March 2013


Venue Projects Beef Eaters sign

Longtime lawyer eatery Beef Eaters Restaurant, about to be reborn via Venue Projects

Here is a Friday Change of Venue story that really goes above and beyond. Let me explain.

Change of Venue is my casual Friday, where I divest myself of the pressing need to remain focused on law and law practice. I mean, give a guy a break!

Today’s story is a little far afield. But as I examined it, I realized how lawyerly it was. (Just when I think I’m out, they puuuull me back in!)

The story relates to an announcement just yesterday. The shell of a former restaurant is being transformed into a space that will house three diverse businesses.

So right away I spot a problem. This story has “adaptive reuse” scrawled all over it, and there are few land-use topics that are more lawyer-heavy than that one.

Making it worse is the name of the former restaurant: Beef Eaters, in Phoenix. That venue was a prime eatery of lawyers when it operated from 1961 to 2006. So as much as I want to give you an attorney-free, protein-rich blog post today, I’m afraid I can’t do it.

Who remembers lawyer meetings at Beef Eaters? I do!

The wood-paneled restaurant near the intersection of Central and Camelback was often lousy with lawyers back in the day. At yesterday’s press conference, a speaker pointed out that Beef Eaters was a site where many of the business deals that shaped the Valley were hammered out (and a few lawyers got hammered).

I recall quite a few State Bar of Arizona Section meetings being held there. It was always a pleasure to walk into the banquette-filled dining room. (Ironically, because Sections always watched their pennies, we never ate beef while we were there; we were chicken-only diners.)

Anyway, in case you’re wondering, here is what is slated to move into the refurbished digs by November 1:

  • A restaurant being developed by Justin Beckett, the culinary mind behind the award-winning Beckett’s Table.
  • Another branch of Changing Hands Bookstore, the first outside Tempe of the nationally recognized independent bookseller.
  • A collaborative office, work and meeting space, called The Lively Hood (say it slow; you’ll get it.)

The project is being conceptualized by Venue Projects, the folks who adaptively reused numerous other spaces in town, including the restaurant now known as Windsor/Churn.

Lorenzo Perez of Venue Projects said, “We’re salvage-hounds,” as he waxed poetic about the walnut floors, antique chandeliers and masses of clear oak they discovered on the property.

Even the seats for the press conference speakers—described by City Councilman Tom Simplot as “Austin Powers chairs”—came from the property, and will likely find a revised home in the new space. (See the fantastic chairs below.)

Venue Projects L to R: Shannon Scutari, Kimber Lanning, Phoenix Councilman Tom Simplot, Mar. 28, 2013.

L to R: Shannon Scutari, Kimber Lanning, Phoenix Councilman Tom Simplot, Mar. 28, 2013.

Other speakers were builder John Kitchell, Local First AZ founder Kimber Lanning, and Shannon Scutari, of the Sustainable Communities Collaborative, which had pointed out that the Light Rail-adjacent parcel could be eligible for a significant amount of transit-oriented development funds (there I go with the legal stuff again). The architect on the project will be John Douglas, FAIA, who has designed, among other things, the Phoenix New Times building and the Heard Museum.

In honor of the Beef Eaters longtime owner Jay Newton, the project is called “The Newton.” And in synch with the project’s nostalgia, Lorenzo said he would like to hear people’s Beef Eaters stories. What events, happy or otherwise, did you attend there? Do you have photos of events and family gatherings? How about business (or Section) meetings?

Write to me at arizona.attorney@azbar.org.

To prime your interest, take a stroll over to the website of Modern Phoenix, where they have captured the leather-bedecked interior, pre-construction.

Have a great weekend.

Yesterday, I was looking for something on the CNN website (good luck) when I came across their recently omnipresent viewer-discretion warning about the Jodi Arias trial. Here’s a screen-grab (the big honking arrow is mine, though the station bosses might decide they like it).

CNN's Jodi Arias trial viewer-discretion warning

CNN’s Jodi Arias trial viewer-discretion warning

I’ve watched a bit of the Arias trial, but not much. Given the questions I’ve received from friends and colleagues around the country (usually beginning, “Let me get this straight …”), it’s helpful for me to know something about the case facts.

