at toARI ZOrNAney MAGAZINE

On March 29, 1988, Paul Eckstein was cross-examining Robert L’Ecuyer on the floor of the Senate, during the impeachment trial of Governor . Mr. The History Issue Eckstein was an attorney for the Board of Managers, the five members of the Arizona House of Representatives responsible for prosecuting the articles of impeachment filed in the Senate against the then-Governor.

20 ARIZONA ATTORNEY SEPTEMBER 2008 On direct examination, ing that led to L’Ecuyer’s voluntary retire - ceeding had the potential to spiral out of L’Ecuyer had offered his opinion that it was ment from the State Bar of Arizona. control. But thankfully for the people of proper for Mecham to “loan” $80,000 L’Ecuyer had “borrowed” some $5,500 Arizona, the man who presided over the from the Governor’s protocol fund to from his trust fund, and his defense was that impeachment simply would not let that Mecham’s struggling Pontiac dealership he was paying a higher rate of interest than happen. because, among other reasons, Mecham the trust fund could otherwise obtain. Before L’Ecuyer had a chance to read his paid a higher rate of interest than the pro - Not wanting to answer Eckstein’s ques - statement, Chief tocol fund was otherwise realizing. In his tions, L’Ecuyer attempted to read a pre - Justice Frank Gordon, sitting as the cross-examination, Eckstein was asking pared statement into the record. This was a Presiding Officer of the Court of L’Ecuyer about a bar disciplinary proceed - moment where a truly momentous pro - Impeachment, turned to L’Ecuyer, pointed

BY FREDERICK R. PETTI AND DANNY ADELMAN The authors served as Justice Gordon’s law clerks during the 1987/1988 term of the Arizona Supreme Court, and both now practice in the Phoenix area. FRED PETTI is a partner at the firm of Rake, Petti & Collins, and DANNY ADELMAN is a partner at the firm of Adelman German, P.L.C.

All the senators, staff and lawyers involved in the court of impeachment.

SEPTEMBER 2008 ARIZONA ATTORNEY 21 at toARI ZOrNAney MAGAZINE The History Issue

ARIZONA ATTORNEY has asked us to having to fend for himself and care for a share our memories of the impeach - large animal. ment trial. It is hard to believe that After graduating from Kingman High more than 20 years have passed since School, he attended , , 1988, when the Arizona where he once dated another Arizonan in Senate voted to sustain two of the his class, Sandra Day. Of course, Sandra three Articles of Impeachment, Day married John O’Connor and was later thereby removing Mecham from appointed to the Supreme the position of Governor of Court by President Ronald Reagan. Many Arizona. But they have, and we years later at a lawyers meeting in Santa Fe, have decided to write this article John O’Connor introduced Justice Gordon to pay tribute to the man who, to his wife, and Justice Gordon replied, according to all of the 30 state “Glad to meet you.” Justice O’Connor senators who sat as the Court said, “What do you mean, ‘Glad to meet of Impeachment, conducted you’? You dated me once at Stanford!” the proceedings with “dignity, After graduation, Gordon attended the patience, dispatch and most College of Law, grad - importantly, absolute fair - uating in 1954. He served as Kingman City ness”—our old boss and Attorney from 1954 to 1956, and then The governor’s signature on the impeachment friend, Frank X. Gordon, Jr. entered private practice in Kingman until rules book. 1962, when Gov. appointed A Brief History him to the Mohave County Superior his gavel, and said sternly, “Mr. L’Ecuyer, Frank Gordon was born in Chicago and Court. Gov. Raul Castro then appointed you’re an attorney. You know that you’re moved to Kingman, Ariz., with his parents, him to the Arizona Supreme Court in here to answer questions. Now, Mr. Frank X. Gordon and Lucile G. Gordon, 1975, and he was elected by members of Leonard [Jerris Leonard, Mecham’s lawyer] when he was only six months old. The year the Court to be Chief Justice in 1987. He will straighten up, I’m sure, anything that was 1929, and the family moved so his served as Chief until he retired from the your answers might bring misconceptions father could start a new and, at the time, Court in 1992. on, but you have no right to make a state - unique business—the sale of title insurance ment from the witness stand. You’re just to on real property. Justice Gordon’s father Our Impeachment Research answer the questions.” was an attorney, and he took and passed the Mecham was elected governor on Nov. 4, A properly contrite L’Ecuyer responded, Arizona bar in 1932. 1986, having won the election with a 40 “You’re correct in admonishing me, Your Justice Gordon often told us about his percent plurality, while Democrat Carolyn Honor. I’m sorry.” childhood in Kingman. According to Warner and Independent Bill Schultz As luck would have it, a photographer Justice Gordon, it was a safe town in those received 34 percent and 26 percent, respec - for was in position to days, and he and his friends wandered its tively. Mecham was sworn in on Jan. 6, capture a photograph of Chief Justice streets freely and knew everyone. In fact, on 1987, and soon thereafter rumors of Gordon at the moment when he was point - Mar. 29, 1939 (exactly 49 years before he impeachment began to circulate. Those ing his gavel, and that photo graced the admonished L’Ecuyer), Gordon and a rumors took on added significance with the front page of the Republic the following friend were standing on a Kingman street allegation that Mecham had violated morning. For many Arizonans, that photo - when a big car pulled up and the driver Arizona’s campaign finance disclosure laws graph provided a visual record of the man asked the boys where there was a church in by failing to reveal a loan he received from who handled the Mecham impeachment town. After providing directions, Gordon an attorney, Barry Wolfson. Impeachment trial with dignity and grace, and made sure and his friend decided to follow the car. ceased being just a rumor when in October that the trial did not become an event that Inside, they watched as Clark Gable married 1987 the Speaker of the Arizona House of brought shame on Arizona. Carole Lombard in an otherwise private Representatives, Joe Lane, hired William P. What Arizonans do not know is that sec - ceremony. French, a former Arizona Superior Court onds before the photograph was taken, Justice Gordon also told us fondly about Judge, to investigate whether there were Justice Gordon popped a hard candy into his horse Jim and his dog Bobby. When he sufficient grounds to impeach Mecham. his mouth, and he hated the photograph was only 10 years old, Gordon rode Jim On Jan. 15, 1988, French delivered a because he could see the lump the candy into the hills, and he and Bobby camped report recommending that Mecham be made in his cheek. out overnight. With his .22 rifle, he killed a impeached. For the next two weeks a We know about Justice Gordon’s reac - rabbit, cooked it over a fire and ate it with Special Committee from the House held tion to the photograph because we had the the watercress he harvested from Beal hearings to determine whether French’s great fortune to serve as his law clerks dur - Springs. Justice Gordon often said that allegations were sufficient to support a vote ing the Mecham impeachment trial. nothing teaches a boy responsibility like of impeachment. On Feb. 5, 1988, the

