Arizona's Own Espresso Pundit

Lite Rail in the News--updated

On Wednesday night I pointed out that Arizona still has a statute on the books that says local passenger rail lines can't charge more than five cents per trip.  That's an obsolete law that's clearly meant to regulate the old trolley system.  But you don't get to ignore laws just because you think they were meant for different era.  

The good folks at KPNX Channel 12 thought that was a pretty interesting story, so they called Valley Metro and asked about the statute.  Apparently the guys at Valley Metro said...uhh, we'll have to get back to you on that. 

KPNX reporter Melissa Blasius thought that was pretty funny, so she brought a news crew to my house and we chuckled about it for a while.  You can watch it at 10:00 Thursday night.

The law is clearly out of date and I'm sure that Valley Metro will find an expensive attorney who can argue that it SHOULDN'T really apply, but it is going to be a bit harder to argue that it DOESN'T really apply.

UPDATE:  Folks have been asking why I haven't responded  (including one commenter who chided me for not issuing a correction).  Actually, I don't think there's anything to respond to.  The post is somewhat whimsical.  I never claimed to have done an big research project and to have concluded that the lite rail system is destined for financial collapse.  I just think it's funny that the statute is on the books and that Valley Metro can't seem to explain why it doesn't apply.  When I was on Channel 12 I said that if I got on the train I would pay the full $1.25 fair.

After all, the rail system a couple billion dollar project and it would be an incredible example of malpractice for the attorneys to have missed such a basic point.   

However, there's clearly not an obvious answer or Valley Metro would have responded immediately and the lawyers in the comment section wouldn't be debating each other. 

I will respond to a couple of the points.  Valley Metro and one of the commenters are using a federal pre-emption argument to say that the doesn't apply--that is "Congress eliminated the state caps in the mid 1980s."  Hmm, unless there's already some case law on point, that's a pretty weak argument.  The US Supreme Court  significantly narrowed the scope of the Commerce Clause in Lopez and Morrison and I would hate to be the one arguing that Congress can pre-empt a state law that caps rates for rail service that runs exclusively within Metro Phoenix.  You might eventually win that argument, but I wouldn't want to float a billion dollar bond issue on that theory. 

The other point is that the law is in a section that relates to the Corporation Commission.  That's a good point and since I work with the ACC, Title 40 is actually one of the titles with which I'm most familiar.   However, saying that Title 40 no longer applies is a minefield.  The Corporation Commission itself made that argument about retail electric competition and got it's head handed back by the state Supreme Court in the Phelps Dodge decision. 

Craig has done a good job saying why it doesn't apply and I work with Craig on ACC issues, so he knows what he's talking about.  I think he has the right answer.  But while Craig's argument is probably the strongest, it's not the one that Valley Metro is using. 

If this were an actual research project, I would check the federal statute on Westlaw and then determine if it had been upheld.  For example the state anti Sodomy laws are still on the books but are null and void after Lawrence.  There's no need to repeal them.  Likewise, if Congress has preempted local caps and the Supreme Court has upheld it then that's a good answer.  But if Congress tried to eliminate the caps on intracity rail and it hasn't been tested in court then that's a really big gamble.

So I will go back to my original premise.  I think it's really funny that this is still on the books.  Obviously--whether it applies or not--it should have been repealed years ago.  I don't think light rail is going away and I think Valley Metro will eventually come forward with a compelling argument.  But I will say one thing.  The post has not been up for 48 hours, it's been in the Star, the Tribune, AzCentral, Channel 12 and Horizon and while we have some good input from the commenters, I don't think we have a compelling answer. 

I'm sure one is coming, but until then I think it's pretty funny. 

The Most Important Job that You have Never Heard Of

Two groups of Republicans have been prominent in the news lately.   We have been reading a lot about Jan Brewer's transition team; that's the high-powered group of Republican leaders, Industry types and yes, lobbyists who will help Governor Brewer fill key positions in her administration. 

We've also been reading a lot about the rank and file Republicans who are "fighting for the heart and soul of the party." 

But there's a group that you haven't read about.   The Tweeners--Republicans--and actually, a few Democrats--who are much more connected to state government than the local precinct committeemen, but who aren't close enough to Brewer to be named to the transition team. 

