Permanent Andrew Thomas Disclaimer

To eliminate having to repeat all of this background every time I mention our out-of-control County Attorney, please note (1) I'm a political opponent of Andy Thomas going back to his run for Attorney General 8 years ago. (2) The spouse of one of my law partners ran against him for County Attorney in 2008 and I and my wife were pleased to contribute to that campaign. (3) I'm chair of Felecia Rotellini's campaign committee in her campaign for Arizona Attorney General, which is rumored to be Thomas's goal in the 2010 elections. (4) My law firm has been retained to defend one of the judges named in his federal civil lawsuit against the county leadership and judges. (5) There's probably other stuff too, but you get the idea.

But whatever the background, I'm right and he's wrong.

Laurie Roberts Plays Lawyer!

Is she a lawyer, or not? Tough to tell. In a blog post, she duly notes the first opposition to the Joe Arpaio/Andy Thomas federal RICO lawsuit was filed in court yesterday. But she refuses to analyze who has the best of the argument:

Not being a lawyer, I have no idea whether they are right or not. That's up to a federal judge.

OK, so when it comes to criticizing Joe and Andy, the Clown Show Columnist can't opine as to the merits, because she's not a lawyer. But give it a couple of minutes, because in her comments to the same blog post a couple hours later (scroll down, it's on page 2 of comments), she has no hesitation leaping to legal conclusions:

Irvine represents Superior Court in the courthouse case. Donahoe is the presiding criminal judge of Superior Court. By virtue of that, he is Irvine's client. That's why I don't believe it was appropriate for him to be ruling on motions from Irvine to quash an investigation into Irvine's own county contracts.

There are about a half dozen legal conclusions in that statement from our "not a lawyer" columnist.

(1) Does Irvine represent the Superior Court, as a whole? That's quite a legal conclusion. First of all, in Arizona, there's one Superior Court; the court sits in different counties, but it's all one court. Under her legal conclusion, there's no state trial court judge who could hear the case. Second, is the Superior Court building the courthouse, or is the County as a political subdivision of the state? How does Roberts know that the client is the Superior Court, where does that conclusion come from? Isn't the client the County as an administrative entity, and not every single judge? Wasn't the contract signed by a county contracting official, and not by a judge--and certainly not Judge Donahoe?

(2) So let's leap over those two or three legal and logical chasms and assume Irvine represents the Superior Court as an entity. Donahoe is Irvine's client because -- here comes her next legal conclusion -- every single Superior Court judge is his client. So that means Irvine can't litigate any cases in Maricopa County, because he represents every single judge? How does that work? Wouldn't this conflict apply to every single case, not just those of interest to Andy and Joe?

(3) Doesn't the County Attorney also represent the entire county, including the Superior Court functions, in lawsuits--such as when a prisoner files a Section 1983 action? Doesn't that make every attorney in the County Attorney office the lawyer for each single judge, if Irvine is the lawyer for every judge? How would the county ever defend a lawsuit, if as soon as it hired counsel, the judge hearing the case had a conflict under the legal principles enunciated by sometime-ersatz-lawyer Roberts in the opinion in Laurie v. Reality?

(4) Roberts says it's inappropriate for a judge to rule on motions involving county contracts involving the courthouse. But if that's right, then the conflicct doesn't affect just Donahoe--it's every single one of the 100+ Maricopa County Superior Court judges and commissioners. The case couldn't and shouldn't have been brought in Maricopa County by Thomas if you accept that reasoning. Every single judicial officer in the county would have the same conflict. Thomas made the error by filing here if he believes this cockamamie conflict theory.

Determining whether a lawyer or judge has a conflict of interest is a legal conclusion, in which you apply law--the Arizona rules of professional responsibility and canons of judicial ethics--to the facts at hand. It's the sort of thing lawyers do, and judges determine (in disputed cases) whether they've made the right call. The Clown Show Columnist certainly can play at being a lawyer when she wants to, provided it's helpful to Arpaio and Thomas.

So you're sitting in the Arizona Republic building. How could possibly you tell that across town, Joe Arpaio or Andy Thomas are speaking? Easy, if Laurie Roberts's fingers are moving on her keyboard.

And even Robert Robb gets it, which is somewhat rare:

What's happening in Maricopa County government isn't a circus. And it's not a joke.
Not anymore. It's now a deadly serious business....

A judge making an erroneous decision isn't a criminal act. And there's a remedy. It's called an appeal.

A judge exhibiting bias isn't a criminal act. And there's a remedy – a complaint filed with the Commission on Judicial Conduct.

A law firm having a conflict isn't a criminal act, and there are remedies: a bar complaint against the firm or a complaint with the Commission on Judicial Conduct if a judge doesn't properly disclose a relationship with a law firm appearing before him.

So even if the Clown Show Columnist thinks "Joe/Andy may be on to something," they've abused their office and ignored the law to follow their hunches. It's not a clown show, says the voice of the establishment GOP; it's a deadly serious business. What is it that the kids say? "Oh, snap!" Take that, Clown Show Columnist! I finally agree with Bob Robb on something.

[Post updated 12/17/09. Andy Thomas disclaimer is here.]

