March 2010


Much has been made recently about an Arizona House Bill that would permit university faculty members to carry concealed firearms to work. Weaponized cranium, I guess we’d call it.

This idea has been raised before. The newest version comes from state Sen. Jack Harper, whose bill would allow any faculty member at a public college or university with a concealed-weapons permit to carry a gun on campus.

Hmmm, let’s think about this one.

The Arizona Republic just published an editorial saying it’s a bad idea. It also talks about law enforcement opposition to the bill. They have some thoughtful reasons why such a bill should not be passed.

Arizona State Sen. Jack Harper

That’s all well and good, but here’s a concern I haven’t heard voiced in any of the news coverage:

Does anybody actually remember college? Haven’t we all come across a professor or two who was, shall we say, on edge? How about bitter? Or how about some who were underpaid and unappreciated? Or tired and overworked? Or under remarkable pressure to publish and make tenure?

Sound familiar?

And has nobody watched the NBC show Community? Hello! A concealed firearm may not be the best addition to the zany script that we call our collegiate system.

Well, that’s what I believed anyway. Until I got to thinking about it. And then I decided that this could really work. In fact, this bill could kill two birds with one stone (apologies to the ornithology faculty—please don’t be angry).

What this proposed law could do would be to level a seriously unbalanced playing field. And that field is the battlefield Web site called Rate My Professors.

Stop by at http://ratemyprofessors.com

You may have heard of this site. Students nationwide can go there, find their school on a drop-down menu, find their professors, and skewer them—I mean, assess their skills in a serious and contemplative way. The company claims it contains reviews of more than 1 million professors at more than 6,000 schools.

Like lawyers and their distaste for rating sites like avvo.com, professors are not in love with RMP. But the First Amendment being what it is, there’s not much they can do about it.

(Full disclosure: My wife is a professor at a university, but she hasn’t said much about the site one way or another. On the sly, I looked her up—who wouldn’t? She’s rated well, but I hope she doesn’t get a swelled head about it.)

Professors do have one outlet on the Web site. They can enter a response or explanation in their own defense. At the top right of the page, students then can “See what your professors think of your ratings. Click here.” Yeah, right. Only foolhardy professors would post responses. And I’m sure if any students actually click through, they simply mock the meager defenses mounted.

As a professor’s retort, it’s pretty weak sauce. 

But you know what’s the opposite of weak sauce? A concealed weapon. 

Understand, few professors would even have to carry a weapon. But the possibility of a Ruger in Religious Studies or a Glock in Geography? Well, that could have a civilizing effect on students. Who knows? It could be revolutionary. The possibility that professors are packing heat could lead students to abandon sites like Rate My Professor, TMZ and Youtube. Before long, they’ll be reading more Shakespeare, joining chess clubs and helping the elderly across streets.

“You, there, in the back row: Are you surfing the Web during class?”

A loaded question, eh?

Who knew a bill could be such a weapon for change?

Read the Republic’s editorial here.

Read a news story about the bill here.

Y'know ... for kids

Don’t skip the judicial investitures. It’s when you discover who hula-hoops. But more on that later.

Many people become lawyers, but only a small portion of them ever become judges. And so when someone earns that “Hon.” honorific before their name, it is worth cheering, especially if it’s a good choice.

Today, the Maricopa County Superior Court made some good choices. At a 12:30 investiture, four lawyers were sworn in as Commissioners: Alysson H. Abe, Cynthia J. Bailey, Brian D. Kaiser, and Julia M. Lopez. Call ‘em what you want, I still call them “Judge” when I meet them.

There are differences between judges and commissioners, mostly in terms of the matters they handle. But the test for me as a lawyer is the barley soup test. If I am reaching for the last barley soup at the Courthouse Café’s Barley Soup Day, and someone else reaches at the same moment, what do I do? If the acquisitive hand belongs to a judge or commissioner, I retreat. But if the mitt is a lawyer’s, reach more quickly at breakneck speed. To the speedy go the spoils, as long as your opponent can’t sanction you.

Hon. Barbara Mundell

In any case, the investiture is one of the best-kept secrets of the legal community. It’s easy to skip, especially when there are a lot of them scheduled. (A year or two ago, when superior court judges were cashiering out—at an astounding rate—to recline with their pensions or to teach law school, there seemed to be a few investitures a month.) But here is why you should go: They’re brief, they’re often funny, they’re free, and they tell you a lot about the new judge and the person who introduces them—usually another judge.

And, oh yeah, they usually have cookies.

So when lawyers ask how they can learn something about law practice in a region, I always say, Go to the investitures.

But the hula hooping? Hold your horses, I’m almost there.

Today’s investiture is a good example of what you can learn. Presiding Judge Barbara Mundell got things rolling smoothly, and explained how important commissioners are to the system, handling, among other things, 175,000 filings per year. She was funny, informative and prompt—the perfect master of ceremonies.

She then introduced Criminal Presiding Judge Gary Donahoe. Judge Donahoe has been through the Maricopa County Madness Wringer this year, so he would be forgiven if he had opted to give his three new criminal department commissioners the high-five and sit down. But he didn’t. He brought it.