There are actually thousands of tweeners and they have something very important to say.  If you could listen to their conversations, you would get a thousand variations on this theme:

"Hey, I've heard that you know the woman who cuts Bas Aja's wife's hair, do you think you could maybe ask her to tell Bas to mention to Chuck, Doug and Jay that I know this guy who would be just perfect as Deputy Director of GITA?"

Of course, Tweeners aren't just obsessed with finding jobs for their friends, most of the them are actually a lot more concerned about making sure that key agencies like DEQ, ADOT, AHCCCS and DHS are staffed by someone the tweeners support--and perhaps more importantly, NOT staffed by someone they DON'T support.  

All the tweeners are engaging in these conversations and they are the ultimate inside baseball; I hear them all day long and they all sound like code.  People walk up to me and say... Betlach for AHCCCS?  "I've heard Gerard may be back at DHS, but Brian McNeil would be perfect."

Most tweeners have an agency that's important to them.  I'm probably most concerned about DEQ and RUCO.  Then there's the one job that everyone cares about...a job with no fixed description...a job with no one to supervise and no agency to run.  The most important job that you've never heard of--Counsel to the Governor.

Sure, the Governor's lawyer has to be able to give the Governor excellent legal advice.  But that's not why everyone's asking about the position.

I've had conversations with dozens of Republican attorneys and they all eventually come around to one point.  If Governor Brewer serves two years and then is elected in 2010--and let's face it, incumbent Governors don't lose--she is likely to appoint scores of lower court judges and at least two--perhaps three--Supreme Court judges.

In the old days, that might not have been too big a deal.  After all, Governor Hull only had one Supreme Court pick and she chose a Democrat.  Governor Napolitano however has been relentlessly partisan in her judicial selection. Now it's Brewer's term and the Counsel to the Governor will wield enormous influence on that process. 

Speculation has reached such a frenzy because the Governor's transition team has been remarkably disciplined.  None of us know what they are really thinking, so the tweeners are like barbers discussing mutual funds at a Christmas party.  None of us are willing to admit that we have no idea what's really going on.

So I don't have any official confirmation, but here are the names getting mentioned by Republican Attorneys.

Joe Kanefield is on every list.  Kanefield is the State Elections Director...that means he is essentially Counsel to Brewer already.  He worked in the AGs office from 1995 until 2004 and has been working in state government since college.  He a lawyer's lawyer and is clearly well qualified for the job.  By all accounts he's an excellent attorney and the clear front runner.  

In fact, Kanefield may be too qualified.  He currently serves on the State Bar's Board of Governors and by 2011, he will be State Bar President.  Most Republicans believe that the Bar has too much influence on the judicial selection process already and the thought of the Bar President also serving as Counsel to the Governor---and possibly filling three Supreme Court seats--sends Republican Attorney's into complete meltdown.  The problem is compounded because Kanefield is a Democrat. 

Republicans still have nightmares about of Warren Rudman telling President Bush that David Souter would be a fine pick.  In the modern version of the nightmare, Kanefield is Rudman

Everyone else is in the second tier...but what a second tier it is.  Fine lawyers who have made a name for themselves by performing well in key positions in government or the private sector.  These are the men and women whose names I've been hearing all week.  One of them may end up as Counsel to the Governor.  My guess is that in the next five years, you are likely to see half of them on the bench.

Richard Bark is former Chief Counsel to Speaker Groscost,  former partner at Fennemore Craig and currently a partner at Galagher and Kennedy.  His credentials among conservatives are impeccable  and is also well connected in the LDS community.  He currently serves on Brewer's transition team.  Like Kanefield, Bark may be a victim of his own success.  Partners at GK make six figures and the first number's not a 1 or a 2.  Six figures can move into two commas for someone who has serious connections and at that point,  going back to government is like going back to high school

James Beene spent six years at the Arizona Attorney General's Office in the Criminal Appeals and Capital Litigation Sections.  He has argued dozens of cases before the Arizona Court of Appeals, the Arizona Supreme Court and Ninth Circuit Court of Appeals. He was also my Chief Counsel at RUCO.  He's currently is the Appeals Bureau Chief at the Maricopa County Attorney's Office.