Worst Arizona Republic Editorial Ever

I realize, that's saying a lot. But first, let me numbingly note that I'm a political opponent of Andy Thomas going back to his run for Attorney General 8 years ago. The spouse of one of my law partners ran against him for County Attorney and I and my wife were pleased to contribute to that campaign. I'm chair of Felecia Rotellini's campaign committee in her campaign for Arizona Attorney General, which is rumored to be Thomas's goal in the 2010 elections. My law firm has been retained to defend one of the judges named in his federal civil lawsuit against the county leadership and judges. But face it, whatever the background here, on this one, I'm right and he's wrong.

Having said that, let's turn back to the Republic. It's tough competition, but I think this one just won the coveted title of Worst Ever:

All, certainly, dread just how far this abuse of power will go. In point of fact, it has gone too far already.

The conflict between county government factions over dwindling budgets and the cost of a new court tower now has spiraled genuinely - and frighteningly - out of control. It no longer is possible to discern the honesty of an Andrew Thomas criminal complaint. Has he found criminal abuse? Or is he paying back his political opponents?

A higher, saner power must step in. This chaos has spread too far.

A higher, saner power? Ye gods. And what higher, saner power might exist -- in a democracy? Gov. Jan Brewer takes time out from her doomed fight for a sales tax increase to ask Andy Thomas and Joe Arpaio to behave themselves? Sens. John McCain and Jon Kyl take time out of their lobbying on behalf of Arpaio to remonstrate him? Not in this particular space-time continuum. The Obama Administration Justice Department taking over the County Attorney's office? Just imagine how that would go over in Arizona.

There is no "higher power" here. Prosecutor offices are designed so that they don't take orders from political higher-ups. That's why you have to elect people who understand the prosecutor's role isn't to win victories, but rather to seek justice. And if a prosecutor, and a sheriff, overstep their roles and turn their offices into tools of vengeance rather than justice, there's no effective oversight except the voters who elected them.

If the Republic believes that Thomas is abusing his power, that it is no longer possible to trust him, that the chaos has spread too far, then the Republic better stand up to Thomas and had better back up those opposing him. That's a lot to ask; the proverbial jury is still out if lawyers in Maricopa County are as courageous as those in Pakistan. But it's the only way to "fix" an out of control prosecutor.

And it's a very close dishonorable mention to Laurie Roberts's column Saturday, which is almost as bad -- by treating both sides as beneath contempt, just part of the ongoing "clown show." It's just politics as usual, a plague on both their houses, an opinion columnist who can't be bothered to figure out who's right and who's wrong:

There is no hero in this story, no caped crusader. Everybody looks bad, including the judge who ordered one of Sheriff Joe Arpaio's detention officers to stand on the steps of the courthouse and issue a public apology, and the Joe Arpaio/Andrew Thomas tag team that then brought the judge up on criminal charges.

Roberts goes through the entire story of how Thomas's criminal complaint against Chief Criminal Judge Gary Donahoe disclosed his home address, in violation of the statute under which Arpaio arrested the New Times publishers. When confronted with their own violation of the same statute, Arpaio's and Thomas's spokesmen claimed that the court clerk's office should have removed the address -- which is, plain and simple, a lie. Roberts can't be bothered to call it a lie, though. She leaves it as a he-said-she-said, then magisterially rises above the fray, calling both sides equally at fault, considering it beneath her dignity to offer an actual opinion:

The question is, who can order all these people to take off their rubber noses, put away the floppy shoes and quit wasting our money? Oh for a ringmaster – and a whip.

Oh, there's a clown here, all right. And if Laurie Roberts has any confusion over the clown's identity, she should look in the mirror.

If we treat this fight -- one which the Republic itself calls an abuse of power -- as a clown show between two factions who both deserve to lose, then Thomas and Arpaio win. There won't be any check on a prosecutor who uses his special powers for political ends.

They say a conservative is a liberal who got mugged -- and a liberal is a conservative who got indicted. Laurie Roberts may be too close to her sources to know an abuse of power when it's staring right at her clown nose and greasepaint, but at least she shouldn't enable bad ends by urging her readers to view this issue as just another political food fight, deserving of snark and nothing more.

And the Republic itself, which at least recognizes the stakes involved, should stop wishing that some fairy godmother will save us. In America, we can't ask the Queen of England to stop this fight. Only those who elected Thomas and Arpaio can do that. And if we don't, then we deserve what we get.

Fiesta Bowl Half Marathon

Detailed results here. (Now with photos.) I managed to break 2 hours, and came in at under 9:00 per mile (8:53). I couldn't duplicate my 2006 performance, but it was 2.5 minutes faster than my 2005 time, when I was, I feel obliged to note, 4 years younger. Nor could I keep up with Regan, Kate, and Pat after mile 10, but then they're 28, 36, and 44. So hooray!

The Column May Have Died, But The Annual Tax Credit Column Lives On

As my virtual readers know, I don’t have a newspaper column anymore. I’d feel bad about it, except that after they dropped me, the newspaper went bankrupt. Say goodbye to the house liberal, then say hello to Chapter 11. But every year, usually over Thanksgiving weekend, I’d write to remind readers of the whacked-out Arizona income tax laws which make it exceedingly easy to make several types of charitable donations.

Of course, you should be giving to charity anyway. But in Arizona, we make it really easy even for die-hard libertarians (a/k/a “the obnoxiously and ideologically cheap”) to become charitable. After all, it’s “free!”