Hon. Gary Donahoe

He poked fun, he riffed, he mocked—gently—a new commissioner’s aw shucks approach. He had the audience, many of whom may have come for the cookies or the mistaken impression that COJET credit was available. But Judge Donahoe was a hoot and a half.

And then Family Law Presiding Judge Colleen McNally introduced her new commissioner. And that’s when we learned which new judicial officer was a hula hoop maven, had won every hula hoop competition the person had ever entered, and had even hooped onstage with Don Ho.

My hopes would have been pinned on Brian Kaiser. The former Editorial Board member of Arizona Attorney Magazine had also been a Navy man, and he’s a tall drink of water, so the image was irresistible. But it was not to be.

For those who’ve had the patience to wait—It was Commissioner Alysson Abe. Now there’s a status conference that would be worth attending.

Here are some bad cell-phone pictures from the ceremony. Want a better view? Come to an investiture.

          

On Friday, I explained how we sometimes are presented with new ways of viewing the same old things we’ve seen 100 times before. That opportunity came when I attended a conference online regarding virtual worlds. Trippy, but grounded. 

That same afternoon, I attended a seminar (in person) presented by a California lawyer. The talk was titled “Capitally Speaking: Language Shapes the Proceeding From Start to Finish.”

(The presentation was part of the Colloquium Speakers Series of ASU Applied Linguistics, a partnership between the College of Education and the College of Liberal Arts & Sciences.)

Mel Greenlee, an attorney with the California Appellate Project, walked the audience through a capital trial—from jury selection to the sentencing phase. And she explained how the language and diction used at every phase conveys a message to jurors. That diction is sometimes accidental—as in mis-translations—or planned—as in cross-examinations and closing arguments.

That overly simplistic summary would not be news to anyone who’s ever stepped in a courtroom. For as we all know, words are ideally selected to convey a message.

What was new was Greenlee’s detailed use of court transcripts to illustrate the messages. She examined 20 years’ worth of trials and appeals. As she said with a laugh, from her point of view, the most important person in the courtroom is the stenographer.

Bill Murray's Suntory moment

For example, she began with startling instances of translations gone awry, in which virtually all meaning was stripped out of the speaker’s words. The jury in those cases was poorly served, as was the justice system.

She even showed a clip from Lost in Translation, where Bill Murray’s character receives mediated direction, from Japanese to English, which is inaccurate and unhelpful. (After watching Murray’s character struggle with the liquor commercial, we got to read an accurate translation of the scene. To watch the hilarious scene, with subtitles, click here.)

Even more striking were the side-by-side comparisons of prosecution closing arguments given to largely white juries and those given to largely black juries. The goal—conviction and/or execution—was identical in each case. But the diction and strategy varied in each.

Greenlee also provided instances of judges and lawyers agreeing that non-mainstream hair styles, or a juror’s stern look, or an accent, were all indicative of a juror who was unwilling to apply the law. The result, in all those cases, was a jury that was pretty homogenous.

She argued, of course, that that is not society’s goal. Some photos from the event follow:

                       

Today was all about taking a new look at some things you take for granted. And for me, it began in the most unsurprising of places—in front of my computer.

When it comes to conferencing, I typically go old school, like most people. Pack a bag, travel away from home, sit in conference rooms, watch TV in your conference hotel. And then trek home with a poorly constructed conference satchel bearing voluminous materials you’ll probably never use. You know, fun.

But when I saw that there was a conference titled “Governance in Virtual Worlds,” I was interested. I grew more interested when I saw that there were three ways to attend:

1.      Go online in a traditional way.

2.      Go online, create an avatar, and attend in a virtual world.

3.      Drive over to Arizona State University, park, sit in a room, and trek back to the office bearing voluminous materials I’d probably never use.

And, oh yeah, all three options were free.

Well, my hopes were dashed early when my limited “privileges” at my work computer denied me the pleasure of downloading what was necessary to register in virtual world. And so ended my dreams of crafting a buff dragon-slayer named Vord or Flaggen or anything else that sounded like an IKEA end-table.

But attend in person, like the ancient, primitive people of, um, 2009? Not for me, I tell you.

And so I logged on, watched and listened.

Ultimately, I wish I could tell you I now “get” Second Life. But I think that will take me more than a few hours. For me, Linden dollars would just be another shrinking currency in my anemic 401k. But enjoy the conference I did.

Gary Marchant, ASU Law School

Co-sponsored by the ASU Sandra Day O’Connor Law School and “World2World Immersive Virtual Events” (in Second Life, no one can hear you scream about overly long names), it brought together (for reals) big thinkers from a number of walks of life.

So for the price of my own bad office coffee and some occasionally garbled Second Life voices, I sat at my desk and listened to Gary Marchant, an ASU Law professor, as well as Joshua Fairfield (Washington & Lee School of Law) and Gregory Lastowka (Rutgers School of Law).

