence that would go with that case,so that we have a full record.

For instance, we have a lot of theWinnie Ruth Judd [murder trial] materialsthat the county attorney turned over to us.Along with some of the court records, itmakes a really full history. This makes anincredible research package for historians.

AZAT: The change in the retentionschedule—to 50 and 75 years, dependingon the type of case—still seems like a lotof storage. How has the plan beenreceived?

Making H is toryE

requires that either theclerk have the custodyor Archives have thecustody.

AZAT: Have therebeen any filings yetmoving a court to des-ignate something ashistorically significant?

GREENE: I don’tthink we’ve seen anymotions yet.

SCHREIBER: I’m notaware of any inMaricopa County.When the three of usmade a presentation inJune [at the State BarConvention], we eachhad several personscome up to us rattling

off case numbers and names. It’s kind ofdisappointing, and we’re hoping to get theword out more.

STURGEON: And there is a lot of historicalsignificance beyond the legal precedent acase might represent. We get a lot ofresearchers looking at cases not for legalreasons. For instance, we had a Ph.D. stu-dent looking at women going through thecourts in the territorial period—What werethey convicted of? Where did they go? Didthey have prior records? How were theytreated?

We’ve had someone come in looking atChinese women specifically. Or how havechildren been treated in the courts in the19th century versus the early 20th century?What do they tell me about the culture?What do they tell me about society?

AZAT: Case files hold a lot of history.

STURGEON: The reason court records tome are some of the most historically signif-icant records out there is that they are theone place where you can find records ofpeople from all classes, all cultures, allraces, all economic status. They are all inthose court records. They are incrediblyvaluable.

We’ve got some suits between Anglos

w w w. m y a z b a r. o r g40 A R I Z O N A AT T O R N E Y O C T O B E R 2 0 0 7

SCHREIBER: Everyone we’ve heardfrom—the bench, the bar, archivists,clerks—seem to be pleased with the finalproduct. Some people still think,“Seventy-five years! Oh my gosh, that’s solong.” And I look at them and I say,“Compared to ‘forever,’ it’s not really thatlong at all.”

AZAT: Have you heard from clerks thatthey are running out of room for old casefiles?

SCHREIBER: Absolutely. That’s a statewideproblem.

MELANIE STURGEON: And we talk tocounty officials all the time, and that’s acommon complaint, not just for clerks ofcourt but for just about everyone in thecounties. That’s always at the bottom ofthe budget. The people in charge don’tlook at historical records the same way wedo. We’ve lost some material just becausethe mice got into them before they hadproper storage. That’s a real concern.

AZAT: What is your process once youreceive materials?

STURGEON: We start with our territorialcases because they are the oldest and the

most at risk. So our territorial cases arepretty much taken care of.

We have to do a lot of cleaning andconservation. We can’t always do it atonce, because we might get 500 boxesfrom one clerk’s office.

AZAT: When is the new Archives buildingto be completed?

STURGEON: It’s supposed to be finished atthe end of May 2008. We’re anticipating amove in September.

AZAT: Will it be filled with files themoment you move in?

STURGEON: No. we have at least 30 to 50years of growth. It was designed withmovable shelving and other elements, ascompactly as possible.

AZAT: From the clerks’ point of view, youcould await motions from lawyers or oth-ers to designate a case as historic, or youcould simply box everything and send it tothe Archives. Is that right?

SCHREIBER: Yes, either way. The clerkshave the option to preserve the things intheir custody for the prescribed time, or toturn them over to State Archives. State law

The process for designating a case as historically significant is a simple one.Anyone — not necessarily a lawyer or a party to the case—can file a motion in the case

(using the original case number) requesting that the judge designate the file as “historically significant.” Historically significant could mean newswor-

thy or otherwise high-profile cases, which may feature a unique legal issue or controversy, or a well-known party.

The motion must set forth the factual basis for the recommendation and cite to the legal authority—ACJA § 3-402(F). Once the label goes on, the clerk’s office will segregate

the file for long-term preservation by the Arizona State Archives.

