Archive for the 'Courts' Category
February 9th, 2009, 5:52 pm by Le Templar
Photo by the Associated Press
My blog has been on hiatus for a week or so as I adjust to the demands of my new post as opinion page editor at the Tribune, and I handled some of my volunteer work for local journalism groups. But I’m back, with a post I’ve been waiting to write for more than two years: Republicans should be immediately and eternally grateful that Sen. John McCain shut down the “nuclear” option when it comes to Senate approval for judges appointed to the federal bench.
Last week’s news that Supreme Court Justice Ruth Bader Ginsburg underwent surgery for pancreatic cancer reinforced widespread belief that she will be the first liberal jurist to leave now that Barack Obama is president. Speculation on possible replacements already is rampant. Even a certain former Arizona governor is getting lots of attention.
While the next Supreme Court justice appointment probably will come from Ginsburg’s legal perspective, that person won’t be as wildly liberal as many in the Democratic Party would like. That’s because Obama will have to deal with a potential Senate filibuster from Republicans if he steps too far out of the mainstream. And Republicans are in a position to influence Obama’s judicial choices only because of John McCain and the so-called Gang of 14.
A quick recap: Almost from the beginning of former President George Bush’s first term in 2001, Senate Democrats who were in the minority used the threat of a filibuster to delay or block appointments of federal judges that were deemed to be too conservative. Time and again, Bush tried but failed to persuade enough Democrats to relent to get the 60 Senate votes needed to stop a filibuster.
So conservative activists came up with an alternative route for Bush to get the judges he wanted. They argued a filibuster of judicial appointments violates the Constitution because that document says nothing about needing more than a simple majority of senators to give their “advice and consent.” The idea was to have Vice President Dick Cheney (as Senate president) declare a filibuster as out of order so the Republican majority could ignore the Democrats and approve Bush’s appointments. The Senate loves its traditions and the filibuster is one of the oldest. Revoking it in this manner would have caused endless rancor and pushed partisan politics to a whole new level in Washington. Thus the reference to the “nuclear” option.
Republicans were ready to reach for the nuclear option in 2005, when Democrats were trying to block the appointment of John Roberts as chief justice. But many senators greatly feared chaos would result because most Senate work depends heavily on lawmakers getting along. Otherwise, the rules as written on paper could be used to prevent any business from getting done.
So a bipartisan collection of 14 senators met privately for days to find a way to avert the nuclear option. The result was enough Democrats withdrew their filibuster threats for Bush to get his nominees.
John McCain received much of the credit for the Gang of 14 agreement, so he should have been widely praised by fellow Republicans for protecting tradition but without bowing to the will of the minority. Instead, McCain was roundly criticized for his role, as GOP activists argued he had somehow betrayed the party by not steamrolling the Democrats.
However, McCain had enough experience and wisdom to envision a day down the road when Republicans would be in the minority and a Democratic president would be eager to put his stamp on the Supreme Court. That day is here, and if Republicans had invoked the nuclear option in 2005, the 57 Democrat votes in the Senate now would be free to completely ignore the GOP side of the aisle.
That’s not to say Republican will be able to prevent appointments of pro-choice jurists. But Obama will have to win at least few Republican votes. Or maybe just one, that of Arlen Specter, the ranking Republican (and former chairman) of the Senate Judiciary Committee. Specter’s support of an Obama appointment will swing enough Republican votes to avoid any filibuster.
But at least the Republicans won’t be completely ignored.
Posted in: Congress • Courts • Uncategorized • Arlen Specter • Barack Obama • Gang of 14 • John McCain • John Roberts | Post a Comment »
December 23rd, 2008, 3:00 pm by Le Templar
The Arizona Court of Appeals today rejected most of the $97.4 million subsidy that Phoenix offered to land the CityNorth shopping development near Scottsdale Road and Loop 101. The court agreed with the Goldwater Institute that the subsidy generally violates the Arizona Constitution’s “gift clause.” Phoenix tried to claim the subsidy was justified because it paid for a 3,100-vehicle parking garage with guaranteed free parking for the public. Instead, the court said the city could only legally pay for 200 spaces reserved for commuters who park and ride on public transit. The rest of the subsidy is an unconstitutional benefit to private interests, the opinion says.
