In re Hamm

• Decision Date: 07 December 2005
• Docket Number: No. SB-04-0079-M.,SB-04-0079-M.
• Citation: 123 P.3d 652,211 Ariz. 458
• Parties: In the Matter of James Joseph HAMM, Applicant.
• Court: Arizona Supreme Court

Page 652

123 P.3d 652

In the Matter of James Joseph HAMM, Applicant.

No. SB-04-0079-M.

Supreme Court of Arizona, En Banc.

December 7, 2005.

COPYRIGHT MATERIAL OMITTED

James Joseph Hamm, Tempe, In Propria Persona.

Monroe & McDonough, P.C., by Lawrence McDonough, Tucson, and Juan Perez-Medrano, Phoenix, Chair Attorneys for the Committee on Character & Fitness.

Charles W. Wirken, President, Helen Perry Grimwood, President-elect, Jim D. Smith, First Vice President, Daniel J. McAuliffe, Second Vice President, Edward F. Novak, Secretary-Treasurer, Robert B. Van Wyck, Chief Bar Counsel, Phoenix, Attorneys for Amicus Curiae State Bar of Arizona.

Michael D. Kimerer, Marty Lieberman, Amy L. Nguyen, Phoenix, Carla Ryan, Andrew Silverman, Tucson, Attorneys for Amicus Curiae, Arizona Attorneys for Criminal Justice.

Andrew P. Thomas, Maricopa County Attorney, by Andrew P. Thomas, Phoenix, Attorney for Amicus Curiae Maricopa County Attorney's Office.

OPINION

McGREGOR, Chief Justice.

¶ 1 James Hamm petitioned this Court, pursuant to Arizona Supreme Court Rule 36(g), 17A A.R.S.,¹ to review the recommendation of the Committee on Character and Fitness (the Committee) that his application for admission to the State Bar of Arizona (the Bar) be denied. Having reviewed the record and the Committee's report, we conclude that James Hamm has failed to establish the good moral character necessary to be admitted to the practice of law in Arizona and deny his application.

I.

¶ 2 In September 1974, James Hamm was twenty-six years old and living on the streets of Tucson. Although he previously had attended divinity school and worked as a part-time pastor, Hamm describes his life in 1974 as reflecting a series of personal and social failures. In 1973, he had separated from his wife, with whom he had a son. Although he had no criminal record, he supported himself by selling small quantities of marijuana and, again according to Hamm, he used marijuana and other drugs and abused alcohol.

¶ 3 On September 6, 1974, Hamm met two young men who identified themselves as college students from Missouri. The two, Willard Morley and Zane Staples, came to Tucson to buy twenty pounds of marijuana. Hamm agreed to sell it to them, but apparently was unable to acquire that quantity of marijuana. Rather than call off the transaction, Hamm and two accomplices, Garland Wells and Bill Reeser, agreed to rob Staples and Morley of the money intended for the purchase. On September 7, Wells gave Hamm a gun to use during the robbery. Later that day, Wells and Hamm directed Morley and Staples to drive to the outskirts of Tucson, purportedly to complete the drug transaction; Reeser followed in another vehicle. Both Wells and Hamm carried guns; Morley and Staples were unarmed. Hamm sat behind Morley, the driver, and Wells sat behind Staples. At some point, Hamm detected that Staples was becoming suspicious. As Morley stopped the car, and without making any demand on the victims for money, Hamm shot Morley in the back of the head, killing him. At the same time, Wells shot Staples. Hamm then shot Staples in the back as he tried to escape and shot Morley once again. Wells also shot Morley, then pursued Staples, whom he ultimately killed outside of the car. Hamm and Wells took $1400.00 from the glove compartment, fled the scene in the van driven by Reeser, and left the bodies of Morley and Staples lying in the desert.

¶ 4 Hamm took his share of the money and visited his sister in California. At the hearing held to consider his application to the Bar, he told the Committee that he "was compelled to come back to Tucson," despite knowing he probably would be caught. Police officers arrested Hamm shortly after his return. While in custody, he told the police that Morley and Staples were killed in a gun battle during the drug deal. Initially charged with two counts of first-degree murder and two counts of armed robbery, Hamm pled guilty to one count of first-degree murder and was sentenced to life in prison, with no possibility of parole for twenty-five years.

¶ 5 Once in prison, Hamm began taking steps toward rehabilitation and became a model prisoner. After spending one year in maximum security, he applied for and received a job in a computer training program that allowed him to be transferred to medium security. Once in medium security, Hamm apparently took advantage of any and every educational opportunity the prison system had to offer. He completed certificates in yoga and meditation and, on his own, studied Jungian psychology. He helped fellow inmates learn to read and write and to take responsibility for their actions. He obtained a bachelor's degree in applied sociology, summa cum laude, from Northern Arizona University through a prison study program.

