Judge Not

School's out for Judge Alfredo C. Marquez in the TUSD deseg case that won't die.

The flurry of papers flying in the fight over monitoring TUSD's 25-year-old desegregation effort may not have caused a ripple among some 60,000 students, but it has stripped away two judges in less than a week.

Senior U.S. District Judge Alfredo C. Marquez, who has presided over the 1978 desegregation settlement for 20 years, abruptly declared a conflict of interest during a telephonic conference with lawyers on Oct. 14.

Lawyers lately had been on the line to discuss TUSD's blitz against the district's Independent Citizens Committee, which is to evaluate desegregation plans in an advisory capacity to the school district's governing board. Members of the ICC have been locked in an increasingly bitter feud with TUSD lawyer Jane Butler and the governing board over duties, authority and legal representation.

On Oct. 3, Marquez spiked the plan by TUSD's outside counsel, Richard Yetwin, to haul in on short notice nine members of the Independent Citizens Committee and put them under oath on matters related to the committee's move to name a former member, Laurence Berlin, as its lawyer.

Marquez, whose quiet and dignified demeanor sometimes softened his sharp inquiry of lawyers as well his short fuse for their courtroom tricks in cases that ranged from art fraud to death penalty appeals, gave no explanation of what conflict forced him off the desegregation case.

Yetwin, who tried the case along with William Brammer, now a member of the Arizona Court of Appeals, said in an interview that it was not his place to discuss the reason Marquez recused himself.

"I always leave that up to the judge," said Yetwin, of the Tucson firm DeConcini McDonald Yetwin and Lacy.

Calls to Marquez's chambers yielded no response.

TUSD desegregation was then assigned on a random basis to Judge Frank R. Zapata, a former federal magistrate who was elevated in 1996 by President Bill Clinton, a Democrat.

But in a notice Monday to lawyers involved in the case, Zapata also declared a conflict of interest and the mammoth and aging desegregation case was shifted to Judge David C. Bury.

Appointed to fill a new bench position in March 2002 by Republican President George W. Bush, Bury also may have conflicts. He was a longtime partner in Bury Moeller O'Meara & Gage, which did considerable work for TUSD.

Bury received his bachelor's degree from Oklahoma State University in 1964 and his law degree from the University of Arizona College of Law in 1967. He was in private practice and tried cases throughout Arizona and in federal court for more than 34 years.

He showed last week that he is not afraid to cross the Bush administration. In a stinging opinion, Bury ordered Interior Secretary Gale Norton to comply immediately with a previous ruling and redesignate critical habitat for the threatened Mexican spotted owl, according to press reports and the Center for Biological Diversity, which was among the plaintiffs. Bury said the U.S. Fish and Wildlife Service improperly excluded nearly 9 million acres of forest in Arizona and New Mexico from the critical habitat for the Mexican spotted owl.

The TUSD case is now out of the hands of a Mexican-American jurist for the first time in two decades. Marquez hinted this year that it may be time for TUSD to seek an end to the court order on desegregation. District officials, including Ireland, his board colleagues and Superintendent Stan Paz, have resisted that and have relied on unfettered tax levies to boost desegregation spending above $60 million a year.

Marquez, an 81-year-old Democrat who was appointed by Democratic President Jimmy Carter, made key rulings in TUSD's costly and, critics say, chronically poor effort to erase vestiges of segregation that were pervasive and led parents of African-American and Mexican-American students to sue nearly 30 years ago.

The son of a Winkelman miner, Marquez slapped down TUSD's brazen attempt to close inner-city Catalina High School in the early 1990s. School officials, led primarily by then-second term board member Joel T. Ireland, sought to close Catalina to free up money for a new high school on the southwest side.

Ireland was particularly strident and defiant even when it was revealed that his brother was selling new homes near the proposed high school. Ireland, still fresh into his own legal career, also took to the radio airwaves in an attempt to denounce Marquez as someone who didn't understand the law. Marquez was the third judge, following the late William Frey and Mary Anne Richey, assigned to the desegregation case.

And TUSD came in for wider criticism because land it bought from a real-estate holding company owned by the family of then-U.S. Sen. Dennis DeConcini, a Democrat, was several times more expensive than other property and required $1 million in engineering work to solve problems with radon.

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