Why them? Well, the conference had five or six panel discussions throughout the morning, but I especially wanted to “attend” the one titled “Real Laws in Virtual Space.”

Joshua Fairfield, Washington & Lee School of Law

It was very good, but here’s the takeaway: It’s an awful lot like real laws in the real world: It’s complex and confusing, and there are many competing visions.

Damn. We always hope law school is finally behind us, but it never really is. I had been hoping that if people got together to create something wholly new, with no preconceptions, like in a, I don’t know, virtual world, they would avoid all of the nutty anomalies that dog the long slog of human evolution. But no. I’ve now peered into virtual worlds, and I report back to you: It’s a mess in there, too.

Fortunately, Second Life appears to have all kinds of smart working on those problems, so perhaps there’s more hope, legally speaking, in there than out here with the rest of us. An analog fellow can dream, can’t he?

Greg Lastowka, Rutgers School of Law

Next post, I’ll explain how that same Friday afternoon, I got yet another chance to see things in new ways. Ironically, it was while attending (in person) another ASU event, this one with a linguistics expert who also happens to be a capital case lawyer from California. Her name is Mel Greenlee, but more on that later.

To get a little digital on you, here are my tweets from today’s conference, confusion and all:

  • Free #ASULaw conference online now: “Governance in Virtual Worlds,” #asuvirtual
  • We are “virtually attending” an ASU Law School conference “Governance in Virtual Worlds,” including “Real Laws in Virtual Space” at 9:15. Follow our updates on Twitter, search for #asuvirtual
  • “As a society we are hesitant to have youth fully participate in democratic processes” #asuvirtual
  • Virtual worlds and second life are “participatory education.” It gives you “individual sense of agency” #asuvirtual
  • Agenda and login information (FREE!) for “Governance in Virtual Worlds,” currently in progress http://tinyurl.com/yl4pnb6
  • “You want my employees to play games and call it work?” Yes – adults learn in various ways, just as kids do #asuvirtual
  • “There is no shortage of legal issues and laws in #SecondLife” #asuvirtual
  • As speaker, lawyer #JoeRosenbaum, says “Next slide please,” interface reads “There are no slides for this presentation” ugh #asuvirtual
  • “Live” avatars and interface during Second Life conference: Funky, odd, intriguing #asuvirtual
  • “As a society we are hesitant to have youth fully participate in democratic processes” #asuvirtual
  • #JoshuaFairfield Wrong to ask how real-world laws affect virtual world — impact now runs in the other direction #asuvirtual
  • #JoshuaFairfield “We are a tangle of social connections” #asuvirtual
  • #JoshuaFairfield “Property is dead or dying, rules changing so fast as to be unrecognizable” #asuvirtual
  • #RutgersLaw Prof #GregLastowka “Much of copyright law doesn’t make sense in the Internet, which is largely all about copying” #asuvirtual
  • #RutgersLaw Prof #GregLastowka mentions #LarryLessig’s book “Code” #asuvirtual
  • Finally decided simply to listen to conference, like a radio, rather than look at the interesting but no-value-added interface #asuvirtual
  • Law spends a lot of time talking about who gets to set the rules online. Online community should decide, with real-world input #asuvirtual
  • “But rules of the virtual world should not simply be what the online corporations say they should be” #asuvirtual
  • Interaction of all the online-world rules set by multiple parties “almost inconceivable” #JoeRosenbaum #asuvirtual
  • #JoshuaFairfield “It’s odd to apply real-world law online, because community’s intuitions are completely different” #asuvirtual
  • Thanks for following updates on #asuvirtual. More panels ongoing while we return to real world. Updates later at http://azatty.wordpress.com

U.S. Attorney General Eric Holder traveled to Phoenix today to address mortgage fraud. While there, he announced a new funding structure for enforcement efforts. Also participating were U.S. Attorney for Arizona Dennis Burke and Arizona Attorney General Terry Goddard.

Some photos from the summit and the press release follow.

_______________________________________________________________________

ATTORNEY GENERAL HOLDER, FINANCIAL FRAUD ENFORCEMENT TASK FORCE ANNOUNCE NEW FUNDING DISTRIBUTION FOR ENFORCEMENT EFFORTS AT MORTGAGE FRAUD SUMMIT IN PHOENIX

WASHINGTON – Representatives of the Financial Fraud Enforcement Task Force, including Attorney General Eric Holder, met in Phoenix today for the second of a series of Mortgage Fraud Summits. The task force, established by President Barack Obama in November 2009 to wage an aggressive, coordinated and proactive effort to investigate and prosecute financial crimes, is comprised of representatives from a broad range of federal agencies, regulatory authorities, inspectors general, and state and local law enforcement.

The Attorney General announced that new investments included in the FY 2010 budget will soon be distributed to combat mortgage fraud. This spring, nearly $8 million for mortgage fraud enforcement and related efforts, including task forces, will be allocated for this work, including $1.7 million to Arizona.