Beene first came on the scene in 1995 as the analyst for the Senate Government Reform Committee.  I remember that Stan Barnes was the Chairman and they had an intern...a goofy left-handed kid from Tucson.  I wonder whatever happened to him?

Amy Bjelland was legal counsel to the majority for the Arizona State Senate from December 2006 through December 2008.  She has been involved with the legislative process on and off for some time, first serving as an intern for the Senate Republican Staff in 1995, then working in the Southern Arizona Legislative Office from 1995 through 1996, and as the Judiciary Committee analyst for House Majority Research from 2001 through 2003.  Prior to returning the legislature in December 2006, she worked for several different state agencies, including Real Estate and Corrections, most recently serving as an administrative law judge for the Corporation Commission, conducting hearings and writing recommended opinions and orders.

Tim Casey is the only one on the list whom I don't know personally.  He was an offensive lineman for ASU, and has represented the Republican Party in numerous cases.  He's currently defending Maricopa County in Prop 100 (No bail for illegal aliens) case.   He's Catholic, shares a law practice with Mike Herrod and is extremely well respected by social conservatives.  

As evidence of Casey's prominence among social conservatives, notice that in Wednesday's Star, Howie Fischer wrote a story about the State Bar trying to change the lawyer's oath to include sexual orientation.  Howie only quoted two attorneys--Bar President Ed Novack for the pro side and Tim Casey for the con.

Tim Casey, one of those who is unhappy with the proposal, said it raises all sorts of issues. Casey, who is Catholic, said the language of the oath is so broad that it could require an attorney to accept a case that goes against his or her moral beliefs.

Bill Gates  graduated with honors from Harvard Law School. He worked at Fennemore Craig for a while and now works at Ping and has recently taken over as principle lawyer for the Arizona Republican Party.  In the last two election cycles, he ran the Party’s election day operations.  He's actually known Brewer for over 20 years.  In fact, Jan Brewer wrote Bill and her son, Mike, their first check in order to start up a Young Republicans club at Deer Valley High School in the 1980’s. 

Lisa Hauser is the closest thing Republicans have to Chuck Blanchard.  She is pretty much THE Republican election lawyer and every time Republicans needs help with redistricting , campaign finance or election law, Lisa will be one of their first calls.  However, she served as the lawyer for Arizona Together--the organization established to oppose the marriage amendment--in both 2006 and 2008.  So, while she may have a long career working with individual Republicans, she is anathema to a large swath of the party faithful and any hint that she is being considered by Brewer for a legal position or a spot on the judiciary will create an unbelievable firestorm. 

Jodi Jerich is currently House Chief of Staff, but will be moving into the private sector with the change in House leadership.  She has a long history in state government including a stint as Advisor to Corporation Commission Chairman Mike Gleason. She is a Phi Beta Kappa graduate of Indiana University where she also received her law degree.

Tim La Sota has been involved with Government since he was a kid--his father Jack La Sota was appointed to replace Bruce Babbitt as State Attorney General. He's currently Special assistant in the Maricopa County Attorney's Office.  He's past president and current board member of The Federalist Society, Board member of Goodwill Industries and President of the St. Thomas More Society.

So there you have it.  Only one of them will be Counsel to the Governor--or the transition team might surprise us with someone who isn't on the list--but you will likely hear all of the names in the future.  They will be on the Bench, arguing before the Supreme Court, running initiatives, defending candidates and advancing causes.  You many never have heard of Counsel to the Governor, but you have now heard of these young lawyers, and I'm sure you will be hearing a lot about them.

 

Dude, it's only a Nickel, just pay it.

I thought this was Republic article was pretty funny. 

Metro light rail's fare setup has been called an honor system because riders are expected to be on their honor and buy a ticket to ride a train.

But those who try to ride free risk more than their honor and could face a fine of up to $500 plus court fees after a free five-day trial period.

The reason the article is funny is that it includes this sentence. 

"I know personally I would never get on that thing to try to save $1.25," he said. "It would be so embarrassing."

What's this about $1.25?  Don't they know that the fare is set by statute?  The maximum fare is a nickel.

40-372. Street railways; fares; transfers

A. A street or interurban railroad shall not charge or receive more than five cents for one continuous ride in the same general direction within the corporate limits of any city or town, except upon a showing before the commission that a greater charge is justified.

