A plastic bag ban has been proposed in Califormia. How would the idea float in Arizona?

A plastic bag ban has been proposed in California. How would the idea float in Arizona?

The other day, I dropped into Safeway for four items, none of them all that heavy. And when I looked up from my transaction with the cashier, my four items were in four separate plastic bags.

Really? I mean, really?

I was able to rectify that, first by handing over my reusable shopping bag to be filled. Better late than never, I guess. And second, I gently suggested to the bagger that all of it could have fit in one bag.

I’d like to say that it is solely my heightened environmental awareness that led me to my plastic bag shock. It was, but only a little. The bigger impetus was having worked for years at a grocery store, much of it bagging groceries. Decades ago, the job required skill and a certain spatial adeptness, to know how much to fit (well) in a bag.

With a downswing in paper-bag use and an upswing in plastic petroleum-based bags, those skills have disappeared. (Do I sound curmudgeonly yet?)

But today’s post is not about the altered training regimen in the service industry—it’s about those plastic bags.

I was thinking of all that as I read an L.A. Times story yesterday about the movement in California to create a full-on plastic-bag ban. It opens:

“A drive to ban most stores from handing out single-use plastic bags got an important boost Monday when the California Grocers Assn. announced its support for a bill. The measure by state Sen. Alex Padilla (D-Pacoima) would prohibit the bags in grocery stores and pharmacies beginning on Jan. 1, 2015. Shoppers would be urged to bring their own reusable cloth or plastic bags or would have the option of paying the actual cost of a paper bag, estimated at 10 cents or less.”

One item per petroleum-based bag = a lot of plastic bags

One item per petroleum-based bag = a lot of plastic bags

Read the whole story here.

What do you think? Would you prefer to carry a reusable bag? Do you already?

And what are the prospects of similar legislation in Arizona? On the off-day that you forget your own carryall, would you be pleased, or bugged, to pay for a plastic bag?

The State Bar Convention is about a lot more than merit selection of judges—but a dialogue on the topic ranged through numerous sessions.

Prop 115 panel, L to R: Grady Gammage, Jr., Peter Gentala, Hon. Mary Schroeder, Pete Dunn, Hon. Ruth McGregor (ret.)

An unscientific survey (by me in the Biltmore hallways) reveals that too few lawyers are even aware that a ballot proposition is headed our way that would alter the Arizona Constitution in a way that should be of interest to all.

Proposition 115, as it’s been numbered, will be on the November ballot. For some background on merit selection generally, see a page on the State Bar website (the State Bar supports the compromise).

A Wednesday morning seminar at Convention covered the general topic of the relationship between the Legislature and the courts. And as I noted previously, even that session ended up substantially focused on merit selection.

Then, on Wednesday afternoon, a session dedicated to the topic provided a stellar panel. It included Ninth Circuit Judge Mary Schroeder; former Arizona Supreme Court Chief Justice Ruth McGregor (ret.); Pete Dunn of the Arizona Judges Association; Peter Gentala, Counsel to the Majority in the state House of Representatives; and State Bar President Joe Kanefield. The moderator was Grady Gammage Jr. (who has performed this task, on the same subject, before).

A slide on the judicial merit-selection compromise

Judge Mary Schroeder, in short order, explained why we have merit selection, why she opposes Prop 115 and why Arizonans should be proud of their judges. Justice McGregor then did the same.

On the other side of the issue, Peter Gentala and Pete Dunn urged support for Prop 115.

State Bar President Joe Kanefield

Dunn, however, said that even he believes Prop 115 will be defeated “because it’s a very complex proposition and people usually vote no.” But if it goes down, he added, we had better be ready for a legislative backlash. He said he would expect “a total emasculation of merit [selection] in coming sessions.”

Four audience members spoke, largely in opposition to the proposition or simply seeking clarification. Speaking for the State Bar and its support of Prop 115 were Amelia Craig Cramer and Whitney Cunningham.

Steve Tully

A panel Wednesday morning at the State Bar of Arizona Convention examined a relationship often in the news—the one between the legislative and judicial branches. Speakers with experience as elected officials, lobbyists and think-tank leaders wrestled with a topic on which many find disagreement common.