Several tax credits let you reduce your state income taxes by the amount of your donation. This discussion, as always, assumes you itemize deductions and don’t pay AMT. If so, donate by December 31, then in April, you wind up paying less in state income taxes by the amount of the donations due to several dollar-for-dollar tax credits. All it costs you is some time, and some stamps (for those where you can’t give online).

First, contributions to “private school tuition organizations” that offer scholarships to private schools qualify for a tax credit for individuals of up to $500 and for married couples up to $1,000. Please consider giving to Schools With Heart Foundation, 1131 E. Highland, Phoenix, AZ 85014, or call (602) 252-5866, and designate your contribution for The Family School. Schools With Heart is one of the better PSTOs; it doesn’t let donors earmark for specific children, doesn’t spend money on insiders, and isn’t violating the Internal Revenue Code rules on charitable organizations like numerous Arizona PSTOs. With The Family School, you don’t have to hold your nose when you write your check.

You contribute now, then report your contribution on Form 323 when filing state income taxes in April, getting a full dollar-for-dollar credit up to the cap. But make sure to include these donations as charitable contributions on your federal return to get the full benefit.

Second, the less-generous public school tax credit lets single taxpayers give and get back up to $200, and married taxpayers, up to $400. You write the check directly to the school, not to a PTO or foundation, and report this credit on Arizona Form 322.

Of course, wealthier school districts benefit more from these tax credit donations, so if you want your money to make more of a difference, you should contribute to the Isaac School District, 3348 W. McDowell Road, Phoenix, AZ 85009. You can download the contribution form, or call Julie Nino at (602) 455-6700. Your gift is far more significant in a school district with 90 percent of its students at or below poverty and two-thirds from non-English-speaking homes.

Third, donations to charities which assist low-income residents qualify for another tax credit if you exceed the “baseline” of your charitable contributions for 1996 or the first year you itemized, if later. Lots of Arizona charities qualify for this Form 321 credit, which is available up to $200 for single taxpayers and $400 for couples.

I serve on the board, and having disclosed that can urge you, without any guilt whatsoever, to contribute to Devereux Arizona’s behavioral health programs. Devereux serves children in foster and residential programs who won’t get holiday gifts without contributions like yours. You can give gifts at no cost because you’ll pay exactly that much less in state income taxes. Send your check to Devereux Arizona, 11000 N. Scottsdale Road, Suite 260, Scottsdale, AZ 85254, or click here to donate to the program. You also can give online.

A fourth credit comes from Arizona’s voter-approved system publicly-financed state elections. This credit may not be around much longer, due to our activist U.S. Supreme Court, but you can still write the checks in 2009 and pay less in taxes in April. The credit is surprisingly generous (and increased slightly from last year), and is now $640 for individuals and $1,280 for couples, or up to 20% of your total state tax liability, whichever is greater. Send your contribution to Citizens Clean Election Fund, 1616 W. Adams, Suite 110, Phoenix, AZ 85007, or click here for the form. For this credit, note that there’s no separate credit form for your Arizona tax return, instead you list the credit directly on your Form 140.

Fifth, the Military Family Relief Fund credit, for tax years through 2012 only, allows individual (but not entity) taxpayers to claim $200 for single taxpayers or heads of households, and $400 for married couples filing joint returns, for MFRF donations. To claim the credit, you need a receipt from the Arizona Department of Veterans’ Services, and to give you a receipt, the ADVS needs your full name, address, and last four digits of your Social Security number. (The SSN numbers are required by law, A.R.S. §41-608.04(F). Sorry.) The MFRF is also capped at $1 million a year, so you need to give before they reach the ceiling – if they do. Send your contribution to MFRF, c/o Arizona Department of Veterans’ Services, 3839 N. 3rd Street, Suite 200, Phoenix, AZ 85012. The contribution form is here, but for more information, contact Donna Adams of ADVS at (602) 263-1837.

The same deal applies as with the other credits; you take the credit on your Arizona return, and make sure you include it in your charitable donations for deduction on Schedule A of your federal return, and the contribution is completely offset by the credit and deduction and costs you nothing.

Finally, after making your cash donations, give something else that you really won’t miss. Call United Blood Services at (602) 431-9500, or make an appointment online, to donate blood. If you’re hydrated before you donate, it’s easy, fast, and the post-donation cookies are both tasty and guilt-free.

So make some donations by Dec. 31 and reduce your state taxes on April 15. Yes, it’s very bad law, but you still can use it to do some good. And consider it useful training; learning how to make charitable contributions when they’re free is the first step toward training yourself to make them when they’re not.

A Beautiful Day

No records broken, but a very nice 24 hours. Friday afternoon I drove to Tucson for El Tour de Tucson. I only get to ride every 4 or 5 years, because usually we have a Devereux Foundation meeting the weekend before Thanksgiving, but this year--thanks to our innumerate celebration of the Devereux New Jersey Treatment Network's all-important 19th anniversary--I could ride ETT.

By the time I finished registering, checking into the hotel, assembling my bike, and laying out my kit for the race, I wound up getting takeout from Feast, which is now on the Liberal Desert highly recommended list. The potato gnocchi and sausage was just what Dr. Carbo Loading ordered. Plus they had small gift bottles of St.-Germain at the checkout at a tastefully restrained price.

