March 2011


John Junker (Tom Tingle/AP)

How long, do you think, it will take to get Fiesta Bowl activity back to business as usual?

  • A week
  • A month
  • A year
  • We’re back now. Nothing’s changed.

I leave you to vote silently. I have my own opinion.

This week’s series of stories by the Arizona Republic is a feather in its cap, really excellent reporting. It is likely, in fact, that some journalism awards may be in the offing for the reporters and editors involved. Congratulations to Craig Harris and everyone else over there.

But long-term change at the Bowl, or in the bowl structure overall? Hmmm. Our answer is likely to come at the Altoids Hold-Your-Breath Bowl.

The possibility for long-term change dropped like a poorly played ball when it was disclosed that top BCS official Bill Hancock (and other BCS officials) had himself received gifts from the Fiesta and Orange Bowls. Suddenly his tough talk morphed into words of caution and not pass-rushing to judgment.

Hancock’s earlier warnings, uttered just days earlier, that they “take these allegations seriously” seem like ancient history today.

Of course, a criminal investigation is a different matter. It is likely that this much smoke will lead to at least a small fire of an indictment or two.

But the entirely predictable lesson that we—and other Bowl executives—are learning is that the now-disavowed business practices worked—and worked well—for a really long time.

It reminds you of a decades’ worth of bad mortgage-lending practices. Even though they were later revealed to be corrosive, there is no denying that they made billions of dollars for many people for a long time. So which lesson do you think the industry will remember? Corrosive? Or billions?

So now we move from Junk Bonds to Junk Sports.

A pretty good roundup of the Fiesta Bowl scandal appears in yesterday’s Arizona Capitol Times. Among the facts regarding the 276-page investigative report, the following line struck me: “[T]he investigation report said now-ousted bowl chief John Junker thought it prudent to cozy up to elected officials.”

Yes, hubris and overreaching appear to have caught up with Junker and others. But his oh-so-prudent decision to cozy up to elected officials? That appears to have been a master-stroke, and exactly the uncomfortable factoid that will make lawmakers and bowl executives charge after these improprieties with less than full-throated zeal.

Robert Robb

Whenever a commentator starts with the “Truth is somewhere in the middle” scenario, you can be assured of one thing:

You’re going to have to work hard to excavate his real thesis, for it’s nearly certain that his preferences lie on one side of the argument over the other.

And that’s the case with Robert Robb’s lecture on merit selection in this morning’s Arizona Republic, titled in a moderation-is-all tone “Small Fix Is Best For Merit-Selection System.” Let’s see his fair-minded lede, shall we?

“Arizona’s merit-selection system for choosing judges isn’t as bad as critics maintain. On the other hand, it’s not as virtuous as defenders assert.”

Holy cow, who could disagree with that? His decades of reporting experience have revealed to him that humans and their positions are flawed.

Gosh darn it, that’s a fair-minded journalist, just telling it like it is, balls, strikes—you know the drill. And that opening prepares you to accept as reasonable the conclusions he draws at the end of his column—if you get there. For many readers, that milquetoast opening will cause them to say, “Nothing to see in merit selection. Sounds like some tweaks are in the works. All is good in the world.”

In that view, his conclusions are more a modest proposal than A Modest Proposal.

But when a polemicist uses that truth-is-in-the-middle rhetoric, it is in the middle—of his column—that you have to read carefully to see what’s up.

And it’s there that Robb goes after the courts with both barrels:

“In the 1990s and the early 2000s, however, there was a serious problem with an imperial state Supreme Court. During that period, justices decided that the state Constitution no longer would accept the system of funding school construction that had lived comfortably alongside it since statehood and that it somehow required the public funding of some abortions.

“They started tossing some propositions off the ballot. The only common theme among those that got tossed was that they promoted conservative causes.

“The justices even appointed themselves editors in chief of the ballot-publicity pamphlet, in one case censoring a warning from the legislative budget staff that expanding the Medicaid population might end up costing the state general fund big bucks. Which, of course, it did.

“There is no one left on the current court from those imperial days, and the current court is charting a much more circumspect role.”

Where, as they say, do we begin?

I think it was Henrik Ibsen who said that if a playwright has a rifle over the mantle in Act 1, it is certain that it will be taken down and used in Act 3.

Well, if we’re tossing around terms like an “imperial court,” we’re bound to think that a revolution is in order. We Americans are like that (think “Don’t Tread on Me”).

Robb usually writes with a pretty subtle understanding of what lawyers and judges really do—which is appreciated and pretty rare. But his examples from the “crazy” 1990s leave me underwhelmed. A few anecdotes don’t prove that the Supreme Court got any more “activist” in that time period. And if it was a busier court then, that would coincide with a time when the Legislature—and what it created—grew to be more partisan and imperial. Maybe they had to get active just to keep up with the increasingly active Lege. You know, checks, balances and all that.

