No Look Pass II

Last January I wrote a post called the "No Look Pass."  That piece was in response to the political conundrum created when last November's Minimum Wage law failed to include an exemption for the Developmentally Disabled. 

The law is clear.  You can't pay workers less than minimum wage and there are no exemptions.  However, this is a politically untenable position because the developmentally disabled community is a sympathetic and visible loser. But the law can't be changed because it was created by initiative and the legislature is not allowed to create exemptions to a law that was passed by the people.  There is no legitimate solution short of changing the law at the next general election. 

However, there is an illegitimate trick that can solve the problem.  In January I predicted what would happen. 

So what's the solution?  The No Look Pass.  The agency that enforces the minimum wage law is planning to take a pass on it and the newspapers and law enforcement agencies are vowing not to look.

That's exactly what happened.  The agency charged with enforcing the statute fabricated an exemption.  Here's the Republic's take on it. 

They will not be "workers," per se. Rather, they will be "trainees," who work not for a wage but for an educational stipend.

Sure, that's the ticket.  The Industrial Commission will simply say that these folks aren't workers and the money they receive isn't wages.  The newspapers will look the other direction.  Thus the "no look pass."

The Republic continues its glowing editorial support for the Industrial Commission's slight of hand while conceding that the rule is a fabrication.

Technically, the law may say the developmentally disabled are but "trainees."

But, in fact, they are workers. Earning what they get, and gaining the gratification of a wage hard-earned in the process.

So what's wrong with that?  I answered the question in my previous post. 

So what's wrong with the No Look Pass?  The problem is that if you aren't a sympathetic character, the enforcement agency will decide not to pass and the newspapers will decide to look. 

We are a nation of laws not men.  That's not just rhetoric, it's a fundamental principle.  Your status in the legal system in based on what you do, not who you are.  But the No Look Pass allows onerous laws to continue and simply not be applied to folks who are sympathetic.  Or, conversely, they can be used to target folks who aren't sympathetic. 

I previously used the example of the disparate treatment that David Burnell Smith received from the Clean Elections Commission.  The statute states that fines for election violations shall be 10 times the amount of any violation.  But this is untenable because it would wipe out a lot of candidates.  So the CCEC has--unlawfully--provided exceptions and the newspapers don't look.  That is they don't look until they decide to look...and in Smith's case, remove him from office. 

But let's take politics out of it.  Here's a great example of selective enforcement.  You may have seen this little tidbit in the paper. 

Paradise Valley socialite Sonia Falcone plead guilty Wednesday to a misdemeanor charge of employing unauthorized immigrant workers as part of a courtroom deal that forces her to leave the United States but eliminates a potential felony conviction.

The Falcone's have a colorful past to say the least and are certainly not sympathetic characters, but step back a second and pay attention to the charges.

Under the plea bargain, those felony allegations will be dismissed. Instead, she will admit to employing several immigrants who had religious visas, but were not authorized to work in the United States. That crime is not even listed on the indictment.

The Paradise Valley Socialite is forced to leave the country because she hired illegal aliens?  Perhaps she's the only Paradise Valley resident who has done that.  If you read more closely, the guys she hired weren't even in the country illegally, but it was a violation of their Visas for them to work.  Has anyone in Arizona been forced to leave the country because they hired someone who was in the country legally but not authorized to work?  Of course not. 

This is the pernicious side of the No Look Pass.  If you are a sympathetic character--the Developmentally Disabled Community with minimum wage law, Janet Napolitano with Elections Law, someone picking up guys at Home Depot with Immigration Law--then the law doesn't apply to you. 

But if you are not a sympathetic character--Hispanic teenagers who lose their jobs because of artificially high wages, David Burnell Smith kicked out of office for campaign violations or Sonia Falcone kicked out of the country for hiring a driver in violation of his Visa restrictions--then the full weight of the law falls on you. 

The cornerstone of our legal system is that we are a nation of laws not men.  It's not who you are that gets you fired, removed from office or deported, it's what you do.  The No Look Pass is an abdication of responsibility by the regulatory agencies and their enablers at the newspapers. 

So the Republic and the Industrial Commission may think that it's really clever to wink and define workers as "trainees" and wages as "stipends" but that's not how the law works.  If you don't like the law change it.  Don't simply decide not to apply it. 

Comments

[Chuck Blanchard]

Greg:

Interesting post. I can't comment on most of the examples you list because they involve several matters handled both me or others at my firm (interestingly, clients you identify as both sympathetic and unsympathetic), I can offer more general thoughts.

The assumption in your post is that the law, as written, needs to be applied to the letter in every instance, and that if there need to be exceptions, they need to be written into the law itself. I disagree. Indeed, I would contend that discretion in the application of the law has always been part of the American legal tradition.

In my experience, there needs to be some reasonable discretion in the the application of the law. Some call it "prosecutorial discretion." I call it common sense. The reason is that even a wise legsialtive body can't think of every equity or concern in drafting an enforcement statute. Absent some commen sense discretion, injustice will occur.

The key, in my view, is to make sure the exercise of discretion is in the light of day. There needs to be some accountability. An enforcement agency needs to be able to articulate why they are exercising this discretion in one case, but not another.

[Karen of Scottsdale]

Greg, you make some great arguments here. It's so typical of liberals to just look the other way when it pleases them instead of following the rules. Bad laws need to be changed! I personally don't like the whole ballot initiative process -- especially when it gets us into such trouble. Why should we bother to elect people to represent us if we are going to have to vote on everything ourselves?

Chuck, there's "discretion" and then there's "politics" and what's happening with clean elections is a good example of "politics" being used in the name of "discretion."

My problem with the whole minimum-wage scam is that I thought Arizona was a right to work state. That being so workers should to be able to negotiate whatever arrangements they want with their employers, vice versa. If I want to work for $2 an hour and you're willing to pay me that, then what business is it of anyone else?

[Matthew]

One of your best posts. Kudos.

[Joe]

I'd argue that the "discretion" should be applied to the specifics of the offense (for instance, not ticketing someone for jaywalking who's 6 inches out of the crosswalk), and not to determine which offender should be charged.

If the law is just it should be applied against all.

[Aaron]

I think what Chuck is saying is that there needs to be transparency so if there is politically motivated rationale for exceptions the public can call that agency out on it.

[Travis]

One can describe WHAT is going on in this situation, but we really should be focusing on the WHY. This is the result of an ill-informed reactionary electorate driven by a political philosophy of Social/Marxist propaganda. “WE MUST DEFEND THE POOR IGNORANT WORKERS AGAINST THE MEAN CAPITALIST BUSINESS OWNERS!”

This has been coupled with the effects of another reactionary law – the one that cements initiatives into our statutes.

Now, when the tyranny of the minority realizes a small victory, but then has to face the consequences of its actions what does it choose to do? Live with the consequences? Change what they’ve done? NO!! They choose to ignore it and break the part of the law that does not fit their worldview!

The Democrat party is leading the charge on this type of garbage. They then ignore the facts and are not being held to account for the destructive consequences of their ideas.

This ties in with Greg’s other posts regarding the media. The liberal media is not holding these people to the fire. Thank you Greg for being a lighthouse in the fog of media and political misinformation.