Those who have a recommendation of a case that should be so designated must file the motion with a state court presiding judge. A proposed motion form

is available on the Supreme Court’s Web site:

www.supreme.state.az.us/selfserv/Historically_Significant/MotionDesignHistSignif.pdf

S P E C I A L F O C U S

L E G A L H I S T O R Y DESIGNATING A CASE AS HISTORICDESIGNATING A CASE AS HISTORIC

and Chinese. And you can tell by the testi-mony that the Anglos are describing theChinese through their eyes, and theChinese are trying to describe the Anglosthrough their eyes. And there’s a real cul-ture clash, because they’re not really tryingto understand each other, but they’ve gottheir own way of looking at things. It’s likea great picture of a time when people weretrying to interact and not having muchsuccess.

GREENE: I recall that Melaniehas done research on brothelsin Arizona. The women whoowned those were often fairlywell off people. And theywould get in legal disputes.The court records show justhow caught up they were inthe local economy.

There were also a ton ofbigamy cases. Men wouldcome out here from back eastwithout their families, and noreal prospect of ever bringingtheir families, so why not getremarried? Who’s going toknow? That came out in pro-bate cases, because after theguy passed away, all of his wivesshowed up, or his childrenfrom his second wife and hischildren from his third wife.

AZAT: In the Code of JudicialAdministration, there are “his-torically significant cases” andthere are “landmark cases.” Arethe landmark cases those thatare legal groundbreakers—like Miranda?

SCHREIBER: Exactly.

AZAT: And who reviews the motions,should any be filed?

SCHREIBER: The Code requires that themotion be presented to the presidingjudge.

AZAT: What would a motion be com-prised of?

SCHREIBER: You have to explain to thejudge why you think the case is historically

significant. It’s great if you can phrase thatwell.

AZAT: Of course, deciding what’s historiccould be a political thing. There are casesthat are not proud moments for the courts.

SCHREIBER: Absolutely. I’d assume that if amotion were presented and denied, and theattorney felt very strongly that that denialwas inappropriate, that ruling could beappealed, as anything else can be.

GREENE: In fact, we’ve had a hard timedeciding whether we could have one casebe the first to be very publicly so designat-ed. But we could anger people or groupswith our choice. Or we could choose a feel-good case we could identify; but peopledon’t go to court if they’re feeling goodusually.

AZAT: I imagine you’re seeing more andmore turned into microfilm before you canget your hands on it?

GREENE: Clerks are converting things toelectronic images. From a historian’s per-spective, the original paper has a quality

about it that you are losing in a microfilmcopy.

SCHREIBER: And if we don’t have peoplecome forward to recommend designation,it’s going to disappear. One county, forinstance, had lost a lot of their case files,and didn’t know where they were—stilldon’t—and hadn’t microfilmed. They arenow lost. Just gone.

AZAT: So if a lawyer were to read this arti-cle, what would you like heror him to do?

SCHREIBER: I think we’d liketo point out that the proposedmotion form is available onthe Supreme Court’s Web site[as well as on various countysites].

GREENE: And the motion issupposed to use the originalcase number. Lawyers shouldtalk with each other aboutcases they’ve handled or thatthey remember that may havebeen newsworthy or notablein some respect. We hope tohear from people whosememories go back beyond1980.

STURGEON: And I thinklawyers need to think outsidethe legal box and say whatbroader cultural or politicalthemes I’m seeing in the casethat would make this historical.

SCHREIBER: We seek that whole perspec-tive of all the different people in the worldand what is important to them: That’swhat we want. Give us the case that to youhas value for these reasons. I really would-n’t think too many courts are going to dis-agree with most of these proposals.

And what we wrote into the scheduleon purpose is that any person may submita motion to the court; it doesn’t have tobe a lawyer, it doesn’t have to be yourcase. It doesn’t have to be a clerk, or a his-torian. We’re open to all input.

That was by design, so we would catchsome that otherwise might be missed.

Lawyers should talk

with each other about

cases they’ve handled

or that they remember

that may have been

newsworthy or notable

in some respect.

If we don’t have

people come forward

to recommend

designation, it’s going

to disappear.

AZAT

Making History

41O C T O B E R 2 0 0 7 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