And I had to smile when I saw some of Robb’s examples are in education. As we see our state’s race to the bottom of the country’s educational heap, it’s almost a laugh riot that he would spank the Court for its past efforts at equity and efficacy.

In fact, just pages before Robb’s column today, we hear how former Intel CEO Craig Barrett advised the Legislature that if that company were looking today for where to expand, “I hate to say it, but I think Arizona would not be in the top 10 locales to make that investment” (“Former Intel CEO Blasts Education in Arizona”).

Hmmm, it almost sounds like education is related to the economy or something.

On a related matter: As merit-selection issues develop here in Arizona, there is another question that I am interested in.

Thus far, the Arizona Supreme Court and the State Bar of Arizona have been strong partners in working to maintain the merit-selection system. They both are adherents of the maxim, “It’s not broke, so it doesn’t need fixing.”

But as bills get dropped at the Lege, distinctions in their positions may be necessary. For instance, some of the proposals maintain merit-selection with some small changes—one of which is a diminishment in or elimination of the State Bar’s role in choosing judges. That role is already modest, but some lawmakers want it gone, gone, gone.

As the bus rolls past, will the State Bar be under it? And will the Court support bills that save the bulk of the system, even if the Bar is marginalized? That would put the State Bar to a choice: Stand down, or advocate a position that is not on all fours with the Court.

And if the Bar does work to preserve its role, does it do that now, at the Lege, or wait until a ballot resolution is put to the voters?

Either way, the year grows more interesting by the moment.

Read Robb’s entire column here.

The past week has seen a lot of press over a video and its related commentary.

Arizona Attorney General Tom Horne visited the state Capitol recently, and was in the process of being interviewed by a reporter from Spanish-language media. As he strode up to begin the interview, a group of protestors surrounded him and chanted a variety of things.

He finally abandoned the attempt to conduct the interview and returned to his car, followed the entire way by the crowd.

Attorney General Horne subsequently sent a press release calling the protestors a “thuggish mob.” Their behavior, the release suggested, was par for the course for ethnic studies supporters. (I have included the entire press release below.)

That led to some harsh words in the Arizona Republic (in both an editorial and a blog post), as well as a response by AG Horne.

Watch the video and tell me what you think. Did the protestors exhibit “thuggish behavior,” or acceptable First Amendment speech? Were their actions over the top, or was it par for the course for modern political protests?

(For fairness sake, I link you not to the video that the AG’s Office sent out in its press release, because that video included captions and commentary that were added by his supporters. Instead, I link to the identical video without the commentary. However, feel free to watch the other video; its link is at the end of the press release below.)

Now, let me know what you think.

(I have to add one bit of sympathy for Attorney General Horne. At about 3:40 in the video, as he is trailed by a throng of vocal non-supporters, he appears to have forgotten where he parked. He strolls through the Capitol lot, protestors serpentining behind him, and finally locates his wheels. Having wandered lots myself looking for a car I’ve lost, I can say, “I’ve been there.”)

Here is the March 17 press release:

FOR IMMEDIATE RELEASE:

Thursday, March 17, 2011

Contact:  Amy Rezzonico (602) 542-8019

www.AZAG.gov | Facebook | Twitter

RAZA STUDIES SUPPORTERS, IN A THUGGISH MOB, TRIED TO SHOUT DOWN ATTORNEY GENERAL HORNE

PHOENIX (Thursday March 17, 2011) — Attorney General Tom Horne today released a video of a screaming mob of Raza Studies supporters who interfered with the Attorney General’s efforts to accommodate a request to be interviewed by a television news crew.    

In the video below, viewers can see a thuggish mob of Raza Studies supporters trying to shout down Horne, to attempt to prevent an interview with Univision Television.

Horne was in the process of leaving the Capitol after a meeting, when a reporter from Univision Televsion asked him to return to where his cameraman was, so he could do an interview in Spanish, as frequently does for Spanish-language media.  A thuggish mob of Raza Studies reporters surrounded them and tried to prevent the interview, screaming at the top of their lungs.  When the interview was over, Horne walked to his car, still surrounded by the mob, screaming vulgar epithets. 

Horne said, “The Raza Studies program teaches irrational mob behavior as a matter of habit.  For example, they did a street play called ‘the killing of Tom Horne’ which was filmed by channels 4 and 9 in Tucson, and broadcast.”

For a YouTube video (not produced by this office) of Attorney General’s Horne encounter this week go to: http://www.youtube.com/watch?v=nu3UW_Cw1-8.

Is it an exaggeration to say that a case being argued at the U.S. Supreme Court today could be the Miranda ruling of campaign finance?

Well, maybe. But in terms of Arizona facts that contribute to national law, today’s arguments pack a wallop.

