Archive for April, 2008
April 29th, 2008, 1:59 pm by Le Templar
Gov. Janet Napolitano (at www.nga.org)
Recent political events in New Jersey and Arizona illustrate just how strange the whole national debate over illegal immigration has become.
As you’ve probably heard, Arizona Gov. Janet Napolitano on Monday vetoed HB2807, which would have required local police and sheriff’s offices to develop policies for working with the federal government to identify and deport illegal immigrants. The bill encouraged local law enforcement to receive federal immigration enforcement training, generally referred to as the 287(g) program. Napolitano said in her veto message that HB2807 guaranteed the state would pay for such training if the federal government didn’t, which could have cost $100 million when the state faces a multi-billion dollar budget shortfall.
But Napolitano long has been once of those leaders who argue immigration enforcement should be solely a federal requirement and local police should focus on preventing or solving state and local crimes. The governor probably took some solace from comments offered Sunday by Christopher Christie, the U.S. attorney for New Jersey. Christie pointed out that simply being in the United States without permission is a violation of federal law, but not a crime.
Such immigrants caught in the United States are allowed to be detained only long enough for their status to be confirmed, and then they must be deported as soon as possible. Christie has gotten a lot of criticism from people who want stricter immigration enforcement at all levels, and don’t really care what the law actually says.
Ironically, last year, New Jersey State Attorney General Anne Milgram ordered all police agencies in her state to check the immigration status of everyone charged with a state felony or DUI. That’s Christie standing next Milgram at the August news conference during which she announced the immigration enforcement policy that’s similar to what HB2807 would have required.
Posted in: Arizona Legislature • Governor • Immigration | 13 Comments »
April 28th, 2008, 4:25 pm by Le Templar
The Tribune Editorial Board had an informal debate Friday about the story that Phoenix and the developer of CityNorth on Loop 101 want nearly $690,000 in legal fees from the Goldwater Institute. Goldwater, on the behalf of five small business owners, had sued to stop Phoenix from paying $97 million in subsidies for the $2 billion shopping/office center. But a Maricopa Superior Court judge has sided with Phoenix, saying the subsidy is legal. What follows is a summary of my argument about the legal fee issue, and Editorial Page Editor Bob Satnan responds.
Updated: Clint Bolick, the litigation director of the Goldwater Institute, reacted to our little debate and I’ve added his thoughts at the end.
Le Templar:
This request for legal fees is outrageous and clearly intended to punish the Goldwater Institute for daring to challenge Phoenix’s legal authority to award this crazy subsidy. Along with the developer’s own legal experts, Phoenix used an outside team of lawyers to fight this case, which naturally charged top dollar. While not poor, the Goldwater Institute doesn’t have near the resources of a major American city like Phoenix and shouldn’t be threatened with destitution for exercising its right to ask a judge to intervene on an issue that many other people, including the Tribune Editorial Board, have criticized. Governments should be able to recover legal fees from private citizens only when a lawsuit is blatantly frivolous. Granting these legal fees would send a chilling message that other people shouldn’t challenge government actions, even when it seems obvious such action is illegal or unconstitutional.
Bob Satnan:
When a municipality is sued, the damages don’t come from those who made the decision that sparked the suit; they come from taxpayers. In this case, a judge ruled that Phoenix officials did nothing wrong in relation to the CityNorth deal. The fact that the city recruited experts from outside the municipal legal department doesn’t matter; Phoenix sought the best people to argue the city’s case. And they argued it successfully.Requiring plaintiffs to repay reasonable municipal legal fees only sends a “chilling message” to those whose arguments aren’t strong enough to win. Governments are magnets for lawsuits because they are seen as cash cows – even though that cash comes from taxpayers and is intended to be used for the people’s business. When a municipality is exonerated on its day in court, the people deserve to be reimbursed. If an argument has merit, stand strong and seek justice. If not, be prepared to repay the people.