“Striking a Balance: Relations Between the Legislature and the Courts” included moderator David Earl and speakers Steve Tully, Clint Bolick, Sally Rider and Jerry Landau.

Panelists opened by sharing their initial thoughts on the challenges that a good working relationship faces.

For example, Sally Rider of the UA’s Rehnquist Center said that the tension between branches is exacerbated by a failure to communicate. Jerry Landau agreed: “When one branch doesn’t understand the role of the other, we have problems.”

Bolick, of the Goldwater Institute, was more pointed in his opening remarks. After praising the Arizona Constitution, he continued.

In regard to ballot referenda, “Courts have used the single-subject rule so much as to prevent the Legislature from presenting various important issues to the people. And that is discomforting. If there is one value that our Constitution elevates above all, it is the right of the people to control their government.” Limiting referenda too strictly restricts that power. “Courts have overstepped.”

Things quickly got interactive, as attendees would have predicted on such controversial topics.

L to R: Clint Bolick, Sally Rider, Jerry Landau

Among those hot-button issues discussed was merit selection, especially as embodied in a November Arizona ballot referendum titled Prop 115. In a conference at which at least two other panels will focus on merit selection, this morning seminar grew into a significant conversation on the ballot proposition.

In fact, it was not the panel but an audience member who raised merit selection. Lawyer Tom Ryan enlivened the debate when he stood at the microphone.

“The idea that the Legislature respects the court system is a fallacy. We have a supermajority of Republicans in the House and Senate. … [The Legislature is] controlled by ALEC [American Legislative Exchange Council], and they have an agenda: to close the courthouse doors. The idea that Prop 115 will improve merit selection is a fallacy; it simply gives the Governor the unfettered ability to choose judges.

David Earl

Bolick responded, agreeing that under Prop 115 the Governor “will control far more of the system” than ever before. But he added that the State Bar currently “has a monopoly over picking the lawyer members” of the judicial nominating commissions. And Bolick said he believes that the Bar, which takes positions on many public policy issues, should not have any role.

And even under the new possible regime, Bolick added, “The system should not be controlled entirely by the Governor and the State Bar. That upsets the checks and balances system.”

Bolick said that, personally, he will probably vote yes on Prop 115, but the Goldwater Institute has decided not to take a position.

Audience member and former State Bar President Mark Harrison rose to vociferously oppose Prop 115.

“This was a compromise that did not need to happen, and which is a solution in search of a problem. Justice O’Connor supports the current system, and the Arizona Town Hall called it ‘the best functioning part of our state.’”

He concluded by saying (with a smile), “I urge everyone to vote no—as many times as you can.”

Bolick responded: “I share a lot of your concerns, but I don’t think the system is as good as it can be.” He said that lawyers may know a lot about judicial candidates, and they should provide input. “But the State Bar should not choose them.”

Former Judge Noel Fidel spoke briefly.

“It would have been better to fight than compromise. This destroys merit selection from within.”

Among the audience-speakers on the topic was Whitney Cunningham, currently the State Bar’s First Vice President (and President-Elect at the close of Convention). He rose to explain the State Bar’s role, and why it decided to support the compromise that led to Prop 115.

“What people should understand is that not preserving merit selection was a real possibility that was on the table. If this passes, the State Bar will still have a role, and a formidable role.”

“The Bar was at the negotiating table, and we did what we thought was necessary to preserve merit selection in our state.”

Ariz. Senate President Russell Pearce

As I write this, Election Day is ticking away its last minutes. Among all the results, both surprises and their opposite, it’s looking very much like we won’t have Russell Pearce to kick around anymore.

As the Arizona Daily Star reported late last night:

“Arizona Senate President Russell Pearce—architect of some of the nation’s toughest state laws against illegal immigration—was ousted by voters Tuesday in an unprecedented recall.

“Results late Tuesday showed challenger Jerry Lewis, a political newcomer, with a 53-to-45 percent margin over Pearce in his east Mesa district. Both are Republicans. A small percentage also cast ballots for Olivia Cortes, although she withdrew from the race.