The appellate decision overrules a lower court that found what Phoenix did was just fine. So it’s easy to predict that Phoenix and CityNorth will further appeal to the Arizona Supreme Court. But this ruling gives new credence to the move of the Goldwater Institute to challenge the subsidy and inject new life into the “gift clause.”
Posted in: Courts • Economic development • CityNorth • Goldwater Institute | Post a Comment »
October 6th, 2008, 1:20 pm by Le Templar
The Arizona Motor Vehicle Division can’t avoid it any more. The agency has to starting issues special license plates for people who oppose abortion, as the state already does for causes such as spraying and neutering pets and to support fallen police officers.
The U.S. Supreme Court refused this morning to consider an decision from the 9th Circuit Court of Appeals that says abortion opponents have a First Amendment right to their own specialty license plate.
“Life-affirming expression is constitutionally protected just like any other speech,” said Peter Gentala, attorney for the Arizona Life Coalition, which requested the “Choose Life” plate in a news release today. “The Arizona Life Coalition’s message has been censored for over six years. Now it’s time for the License Plate Commission to act quickly to approve the plates so they can go into production as the law requires.”
It’s probably hard for some people to wrap their heads around, but I wrote more than a year ago that Arizona was discriminating against pro-life groups by refusing to issue such a plate after had patiently followed all of the rules. Now, the state has to start selling the plates, or get out of the business of these specialty issue plates. The Tribune Editorial Board has called for the latter option, but I doubt that will happen.
Posted in: Arizona government • Courts • Arizona Life Coalition • Arizona MVD • Choose Life • Supreme Court | 8 Comments »
June 4th, 2008, 5:21 pm by Le Templar
YURI DOWNING (Tribune file photo)
The East Valley’s most notorious wannabe politician and fugitive felon might have run to the ends of North America to escape the law. But he was captured last week only a few miles from his childhood home.
Yuri Downing, a graduate of the Arizona State University law school and one-time candidate for the state Senate, was arrested Friday at a Tucson car wash after three years of dodging jail time and taunting authorities about his whereabouts.
In 2002*, Downing campaigned to represent Tempe and south Scottsdale in the Senate. He teamed up with two friends who ran as House candidates and the trio qualified for more than $100,000 in state campaign funding. After losing that election, Downing was accused by the Citizens Clean Election Commission and the state Attorney General’s office of being the ringleader of a scheme to defraud taxpayers with a fake campaign while spending the money to buy liquor and food, to rent expensive vehicles and office space, and for other personal uses.
Downing fiercely denied any wrongdoing for months, but then pleaded guilty in December 2004 to a felony count of perjury. In exchange, the Attorney General’s office agreed to a sentence of probation (which meant no time in state prison), but asked the judge to require Downing to spend four months in county jail.
Apparently struggling with a drug addiction and unable to face the prospects of jail, Downing twice violated the conditions of his bond and disappeared from sight in March 2005. In July of that year, I profiled Downing’s troubled life.
Later in 2005, I reported that Downing cost his parents $18,000, as they had borrowed against their Tucson house to bond him out of jail. The court had postponed taking the bond cash out of respect to Downing’s father, then-state Rep. Ted Downing, D-Tucson.
At the time, speculation around the county courthouse was that Downing had fled to Costa Rico or Mexico. He speaks Spanish and had told Phoenix police he could blend in easily south of the border.
But court documents filed over the past three years hint that Downing mostly flitted across the Southwest, staying in the shadows and taking advantage of the fact he was a relatively low-priority fugitive. Still, the attorney general’s office continued to hunt for him.
Andrea Esquer, press secretary for Attorney General Terry Goddard said today she couldn’t discuss how that office’s investigators finally found Downing. Esquer said the original sentence was revoked and Downing now faces up to three years in prison on the perjury conviction. And now he’s likely to be charged with escape from custody as well.
Downing was being held today in the Pima County jail, but will be brought to Maricopa County to face justice. Not surprisingly, he’s being held without bond.
*This date has been corrected from the original post.
Posted in: Arizona government • Courts • Election issues | 2 Comments »
May 15th, 2008, 4:45 pm by Le Templar
Scottsdale resident Andrea Weck and daughter Lexie have been advocates for state-funded private school scholarships (from www.ij.org).
Libertarians and school choice advocates aren’t going to like it, but I have to admit it’s hard to argue with today’s ruling from the Arizona Court of Appeals that private school vouchers violate the state constitution.