Hmm, I wonder if someone, you know, forgot to repeal that law? 

My Secret Life Uncovered

I just got this Google Alert that I thought was fun.

EuroInvestor.co.uk - San Antonio's Newest Chick-fil-A Restaurant ...
Greg Patterson, who served in the U.S. Air Force for 26 years, has been selected to operate the new San Antonio Chick-fil-A. Patterson and his wife, Debbie, are eager to bring the new Chick-fil-A to the San Antonio community. ...

That's Progress

It's been interesting to watch the coverage surrounding the death of former Scottsdale Progress Publisher Jonathan Marshall.

Here's what Attorney General Terry Goddard said about Marshall.

"He was a crusading newspaper editor, a type which is almost extinct today," Goddard said. "He ran the Progress as a community asset, an extension on his passionate views on everything from politics to the arts. He had a number of causes that he picked up that he never let go."

The Progress was "an extension on his passionate views..."  That sounds like a great tribute but is that what a newspaper is supposed to be...an extension of the Publisher's passionate views?  I thought a newspaper was supposed to be an unbiased source of, you know...news.

Anyone who is even remotely familiar with the Scottsdale Progress circa the mid 1980s knows that Marshall didn't constrain his "passionate views" to the editorial pages.  Well at least in retrospect that bias is acknowledged. 

The Tribune had an interesting quote from former Scottsdale Councilman Jim Bruner.

For somebody as liberal as he was, to be in a community as conservative as Scottsdale, it’s probably a wonder he lasted at all,” said Jim Bruner, a former city councilman.

Indeed it's a wonder he lasted--one man's liberal bastion in conservative Scottsdale--just like they teach you in J school.  Of course it was easier to have your own liberal fiefdom back then.  The Progress enjoyed near monopoly status in the mid 1980s.  In fact, I would argue that Marshall sold in the very year--1987--that newspapers were at their peak.

That monopoly is over now, and the hubris that allowed newspaper publishers to ignore the philosophical leanings of their communities and see themselves as one-man crusades for liberalism has proved to be their undoing.  The Progress is gone now, eventually swallowed by the Tribune and now jettisoned as the Tribune withers away.

Some people lament the decline of newspapers, but I prefer to simply call it what it is...progress.

Good idea, but it's, well...premature.

When a bill provides a good solution to a real problem and is unassailable on the merits, the last refuge of desperate opponents is to recognize that the bill is good, but claim that it's somehow too early or the bill isn't ready.   Opponents stroke their chins and announce with as much mock gravity as they can muster that the bill is "premature."  This argument is generally met with eye rolling by the members of the committee who support the bill.

The only think weaker than the "premature" defense is the "wrong venue" defense.  This happens all the time at the legislature.  The legislature will have authority over some board, agency, process or procedure that everyone concedes is screwed up.  The apologists for this entity can't even claim that a legislative solution is "premature" because everyone concedes that the situation is a mess right now.  So they claim that the legislature shouldn't fix it simply because, you know, the legislature shouldn't fix it. 

Eventually, the apologists will be forced to concede that the organization is broken and that the legislative solution is the right solution, and that the organization has proven itself to be incapable of fixing the problem itself.  But the group will stubbornly announce that the legislature is the "wrong venue." 

Here's a text book example from the Arizona Daily Star. In fact, the example is so good that I will translate the first half of the Star editorial in its entirety.

We have editorialized in the past about the need for a nonpartisan City Council system to replace Tucson's deeply partisan government, but so far voters have disagreed.

The Star sees a problem; they have opined against the problem, but to no avail.

The most recent vote was in 1993. Since then, proposals for a nonpartisan council system have failed to make it to the ballot, including an initiative drive in 1998 and lobbying campaigns to get the council to put a measure to the voters in 2001 and 2003.

They are actually losing ground and it's clear that a local solution isn't possible.

We hope such efforts will continue, because we think reform is necessary.

It's still a problem. Of course, we've had 15 years to fix it...

We believe a council that is not mired in political party obligations and is not straitjacketed into partisan ideological positions would be acting more often for the general good. Furthermore, as we've noted before, most of the time the city government deals with issues that are neither Republican nor Democrat.