Long after those facts are adjudicated, though, the complex legal issues will be debated (probably with no viewer-discretion warning required). And even beyond that, we’ll assess the effectiveness of juror questions.

Yes, there have been a few tawdry inquiries from those colleagues around the country. But more often, I have been surprised at the number of them who have asked about juror questions: “You allow that in Arizona?”

Arizona Attorney Magazine cover, February 2001

Arizona Attorney Magazine cover, February 2001

Indeed we do, as well as note-taking and some other semi-unique elements.

The number of juror questions posed in this trial may be remarkable, but the fact that they may inquire at all has been a part of Arizona jurisprudence for a long time now.

For some background on that, you should read “O Pioneer,” our 2001 article about then-Judge Michael Dann. He and others were leaders in initiatives to transform the jury process. Other states have participated, but Arizona was (and is) a leader.

Posted on their website, the Arizona Supreme Court has the remarkable original report (from 1994 and 1998) called “The Power of 12.” It’s in two parts, here and here. It was drafted by the Court’s Committee on the More Effective Use of Juries.

For more recent coverage of courts that permit juror questions, go here. As the story opens:

“A small number of states have changed their laws and court rules to allow jurors to ask witnesses questions, either orally or in writing through the judge. Written questions submitted in advanced allow attorneys for both sides to make objections based either on the ground they would violate the rules governing the admission of evidence or would result in prejudice against their clients.”

Michael Dann, former Judge on the Superior Court for Maricopa County

Michael Dann, former Judge on the Superior Court for Maricopa County

“The states that expressly encourage judges to allow jurors to question witnesses are Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada and North Carolina. Out of these jurisdictions, Arizona, Florida, and Kentucky require that judges allow jurors to ask written questions. The respective highest state courts of Indiana and Kentucky have ruled jurors have a right to ask questions of witnesses.”

But changes like this can lead to unpredictable results. You should read this Washington Post story from 2007, titled “Jurors’ Queries Yield Insights—and Laughs,” which opens with a humorous anecdote showing that jurors may focus on areas that counsel may find irrelevant:

“Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis ‘Scooter’ Libby.”

“Another juror had a different kind of question for Miller about her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?”

“So the jurors asked.”

For trial lawyer readers, have you found juror questions to be a feature that improves the process? Have you found queries annoying? Or have they given you an opportunity to clarify issues that may be blocking a jury decision?

Write to me at arizona.attorney@azbar.org.

Recall has been a part of Arizona since it attained statehood, and the past few years have seen some remarkable instances of its use. This very week, organizers launched a recall effort against a legislator.

In that context, I’m pleased to provide space for an insightful guest post today, by attorney Joshua Spivak. Among other accomplishments, he wrote his master’s thesis on the subject of the history of the recall (“back in 1998 when no one was paying attention to the subject”). He has authored one of the very few peer-reviewed academic articles on the subject for California History, and he has begun work on a book on the subject. I welcome Joshua, and invite your own thoughts and comments. More of his bio, and link to his own blog, are below the post.

Here’s Joshua:

Following on the success of the 2011 ouster of State Senate President Russell Pearce, immigrants’ rights groups and others are now aiming at a more prominent official—Maricopa County Sheriff Joe Arpaio. The recall attempt has already seen some bizarre theater, but a look at the use of the recall around the country will show that the anti-Arpaio forces have a massive hill to climb in order to get anywhere near the ballot.

Maricopa County Sheriff Joe Arpaio (photo by Gage Skidmore)

Maricopa County Sheriff Joe Arpaio (photo by Gage Skidmore)

The recall fight itself has already been the scene of some absurd behavior, with some pro-Arpaio groups looking to the courts to stop the recall. A pro-Arpaio group called the “Citizens To Protect Fair Election Results” sent a cease and desist letter to recall petitioners, claiming that the recall attempt “rises even to the level of criminal conspiracy and enterprise” and that it “violated the free speech, equal protection and due process rights of the majority of county voters who re-elected the sheriff.” While this type of argument is frequently made against recalls as a political statement, it is rare to see it used to threaten legal action. Most likely any such claim would eventually be laughed out of court.

There is also a more legitimate question of whether Arpaio can be recalled so soon after being reelected. Arizona has provision, which mimics that of many other states, stating that recalls cannot be launched until six months after an official is elected. However, unlike in most states, Arizona law appears to say that does not hold true for a reelection. Under this reading, there shouldn’t be any concern for the petitioners to start gathering signatures. In fact, they claim to already have 150,000.