This case dealt with a couple of new scholarship programs created by Legislature in 2006 to provide private tuition scholarships for disabled children and those in foster care who might find better education if their options weren’t limited to only public schools.
School choice advocates, including the Tribune Editorial Board, had thought these vouchers would be safe because of a previous Supreme Court ruling that said state tax credits which encourage people to donate to student tuition organizations didn’t run afoul of the Arizona Constitution.
But the appeals court said that previous ruling dealt only with the issue of whether the tax credits violated the state constitution’s equivalent of the First Amendment religion establishment clause. In creating the tax credits, the state said the STOs can pay for private tuitions at any school, church-affiliated or not, so there’s no attempt to support a specific religion, the appeals court said.
But in the new case, the critics of school vouchers pointed to a different section of the state constitution, Art. IX, Sect. 10, which says, “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school …”
The appeals court said that section makes it pretty clear the state can’t hand out scholarships or vouchers that wind up in the hands of private schools.
“Only by ignoring the plain text of the Arizona Constitution prohibiting state aid to private schools could we find the aid represented by the payment of tuition fees to such schools in this case constitutional,” the court wrote.
This dispute isn’t over, as defenders of the tuition scholarships have promised to appeal to the state Supreme Court. But in the meantime, school choice advocates need to start thinking about possible constitutional amendments to clear this hurdle. The Legislature puts such amendments before the voters every two years.
Posted in: Courts • School choice | 1 Comment »
May 7th, 2008, 11:24 am by Le Templar
The Governor’s Office of Highway Safety sent out a couple of news releases Tuesday touting the fact that DUI task forces around the state made fewer arrests in connection to the Cinco de Mayo holiday. Specifically, police made 181 arrests over the weekend compared to 248 in 2007 and 209 in 2006.
The office’s deputy director, Michael Hegarty, said the lower numbers this year might demonstrate that fewer people are taking the risk to drink and drive. The numbers also fit the message that Gov. Janet Napolitano wants to send to justify her recent veto of a DUI bill that toughened some penalties but also would have reduced the requirement for first-time offenders to use ignition interlock devices on their vehicles from one year to six months.
But a more reasonable interpretation of these numbers is 2007 was an unusually high year for Cinco de Mayo arrests. This is supported by the fact that DUI task forces made many more traffic stops in 2007, 3,795 compared to 2,714 stops this year.
There needs to be another year or two of results before anyone can point to a real trend for DUI arrests connected to this Mexican holiday. This is especially true since the ignition interlock law has been in effect only since November.
Posted in: Courts • Governor | Post a Comment »
May 6th, 2008, 1:18 pm by Le Templar
Sen. Jon Kyl
Sen. Jon Kyl, R-Ariz., wasn’t happy about a recent Tribune editorial urging caution in further expansion of the occasions when government can forcibly record a person’s DNA for future reference. The Tribune Editorial Board was reacting to a Kyl-sponsored law that directs the federal government to grab DNA samples from illegal immigrants before they are deported.
Kyl publicly tried to lay a guilt trip on us opinion writers by repeating his argument that the Chandler Rapist would have been caught sooner if DNA from the current defendant had been recorded when he was deported years earlier.
Of course, a close reading of the Tribune editorial will tell you that we weren’t objecting to this specific law, but to government’s eagerness to embrace DNA as a magic tool for solving more and more problems regardless of possible loss of personal and medical privacy.
But Kyl’s main point relies on flawed reasoning – there’s no guarantee that a DNA sample would have led to an immediate arrest after the Chandler Rapist attacked his first victim.
Monday’s news about a possible serial killer in Mesa illustrates this. Mesa police have used a national DNA database to link two murders and a violent assault to the same person. But the police still don’t know who they are looking for, and Police Chief George Gascon held a news conference Monday specifically to enlist the public’s help in identifying possible suspects.
As for the man accused of being the Chandler Rapist, obviously he already was doing his best to avoid the police without fleeing the area. Even if the police had been able to connect crime-scene evidence to a name in a DNA database, that wouldn’t have automatically put a suspect in jail. Investigators still would have had to track the man down.
DNA samples aren’t a silver bullet for criminals. They are another tool for law enforcement, one that must be used carefully and never should be treated causally by policymakers.
Posted in: Congress • Courts • Immigration | Post a Comment »
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 »
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