Thursday, December 17, 2009

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.

Wednesday, December 16, 2009

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.]

Monday, December 14, 2009

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.

Monday, December 07, 2009

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!