22 ARIZONA ATTORNEY SEPTEMBER 2008 www.myazbar.org Reflections on an Impeachment

House voted 46 to 14 to impeach Mecham, should start looking into how a Court of Arizona’s Constitution and statutes provid - finding in Article I of the Articles of Impeachment operates. The Judge laughed ed very little guidance, and the task of Impeachment that Mecham obstructed jus - and told us that there was no way that the establishing a court of impeachment was tice by impeding an investigation of a death Republican Legislature would vote to enormous. threat by a member of Mecham’s staff; in impeach a Republican Governor, not even In spite of what we had discovered, Article II, that Mecham failed to disclose a one as controversial as Mecham. Justice Gordon was reluctant to have us $350,000 loan to his campaign from The Judge changed his tune after French begin researching impeachment in earnest. Wolfson; and in Article III, that Mecham was hired, and he poked his head in our One day, the Judge would ask us to hold off improperly lent $80,000 from the office one day and asked us to go ahead and researching until it was more certain that Governor’s protocol fund to his own auto - conduct some research regarding how an impeachment was imminent. The next day, mobile dealership. impeachment trial would be held in he would walk into our office and ask us We young law clerks first raised the pos - Arizona. The Judge told us to spend only a about the very topic he had just told us to sibility of an impeachment trial with Justice small part of our time on the assignment so set aside. After becoming tired of returning Gordon in early September 1967. As we we could continue to perform our court books to the library—only to retrieve them walked back from lunch at the Department duties. We soon discovered, however, that the following day—we eventually ignored of Transportation cafeteria (the Judge liked even though there had been two such trials the Judge and devoted ourselves full-time the tuna fish salad served there), Danny in Arizona (including a 1964 trial of two to learning about impeachment. Instead of asked Justice Gordon whether the rumors Corporation Commissioners at which the poring through the most recent case law in of impeachment seemed so serious that we Special Prosecutor was William Rehnquist), death penalty cases like most of our fellow

Law clerks Danny Adelman and Fred Petti with Chief Justice Frank Gordon.