Saturday was pretty much a perfect Arizona day, except for the last 28 miles of the route--for me, anyway, which was work and not much fun. (Very cool Arizona Daily Star 360-degree photograph of the start here.) I pretty much knew I would not finish in under 6 hours this year, with not nearly enough training and a bad cold from two weeks ago. That meant anything better than 6:30 would have to be acceptable. But during the ride, I kept falling in with groups and managed to draft my way to Marana in less than 5 hours, and my enthusiasm started rising. But around mile 80, I had to stop for water, and got dropped with finality and realized it was going to be a long slog to the 108-mile finish in 6:25:48. (That's the official time, it took 3 minutes to get to the start, so my watch said 6:22:50.) Who knew there were so many rest stops after mile 80? But either officially or unofficially, my time is still under 6:30 so I should be satisfied. Results here.

I then packed up my bike, picked up my finisher's medal, and drove home in plenty of time to shower, change, and dine at Cibo and then attend the Arizona Opera production of Richard Strauss's Salome (Greer Grimsley is pretty impressive, but so was Noah Stewart.) Good food! Bicycling in the sunshine! Opera! I need to sleep now.

Page Counts

In 1993, nobody ever asked if anyone who voted for the North American Free Trade Agreement had read all 3,000+ pages. Apparently, page counts only matter for stuff Republicans don't like.

Besides, while the House health care bill may have 2,000 pages, the Authorization for Use of Military Force Against Iraq Resolution of 2002 was only 5 pages long (really, 4 and a quarter), so there was no question that everybody could read every word. So, all you page counters: Which vote will look better in retrospect?

Like Father, Like Son

It's a That 70's Show remake! It's Freaky Friday but with marching and music! And YouTube!

You can check the Harvard University Band blog for the official (but not yet posted) videos, but a Band parent has already posted videos of pregame, halftime, and the beginning of the march back to the Square after the game:

Pregame:



Halftime:



March back:

Maira Kalman on Our Democracy

Recommended.

Jon Kyl Decides It's More Important To Hurt Democrats Than To Help Doctors

Announces he'll vote againt his own bill. Maybe he's a secret health care mole somehow? It's not very easy to get the AMA mad at Republicans, that's a nice trick.

Non-Prize-Winning Jokes

Working on the proper humorous reaction to today's Nobel Peace Prize announcement:

• Sure, it's nice, but it's not like it's an honorary degree from ASU
• Don't react immediately; instead, wait for David Broder and Robert Robb to explain how this actually is good news for the Republicans
• There goes Michael Crow's chance to serve on the Nobel Prize committee
• See? The rest of the world doesn't like the GOP, either.
• Or else they secretly want to see Bill Kristol's head explode. That would be pretty cool.
• It's a double-edged sword. Because winning the Nobel Peace Prize can really ruin your whole day.
  
• So Obama can't do anything in Copenhagen, but he's a hero in Stockholm? Choose your Scandanavian destination carefully, I always say. (Yes, the award ceremony -- for the Peace Prize only -- is in Oslo but the committee is based in Stockholm, where the other awards are given on the same day. I'm not letting you make my travel arrangements.)

Maybe the Nobel people are simply relieved at having a US president whose first reaction to anything isn't to bomb or send (more) troops. Still, that position got 46% of the vote in November.

Tour de Scottsdale 2009

Seventy miles, 3:39:09. The organizers give the time down to the tenth of a second, which is what we call in the business either (a) excessive or (b) a joke. But if you're keeping score at home, officially it was 3:39:09.2. Full results here. No photos yet. Not bad, overall; it was fairly windy and while I got dropped by the pack around mile 55, I finished about 2.5 minutes behind my goal. A lot of work to do before ETT next month, though.

"If It's Only Broke For Tens Of Millions Of People, Don't Fix It."

Financing health care for anyone less than 65 years old is socialism, I tell you. Socialism!

At Least Dan Quayle Wasn't Elected in '96, Either

I'm now old enough that I'm eligible for a college newspaper's dive into the archives. I look scarily young (and presumably healthy). I don't recall the Tucson rally as focused on health care, but what the heck.

He Said, She Said: Special Muslim Man-on-the-Street Edition!

You could read this Arizona Republic article three times, as I did, and finish with absolutely no idea whether CAIR is evil and connected with terrorist organizations, or if its real crime is not being acceptable to right-wing Republicans. It's also not clear if the American Islamic Forum for Democracy has any members apart from its president, Dr. M. Zuhdi Jasser. But what's beyond dispute is that Dr. Jasser is the Repubic's right-wing Islamic answer to Greg Packer.

White People, Obsessed With Race

Of course they all have to ask the President. They probably don't know any other black people.

See also Andy Borowitz: Criticism of Obama 'Not About Race,' Says New Poll of White People.

More Murtha, Less Johnstown

Now the Wall Street Journal joins in, going after the Cambria County airport, another local earmark-fest. Here's Matthew Yglesias, taking the long view more expansively than my prior post. We're getting to critical mass here, which can't be good for Johnstown.

I'm on the email list of a Johnstown guy, who sends out constant streams of emails about Israel and whose latest missives are World Net Daily (!) articles on Van Jones. (He sent around articles about the birth certificate lawsuits during the election but has since moved on, unlike the last remnant Birthers, so he's not completely untrainable.) His legal and lobbying practice is completely dependent on Jack Murtha. Very dark storm clouds are gathering, if not for next fall then after redistricting in 2012, and he's obsessing about Van Jones.