A recent study from the Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) study indicated that the Phoenix metropolitan area is ranked fourth in the nation for the number of Suspicious Activity Reports (SARs) filed by depository institutions concerning suspected mortgage fraud. In addition, according to the U.S. Department of Housing and Urban Development, Arizona is ranked number one for homes that were funded by Federal Housing Administration loans and have been foreclosed upon.

“Today’s summit marks another important step in our nation’s most aggressive, comprehensive, and collaborative effort to combat mortgage fraud and protect American homeowners,” said Attorney General Holder. “Here in Phoenix, and in cities across the country, mortgage fraud crimes have reached crisis proportions.  But we are fighting back, and with the Financial Fraud Enforcement Task Force that President Obama created last November, we’re tackling the challenges and consequences of mortgage fraud in bold, innovative and coordinated ways.  We have one message to those who would engage in mortgage fraud schemes:  you will be found, you will be prosecuted, and you will be punished. ”

“We welcome the opportunity to combine forces with federal agencies to attack the serious problem of mortgage fraud in Arizona,” said Arizona Attorney General Terry Goddard. “Arizona is ground zero in the foreclosure crisis, which plays a large role in our state’s economic downturn. This crisis has been exacerbated by the deceptive practices of lenders in originating and servicing loans and fraudulent mortgage rescue scams that prey on borrowers desperate to hang on to the American dream of owning a home. ”

Task force members met today with Phoenix area community leaders, legal services providers, banking, mortgage and real estate industry representatives and law enforcement officials to discuss this problem of mortgage fraud from a national, state and local perspective. In the morning, attendees participated in panels on mortgage fraud trends in Phoenix and the community impact of mortgage fraud. In the afternoon, task force representatives are meeting privately with law enforcement officials involved in the investigation of mortgage fraud.

Also participating in the summit will be Assistant Attorney General for the Civil Division Tony West; U.S. Attorney for the District of Arizona Dennis Burke; U.S. Attorney for the Eastern District of California Ben Wagner; Deputy Inspector General at the Department of Housing and Urban Development Michael P. Stephens; FBI Chief of the Economic Crimes Unit Sharon Ormsby; Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) Deputy Director Charles Steele; Executive Director of the Financial Fraud Enforcement Task Force Robb Adkins; and representatives from U.S. Secret Service, U.S. Postal Inspection Service, Internal Revenue Service and local police agencies.

Mortgage fraud is a key focus of the Financial Fraud Enforcement Task Force’s efforts. The task force is working to improve efforts across the federal executive branch, and with state and local partners, to investigate and prosecute significant financial crimes, ensure just and effective punishment for those who perpetrate financial crimes, combat discrimination in the lending and financial markets, and recover proceeds for victims of financial crimes.

# # #

About an hour ago, dozens of eighth-graders from a South Phoenix elementary school visited the State Bar of Arizona offices. What a hoot.

Hon. Roxanne Song Ong

Earlier in the morning, they had stopped by the Phoenix Municipal Court, where Presiding Judge Roxanne Song Ong and Judge Carol Scott Berry greeted them and showed them around. The students also were able to replicate a trial in a muni courtroom.

Here at the Bar, the kids displayed posters they had made months ago in response to the prompt of what qualities do they seek in their imaginary city’s City Attorney. Their responses were good, and even insightful at times.

I. Godwin Otu, Arizona Attorney, April 2008

The outreach is part of the State Bar’s Diversity Department efforts. The Pipeline Project aims to introduce students to the legal profession and provide them support in the years leading up to important school and life choices. The Department is led by I. Godwin Otu, whom we featured in Arizona Attorney magazine in April 2008. Look for our follow-up conversation with Otu in our upcoming June magazine.

The Bar’s press release—and some of the posters—follow:

South Phoenix Students to Tour Phoenix Court on Wednesday

PHOENIX – March 22, 2010 – South Phoenix 8th graders on Wednesday will tour the Phoenix Municipal Court and meet judges as part of the State Bar of Arizona’s efforts to encourage the kids to stay in school and pursue a legal career.

The State Bar’s Diversity Pipeline Project has adopted Cloves C. Campbell Sr. Elementary School students to mentor over a number of years.

Diversity Pipeline Project volunteers will develop a long-term relationship with the students to help 7th and 8th graders foster the skills necessary to become a lawyer. The State Bar will track the progress of the students over time.

Phoenix Municipal Court Chief Presiding Judge Roxanne K. Song Ong will give the students a tour of the court and encourage them to attain higher education. Later in the day the students will visit the State Bar, 4201 N. 24th St. in Phoenix, to talk with paralegals and investigators to get an insight into additional legal careers.

WHO: State Bar of Arizona Diversity Pipeline Project

WHAT: About 75 Cloves C. Campbell Sr. Elementary School 8th graders will tour Phoenix Municipal Court, 300 W. Washington St. in Phoenix

WHEN: Court tour begins at 10 a.m. on Wednesday, March 24

WHERE: Phoenix Municipal Court, 300 W. Washington St. in Phoenix

                       

President Obama signs health care overhaul

It took seven minutes for the first lawsuit to be filed against the new federal health care overhaul. Seven minutes from the time that our southpaw commander-in-chief inscribed his signature, until the clerk’s filing stamp was affixed in a federal court in Florida.