In fact, it's still a serious problem.

Now comes Tucson native and State Sen.-elect Jonathan Paton, who agrees with us.

 

Someone from Tucson has the power to fix the problem.  He's not from Mars, or Phoenix, he's a Tucson native who agrees with the Star on this critical issue.

 

Under a nonpartisan council system, he told the Star's Rob O'Dell, "You get more people who are interested in getting things done than they are in party politics. It would be harder for interest groups around parties to control the process."

 

Wow, this Tucson native is exactly right about the issues.  Finally, someone local who is now saying the same thing that we have been saying for years.

 

But Paton, a Republican, is planning to introduce legislation in the Legislature to to impose a nonpartisan City Council system on Tucson, according to a story Monday by O'Dell. Please note: In January, this body will be dominated by Maricopa County and by highly partisan Republicans.

Que the scary music.  Paton may be a Tucson native who agrees with the Star, but we learn that Paton is...a Republican and he's part of a body that dominated by...Maricopa County Republicans.  After all, non-partisanship is a good thing unless it's pushed by Republicans...not that we are partisan or anything.

Well, don't tread on us, Phoenix.

That's right.  Just because it's a good idea and we support it and the local officials have proven incapable of implementing it, and it's being pushed by one of our own elected representatives...don't tread on us.  We've had 15 years to fix this but by golly, you people from north of the Gila were made part of the United States via the Treaty of Guadalupe Hidalgo while we were admitted via the (sniff) Gadsden Purchase.  

You think I'm kidding, but the editorial writer chose that phrase "Don't tread on us" intentionally.  The "Don't Tread On Me" flag is actually the Gadsden family flag.  Phoenix was acquired by war, Tucson was purchased from Mexico.  Growing up in Tucson I was taught that distinction from pre-school.  I don't know how many book reports I've turned in with the "Don't Tread on Me" flag on the cover, but it was a lot.  Just ask Mr. Petri at Townsend Junior High.  

If Tucson's City Council system is to be reformed, the changes must flow up to the ballot from local citizens and must be accepted or rejected by Tucson voters. Our local governance choices are none of the Legislature's business, nor Paton's.

We hold these truths to be self evident that Tucson must govern itself.

It appears, based on O'Dell's research, that if Paton were to compose such a bill carefully, the Legislature could, in fact, legally impose a new governmental system upon Tucson.

Dang, Paton is smarter than he looks.  (That's nice of the reporter to check up on the attorneys at Legislative Counsel.  I look forward to reading his memo.)

There you have it.  The only thing the Star values over bipartisan ship is parochialism.  The Star offers no legitimate reason not to support the bill.  They obviously can't disagree with the issue. They can't even complain about Paton as the sponsor.  But the Tribe of Pima has counted the Tribe of Maricopa its enemy for many moons.  Arguments that are usually the last bastion of fools have become official policy of the Star. 

The only thing more troubling than the people of Tucson being the last city to tolerate partisan elections is their toleration of such a weak third-tier newspaper.

As if things weren't chaotic enough...

If you have been following the news, you will know that the School Redistricting proposal was doomed from the start.  Here's an update from Tuesday's Republic.

In ruling in favor of the school districts, a Maricopa County judge cited the 1934 legislation defining the term "qualified electors."

District officials wanted to block the unification plan approved by voters Nov. 4 based on the legislation's language. They said the measure required a majority of all registered voters in affected districts - not those actually voting - to pass it.

The judge is clearly right.  The language is unambiguous and "qualified elector" has a clear definition.  But the case presents an interesting question.  What would have happened if no one ever caught the mistake?  What would have happened if the unification plans that "passed" were implemented even if they had not met the requirements of the statute. 

Well, we are about to find out.    You will recall that Prop 301 was the proposal on the 2000 ballot to raise sales tax by 1/2 a percent and spend the money on education.  The measure  received a majority of the votes cast and has been implemented.  But check out the enactment clause from Prop. 301.

Sec. 67.  Conditional enactment

This act does not become effective unless the qualified electors of this state in the general election that will be held in November, 2000 approve an increase in state transaction privilege tax rates of six-tenths of one per cent in order to fund the provisions of this act.