Clint Bolick:
Thanks to Bob and Le for a thoughtful exchange on attorneys’ fees. There are some people who make a living suing other people and/or government agencies, hoping to make a living off settlements, and I have no sympathy for them. But public interest law, as I see it, is quite different. Generally, we exist to take on cases based on principle, where no one has a sufficient financial stake in the outcome or sufficient resources to litigate. A classic case is eminent domain abuse. In most instances, the people whose land was taken could not afford to hire lawyers to argue whether the taking was for a public use — rather, they paid their attorneys fees from the compensation. Were it not for IJ taking the case, Randy Bailey would have lost his shop, because he could not have taken on the case on his own. So too the taxpayers who are challenging CityNorth could not possibly have the resources to challenge it either in the legislature or the courts without us.
IJ lost the opening round in the Bailey case, just as Goldwater lost the opening round in the CityNorth case. AZ is odd in that attorney fees are litigated at each level, rather than waiting for a final decision. That raises another relevant aspect of public interest law — typically, the cases are taken to change jurisprudence. In the cases that Goldwater selects, that is because jurisprudence has strayed from the original intent of the Constitution. Governments then keep pushing the bounds of power, as with eminent domain and retail subsidies, which will continue to erode constitutional guarantees unless someone stops them. Usually, the only entity that can push back is a public interest law firm — but more often than not, it will lose in the trial court, because the trial court must operate within the bounds of existing jurisprudence. In many instances, even losing cases shed useful sunshine on abuses of government power that are rectified through democratic processes — but only with the leverage of a lawsuit.
For those reasons, a straight-out loser-pays system would utterly destroy the ability of public interest firms to protect individual rights and restore constitutional boundaries to government power. The CityNorth case raises very important issues under the AZ Constitution. For only ten months of legal work on a single case, the fees sought by the City and the developer far exceed our entire litigation budget for an entire year. Given those economics, challenges of government power would almost never be filed if the public interest firm routinely has to pay if it loses.I hope these observations are useful. As always, we’re grateful to the Tribune for its steadfast support of freedom.
Posted in: Courts • Economic development • Phoenix | Post a Comment »
April 24th, 2008, 5:09 pm by Le Templar
The story about the destruction of a Civil War diorama built by Gilbert’s Highland High School students has gotten suprisingly little coverage in the home state of the Texas Military Forces Museum. That’s the site of the massacre of the Palmetto Ranch diorama and subsequent cover-up by museum director Jeff Hunt.
But there’s an excellent overview in this week’s Austin Chronicle, a weekly newspaper in the Texas capital city where the museum is located. The best part of the story is the reporter’s first-hand look at the remaining shell of the 10-foot diorama, as she saw “several broken hooves where cavalry had been removed, severed below the horses’ knees.”
This directly contradicts Hunt’s earlier claims that he carefully removed and packed away every single one of the 750 figures that had been handcrafted and painted by the Highland students. Hunt is forced to admit he actually damaged a piece of art that he doesn’t own.
“Taking this apart, did some rifles get bent? Some figures get broken? Sure,” Hunt told the Austin Chronicle.
This story is part of an on-going drumbeat of pressure against the museum and its owner, the Texas National Guard, to return the diorama to Gilbert so Highland students and their teacher, Glen Frakes, can try to restore it.
Keith Olbermann, host of “Countdown” on MSNBC, also revisited the issue on April 15 –discussing a column by me two days earlier that highlighted the deep holes in Jeff Hunt’s official explanation for taking apart the diorama. Unfortunately, Olbermann doesn’t mention me or the Tribune by name. Come on, Keith, is it so hard to give us just a little credit?
Posted in: Gilbert | Post a Comment »
April 19th, 2008, 10:09 am by Le Templar
Sheriff Joe Arpaio (Tribune photo)
You might have seen the Tribune story Friday about Maricopa County Sheriff Joe Arpaio telling Guadalupe that the town has 180 days to embrace his approach to illegal immigration enforcement, or to find a new local police agency. Arpaio dropped this bit of news during a meeting with the Tribune Editorial Board. Arpaio, his top deputy on illegal immigration issues and a pair of publicity handlers came to Mesa to discuss how immigration enforcement has evolved over the past three years at the sheriff’s office. You’ll read more about that in the near future.