You can see what's happening, it's the Reverse Johnstown Flood. When the federal dollars stop flowing, the buildings will still be standing and there won't be any mud to clean up, but the effect on the community will be equivalent to when the steel mills shut down.

My Home Towns

My original home town gets a visit from The New Republic, and they can learn a lesson from my home town now. I fear Jason Zengerle gets Johnstown's economic future right. The community's leadership sees a diversified economy, moving away from dependence on government contracting in the same way that Phoenix's leadership saw our economy diversifying from dependence on real estate. (Look at all the finance, law, accounting, and title insurance firms! Tourism! Retail! Call centers!)

The temptation to credit success to your own virtue is fairly impossible to resist. Once luck runs out, however, the result isn't pretty.

He "Overcame Great Privilege to Build a Life of Real Accomplishment."

My Ted Kennedy appreciation in this week's Jewish News of Greater Phoenix. (Conclusion of rest of article: Yes, he was good for the Jews.)

This Cartoon Was Much Funnier In The Original German

Which must be why the Arizona Republic editorial page chose to print it this past Saturday.

Special audience participation contest: See if you can count the number of unproved assumptions in one little cartoon. ("Because Dick Cheney said so" is not proof.) First prize is a week in Gitmo. Second prize--need you ask?

They Drop the House Liberal, and Nine Months Later They're Bankrupt

Freedom Communications to file for bankruptcy this coming week, according to the New York Times. It's cause for glee in some circles, however unseemly. So now the creditors can do to the owners what the owners did to the reporters. And what will happen to the Hoiles family's fourth generation--the ones that now (gasp!) have to get jobs?

There are two lessons to be learned here: (1) Drop my column, lose your newspaper. Post hoc, ergo prompter hoc. (2) Subscribe to the Arizona Guardian. It's outlasted the Tribune!

NYC Triathlon Results

Age group 104/151
Swim 18:21, rate 1:06
T1 7:56
Bike 1:24:51, rate 17.6
T2 3:57
Run 1:04:01, rate 10:19
Total 2:59:03 -- Under 3 hours!

Update: More Photos!

Here's another picture, from the beginning of the run as we head into Central Park. Please note that I'm running too slowly to make it into the picture (that's my arm at the right edge of the frame):

The Award-Winning Beth Schermer

Last week at the American Health Lawyers Association annual meeting in DC, Beth received the David J. Greenburg Service Award from AHLA. (The page has just been updated!) You’d never get Beth to admit that she’s been honored, so I thought I’d better let people know.

This is a wonderful honor, and well deserved, and just in time, too; I was sitting at the dinner and as they read the list of past recipients, I started thinking “One of these years, these guys had better give this award to Beth or I’ll—be really, really grateful I didn’t say anything out loud.”

The Internet! Now With Broadway Show Tunes!

It's like they made it just for me.

Lake Tahoe Century 2009

It's called "America's Most Beautiful Bike Ride" and it probably is. I rode with my peeps from Westchester-Hudson Valley again, and had a great time. Thanks to the recession, we had much better accommodations (no disorientation from having to walk through a casino everytime you enter or leave the hotel), and I learned my lesson about bathroom breaks last year (which is don't wait until the rest stops, use the facilities at the state parks along the route, or the supermarkets, or the ski area. No lines, while people are standing dozens deep at the port-a-johns).

We were all worried because Saturday was miserable, constant rain and temps in the low 40's. But it stopped raining Saturday night, and while it was cloudy at the start, the sun came out around 9 am and stayed out. It's still an odd ride--spectacularly beautiful, all around the lake. But they don't close the roads, and you have to ride single file, and among cyclists of widely varying skill and speed levels. People ride two abreast, which is against the rules, then hassle you if you ask if they intend to pass or will kindly get the frack out of the way. But if you figure you're just riding slowly much of the time and won't find a rhythm (or have a clear line of sight to the photographer), it's OK.

I also can recommend the J. T. Basque Bar and Dining Room in Gardnerville on the way to Tahoe--a ton of food for $15. The special Saturday for lunch was beef tongue stew. My grandmother would have been proud.

When Jon Kyl Played The Race Card

In 2003, according to the Senate's #2 Republican, the only possible explanation for opposing confirmation of a Hispanic judge was prejudice:

Republicans have seized on Mr. Estrada's stalled nomination to drive a wedge between the Democratic Party and Hispanic voters, whose ranks are growing faster than any other minority group in America. "I see this, really, as a slap at Hispanics," Sen. Jon Kyl, Arizona Republican, said Wednesday.

Washington Times, March 14, 2003. Isn't NEXIS wonderful?

Constitutional Law with Jon Kyl

Sen. Jon Kyl on the propriety of Senate filibusters of judicial nominees:

"For 214 years it has been the tradition of the Senate to approve judicial nominees by a majority vote. Many of our judges and, for example, Clarence Thomas, people might recall, was approved by either fifty-one or fifty-two votes as I recall. It has never been the rule that a candidate for judgeship that had majority support was denied the ability to be confirmed once before the Senate. It has never happened before. So we're not changing the rules in the middle of the game. We're restoring the 214-year tradition of the Senate because in the last two years Democrats have begun to use this filibuster....

This is strictly about whether or not a minority of senators is going to prevent the president from being able to name and get confirmed judges that he chooses after he's been elected by the American people. And it's never been the case until the last two years that a minority could dictate to the majority what they could do." [NewsHour with Jim Lehrer, Judicial Wars, 4/25/05].