These legal issues may not stop the recall—though they are likely to cost the recall proponents some money in battling them—it is actually practical considerations that are the bigger concern. The sheer number of signatures needed to get on the ballot—335,000 valid signatures from registered voters—is incredibly daunting. To put that in context, only three recalls in U.S. history have gotten on the ballot needing more signatures—California Governor Gray Davis in 2003 and Wisconsin Governor Scott Walker and Lieutenant Governor Rebecca Kleefisch in 2012. This would be by far the largest numbers of signatures ever needed to recall a local official.

There have been plenty of recalls attempted—47 of California Governors alone—but they rarely get on the ballot. Even those that do make usually need fewer signers. The recall attempt against Arizona Governor Evan Meacham in 1988 (which was short-circuited by his impeachment and conviction) needed only 216,746. There have been plenty of attempts to get massive amounts of signatures for other officials, but they invariably fail. In Michigan, petitioners reportedly got 500,000 signatures to recall the Governor. But that was nowhere near enough to get on the ballot.

But it is not just the sheer number of signatures that will cause a problem. Ancillary evidence suggests Arizona’s election commissions may take a stricter approach to signatures than in other states. In some recent recall attempts, Arizona seems to have tossed out signatures more frequently than other states. This would mean that the signature gatherers would need significantly more than 335,000 signatures to get on the ballot.

There is no clear answer on how many signatures are likely to fail. One Michigan observer claims that a 15 percent failure rate is a good rule of thumb. In California in 2003, the signature failure rate for the Gray Davis recall was 18 percent. Due to a quirk in Wisconsin’s law—the state allows all eligible voters to sign, as opposed to Arizona and other states that require the signers to be registered—the Scott Walker recall is not a good comparison.

In the Russell Pearce recall, where petitioners submitted more than 18,000 signatures, they eventually ruled that 10,365 were valid, a more than 40 percent failure rate. The attempted recall of Phoenix City Councilman Michael Nowakowski is an even stronger example. The petitioners needed 2,329 signatures. They originally handed in more than 5,000, and they missed by 24 signatures. If these two notable rejection rates are a guide, the anti-Arpaio forces may need more than 500,000 to get to Election Day.

Another potential hurdle is that sheriffs are rarely the subject of recall vote. Since 2011, there have been well over 325 recalls that have taken place in the United States. Research suggests that only two have been against sheriffs, one in Colorado and the other in North Dakota (and both sheriffs survived the vote). There have been a number of attempts against sheriffs or other police chiefs, including one prominent attempt against the San Francisco Sheriff after he was nearly kicked out of office, but they have not gotten the signatures to get on the ballot. It could be Arpaio, who is likely the most well-known local law enforcement officer in the country, is different. The Arpaio recall would not be based on malfeasances but on more straightforward political or policy reasons. There are not too many voters who don’t have an opinion on Sheriff Arpaio, and, as he may be seen as more of a political figure than many of the other sheriffs, he is not likely to gain the deference from possible signers.

We are already seeing the problems with the Sheriff Arpaio recall play out. The recall group has already said that it cannot afford any more paid signature gatherers, and will rely on volunteers. Not having enough cash is always the big sign of a sputtering recall effort, so the recall may already be succumbing to the difficulties of gathering so many signatures.

The potential recall of Sheriff Arpaio is a sure-fire political maelstrom for the state. However, the basic hurdles endemic to the recall mean that the anti-Arpaio forces have their work cut out for them.

This guest post was written by Joshua Spivak, a Senior Fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He blogs at http://recallelections.blogspot.com/

There may be no profession that does as much self-examination as legal education. And given the massive challenges it faces, who can begrudge them some navel-gazing?

Another introspective opportunity occurs this Wednesday, March 27, at the University of Arizona Law School. That is when an annual distinguished lecture will be delivered by Larry Kramer, President of The William and Flora Hewlett Foundation. Previously, he served as Professor of Law and Dean of Stanford Law School.