All together, 13 state attorneys general filed the suit in the Northern District of Florida. The lead plaintiff was Bill McCollum, Florida’s Attorney General. The defendants are the U.S. Departments of Health & Human Services, Treasury, and Labor. Also named were Kathleen Sibelius, Timothy Geithner and Hilda Solis as the respective Secretaries of those departments. (Virginia filed a separate lawsuit.)

Much will be made in the coming weeks of the causes of action and their relative strength or weakness. Essentially, the suit alleges that the federal government has: violated states’ rights by an unconstitutional expansion of federal power; levied a capitation or direct tax; and mandated that individuals have health insurance coverage or pay a tax penalty. It seeks a declaratory judgment and, of course, reasonable attorneys’ fees and costs.

Having prevailed in being able to alter federal results (in the election context), Florida state officials decidedly did not believe that turnabout was fair play. Don’t tread on me, y’know.

Among other things, the suit claims that the new law “commandeer[s] the Plaintiffs and their employees as agents of the federal government’s regulatory scheme at the states’ own cost.” And “The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans.”

Florida Attorney General Bill McCollum

Put that way, the new health care law does sound a bit odd. Prohibiting inactivity? Taxing a failure to engage? Entire portions of modern society might be affected. If this law gets its legs under it, idleness and indolence could, well, grind to a halt. The White House forgets, at its own peril, that the sluggish can get tetchy when you alter their immobility.

Well, I leave social engineering and its opposition to the wisdom of other commentators. I’m more interested in the civil practice side of all this. Because this lawsuit and the blinding speed with which it was filed open up brave new cubicles into legal practice.

Now, I’m only mildly naïve, so I know, of course, that this brief was written well in advance of the law’s enactment. The 13 attorneys general, solicitors general, deputies, and outside counsel from Baker Hostetler were able to draft at their leisure—at least, as much leisure as is ever possible in modern multistate complex litigation that challenges prevailing wisdom and warns of dire circumstances. As Witkin instructs, Discontent ain’t easy.

But, just for fun, let’s construct a pretend legal scenario. Let’s do the math on this brief and its seven-minute evolution.

First, let’s assume arguendo that no time was required to transmit it to the clerk’s office. (That’s not ever true, of course, even in electronic filing, but it’s more enjoyable this way.)

Second, let’s assume that no pesky minutes or seconds were consumed in a mad dash to research or to Shepardize. The words, we must believe, sprang whole from the mind of Zeus—and his associates.

So:

5,387 words divided by 7 minutes = x

OK, that may be too easy. I mean, you don’t have to be Louis Brandeis or Potter Stewart to cobble a brief together in seven minutes. This is 2010, man, where lawyers do more and more with less and less (See Downturn). Let’s raise the stakes, using our own experience of harried law practice.

Down in Florida, the group of lawyers had been reclining about, awaiting word of President Obama’s signing of this clearly flawed legislation. They sipped mint juleps (for the principals) and sweet tea (for outside counsel). But as Obama’s hand lifted off the vellum, the attorneys sprang into action.

Mint Julep

Teamwork, as everyone knows, is all when you have only seven minutes. The assembled legal team took to their tasks like gators to a bayou: Facts, Jurisdiction and Venue, Parties, Background, Causes of Action, all were assigned faster than a hurricane sweeps onshore.

But an amateur error awaited. Filing and checking the hours of the clerk’s office is a primary and essential task, but too many lawyers give it little attention, or leave it to an inexperienced colleague. That’s why you never assign the task to out-of-state counsel.

The lawyer thus tasked blithely believed they were to file—in six and a half minutes—in the Gainesville Division, serving Alachua, Dixie, Gilchrist, Lafayette and Levy counties. What an error.

When the senior lawyer pointed out that their court was in the Pensacola Division—serving Bay, Calhoun, Gulf, Holmes, Jackson and Washington counties—pandemonium broke out. Mon Dieu! Screams were heard, a handgun was brandished, and a belle inexplicably swooned upon a couch fortuitously placed beneath her ample bustle. A hound dog was heard bemoaning the injustices of our beautiful blue marble.

Calm was restored by men taking seriously the “General” portion of “Attorney General”—but not before a precious minute was lost to the sands of time.

So:

5,387 words divided by 6 minutes = x

Given the momentous challenge, the team did remarkably well. At minute 6:15, a minor crisis was averted when it was noted that defendants Kathleen Solis and Hilda Sibelius had been transposed. And Wikipedia confirmed that Timothy Geithner’s surname contains an intuition-defying “h.” So confident was the legal team that they briefly debated—and voted down—an additional cause of action for “Spelling That Undermines the Basic Nature of God and Man.” They were high on the law—and loving it.

898 words per minute.

15 words per second.

Wow. Even among a raft of legal luminaries, these gentlemen can draft. Draft, baby, draft.