But that was then, this is now:

Arizona Sen. Jon Kyl on Sunday refused to rule out a filibuster if President Barack Obama seeks a Supreme Court justice who decides cases based on "emotions or feelings or preconceived ideas."

The Senate's No. 2 Republican made clear he would use the procedure if Obama follows through on his pledge to nominate someone who takes into account human suffering and employs "empathy" from the bench.

Kyl acknowledged that his party likely does not have enough votes to sustain a filibuster, but he said nonetheless he would try to delay or derail the nomination if Obama ventures outside the "mainstream."

It makes sense once you realize that instead of the Constitution, what Senator Kyl wishes to preserve, protect, and defend is the Republican Party of the United States. After all, wasn't that the holding of Marbury v. Madison, that it's OK if you're a Republican? Or was it "two wrongs make a right?" I can't remember, 2005 was so long ago.

Promotional Consideration Provided To My Little Ol' Law Firm





Which isn't quite so little anymore. Here's our updated announcement of our recent comings and going. The original appeared in the Arizona Attorney magazine, but the deadline for the ad was too soon to include our newest arrival, Naomi Jorgensen.

People here were a bit freaked initially over Andy's departure but from what I can see, the net result is that as a firm, we're younger, smarter, and better looking.

Brief Moment of Self-Promotion (as opposed to all our other programming?)

In the hope that this humble blog will become a must-visit destination for readers interested in both politics and resolving real estate boundary disputes short of litigation, click here or here for information about the continuing legal education seminar that I am presenting with Scott Malm of Gust Rosenfeld P.L.C. and John Stock, PLS, USMS, CFM, of the Maricopa County Flood Control District on June 9th entitled "Boundary Disputes: Resolving Conflicts Without Going to Court." We hope it's "Must-See CLE."

A Hot Time in Tempe

Results from Sunday's Tempe International Triathlon are available here (scroll down for the Men 50-54 results.) (UPDATE: Photos!) It was a good swim, a barely OK (at best) bike, and a very long, very slow, and very hot run. I had hoped to break 3 hours but straggled home in 3:09:43 (378/540 overall, age group 20/27.) But my one point for finishing helped my team (Go Ungainly Named Tri-Scottsdale/Gage Racing Triathlon Club!) win the state team championship. (Now maybe the emails will stop.) But if I can get my run time down to a far less embarrassing 59 minutes, show more speed on the bike, and work on my transitions, I should be able to break 3:00 in NYC in July. I hope.

No wetsuits, the water was too warm. Too bad, as it's hard not to look cool in a wetsuit.

The Tour Guide

Our son (in orange shirt) leads a tour at Pomona College, courtesy of NYTimes.com.

The Only Coppersmiths With Regular Newspaper Gigs

Are now Ben and Louis.

It's Not the Centers for Disease Control, But It's Probably Correct

Do you have swine flu? Are you sure?

You've Made Miss Teen South Carolina Very, Very Happy

At last, we have a different unsuccessful beauty pageant contestant over whom to obsess.


H/t: Pandagon

Hey, Wait a Minute

The uniformly repeated 'winger comment on Arizona's budget crisis is to note that since 1993, state spending has increased more than the cumulative increase in inflation and population growth here. I've been wondering about that claim, which I assume is technically correct.

First, why is 1993 the base year? (I'm assuming it's the state's fiscal year for 1993 and not the 1993 calendar year.) I assume they're using 1993 because that's the best year possible for the comparison. The 1993 budget would have been prepared during the 1991-92 recession, but the revenues would have come in during the national economy's turnaround during the 4Q of 1992 and first half of 1993. So you'd have a very difficult budget prepared during the spring of 1992, when things looked pretty grim--and with lots of spending deferrals and such to make the budget work for FY93 in hopes that the state could make it up in FY94. So 1993 would be the very best year for this comparison; spending artificially shifted into future years due to grim revenue numbers that turned out to be too pessimistic, so things could be (and were) made up in FY94 and future years.

Second, if the complaint is that Gov. Napolitano led the state on a spending binge, why are we talking about the increase in state spending from a decade before she took office? Between 1993 and today, we've had 4 governors (counting Gov. Brewer): Symington, Hull, Napolitano, and Brewer. The great majority of that time, we've had a Republican governor with a GOP-controlled legislature. If the problem is spending during the Napolitano administration, then why aren't we seeing statistics about spending from FY03 to FY09 only, what's the point of going back to 1993? If the problems go back to 1993, then aren't the Republicans responsible for most of them?

Third, even if you assume away these conceptual difficulties, the real, human problem with the "we spent too much" argument is that these guys have to come up with not just cuts for the coming fiscal year, but they also need to tell us what we shouldn't have done over the past 16 years. What kids shouldn't have gotten mental health treatment? Which CPS cases shouldn't have been investigated? Which all-day kindergartens shouldn't have opened? Which new schools shouldn't have been built? Stop throwing about misleading statistics, and tell us who didn't deserve to be helped instead.

El Tour de Phoenix Fun

A good day on the bike. It's 72 miles, and my time was 3:31:09, which is 10 minutes better than last year (3:41:56). 20.5 mph average speed--hooray for drafting. (Last year was 19.5 mph. I hung out with a better crowd this year.) 351 out of 917; age group breakdown not available.