If Judge Burke's ruling is correct--and it clearly is--then Prop 301 never really passed.   I think it's clearly too late to go back unwind the proposition.   I think opponents probably have to raise their objections within a reasonable time.   I don't know what  "reasonable" is, but it's tough to argue that it's eight years. 

However, there are a couple issues that are actually current.   

The legislature is struggling with the effects of Prop 301 now because the ballot measure is allegedly "voter protected."  The Arizona Constitution requires the Legislature to use a three fourths vote to change a measure that was approved by voters, and that change has to further the original purpose of the measure.  But that assumes that the measure, you know, actually passed--Prop. 301 didn't.  Is the legislature allowed to change the measure because it was never really protected by the voters?

Then there's the question of the tax itself.   If a tax is collected illegally for 8 years does it become permanent, or should it be removed once the error is discovered?  Once the state has been put on  notice, that the tax is illegal, isn't the state vulnerable to a class action suit?  It seems to me that the tax that has been collected for the last eight years is off limits because it had a color of legitimacy.  But that legitimacy is gone.  Every dollar that is collected from now on is subject to refund.

Too bad I don't take the Bar until February. 

Post Script:  I've had several people comment that the 301 language doesn't say "majority" of qualified electors.  It just says that the "qualified electors" have to "approve."  But that's absurd.  Tell me how a group approves something at an election other than by a majority. 

The end of an Era.

Coincidences can be rather bizarre sometimes.  On Sunday morning, the Tribune's Jim Ripley reiterated the changes that are occurring at the Tribune. 

In just three weeks, the Tribune, as current subscribers have known it, will become yesterday's news.

The paper is eliminating subscription service and paid home delivery.  It's also only going to be printed four days a week. 

There was one rather sad line.  "Over the past several weeks, we've been revamping the newsroom and reshaping our advertising department."  What he really means is that "we laid off 142 people including me."   Ripley himself was part of the latest round of cuts.

One of the changes is to eliminate the Scottsdale edition of the Tribune as well as  discontinue Scottsdale distribution.  The Tribune bought the Scottsdale Progress from Johnathan Marshall in 1987.  One could certainly argue that the Scottsdale Progress lived on as a part of the Tribune. But with the Trib eliminating Scottsdale coverage, closing the Scottsdale office and discontinuing Scottsdale distribution, it's clear that the old Scottsdale Progress is gone.

And on Sunday afternoon, former Scottsdale Progress Publisher Johnathan Marshall died at age 84. 

The era has truly ended.  Life can be strange that way.   

Judge Burke Rules in Favor of the Districts

You will recall that the Legislature passed the School District Unification bill in 2006 and the Unification Committee met through 2008 and submitted unification proposals to the voters.  In Maricopa County, five of the six proposals were rejected.  Then opponents of the one proposal that actually passed noticed that the language in the original enabling statute had an interesting twist.

A majority of the qualified electors in each affected school district is required to approve the proposed unification plan.

Notice that it's "qualified electors" that's not the same as "voters."  I pointed out on November 29th that the language was clear and the ballot measure was doomed from the beginning.  Even if everyone who showed up at the polls voted yes, the measure would still not have garnered a majority of the qualified electors. 

Judge Burke agreed with the plaintiffs as well. 

Defendants’ Motion to Dismiss is DENIED and Plaintiffs’ Application For Declaratory Relief is GRANTED. The court finds that the unification question on the November 4, 2008 ballot did not pass by a majority of the qualified electors in the Plaintiff districts for the following reasons.

Ouch. 

For Your Consideration.

Sonoran Alliance broke the story  that the Arizona Bar is proposing to change the Oath of Admission to forbid new attorneys from letting  "considerations" of "sexual orientation" influence their duty of care. 

“I will not permit considerations of gender, race, religion, age, nationality, sexual orientation, disability, or social standing to influence my duty of care.”

A Who's Who of the Arizona legal community has responded with this letter. 

For the reasons expressed herein, we believe that the proposed provision is unnecessary, exceedingly ambiguous, and unconstitutional. We are concerned most particularly that the proposed provision’s vagueness violates due-process and free-speech guarantees and that its application infringes First Amendment rights by compelling conduct and expression in conflict with an attorney’s philosophical or religious beliefs as well as his other professional responsibilities.