Of course, the attorneys’ fees and costs statement will likely reflect a bit more than seven minutes, but doff our hats, we must. Whatever the outcome in this states’ rights action, we salute the unwavering focus on swift and sure justice.

Read the Florida filing here

Read the Virginia filing here

The Florida Attorney General’s press release follows:

Attorney General Bill McCollum News Release

March 23, 2010
Media Contact: Sandi Copes
Phone: (850) 245-0150

Florida Attorney General McCollum Sues Federal Government Over Health Care Reform Legislation

TALLAHASSEE, FL – Attorney General Bill McCollum today filed a lawsuit against the U.S. Department of Health and Human Services, U.S. Department of Treasury and the U.S. Department of Labor alleging the Health Care Reform bill signed into law by President Obama this morning is unconstitutional. The bipartisan lawsuit was joined by 12 Attorneys General and is the first challenge of the new law.

“This bipartisan effort by Attorneys General around the country should put the Federal Government on notice that we will not tolerate the constitutional rights of our citizens and the sovereignty of our states to be trampled on,” said Attorney General Bill McCollum. “This law represents an unprecedented encroachment on the liberty of the American people, and I will pursue this litigation to the highest court if necessary.”

The Attorneys General from South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Colorado, Michigan, Pennsylvania, Washington, Idaho, and South Dakota joined Florida’s lawsuit, filed today in the United States District Court for the Northern District of Florida.

The complaint alleges the new law infringes upon the constitutional rights of Floridians and residents of the other states by mandating all citizens and legal residents have qualifying health care coverage or pay a tax penalty. By imposing such a mandate, the law exceeds the powers of the United States under Article I of the Constitution and violates the Tenth Amendment to the Constitution. Additionally, the tax penalty required under the law constitutes an unlawful direct tax in violation of Article I, sections 2 and 9 of the Constitution.

The lawsuit further claims the health care reform law infringes on the sovereignty of the states by imposing onerous new operating rules that Florida must follow as well as requiring the state to spend billions of additional dollars without providing funds or resources to the state to help subsidize the cost of implementation of the law. This burden comes at a time where the Florida faces severe budget cuts to offset shortfalls in an already-strained budget.

Under the new law, Florida will be required to vastly broaden its Medicaid eligibility standards to accommodate upwards of 50 percent more enrollees, many of whom would be required to enroll or face a tax penalty. Florida’s Medicaid program currently consumes more than a quarter of the State’s financial outlays.

A copy of the lawsuit is available online at: http://myfloridalegal.com/webfiles.nsf/WF/MRAY-83TKWB/$file/HealthCareReformLawsuit.pdf 

On Monday afternoon, a press release came out of the United States Attorney’s Office here in Phoenix. It announced “the formation of a Civil Rights Unit to coordinate civil rights prosecution, training and outreach in the state of Arizona.”

 (You can read the complete release below.)

My first thought was: That sounds like an excellent idea.

My second thought was: Didn’t we already have one of those?

Apparently not, and this signals an additional element in the expanded brief of the new U.S. Attorney, Dennis Burke. When we spoke with him in the fall, soon after he had been confirmed, he was very open about the rebuilding—of morale and other things—that had to be done in a post-Alberto Gonzalez Department of Justice.

New U.S. Attorney Dennis Burke, Arizona Attorney magazine, Jan. 2010

When I asked him about the District of Arizona, where the focus long had lain with counterterrorism and immigration, he agreed those would continue to be central to the mission of his office. But he added significant conversation about criminal activity in Indian Country—for a number of good reasons, above and beyond the large land areas in his jurisdiction. Replacing the nation’s first Native American woman with a white male—however qualified—as United States Attorney had to sting the Obama Administration at least a tad. Over the years, the U.S. Attorney’s Office also has harmed its “reservation cred” for its declination letters, in which it declines to prosecute criminal cases there, but provides no rationale. That leaves tribal authorities with the option of pursuing the matter themselves, but with no guidance as to whether the feds thought the case was weak or if they were simply too busy. And if the tribes pursue the case, they can assess far lesser penalties if they win a conviction. Given all that, Dennis Burke has made it an important part of his activities to nurture the relationship with the tribes.

Besides Indian relations, Burke also raised civil rights as an increasing area of focus. Asked if he meant housing, or election violations, or employment, he answered “All of those.”

Was that lip service? Today’s announcement suggests the answer is No.

Call it karma or something else, but the announcement came just hours before a significant ASU Law School lecture. The title of this year’s John P. Morris Memorial Lecture (sponsored by the Black Law Student Association) was “Civil Rights in the 21st Century.” And the speaker? NAACP CEO Benjamin Todd Jealous. I couldn’t attend, but I am hoping the law school taped the speech.

Benjamin Todd Jealous, NAACP CEO

Mr. Jealous, of course, is more than a seriously cool name. He is the youngest leader the organization’s ever had, and a Rhodes Scholar, to boot. Before his current position, he served as director of the U.S. Human Rights Program at Amnesty International. Most impressive to us ink-stained wretches, he also once worked as a newspaper reporter and editor and as Executive Director of the National Newspaper Publishers Association. Let’s hear it for the news! (We like all of the Amendments, but the First does come first …)

So our state was writ large with civil rights today.