But I want to address for a moment widespread rumors that Arpaio doesn’t really run the sheriff’s office anymore. Stories are being told in courtroom hallways and coffee shops that old age has caught up with Arpaio; that he’s lost a sizeable amount of his mental faculties. The rumors continue that Arpaio is largely a figurehead and public face while shadowy assistants are actually in charge, making all of controversial decisions but escaping most public scrutiny. I saw absolutely no evidence of this during our 90-minute conversation with Arpaio Friday. He was firmly in control of the meeting and had a clear understanding of what the office has done on illegal immigration and how that has changed over time. He anticipated questions and never was befuddled or confused.
As with publicists and public information officers everywhere, Lisa Allen MacPherson and Capt. Paul Chagolla did seek several times to further explain or clarify Arpaio’s comments. But Arpaio interrupted them almost as often to make the point his way or to move on to another topic.
Whether you love or hate Arpaio’s approach to illegal immigration, I’m convinced he knows exactly what he’s doing.
Posted in: Maricopa County sheriff | 1 Comment »
April 17th, 2008, 11:38 am by Le Templar
Tribune writer Paul Giblin reported on his blog Monday the Arizona Green Party has once again qualified as a recognized political party. The Greens gathered nearly 30,000 signatures to gain “ballot status,” joining Republicans, Democrats and Libertarians as parties that get state funding to run their primaries. All four also automatically qualify party candidates for the November general election.
One issue the Green Party will have to consider immediately is whether voters registered as independents or with non-recognized parties should be allowed to participate in its September state primary. Arizona law requires primaries for state and local offices to accept independent voters. But as I noted in a Oct. 14 column, U.S. District Judge Raner Collins has twice ruled the law violates the First Amendment rights of political parties.
“… Arizona’s primary system has created a clear and present danger of a party’s candidate being chosen by people other than party members … Under the current Arizona primary system it is impossible to identify whether the party is actually changing its position and not invaders changing the party’s position,” Collins wrote in an October decision.
The court rulings have been a victory for the Libertarian Party which feared outsiders with agendas contrary to the party’s platform would take over to gain access to its coveted ballot status. So far, the Republican and Democratic parties have refused to stand up for the constitutional rights of their members and have welcomed independent voting (although not in the separate presidential primary).
Richard Scott of Scottsdale, media coordinator for the state Green Party and its Maricopa County counterpart, told me Wednesday he expects the Greens will take up the question of independent voters at a state party meeting in May. “That is among many issues we need to address now that we are a ballot-status party,” Scott said.
Unfortunately, the Green Party will have to fight the state if it wants to control who can vote in the primary. “They would have to file their own lawsuit challenging the constitutionality of the open primary as it applies to them,” state elections director Joe Kanefield told me Thursday in a voice message.
Green Party members had been grouped with the growing number of independent voters when they lost state recognition after the 2000 election. So my guess is they will be pretty sympathetic to independents this year, even if that means we have another political party that accepts the continuing erosion of our constitutional rights.
Posted in: Arizona government • Election issues | Post a Comment »
April 14th, 2008, 3:22 pm by Le Templar
I didn’t get anything posted on my blog last week as I spent most of my free time researching the furor over the Battle of the Palmetto Ranch diorama. This 10-foot-long display portraying the final battle of the Civil War was built by students at Gilbert’s Highland High School for use at the Texas Military Forces Museum. The diorama was “dismantled” a few weeks later after it arrived in August by new museum director Jeff Hunt.
A column I wrote for Sunday’s Perspective section explores why Hunt’s explanation for taking apart the diorama doesn’t make much sense. My underlying conclusion is that Hunt made a horrible decision to essentially destroy thousands of hours of delicate work by the Highland students. The best way for him and the museum to rectify that mistake is to send the pieces of the diorama back to Gilbert so the students can try to restore it.
One issue not discussed in my Sunday column is how Hunt acted recklessly without any clear authority to even touch the diorama, much less to “dismantle” it.