“Pearce conceded defeat, saying he is disappointed and will spend some time ‘with my family and my God’ before deciding what to do next. He has not ruled out another run—including to get his seat back.”

God wasn’t available for comment. But you can read the whole story here.

There were many twists and turns in this race, but at its heart, there was no more “legal” election battle this year. The Senate President may have disputed it, but SB1070 and its fellow immigration laws were all over this race.

The ouster of Russell Pearce likely pleases or dismays many Arizona lawyers, whose opinions on immigration and a great many other things are very diverse. But for me, the surprise in the race was farther down the tote board.

252 votes for Olivia Cortes.

Who? Oh, yes, that Olivia Cortes. The one caught up in allegations that she was a sham candidate whose sole purpose was to draw votes away from Jerry Lewis and therefore to help Russell Pearce.

The tale of the tape

Well, if that was the plan, it didn’t work very well. But her inclusion on the ballot still garnered some support, long after interminable news stories documented her lack of genuine commitment to public service and to this race.

Who are those 252 people, you have to wonder?

I will grant her this: Her family probably supported her with their votes. I mean, even if my mom were a sham candidate running for town council back in Poughquag, N.Y., I’d still be inclined to cast my vote her way. Sham or not, family’s family.

So let’s give Olivia the credit of 10, no, 20, hell, let’s say 50 family votes.

Given that, who are those 202 other people who voted for a woman who had formally withdrawn after having barely been in the race to start with? A woman with no positions, no record, no political accomplishments? Someone whose withdrawal opportunely came immediately before a scheduled candidate debate and a court hearing that would have put her “supporters” on record under oath?

I am inclined to search out those 200 or so voters and to ask them to leave the state. Just leave.

At the very least, those voters should be included in a list of potential jurors who are unaware of and unswayed by news stories.

Happy Election Day-after.

The Arizona Secretary of State’s Office has just confirmed that Olivia Cortes has withdrawn from the recall election that has been called in regard to State Senate President Russell Pearce.

According to an email sent from that Office, “Mrs. Cortes will still be on the ballot, but there will be signs posted at the polls and posted on the Secretary of State’s site.”

Here is a news story about her withdrawal and some history of this race.

And here is the withdrawal form that Cortes signed:

 

Ariz. Senate President Russell Pearce

Mistakes are made in the heat of battle. And that is never more true than in lawsuits regarding pending elections (see Bush v. Gore).

That may be the most generous analysis we can make in the latest turn in the battle over a recall election for State Senate President Russell Pearce.

You may recall (get it?) that sufficient petition signatures were gathered to force a recall election of the engineer of the immigration law dubbed SB1070. But a lawsuit was filed immediately by Pearce backers to disallow the signatures, the petitions and the entire election.

Last week, an Arizona court in Maricopa County ruled against the suit, which would allow the recall to proceed. An appeal was expected.

What wasn’t expected was that the Pearce supporters filed the appeal directly to the Arizona Supreme Court. On Tuesday, the Court—ever so kindly—pointed out that the appeal came to the wrong bench.

As Justice Scott Bales wrote:

“The Court has received Appellant’s Rule 8.1 Statement in Expedited Election Matter, filed August 15, 2011. Because pursuant to Rule 8.1(h), Arizona Rules of Civil Appellate Procedure (ARCAP), ‘[e]xpedited election appeals involving recalls … shall be filed in the Court of Appeals’ rather than this Court, IT IS ORDERED transferring this matter to the Arizona Court of Appeals, Division One.”

Every lawyer may make an error, Justice Bales seemed to acknowledge. And so he concluded, “IT IS FURTHER ORDERED that Appellant not be charged a second initial filing fee.”

Other coverage of the matter made the event seem like a technicality. As FOX10 News reported:

“The Arizona Supreme Court is sidestepping an appeal of a judge’s ruling to keep a scheduled recall election for state Sen. Russell Pearce on track, but it may be only a temporary move.”

Here is their complete story.

True, I suppose, that all court rules are “technicalities.” But those are technicalities that lawyers live with every day. It’s nice that the Court won’t levy a second fee on the plaintiff when the matter is inevitably filed in the proper court. But given the very public nature of this Court order, I suppose the lawyers involved have already paid enough.