Farther east, health care reform also passed out of Congress Sunday in a historic vote—or a historic miscarriage of justice, depending on whom you ask. And civil rights came up there too.

Speaker of the House Nancy Pelosi moved mountains (and horse-traded mountain ranges) to win the Democrats and President Obama a come-from-behind victory. And she even was quoted as analogizing this health care legislation to civil rights legislation.

Speaker Nancy Pelosi signs health care legislation

Hyperbolic? Maybe. But her words came on the heels of out-of-control vitriol by health care opponents spitting on a Black legislator and shouting racist comments as he entered the historic building. That, combined with the size of the legislation and the generation-long changes it could effect, made Pelosi’s analogy less fabulous than it would have been otherwise. So a new law that has to do with insurance premiums and prescription co-pays could be enveloped in the mantle of civil-rights history.

Well, if she’s right, then it’s a civil rights victory unlike any we’ve seen before. This one, for instance, is cheered by large parts of corporate America. Perhaps many business leaders are simply happy to have the debate over and certainty in its place. But others may be pleased at the substance of the law, which aims to control medical insurance costs.

As Monday’s “Marketplace” program reported on American Public Radio, “The stock prices of health care companies showed healthy gains, one day after the House passed historic health reform. Investors apparently think the legislation will be good for the health care industry.”

They may be right—or they may be overstating it. Listen to the story at http://marketplace.publicradio.org/display/web/2010/03/22/pm-health-industry

So cheers to all of us: Props to the U.S. Attorney’s Office (and Dennis Burke) for creating a new division, and invoking the names of hate-crime victims Matthew Shepard and James Byrd, Jr. in the process. And cheers to all those who debated the health care issue freely—thank you, Bill of Rights, and that good old First Amendment!

[Press release follows]

U.S. ATTORNEY ANNOUNCES CIVIL RIGHTS UNIT FOR ARIZONA

PHOENIX – U.S. Attorney for the District of Arizona Dennis K. Burke announced today the formation of a Civil Rights Unit to coordinate civil rights prosecution, training and outreach in the state of Arizona.

The Civil Rights Unit Chief will have district-wide authority on civil rights matters. Burke named Assistant U.S. Attorney Claire Lefkowitz, of the Tucson Office, to spearhead the work of the new unit, and to coordinate efforts with federal prosecutors in the Phoenix, Flagstaff, and Yuma offices of the U.S. Attorney.

“The U.S. Department of Justice is committed to and has had an historic role in upholding the civil and constitutional rights of all individuals, including the most vulnerable members of our society,” said U.S. Attorney Dennis K. Burke.  “The creation of the Civil Rights Unit in Arizona ensures civil rights cases will be given top priority, whether they be the prosecution of hate crimes, or protecting the victims of human trafficking, discrimination based on disability, or civil rights abuses under color of law.”

The Unit Chief will also work in coordination with the District Law Enforcement Coordinator to develop a protocol with law enforcement agencies that investigate civil rights cases in order to ensure cooperation and effective enforcement.  Training will be conducted to inform agencies of enhanced federal statutory authority on civil rights, including the new Hate Crimes Statute 18 USC Section 249, also known as the “Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act,” signed into law by President Obama in October 2009. The new law has a broader reach than preexisting hate crime statutes, and effectively criminalizes violent acts when they occur because of actual or perceived race, color, religion, or national origin of any person. The statute also protects a wider class of victims of hate violence motivated by the victim’s gender, disability, sexual orientation, or gender identify. Previous law required the government prove that a hate-motivated crime be committed to prevent a victim’s participation in federally protected activities, such as voting or attending school.

“Today’s announcement by U.S. Attorney Dennis Burke establishing a Civil Rights Unit will continue to enhance the FBI’s ability to investigate Civil Rights matters,” said Special Agent in Charge Nathan T. Gray, of the FBI Phoenix Division. “The addition of a new Hate Crimes statute will provide the FBI and the U.S. Attorney’s Office the ability to effectively address Civil Rights allegations in the State of Arizona.”

The Unit Chief will also work with a new bilingual Community Liaison to meet with consular officials with responsibility for foreign citizens living in Arizona, as well as other relevant organizations and community groups. 

RELEASE NUMBER: 2010-047(CVU)

Dan McAuliffe died last Friday morning, March 12. So this world has been almost one whole week without him. And I’m not entirely confident how the world will fare in his absence.

Immediately upon learning that Dan had passed, I knew we had to publish a piece, even if it had to be a short one, in the very next issue of Arizona Attorney. Sure, he had been a State Bar President, but he was also an author, an ethics expert, a mentor, an adviser, an educator. And to many, many who knew him, he was a friend. We had to do a story, and soon.

So that was the efficient side of myself.

As the week wore on, though, I found myself immersed in the sundry other tasks that can take up my work life. I edited other copy. I spoke with authors about upcoming stories. I talked with magazine staff about a scheduled photo shoot. I straightened—and then re-cluttered—my desk.