Hunt insists the diorama belongs solely to the museum, a claim backed up by the Texas National Guard which owns the museum building and employs its staff. But neither Hunt nor his predecessors ever signed any written agreements with Highland or history teacher Glen Frakes, who oversaw the team of students who worked on the diorama after school hours.
Frakes spent about $23,000 for supplies, primarily for thousands of pieces of wood and metal used in the soldier figurines that were hand assembled and painted. That money was provided by the museum’s foundation, a separate nonprofit group that raises funds to support the museum’s mission. Frakes estimates the labor donated by the students should be valued at somewhere between $60,000 and $130,000.
Frakes has a fair argument that the diorama is co-owned by him, the students and the foundation and was only on loan to the museum itself. Certainly, Hunt should have received approval from the museum foundation and Frakes before he moved to dramatically change its appearance.
But Hunt acted on his own, apparently without anyone else present, to remove all 750 figurines and then leave behind an empty shell of a diorama under a tarp.
Hunt has said he wants to use the figurines in a smaller and more accurate diorama. First, he might have to prove he has the right to keep possession of them.
Posted in: Gilbert | Post a Comment »
April 4th, 2008, 5:16 pm by Le Templar
Gov. Janet Napolitano
Gov. Janet Napolitano’s veto today of two more abortion-related bills is a surprise only to the uninitiated who pay no attention to this emotional, keystone issue.
Napolitano is generally viewed as a moderate Democrat, but clearly falls in her party’s mainstream on abortion, which is somewhat to the left of the general public’s views. Abortion rights weren’t a strong theme during Napolitano’s 2002 campaign for governor or her re-election lap in 2006. But she has consistently said she will oppose any additional restrictions on access to abortions.
Napolitano’s promise seems to extend to any bill remotely related to abortion that supported by the Center for Arizona Policy and passed mostly by anti-abortion lawmakers.
As for the two latest bills, Napolitano admits in her veto message that HB2263 would put in state statute some standards for minors getting abortions without a parent’s consent that the courts already have adopted through case law. If HB2263 doesn’t change anything, the politically savvy move might have been to let the bill become law without the governor’s signature as a token gesture to abortion foes and to those who want abortions available only a limited basis.
But putting the standards into state law might make it harder to expand abortion rights for minors at a later date. And the Center of Arizona Policy has pushed for this bill for three years, which scares the heck out of abortion rights supporters.Meanwhile, HB2769 is supposed to simply mirror a recent federal law banning partial-birth abortions, so state prosecutors could pursue criminal charges in state courts. But Napolitano said the bill doesn’t clearly let accused doctors use expert witnesses to testify that a partial-birth abortion was necessary to save a woman’s life. She’s really reaching for straw with that argument, because HB2769 doesn’t forbid the use of such expert witnesses, either.Napolitano also noted a prison sentence from a conviction under HB2769 wouldn’t be limited to two years, as one is under federal law. It’s hard to imagine that a doctor would be more willingly to risk a felony conviction because it carried only two years in prison.The state constitution put no restricts on the governor’s motivations for vetoing a bill. She just has to explain her objections in writing. Perhaps when it comes to abortion matters, Napolitano would be more honest if she said she doesn’t trust the people who sponsor the bills that have been landing on her desk.
Posted in: Arizona Legislature • Governor | Post a Comment »
April 3rd, 2008, 3:38 pm by Le Templar
Rep. Kyrsten Sinema
In the past, Rep. Kyrsten Sinema, D-Phoenix, has been liberal thorn in the side of the Republicans, especially social conservatives, at the state Capitol – an annoying irritation but someone that GOP leaders could work around when she tried to stand in the way of their agenda.
On Wednesday, Sinema showed she has gained enough political influence and knowledge of the legislative process that she’s become a real obstacle to Republicans and a player they will have to take more seriously in the future.
Sinema appears to have thwarted plans by Republicans to have another public vote this year on a state constitutional amendment to forever ban state-sanctioned gay marriages.