The oral argument is in regard to the matching-funds provision of Arizona’s clean elections statute, and it involves two consolidated cases: McComish v. Bennett and Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett.

The Court is scheduled to hear oral arguments this morning to reverse a decision of the Ninth Circuit Court of Appeals that upheld matching funds.

Here is a good analysis of the case’s importance.

And here is a local story, which includes a lawyerly tale of how people agree on who gets the privilege of arguing to the high Court. Once the Court opted to disallow a time-split between appellants Institute for Justice and the Goldwater Institute, how could the eager lawyers come to agreement on which would speak? It came down to a coin toss.

Finally, the Goldwater Institute has posted online all of the case filings. You can read the merits brief and the reply brief (and a whole lot more) here. And the Court’s own docket, including the Questions Presented, is here.

Today is the birthday of Daniel J. McAuliffe, who passed away a year ago. In his memory, I am posting my Arizona Attorney editor’s column from May 2010.

You can read the column online here.

And see some images we posted last week here.

A Force at Rest

Dan McAuliffe passed away March 12. All indications are, the world is going to have a tough time without him.

There are a lot of reasons for that. On page 14, some of his fellows talk about Dan’s impact on the profession, and the vacuum he leaves in his wake.

For me, it came down to Dan’s judgment and his delivery. Those are the qualities I will miss most.

For example, in late 2008, a question arose about whether it was permissible for lawyers to accept credit card payments for fees they had not yet earned. It was an ethical dilemma, but also a real-world law practice problem.

That’s when Dan McAuliffe wrote an article setting forth the issues and an interim solution. The Dean of Arizona Ethics wrote practically, more elbow grease than ivory tower. And that’s what Arizona lawyers like most about him. As his partner John Bouma says, Dan was pragmatic, never dogmatic—a problem-solver.

Where others would take to the ramparts loudly, Dan would pick up his pen and draft a solution. Sometimes loudly.

And, darn it, he was almost always right. If he said something, you could usually bank on it.

At the Bar Convention about a year ago, I stood in the Biltmore’s Aztec Room during the President’s Reception. As I spoke with Dan and others, he interrupted himself to mutter, with his sideways smile, “Eigo, get a haircut.”

That one knocked me back a bit, but so powerful was his world view and so trustworthy his counsel that I took a good look: He was right—I was getting a bit shaggy. Apparently, his judgment could be trusted in most all domains. The next day, I got a haircut.

Well, the day after Dan died, I again sat in the barber’s chair and thought about this remarkable lawyer. Granted, depending on where you stood, he could be either a rock or an avalanche, but he was no wallflower.

As Judge Janet Barton says, Dan “devoted himself not only to the practice of law but to the legal profession. It was understood by Dan that the complete package is not only to bill a phenomenal number of hours, but to give back.” The complete package is very rare.

Soon after McAuliffe died, his Regis High School classmates sent a condolence letter and their memories of the budding attorney: “He was the genuine article.” “Even back then Dan was primer inter pares.” “He was, withal, our leader.”

Dan McAuliffe was a leader and a friend—to anyone who has ever become a lawyer and uttered the oath of admission to a bar, or to anyone who has ever relied on one of those lawyers. He is missed.

And they're off!

On this Change of Venue Friday, let me post a story that’s long overdue.

This spring, the State Bar of Arizona fielded a team in the P.F. Chang’s Rock ‘n Roll Marathon. I will let team leader David Sandweiss explain more.

Have a great weekend (more photos at bottom!).

As Dave tells it so well …

How Did It Start?

This began last year. As the 2009 P.F. Chang’s Arizona Rock ‘n Roll Marathon and Half Marathon approached, I saw on its website that there was this thing called the “Get Fit Challenge.” The Chang’s folks promoted it as a friendly competition to see which organization within a group of similarly sized organizations could produce the most participants. They pitted small v. small employers, large v. large, municipal, gov’t., etc. Being a runner, I thought this was a great opportunity to reach out to the State Bar of Arizona membership, build a team and do some valuable PR work in the process. Our brass told me to keep it “in house,” meaning that only SBA employees were eligible. When I put out an e-mail to the SBA, I recruited one runner. This encouraged me to re-define “in house” to include anyone loosely connected with the SBA. That got me a justice of the peace, a former chief bar counsel and a corporate counsel visiting from Michigan (how he was “loosely connected” to the SBA is a whole other story).

We were determined to do better this year. With grounding in the SBA’s Wellness program, Bar CEO John Phelps scrounged up a couple thousand dollars to offer runners a 25% subsidy of the registration fee, up to a maximum of 75 runners. We circulated an e-blast and posted on eLegal, and ended up attracting about 25 runners. They responded from all over the state. Most were half-marathoners, but we attracted a couple full marathoners. They simply signed up through the Chang’s website using a special code to get the 25% subsidy that we pre-arranged with the Chang’s Get Fit Challenge contact person. I invited them all to my house the week before the run for a “taper” run—after training at longer distances, one eases back on the miles during the two weeks before the event—and food. Three women joined me and wife Kathi for an easy jog through beautiful Paradise Valley.