The title for his lecture? “The Past, Present, and Future of Legal Education” (he had me at future)

Larry Kramer will speak Wednesday on The Future of Legal Education (the past and present too)

Larry Kramer will speak Wednesday on The Future of Legal Education (the past and present too) (Photo by Norbert von der Groeben )

The lecture will be delivered on Wednesday, at 12:15 in the Ares Auditorium, Room 164.

The event is free, but pre-registration is required. When I checked the link Monday evening, there were still seats available. But don’t delay. Register here.

His bona fides for offering an educational prognosis are wide and deep. Here is how the school describes the speaker:

“Before joining the Foundation, Mr. Kramer served from 2004 to 2012 as Richard E. Lang Professor of Law and Dean of Stanford Law School. During his tenure, he spearheaded significant educational reforms, pioneering a new model of multidisciplinary legal studies. He also enlarged the clinical education program to promote reflective lawyering, an approach that seeks to integrate theory and practice as well as encourage self-reflection, and revamped programs to foster a public service ethos. He further developed the international law program to support a growing emphasis on globalization in legal practice. His teaching and scholarly interests include American legal history, constitutional law, federalism, separation of powers, the federal courts, conflict of laws, and civil procedure.”

I would very much like to know what Dean Kramer has to say. Unfortunately, I will be Phoenix-bound that day. Therefore, if there is a lawyer or law student attending who would like to write a bylined story for the blog, let me know. It doesn’t have to be long—200 to 500 words could do the trick. But feel free to let your insight as a lawyer or law student shine. Let us especially know about that third part of his lecture: regarding the future.

Interested? Comment below, or write to me at arizona.attorney@azbar.org.

Minority Bar Convention 2013The State Bar of Arizona’s annual Minority Bar Convention will occur next week, on April 4 and 5. Presented by the Committee on Minorities and Women in the Law, it will be held at the Desert Willow Conference Center in Phoenix (map below).

Kathleen Nalty

Kathleen Nalty

Among the speakers will be Kathleen Nalty, “an expert in helping organizations develop inclusion strategies to eliminate hidden barriers to success for female and diverse employees.”

You can read more about Nalty and her work here.

More information on the Minority Bar Convention is here.

Register online here.

Arizona Attorney Magazine Creative Arts Competition ad 2013 cropped

Our 2013 call for artists. Winners of the annual competition will appear in the May 2013 issue of Arizona Attorney Magazine.

Today’s a bit of a visual traipse (terrific for those who are almost done with words for the week).

In the April issue of Arizona Attorney Magazine, we featured an article that examines how and why lawyers make time to be artists on the side (or vice versa). Written by Oriana Parker, it opens:

“Many attorneys refuse to be defined simply by their legal careers. As Roza Ferdowsmakan says, ‘There’s no need to feel boxed in. Simply cut holes in the box to add windows, or just turn it into a convertible.’ Her own office speaks to this sense of creative freedom, with some of the oil paintings she has painted over the years adorning the walls.”

“Of course, escaping a box is more difficult than it would appear. Law practice can be arduous, and free time may be scarce. How do some individuals manage to achieve high levels of success in their chosen art form, as well as in law? And what drives them to combine the two pursuits into a satisfying life?

The article explores how approximately six lawyers answer those questions, and how the answers affect their lives and law practices.

A URL listed in the story promises more works of art by those lawyer–artists. So I’m pleased to offer a few here (click on any image to launch the slideshow). These and more are posted on the magazine’s Facebook page.

Phoenix Mayor Greg Stanton, center, speaks, alongside fellow panelists Grady Gammage, Jr., and Christina Sandefur. Phoenix, Ariz., March 20, 2013.

Phoenix Mayor Greg Stanton, center, speaks, alongside fellow panelists Grady Gammage, Jr., and Christina Sandefur. Phoenix, Ariz., March 20, 2013.

It doesn’t take much to frighten people. In fact, when it comes to those charged with designing livable and dynamic urban centers, all it takes is three numerals to make the blood run cold.

2. 0. 7.

As in Arizona’s Proposition 207, now enshrined at A.R.S. § 12-1134.

That law, requiring government to compensate private property owners for any diminution in value that flows from government action, makes quite a bit of conceptual sense. But according to a few panelists last night, the result of the law has been a municipal failure of nerve.

That was a message that arose at a panel discussion including Phoenix Mayor Greg Stanton. (It was sponsored by Women Design Arizona and Blooming Rock Development, and I previewed it here.)