After a similar amendment was defeated by Arizona voters in 2006, both opponents and supporters agreed the problem was that initiative dealt not only with marriage licenses, but also threatened the legal rights and employee benefits of at least some unmarried, heterosexual couples.
So social conservatives decided to simplify the issue this year with a new amendment that just says marriage licenses can only be issued to a couple involving one man and one woman. This was supposed to make for a clear choice between rejecting gay marriages or endorsing them.
But by just one House vote, Sinema was able Wednesday to change the House version of the proposed amendment to offer some legal protections for two unmarried people “in an emotionally committed relationship” who also share domestic or financial responsibilities.
Sinema still prevailed after Republican leadership tried a couple of parliamentary tricks to remove her change. House Speaker Pro Tem Bob Robson, R-Chandler, even held open a roll call vote for several minutes, in case one of the five absent House members would come to the floor to reverse the outcome. But to no avail.
From the perspective of gay rights advocates, Sinema’s move was brilliant. Democrats know they won’t repeal the current ban on gay marriage already in state law. But Sinema’s proposal takes steps in that direction by offering the first-ever constitutional protections to nontraditional couples.
Moderate and liberal Republicans could support the rights of unmarried couples while also saying they were supporting the overall ban on gay marriages. Reps. Michele Reagan, R-Scottsdale, and Pete Hershberger, R-Tucson, were among those who crossed over to help the Democrats on this one.
And the gay marriage bill was the last measure on the House calendar Wednesday. So any lawmakers who would prefer to not be pinned down on the issue could leave the Capitol entirely.
Of course, a new set of constitutional rights for gay couples is exactly what social conservatives don’t want to happen. So unless they can find enough House members to switch their support away from Sinema’s proposal, no constitutional amendment on gay marriage will be on the November general election ballot.
Posted in: Arizona Legislature | 1 Comment »
April 2nd, 2008, 1:55 pm by Le Templar
I remember reading a while back that state tax refunds were going to be mailed more slowly than usual. The story was that the Arizona Department of Revenue couldn’t hire enough temporary workers to handle the typical flood of tax returns at this time of year because of the state’s budget problems.
But only one week after I mailed in my 2007 state tax return, my refund of several hundred dollars has been deposited in my checking account. If only all of state government could be so efficient when dealing with the public.
Posted in: Arizona government | Post a Comment »
April 1st, 2008, 11:41 am by Le Templar
Rep. Russell Pearce
My blog has been quiet for a week as I took some vacation time and enjoyed some of the best outdoor sights of the Arizona springtime. Now that I’m back to work, I’m detecting a whiff of hypocrisy from Rep. Russell Pearce, R-Mesa, over a legislative proposal for Arizona to launch a new foreign guest-worker program.
As Capitol Media Services reported in Tuesday’s Tribune, Pearce is opposing the scope of a bipartisan measure that would allow Arizona to test a new kind of guest-worker program for low-skill workers that has been talked about for years in Washington but hasn’t been approved by Congress.
Pearce says most Arizona businesses that want such foreign workers simply aren’t willing to pay enough to attract U.S. residents to take these jobs. But oddly, Pearce is willing to admit the
U.S. has a true shortage of domestic labor in farming. Remember when folks from Pearce’s camp on illegal immigration derided Sen. John McCain’s comment that there aren’t American workers to harvest lettuce in Yuma even if they were paid $50 an hour?
Pearce apparently believes there aren’t enough Americans to farm and ranch, but somehow they are just waiting to be offered the right wages to build homes, ditch ditches and fill other manual labor posts.
The truth is the American economy already is heavily dependent on foreign labor because of declining U.S. birth rates. The U.S. Census Bureau estimated in 2005 that half of all jobs created here over the prior 15 years went to foreign workers.
Pearce and his supporters can pretend all they want that Americans will start taking manual labor jobs as wages and prices rise. But they can’t change the physical reality that there aren’t enough bodies out there to fill all of the jobs that our economy has been creating. And one of the fastest ways to strangle a robust economy is cut off or severely limit its supply of labor.
Posted in: Arizona Legislature • Immigration | Post a Comment »
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