www.myazbar.org SEPTEMBER 2008 ARIZONA ATTORNEY 23 ARI ZONA at torney Reflections on an Impeachment MAGAZINE The History Issue clerks, we were searching for knowledgeable impeachment trial. floor during the impeachment trial. staffers in the Oklahoma Legislature—one As a result of their discussions, Fred Petti Fortunately for all involved, Senator of the few places in the country that might was assigned to work with the Republican Stephens convinced his colleague that it was have some reference materials about how an caucus and staff lawyers and Danny not a good idea to carry a weapon during impeachment trial of a governor should be Adelman was assigned to work with the the impeachment proceedings. Together, conducted. Democratic caucus and staff lawyers. By we fielded questions pertaining to the sig - It turned out that it nificance of whether was a good thing we the flags on the Senate had overcome Justice It is hard to imagine a proceeding floor would have Gordon’s hesitation to fringes on them. dive into our impeach - more fraught with peril for In spite of the many ment research. On Jan. unusual thoughts or 15, 1988, the day inducing a constitutional crisis requests that emerged William French deliv - from the caucuses, ered his report to the or a clash between the Senators Kunasek and House of Stephens, and many Representatives, the other members of both Judge met with the judiciary and the Senate than caucuses and their Senate leadership and great staffs, managed their legal staff. At that an impeachment trial. to keep their respective meeting, much to the parties focused on the Judge’s surprise and amazement, he discov - meeting with the Senate leadership and task at hand. Moreover, having seen that ered that the Senators had been even more developing a working rapport with both Justice Gordon was there to help the reluctant than he to research what impeach - parties, Justice Gordon was able to “imbed” Senators, not to dictate to them, both ment was all about, and how the process his clerks into the drafting process in both Senators Kunasek and Stephens deferred to worked. caucuses, and guarantee that he had a voice, Justice Gordon on issues of fairness and solely to make sure that whatever rules and impartiality. As a result, the Senate staff, Drafting the Rules procedures were established were fair and with our assistance, drafted what we believe It is hard to imagine a proceeding more impartial. to be a model set of rules of impeachment. fraught with peril for inducing a constitu - For us, Justice Gordon’s clerks, the expe - On Feb. 11, 1988, the Senate convened tional crisis or a clash between the judiciary rience was both exhilarating and enlighten - as a Court of Impeachment for the first and the Senate than an impeachment trial, ing. We were not prepared for the lack of time. During that meeting, the Rules of where the Chief Justice presides “over” the understanding of some of the senators Impeachment were adopted. It was also the Senate. regarding fundamental due process rights. first time that Justice Gordon presided over Justice Gordon showed his true genius Nor were we prepared for the anger that the Court of Impeachment. Although he set before the Mecham impeachment trial by they felt toward Mecham, not for his actions the tone that the impeachment proceedings letting the senators know that they were the per se, but for putting them in the uncom - would be conducted in a dignified and fair Court of Impeachment, and he was there fortable position of having to serve as judges manner, it was an extremely stressful only to preside and to make sure that the in an impeachment trial. evening. After the Court of Impeachment procedure was fair and impartial. Whatever We also were unprepared for the strange recessed for the day, we joined Justice the Senators had to deal with in such a polit - and peculiar personalities exhibited by some Gordon, along with Senator Kunasek and ically charged event, they did not need to of the senators. Fred soon discovered that Bob Usdane, the Republican Majority worry about Justice Gordon making some one of the Republican senators believed that Leader, in Senator Kunasek’s conference kind of power play. When he realized that he was a “preamble citizen,” meaning that room, which served as our chambers during the Senate leadership was reluctant to pre - he was a citizen covered by the phrase “we the impeachment trial. Justice Gordon pare for the impending impeachment trial, the people” in the Declaration of remarked that he sure could use a drink, and for reasons both practical (the Senate need - Independence. Therefore, he could ignore Senator Kunasek produced a bottle of ed to finish its legislative work) and political certain laws that “non-preamble citizens” Scotch. (Mecham posed many problems for the (anybody who wasn’t White, Anglo-Saxon Although that was Justice Gordon’s Republican leadership), Justice Gordon and Protestant) must obey, including, for drink of choice, we clerks did not qualify as merely offered his assistance in helping the example, registering his automobile or get - Scotch drinkers. After two glasses, neither Senate prepare. He met with both Carl ting a driver’s license. of us was in any position to drive home; we Kunasek, the Republican President of the Danny also learned that one of the spent the night at our office at the Senate, and Alan Stephens, the Democratic Democratic senators wanted permission Supreme Court. Justice Gordon had been Minority Leader, to discuss how best to from the Department of Public Safety to supplied a Department of Public Safety draft the rules and procedures for the carry a concealed weapon onto the Senate driver because of death threats he had