But I resisted starting this task of penning a short memorial to Daniel J. McAuliffe. I engaged my brain in the task, but in more fits than starts. My gaze would drift from the information I had gathered about Arizona’s dean of legal ethics, and I would stare out the window at passing traffic.

That was another side of myself.

Understand, avoiding work is not entirely uncharacteristic of writers. There is always some excuse to delay the hard work ahead. And when a writer has himself for an editor, yikes, it can get almost mutinous, with the lazy writer strolling to get another coffee while complaining about his garret-like office, and the seething editor about this close to taking a red pen to his personnel roster.

But I could tell that this delay was different. I knew what it would be to call and interview those who knew and cared for Dan—it would be a privilege. And yet still I hesitated. And I’ve done this job long enough to know why.

Writing can be illustrative, by revealing something unique or otherwise unseen in everyday interactions. And in that way, it’s great. But it also is reductive—capturing moments, snapshots of a person, and hoping to God that they are representative of the whole. Who knows if you get it right? The writer is rarely sure. But at least, the writer consoles himself, there’s always another story coming around the bend.

But the world is a busy place, and though volumes could (and hopefully will) be written about Dan McAuliffe, they may not be written by me. This may be my last privileged moment to get Dan right.

The great writer Anne Lamott recalled a story that helped her on those damned-words-won’t-come days. When she was growing up, her brother sat frustrated at the dining room table, struggling with a school project. Their father asked what he was working on, and her brother replied that he had to do a report on the birds of North America. He was flummoxed by such an endeavor, overwhelmed by the massive task. Finally, he asked his dad for advice. “How do I do this?” he whined. Their father grew pensive, and then answered with the maddening truth. “Bird by bird,” he said. “Bird by bird.”

And so I will take my own job, step by step. Tomorrow, I’ll start with the simple building blocks of any story. And I’ll call those who can tell me, through their grief, something essential about a remarkable man. I’ll take notes, perhaps make connections. And maybe the profound insights of his friends and colleagues, stitched together wearily with my own conjunctions and transitions, will give readers a tiny keyhole peek into what made Dan Dan.

Meantime, I look with not a little sorrow at my calendar, where a recurring reminder hovers on March 27. That is Dan’s birthday, and I had been looking forward to calling him and wishing him a great day. Another delay of mine, I suppose—one that I regret even more.

Time to get to work.

Whew! Few days are more representative of quintessential Arizona legal politics than today.

Today was going to be all about the Chief Justice’s State of the Judiciary speech. That was to be delivered at the Legislature, and would be followed by posting the complete report on the Court’s spanking-new Web site (http://www.azcourts.gov/).

But after the speech by Chief Justice Rebecca White Berch, there were the inevitable questions, and one just had to be on the matters regarding Maricopa County Andrew Thomas. What about this new Special Counsel who had been named, Scott Rhodes? someone asked. Hadn’t Mr. Thomas complained that Rhodes, too, had conflicts and should be de-selected?

You may recall that Scott Rhodes, an attorney at Jennings, Strouss & Salmon, had been named independent counsel only about a week and a half before. His selection had followed the State Bar’s request to the Chief Justice that she might consider naming an independent counsel. The Bar said it believed it could do its job fairly, but the appearance of a conflict might undermine the process, so how about naming someone who does not work at the Bar?

C.J. Berch agreed, and that’s when she named Rhodes.

But all good things must come to an end. The Chief replied to today’s questioner that Rhodes had decided to withdraw from the position. So now the Court will have to name someone else—someone somewhere in Arizona who knows a lot about the Ethical Rules, but has never had any significant interaction with the County Attorney, the County Sheriff, or the County Supervisors. Tough one, that.

Later in the day, the Court’s Chief Communications Officer, Jennifer Liewer, sent the media a statement from the Court on this newest Andrew Thomas development (see below). The Court recognized it had to address the story, so it did, head on.

And the “State of the Judiciary,” a well-written document that will guide Arizona courts for the coming year? It was an attachment.

That was a tough communications day for the Arizona Supreme Court.

Here is the Court’s statement:

“Statement from the Arizona Supreme Court regarding appointment of Scott Rhodes as independent counsel to review allegations of misconduct against Maricopa County Attorney Andrew Thomas

“The Chief Justice selected Scott Rhodes to investigate allegations of ethical misconduct by Mr. Thomas, because Mr. Rhodes is a well-respected and knowledgeable expert in the field of attorney discipline. The Chief Justice believes Mr. Rhodes would have conducted a fair and unbiased investigation. However, after a meeting recently convened by Chief Justice Rebecca White Berch with Mr. Rhodes and legal counsel representing County Attorney Andrew Thomas, Mr. Rhodes chose to withdraw as special counsel because of the objections raised to his appointment and to avoid those objections becoming a distraction to the investigation.

“Chief Justice Rebecca White Berch states, “I respect Mr. Rhodes’ decision to withdraw and will appoint a different individual to look into the allegations against Mr. Thomas.””

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