Below you’ll find the two-page order from the Supreme Court.

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.

Arizona Rep. Cecil Ash

Among the variety of news stories I came across today, there was an aggregation of “Lawmaker Priorities” in the Arizona Republic.

Here is one of the more interesting in the listings:

Cecil Ash, R-Mesa

House Health and Human Services Committee chairman

• Establish a Sentencing Commission, which will be advisory to the Legislature, to acquaint legislators with the best practices of other jurisdictions and help reduce Arizona incarcerations and rehabilitate inmates.
• Make consecutive sentences for some crimes optional, rather than mandatory.

Representative Ash has mentioned this before, but it still has the power to surprise (perhaps it’s the “R” after his name, or the fact that sentencing reform is often DOA in Arizona). So congratulations to him for trying.

In the coming three months, I will be working on a story for Arizona Attorney Magazine on sentencing reform (or the lack of it), and I’ll be contacting Representative Ash for his insights.

In an upcoming post, I’ll let you know what spurred me to write on the topic. The short answer is that it’s related to a trip I’m taking to New York soon. But the longer and more detailed explanation is … later.

Rep. Cecil Ash at Law School for Legislators, Jan. 6, 2011, Phoenix

Read all the lawmaker priorities here.

Arizona Supreme Court Chief Justice Rebecca White Berch at Law School for Legislators, Jan. 6, 2011

Last Thursday, January 6, the State Bar of Arizona hosted its fifth annual Law School for Legislators. I attended for the first time, and it was an insightful way to kick off a new legislative session, especially for the freshmen who are beginning their first term.

Held every two years at the House of Representatives, the school covers a variety of topics, including federal–state relations, how judges decide cases, and how the path can always be made smoother between branches of government.

Presenting were State Bar President Alan Bayham Jr. Bar CEO/ED John Phelps, Arizona Supreme Court Chief Justice Rebecca White Berch, and lawyer (and former newsman) Michael Grant. Keeping speakers on track was the Bar’s Chief Communications Officer, Rick DeBruhl. And Kathleen Lundgren, the Bar’s longtime Government Relations guru, put the event together.

U.S. Supreme Court Associate Justice Sandra Day O'Connor (ret.) and Arizona Justice Scott Bales, Law School for Legislators, Jan. 6, 2011

Following the morning session, attendees strolled down the Capitol Mall into the Supreme Court. (Surprisingly but perhaps symbolic, there is no sidewalk that takes you directly between the Legislature and the Court. The path meanders, and more than one walker teetered on a curb, looked for oncoming cars, and dashed across the street. Thus the phrase “checks and balances.”)

At the Court, attendees enjoyed lunch while keynote speaker Sandra Day O’Connor addressed them.

Everyone recalls O’Connor as an Associate Justice on the U.S. Supreme Court. But she reminded those gathered that she had been a legislator herself. Thus, she was able to sympathize with the lawmakers and the hard road that lay ahead of them in regard to the budget.

In that vein, she told them that she was surprised to see that the state’s restrooms were closed for business on the freeways throughout Arizona.

“There must be some way to get those open again.” Justice O’Connor said. “Goodness. Maybe make them pay-as-you-go. Think about that, please.”

She told the legislators that she did not envy them the job of balancing a budget that is reported to be more than $1 billion out of whack.

“Maybe you’ll find a path. I hope so.”

She added her memory of the many affiliated tasks that lawmakers must take up.

“I remember being annoyed that the Legislature had to make the bola tie the official state neckwear. ‘Is that what we’re here for?’ I asked. I guess so.”

O’Connor ended her remarks by talking about her appointment to the Court by President Ronald Reagan. “It was a shock” when Reagan telephoned her, she said, and not an entirely welcome one. Though gratified to be selected, she did not look forward to relocating her family back east.

But when she recently attended oral argument at the Court as a spectator, she found reason to be pleased with the number of women Justices.

U.S. Supreme Court, 2010

“I looked and saw a woman on the far right, and a woman on the far left, and a woman in the middle. It was an amazing sight, and I’m glad that we’ve graduated to that level.”

More photos from the event are here on the Arizona Attorney Magazine Facebook page.

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