24 ARIZONA ATTORNEY SEPTEMBER 2008 www.myazbar.org ARI ZONA at torney Reflections on an Impeachment MAGAZINE The History Issue received in connection with the Mecham “nobody has ever found me guilty of lying the last signature penned by Evan Mecham matter, so he got to go home after the or cheating or defrauding anyone.” The while he was still the Governor of Arizona. impromptu party broke up. Governor had said the exact words that Justice Gordon said Mecham needed to Conclusion The Court of Impeachment utter before Justice Gordon would permit Over the years, many people have asked us On Feb. 29, 1988, the Senate began hear - Eckstein to use his evidence. As soon as how Justice Gordon would have voted on ing the first of 23 days of testimony, carried those words left Mecham’s mouth, Justice the question of Mecham’s impeachment. We live on both television and radio. In his Gordon turned his chair away from the don’t know because he never told us. wonderful law review article on the Court of Impeachment so that only we It was our singular honor and good for - Mecham impeachment, University of could see him. He looked at us with a star - tune to clerk for Justice Gordon during the Arizona law professor Robert Glennon tled expression and mouthed the words, Mecham impeachment. The State of wrote the following concerning Justice “Can you believe it?” Justice Gordon then Arizona caught a glimpse for a month of Gordon: allowed Eckstein to impeach Mecham with what we saw every day throughout our year Gordon set the tone of the proceedings. a judgment for fraud in which the jury clerking for him. We were in the unique Civility, decorum, and impartiality char - awarded punitive damages against the position to watch our judge practice what he acterized his performance as presiding Governor. preached. officer. A danger in any impeachment The other story involves a request that After one meeting where the Judge han - trial, and this one in particular, is that Justice Gordon made of Fred right before dled some questions that were clearly the impeachment jury might appear the senators voted on the first impeachment designed to start an argument rather than to biased or politically motivated. charge. To help facilitate the trial, the Senate solve a problem, we asked the Judge how he Gordon’s display of judicial tempera - had printed up the copies of the Rules of avoided getting baited into a shouting ment created the unmistakable appear - Impeachment in a pocket-sized booklet. In match. He just smiled and said, “You never ance of neutrality. Behind the scenes, the days leading up to the vote on the wrestle with a pig; you’ll both get dirty, but Gordon told both lawyers and legisla - Articles of Impeachment, some of the sena - the pig enjoys it.” Many have heard this say - tors that they were on display, as repre - tors began asking all involved in the ing. We had the privilege of watching a man sentatives of their professions, and they impeachment trial to sign their copy of the who put it in action. should conduct themselves accordingly. 1 rules. By April 4, everyone, including He also showed us that there is no sub - We could not have said it better. Justice Gordon, was participating in the stitute for hard work, even when you’ve During those 23 days, there were many signing ritual. reached the pinnacle of your profession. interesting moments and many interesting As he was preparing to take the bench After each day of testimony was taken on the stories to tell. For brevity’s sake, we’ve elect - and call for the verdict on the first Article of Senate floor, we would meet with the Judge ed to tell two. Impeachment, Justice Gordon handed Fred in chambers. We almost made a game of try - The first involves Paul Eckstein’s cross- his copy of the rules booklet and asked him ing to predict every legal and evidentiary examination of Governor Mecham. The to get Governor Mecham to sign it. An matter that he might have to rule on the Governor first took the stand on Mar. 17, incredulous Fred asked the Judge if he was next day. As his clerks, we would gather the 1988. At the start of the lunch break, Tim kidding. Justice Gordon assured Fred that research and write memos into the night, Delaney, then an associate at Brown & Bain, he was not and that Fred needed to go get and then we’d meet with the Judge again handed Fred a motion in limine regarding that booklet signed. early the next morning. He spent the time 404(b) evidence that Eckstein wished to use Fred sheepishly approached Governor each day to make sure that he did the best during his cross-examination of Mecham. Mecham and asked if he would sign Justice job he possibly could. The evidence consisted of a civil conviction Gordon’s booklet. The Governor gave Fred We learned much during the impeach - of Mecham for fraud. During the lunch a blank stare, but he took the booklet and ment trial and much during that year. The break, Justice Gordon asked Danny to read signed it. At that moment, Fred reached most important lesson he taught us was that the Arizona 404(b) case on point. We then into his pocket, pulled out his own booklet, good lawyers always turn square corners discussed the case, and Justice Gordon con - and said, “And would you sign one for and, by doing so, bring honor to our noble cluded that he would only permit Eckstein Justice Gordon’s grandson?” The Governor profession. to use the evidence if Mecham testified that obliged Fred’s request. Like the rest of Arizona, we were blessed he had never been found guilty of lying, After he received his rule book back that Frank X. Gordon, Jr., was the Chief cheating or defrauding anyone. from Fred, Justice Gordon took the bench, Justice of the Arizona Supreme Court when After lunch, Eckstein continued his and the senators voted to sustain Article 1 of the sat as the Court of cross-examination. In response to a ques - the Articles of Impeachment by a vote of 21 Impeachment in the matter of the impeach - tion regarding a 1981 lawsuit filed against to 9 and to sustain Article 3 by a vote of 26 ment of Evan Mecham, Governor of the the Governor, Mecham testified that to 4. As a result of Fred’s white lie, he has State of Arizona. AZ AT

endnote 1. See Jerome Glennon, Impeachment: Lessons From the Mecham Experience, 30 ARIZ . L. R EV . 372, 390 (1988).

26 ARIZONA ATTORNEY SEPTEMBER 2008 www.myazbar.org