All of the panelists were in general agreement about what the law says. But the law’s effects—especially in a city that is, as the Mayor said, among the “king of vacant lots”—drove the discussion.

“We already have one of the weakest historic preservation ordinances in the country,” Mayor Stanton said. Given that, “Isn’t it time to look at everything” that affects neighborhoods, including Prop 207?

Attorney Grady Gammage, Jr., opened by pointing out that “Arizona is not a place that’s especially hard on property owners.” Despite that, and due to a backlash against the Supreme Court case Kelo v. New London, voters opted for Prop 207. As a result, Gammage said, “Arizona is the only state that may have to compensate when any incidence of government action may alter a property’s value.”

Flowing from that, Gammage and the Mayor agreed, we’ve witnessed a “chilling effect” in city halls. Fearing lawsuits, city attorneys and the councils they advise live by the admonition, “Don’t do anything unless you can get everyone to sign a waiver of their Prop 207 rights.” And Gammage—a development lawyer and historic-property advocate—added, people never like to sign that document, so “it’s screwed up our ability to get development done.”

Disagreeing on the direness of the situation was Christina Sandefur, a Goldwater Institute attorney. She pointed out that cities may still regulate as much as necessary for health and safety. And if there are instances in which even small decreases in property value must be compensated, what’s the moaning about? Pay the small amount.

During the Q&A, the topic of waivers arose again. And for me, that led to some musing on what it means to be an effective lawyer. First, the waivers.

Gammage explained that there are two kinds of Prop 207 waivers. The first is called a Section I (as in i) waiver. It is sought in advance of any kind of development change. Municipal attorneys most often want these signed by all affected neighbors. And in the example of attempts to designate a neighborhood historic, those attorneys usually advise city councils that the neighborhood opinions must be unanimous.

As Gammage said, “We don’t do nothin’ without it.”

But, he added, there is an alternative: the Section E waiver. With that waiver, government does the best planning it can do to create a livable city. They make the designation, even if it’s not entirely unanimous, and then they wait to see if they receive a demand letter. In the worst case, the city may decide it’s best to waive out of the designation the one or two property owners that raise a stink.

Just like you, I’m sure, I live in a neighborhood. And in my neighborhood, 100 percent of the folks don’t agree on anything. The idea that we must stall any new ideas or development while we await the magician’s trick of unanimity means that nothing occurs—and that a city may remain the king of vacant lots.

I asked the panel if there should be changes in city attorney offices. All of the panelists were very circumspect on that question. And, to be fair to counsel, Mayor Stanton pointed out that the views of city attorneys and all staff “reflect decades of views” voiced by Council members. Lawyers follow; they don’t lead. They dispose; they don’t propose.

But as we sat in the empty lot of the Downtown Public Market, surrounded by food trucks and farm-to-table produce on a beautiful spring evening, I had to wonder.

That empty lot, and dozens of identical ones that surrounded us, are zoned for a pie-in-the-sky 500 feet of development. As Gammage pointed out, those massive structures will never be built in any of our lifetimes. And yet property owners hang onto these lots for generations, in case Phoenix suddenly morphs into Dubai.

In a Prop 207 world, panelists agreed, city leaders are unlikely to move to downzone anything, let alone declare a neighborhood historic. And so there is more and more room for food trucks.

Panelists mentioned that city attorneys are largely an elected bunch, so that may have something to do with their over-caution. But every speaker last night is an attorney, so they understand that lawyering is not an off-the-shelf commodity. Lawyers are not widgets, all identical, ever replaceable by another.

Because that’s the case, it may be worth examining who leads the law departments at the nation’s most progressive cities. Are they visionary, or belt-and-suspenders types? Do they counsel stasis and safety, or dynamism and risk-taking? Do they view their job as foreclosing the possibility of any lawsuit, however remote? Or as collaboratively problem-solving, willing to offer a variety of options and best practices?

Gammage alluded to those kinds of possibilities, including “creating attractive alternatives to property owners. Provide them benefits they can opt into.”

Yes, council-folk and mayors lead cities. But surrounding yourself with creative staff may help you get a city you’re proud of.

Until then, panelists concluded, we lumber on with our overriding fear of litigation, and a chilling effect that hampers development.

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