How Did We Do?

Unfortunately, we did not win the Challenge—we were placed in the Government classification and several agencies outnumbered us—but our people easily won the contest for enthusiasm. We were bigger this year than last, and perhaps will grow even more next year.

 First, let’s give it up for our two full marathoners, Gregory Barry and Don Ennis. Both were in the age 31-35 group and did spectacularly well (they finished on their feet, which is my definition of a win). Gregory had the faster time, at 4:14:54, which, in my opinion, is outstanding for a law student with so little spare time to train.

On the men’s side, Dave McNeil was the fastest (and only) age 41-45 half marathoner at 2:15:37. In the 46-50 group, Robert Baumann ran 1:46:56, making him the second-fastest Bar Fly. In the 56-60 group, yours truly did a respectable 1:51:23, and in 61-65, Bob Van Wyck led a two-man pack, nosing out Ron Ramsey in 2:15:20.

The women did great, too. In the 26-30 group, Angela Kebric eked out a victory over closest competitor Linley Wilson in 2:26:38. Bisi Onisile headed a crowded pack in the 31-35 group, in 1:47:35 (third overall). Our champ, Nicole Farnum in 36-40, was the fastest Bar Fly in 1:43:24, but Stephanie Samuelson deserves recognition for her under-2-hour half in 1:51:30. Maret Vessella (Dave McNeil’s better—and faster—half) triumphed in the 41-45 group at 2:05:22, Pennie Wamboldt (46-50) scored in 2:48:19, and Annie Oakley [sic] was victorious in the 56-60 division in 2:07:38.

That said, as far as I’m concerned, everyone who participated is a winner. For some, it was a first foray into running, just to see what would happen. For others, it was a personal challenge to do something previously thought unimaginable. For still others, it was a return to pounding the pavement after many years off for career or family, and for others still it was just a nice way to enjoy a nice day with friends, to quicken the pulse, lose a pound or two, or just enjoy the desert air.

I hope you’ll keep running, especially since you’re in such great shape—don’t backslide now! I’ll be joining my Saturday morning running friends tomorrow at Vincent’s on 40th Street and Camelback in Phoenix, at 7:00 a.m., to run along the canal and then enjoy the Farmer’s Market-type spread afterward. See you there?

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On Friday, I will be heading over to an event at the Phoenix law firm Snell & Wilmer. The gathering is a two-day conference titled “In-House Counsel Global Symposium.” It promises to give some fascinating insights into international practice, and I’ll report back on what I hear.

But sitting in the Snell conference room will be odd, for I have always thought of it as an important part of Dan McAuliffe’s house. Let me explain.

Dan was a legendary lawyer, who practiced the bulk of his career at Snell. He was always everywhere that lawyers needed his assistance. He served as  State Bar President, and wrote books and treatises on professionalism, and ethics, and civil practice.

That’s the nutshell version. But it doesn’t explain why he’s still on my mind a year after he’s shuffled off this mortal coil.

To do that, I point you to a few things I wrote. A few are long-winded, but one won’t take you more than a few moments. I’d start with that one.

In another conference room—this one at the State Bar of Arizona—Dan’s picture smiles over a room dedicated to legal education. He’d like that. And next to it is a plaque that I am pleased to say I was asked to write. The call was for something brief and less bio-awful than many such plaques that we all have read a hundred times. So here’s what I wrote:

“Dan McAuliffe wrote numerous books and articles on ethics and professionalism, including the Arizona Legal Ethics Handbook. Those works have been and will continue to be invaluable guides to Arizona lawyers. But Dan’s accomplishments run far beyond those works.”

“Dan was a leader in every group in which he sat. He was smart, perhaps smarter than anyone you’re likely to come across in a career of law practice. He was generous of his time and of his opinion, even when you’d rather decline the offer. He was a friend to lawyers, especially those new to practice. He was an advocate for the unfortunate and a tireless champion of justice. His legacy is commemorated every time an Arizona lawyer chooses the path of ethics, education and professionalism.”

I knew Dan, and I suspect he would smirk at those words, roll his eyes, and say, “Eigo, that’s too much.” But he was all that, and more.

Besides that plaque, I got the chance to write about Dan a few other times. One of the first was as he was about to become the new State Bar of Arizona President. One of the last was after he had passed away on March 12, 2010.

I thought about Dan on the anniversary of his death. But writing something that day felt misguided, somehow. Instead, I think of him now, on the day he was born in 1945, a Bronx baby who would grow up to become a respected attorney.

RIP, Dan. We think of you still.

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