Steve Owens to DC

As Assistant Administrator for the Office of Prevention, Pesticides, and Toxic Substances at the Environmental Protection Agency. Here's the White House press release.

Phoenix Guy Does Good (But Has To Do It In Pittsburgh)

The New York Times today writes about Pittsburgh's leadership in reusing existing buildings and converting both new and existing buildings into environmentally-efficient structures and uses. One of the business community's leaders in "going green" is former Phoenix native (and my friend) Gary Saulson. If Phoenix is serious about becoming a leader in environmental design and wants to become carbon-neutral, we should bring back Gary. But we have no money here to do anything remotely like that, so we'll just talk about it. Until the Next Big Thing floats by.

Of course, it's not like Pittsburgh is perfect. If this story instead had run in the Pittsburgh Post-Gazette, they would have noted that Gary isn't a native Pennsylvanian and has lived in Pittsburgh only for 15 years. But it If it had run in the Tribune-Review, they would have called him a communist.

Greetings from Montana

Interim press reports on the Congress to Campus visit here. I've decided that when I grow up, I want to be Orval Hansen. I only have to run 13 more marathons to match his career total.

My Planned Parenthood Action Fund Joke

I just don't understand this Legislature. The Republicans have two priorities, making Arizona a place where it's easier to drive dangerously but harder to enjoy sex safely. The GOP won't be happy until they get the photo radar cameras off the highways and into your bedroom.

Personal Items

First, a preview of my 2009 Congress to Campus visit to the University of Montana in Missoula.

Also, Desert Classic Duathlon results (22/29 in age group, scroll down to Men 50-54) and photos. It was harder than it looked on paper. Next up on the schedule: El Tour de Phoenix.

We now return you to your regularly scheduled programming.

"Cheap Just Does Not Do It"

In Arizona, we've had more than a decade and a half (since 1991) of working under the assumption that if we just made things less costly for business and the better-off -- cutting taxes, reducing regulation, you know the drill -- we'd do well. And what has the result been of all that tax cutting and regulation reducing? According to state Rep. Rick Murphy (R-Glendale), "We have one of the worst business tax climates in the world in Arizona and that has to change." Of course, Rep. Murphy wants to do more of what we've been doing over the past 15 years. Yes, we're in a hole, and according to the Republicans, we must keep digging.

Outside observers are less wedded to their ideology. As the Financial Times reported today, home prices in large US cities dropped at a record rate in 2008, with Phoenix, Las Vegas and Minneapolis dropping the most, and Boston, Denver, and New York showing relatively small declines.

Key quote showing the bankruptcy of the GOP's "less tax = more growth!!!!!" philosophy:

“The mix of a sharply deteriorating labor market, associated weakness in personal income, broader negative wealth effects from other asset classes, a massive overhang of actual and potential supply, and troubled credit availability [is] swamping the record affordability measures,” said Alan Ruskin, strategist at RBS Greenwich Capital. “Cheap just does not do it.”

Our New Governor Is An Old Joke

So you must know the old joke (claimed by the Ukranians, but also mangled almost beyond recognition by software developers) about the two envelopes that the predecessor leaves for the successor to open in the first crisis, and then the second, worse crisis. The first envelope has a note that says, "Blame me!" The second note says, "Prepare two envelopes!" Too bad our current governor already has used up her first envelope during her first month in office.

Glad we have entered the "responsibility era" and fixed Arizona's unique and unusual governing procedure that allowed Gov. Napolitano, all by herself, to control the state's fiscal policy. Now we have a system that will require the GOP-controlled legislature to pass budgets each year. Oh, wait.

The Super Bowl of Tax Policy

What with all of the to-do over the Arizona Cardinals making the Super Bowl -- to the point where we know the family history of substitutes on the punt coverage team -- one salient fact seems absent from the discussion. The team wouldn't be in the game but for raising taxes in 2001, at the beginning of a recession. No new taxes, no stadium, no home record, no home field advantage, nada. All from raising taxes! Who knew such a thing was possible?

I strongly opposed the stadium tax in 2000 as I feared living in a state which would find spanking new revenue sources for fun and games but which would cut education, health care, and services for the disabled. People said I was too pessimistic. No, I was just early.

1.20.09

I couldn't watch. I spent the morning holding my breath until the Inauguration concluded, fearing that somehow Dick Cheney would find a way to scuttle our hopes yet again.

PS: Please click the link.

Marc Cooper Doesn't Like New Times Much

A long, long, long post by Marc Cooper on the limitations of the New Times version of journalism, to the extent that it's journalism. Yes, it's long but it's worth reading. (H/t Ezra Klein). Thanks to the miracle of corporate ownership, you can now read the same "turgid, under-reported and tendentious piece placed in the paper by none other than the guy who now effectively owns it" in both LA (as "Los Angeles News") as well as Phoenix.

There's an argument to be had over whether Gov. Napolitano did as much as she could for Arizona. See, for example, Jon Talton. Even though I'm probably way more liberal than the Gov (on second thought, I don't think it's ideological--I'm way more confrontational than the Gov), I don't agree, but it's an argument worth having on the terms Talton sets out. But Lacey? To paraphrase the British sitcom title, "Never mind the quality--feel the length!"

Note: Last sentence edited, I misremembered the original joke.