¶ 6 After Hamm completed six years in medium security, prison officials transferred him to minimum security, where he worked on paint and construction crews. He received a significant degree of freedom, which allowed him to live in a dormitory rather than in a cell and occasionally to drive unaccompanied to nearby towns. He testified that he was the only inmate permitted to head a work crew. Hamm reported to the Committee that he played an instrumental role on various prison committees, particularly the committee that developed a new grievance procedure within the Department of Corrections. In addition, he wrote grant proposals for libraries, for handicapped prisoners, and for obtaining greater legal assistance for prisoners.

¶ 7 While in prison, he met and married Donna Leone. She and Hamm founded Middle Ground Prison Reform (Middle Ground), a prisoner and prisoner family advocacy organization involved in lobbying for laws related to the criminal justice system and prisons. Middle Ground also provides public education about those topics.

¶ 8 In 1989, the Governor, acting on the recommendation of the Arizona Board of Pardons and Parole (the Board), commuted Hamm's sentence. When he had served nearly seventeen years, in July 1992, the Board released Hamm on parole, conditioned upon no use of alcohol or drugs, drug and alcohol testing, and fifteen hours of community service each month. In December 2001, the Arizona Board of Executive Clemency² granted Hamm's third application for absolute discharge.

¶ 9 Between his release in August 1992 and his absolute discharge in December 2001, Hamm performed thousands of hours of community service. He advocated for prisoners' rights in various forums by writing position papers, appearing on radio programs, testifying in legislative hearings, and speaking at churches, schools, and civic organizations. He also appeared in a public service video encouraging children not to do drugs or join gangs. Hamm now works as the Director of Advocacy Services at Middle Ground Prison Reform.

¶ 10 While on parole, Hamm graduated from the Arizona State University College of Law. In July 1999, Hamm passed the Arizona bar examination and, in 2004, filed his Character and Fitness Report with the Committee.

II.

¶ 11 The Rules of the Supreme Court of Arizona establish the process through which the Committee and this Court evaluate applications for admission to the Bar, and prior case law clarifies the burden an applicant must satisfy to establish good moral character. We begin with a review of the rules.

A.

¶ 12 Rules 34 through 37 define the requirements for admission to the Bar.³ The Committee may recommend an applicant for admission only if that applicant, in addition to meeting other requirements, satisfies the Committee that he or she is of good moral character. Rule 34(a). The applicant bears the burden of establishing his or her good moral character. In re Greenberg, 126 Ariz. 290, 292, 614 P.2d 832, 834 (1980) (citing In re Levine, 97 Ariz. 88, 397 P.2d 205 (1964)). In determining whether an applicant's prior conduct indicates a lack of good moral character, the Committee must consider the following non-exhaustive list of factors:

A. The applicant's age, experience and general level of sophistication at the time of the conduct

B. The recency of the conduct

C. The reliability of the information concerning the conduct

D. The seriousness of the conduct

E. Consideration given by the applicant to relevant laws, rules and responsibilities at the time of the conduct

F. The factors underlying the conduct

G. The cumulative effect of the conduct

H. The evidence of rehabilitation

I. The applicant's positive social contributions since the conduct

J. The applicant's candor in the admissions process

K. The materiality of any omissions or misrepresentations by the applicant.

Rule 36(a)3.

¶ 13 When prior conduct involves the commission of a violent crime, the Committee must, at a minimum, hold an informal hearing. Rule 36(a)4.E. If three or more Committee members who attended the hearing or who have read the entire record do not recommend admission of an applicant, the Committee must hold a formal hearing to consider whether to recommend the applicant for admission to the Bar. Id.

¶ 14 If the applicant fails to convince the Committee of his or her good moral character, the Committee has a duty not to recommend that person to this Court. In re Klahr, 102 Ariz. 529, 531, 433 P.2d 977, 979 (1967); Levine, 97 Ariz. at 91, 397 P.2d at 207 ("If the proof of good moral character falls short of convincing the Committee on Examinations and Admissions, it is its duty not to recommend admission."); In re Courtney, 83 Ariz. 231, 233, 319 P.2d 991, 993 (1957) ("In this it has no discretion; if the members entertain any reservations whatsoever as to the applicant's good moral character, it should not make a favorable recommendation to this court."). After the Committee submits its report, an aggrieved applicant may petition this Court for review. Rule 36(g).

B.

¶ 15 This Court then independently determines whether the applicant possesses good moral character and, based upon that...