You Geezers Get Off My Lawn!


On a slow news Monday, the Arizona Republic reaches for the obvious. (But not too obvious for over 8 pages of commenters, so maybe they know their audience well.)

Worrying About Bias Is Biased!

I'm a bit late to this particular rodeo, but I've watched with amusement the "concern" that the new Arizona political reporting website, The Arizona Guardian, needs to be watched (we should wait and see if the cliche "wait and see" becomes overused) for signs of bias because my law firm helped form the LLC and because Democratic political consultant Bob Grossfeld is a minority owner. Here's the AZ Guardian's take, but I wonder about why only Democrats get put on probation when becoming journalists.

Funny, I don't recall similar hand-wringing when those fun-loving libertarians of Freedom Communications bought the Tribune newspapers, or when Bonneville purchased KTAR radio, or when Belo bought KTVK-Channel 3. Nobody seemed concerned about waiting and seeing if those more conservative owners would start to skew coverage in line with their political beliefs.

It reminded me of a story that former Phoenix City Council member Joy Carter used to tell. Once Mayor Margaret Hance, a staunch Republican, took Joy aside and said that it wasn't right and proper that Joy was involved in the Maricopa County Democratic Party's Nucleus Club. The Phoenix Council was, and still is, elected on a non-partisan basis, and Hance said Joy, instead of being a high-profile member of something as overtly political as Nucleus, rather should spend her time on community activities -- like Trunk and Tusk.

(For the irony-impaired or the recently-arrived, Trunk and Tusk was the GOP's version of Nucleus at the time.)

Sometimes It's Nice Not To Be Noticed

One interesting sidelight of the Bernard Madoff financial scandals, at least here in Arizona, is the lack of any gossip about local investors or institutions who have lost money invested with him. I've heard nothing, and I spend a lot of time talking with some of the biggest gossips in the Phoenix Jewish community. (Cue faux outrage: I resemble that remark, sir!) We're perfectly capable of developing our own financial houses of cards, but apparently none of our machers achieved the level of status that allowed them the privilege of putting their money in the leading national Jewish Ponzi scheme.

In other words, in the American Jewish community hierarchy, in the contest of who you know (and is there any other game?), we in Phoenix rank behind Latin America.

Your Arizona Real Estate Bubble In Action: 10933 W. Hopi Street, Avondale

Anybody interested in just how screwed up the real estate market got in Arizona during the bubble needs to read this Wall Street Journal online article (complete with video and slide show) entitled "Would You Pay $103,000 for This Arizona Fixer-Upper? That Was Ms. Halterman's Mortgage on It; 'Unfit for Human Occupancy,' City Says."

The house is 10933 W. Hopi Street in Avondale, Arizona (map), Maricopa County Assessor Parcel No. 101-17-250; the legal description is Lot 70, Cashion Park South (MCR 89/14) for fellow real estate law mavens. The house is 576 square feet in area; the lot is 6,500 square feet. The County Assessor valued the property (full cash value) at $63,500 in 2007; the assessed value rose to $76,500 in 2008, but fell to $50,100 in 2009. (See link for Assessor valuations)

The owner originally purchased the house in the 1960's for $3,500. Effective February 15, 2007, she obtained a mortgage for $103,000, which is the value an assessor and hence the lender placed on the property. (The deed of trust is available here; enter the document number, which is 2007-0235982. I tried to put in a direct link but it decays if you haven't visited the County Recorder website first.) The loan was placed through a local mortgage lender, one of the non-banks which never had to worry much about the Community Reinvestment Act; it sold the loan to Wells Fargo, which in turn sold it to HSBC, which placed it into "HSI Asset Securitization Corporation Trust 2007-WFI" which is probably in your 401(k) or mutual funds portfolios as we speak.

Ms. Halterman, the borrower, used the "cash out" from the property for bills; she never managed to pay all much on the loan, which had an adjustable rate starting at 9.25% and capped at 15.25%. In 2008, the lender foreclosed, and the property has been sold to neighbors for $18,000; the neighbors plan to tear it down. (The City of Avondale has posted the property as condemned as unfit for human habitation.)

Anybody who thinks this made any economic sense as a global matter is just nuts. But nobody involved in the transaction -- not the borrower, not the local lender (which got a couple thousand in fees from the transaction), not the assessor, not the title company handling the escrow and lender's title insurance, not the bank bundler (which also got fees both for assembling and servicing the loan), not the underwriter of the mortgage-backed security, and not the rating agencies which called collections of subprime mortgages extremely safe securities (for a fee) -- had any incentive to say no at any point in the process. (UPDATE: Actually, it was a great deal for the borrower; she used the 2007 loan to refinance a home equity loan, rolling it all into the first loan on the property. She would have remained personally liable on the home equity loan but the anti-deficiency statute prevents the lender from pursuing the difference between the value received in foreclosure and the remaining debt. That wouldn't have been true if she had continued to have two loans on the same property, the second creditor could have pursued her after foreclosure. (Probably not successfully, but still.) If a business did this, we'd congratulate the savvy of the CFO.)

Sure, it may have been nuts for the state, national, and world economy, but why would anybody in the long chain of fees have any personal incentive to pass on this deal? The risks would get passed down the chain; the fees stayed with you. So they didn't. They would have been fired if they had, because somebody else would have made the deal instead.

So much for the "self-regulating market."