New @azcourts Justice Bolick a controversial and intriguing choice

This month, attorney Clint Bolick was selected as a new Arizona Supreme Court Justice by Gov. Doug Ducey.

It cannot be easy to select a new state supreme court justice. So much is involved in the job that a panel must weigh a broad array of talents and experiences. And at the end of the day, the old adage applies: You can’t please everybody.

Clint Bolick is a longtime litigator for the Goldwater Institute and an occasional columnist for Arizona Attorney Magazine. (Read a few of his pieces where he discussed courts, judges, and legal services here, here, and here. And he discusses a book on immigration reform he coauthored with Jeb Bush here.) And now he can add Arizona Supreme Court Justice to his roster of accomplishments (though I’m sure columnist will always be his favorite achievement!)

You can read news stories about his appointment by Gov. Doug Ducey here, here, and here.

Those also up for the job had ample experience as appellate judges, which the new Justice lacked. That, plus his previous advocacy litigation, meant that his selection was not met with unanimous positive reviews. (for a negative take, here is E.J. Montini’s column in the Arizona Republic.)

Whatever your view of his appointment, I was pleased to watch Clint Bolick’s interview as he sat before the appointments panel (and I urge you to watch it here). Sitting in the hot seat, Clint did extremely well. He did not appear there as a man who lacks the skill and experience for the job. Nor did he overcompensate by appearing prideful about his litigation record. Instead, he was—and is—soft-spoken and self-effacing. And that has been my experience of him as a colleague and writer.

If there is an entry for “disarming interview” in the dictionary, he would occupy the spot.

Of course, none of that means you will necessarily be pleased (or disappointed) in his subsequent opinions. His judicial record will now roll out over a course of years. Until then, I congratulate Justice Bolick and wish him the best.

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Dark Money debate to be debated at @GoldwaterInst event

The way elections are funded may be one of the more contentious features of our republic in 2015. In fact, even use of the term “Dark Money” upsets some partisans, who believe it casts a negative inference over those who believe campaign speech-supporters need not be identified.

(We covered the topic in three articles published in the March issue of Arizona Attorney Magazine.)

On Tuesday, April 28, the Goldwater Institute is hosting a debate on the topic. It will be held at the downtown Phoenix Cronkite School of Journalism from 7 to 9 pm.

The debate will be free and open to the public. But you also can watch it streamed live here.

The debaters will be:

• Kurt Altman, national policy adviser and general counsel, Goldwater Institute
• Allen Dickerson, Legal Director, Center for Competitive Politics
• Tom Irvine, legal expert on election law, ASU Alumni Law Group
• Daniel Barr, First Amendment expert, Perkins Coie law firm

It will be moderated by Robert Robb, a columnist and editorial board member at the Arizona Republic.

The specific question they will address in the Dark Money debate? Is anonymous political speech protected by the First Amendment?

The hashtag for the event will be #DarkMoneyDebate.

And here is more background from the organizers (can you tell where they stand on the issue?):

“Anonymous political speech has been a cherished principle since the earliest days of the American republic. The ability to speak anonymously—and to privately support others who speak on your behalf—has played a central role in historical milestones from the ratification of the U.S. Constitution to the Civil Rights movement of the 1950s.”

“Since the U.S. Supreme Court’s 2010 ruling in Citizen United, there has been a new outcry from some critics that the public deserves to know who seeks to influence elections by giving money to private political groups. Describing anonymous giving as “dark money,” these critics want new laws that compel independent groups to give the names and addresses of their donors to the government.”

“On Tuesday, April 28, four legal experts will debate whether this campaign against anonymous giving benefits or harms free speech and democratic participation.”

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At @GoldwaterInst judges speak on challenge of campaigning, raising election money

Jurists from a federal circuit court and state supreme courts spoke at the Goldwater Institute, Oct. 25, 2013.

I sometimes hear from folks, “Let’s just elect all the judges.”

Or there’s this one: “I don’t want anyone to take away my right to elect judges.”

Understand, these are not people in small communities, where you could argue everyone knows each other, and judicial candidates are recognized—by name, by face, and by personal experience.

No, I’ve heard this sentiment expressed by lawyers in major metropolitan areas. And when I hear it, I always wonder if I’m missing something.

After all, in every election cycle, the most common question every lawyer hears from friends and neighbors is, “Which judges should I vote for on my ballot? Who should I vote to retain? I don’t know any of these people.”

The easy answer is, “Head over to the Judicial Performance Review website, where there’s information about all the judges up for retention.” The harder answer is, why don’t you remember I said that last year and every year you’ve asked me?

So much for yearning to vote for judges.

I’ve written a little about judicial elections this week, and I promised you some insight from a Texas judge today.

You know Texas, don’t you? That’s the place, among others, when jaw-dropping stories about judge campaigning make national news.

At an October 25 Goldwater Institute event, one Texas Supreme Court Justice, Don Willett, offered some unscripted remarks about what it’s like to run for office. Those who hunger to vote for their judges—and lawyers considering throwing their hat into the judge-ballot ring—should take heed.

The event’s topic was constitutional judging. The conversation ranged among the varied opinions on how we define “activist” judges or those who “legislate from the bench.” It’s a hot-button topic and one that often yields more heat than light. In that milieu, the speakers did very well.

(Credit goes to organizer and moderator Nick Dranias of the Institute; Fifth Circuit Senior Judge Harold DeMoss, Minnesota Supreme Court Justice Barry Anderson, California Supreme Court Justice Goodwin Liu, and Texas Supreme Court Justice Don Willett. I tweeted quite a bit from the event here.)

As often happens, an invigorating exchange occurred after the panel discussion was complete. That arose when an audience member asked the elected judges on the panel, “How much does it cost you to run for office? And how do you remain impartial in your rulings when your contributors include lawyers and litigants?”

Boom. Now there are some questions.

I have attended enough lawyer-and-judge events that I expected some vague reassurances in response to those hard questions. But what the audience got was much more candid and unvarnished.

Justice Don Willett, Texas Supreme Court, speaks at the Goldwater Institute, Oct. 25, 2013.

Justice Willett spoke first. When he was sworn into office, he said, “the moment my hand came off the Bible, it rotated 180 degrees to become an open palm,” so that he was ready to solicit campaign funds. He illustrated his point by holding his right hand flat and parallel to the floor, and then rotating it to be flat and parallel with the ceiling.

Texas is not Rhode Island, he reminded the audience. It has 254 counties and two time zones. One week of statewide TV times costs $2 million. And where does that money come from? Judges raise it from among lawyers and others.

Justice Willett was frank about what it’s like to “beg strangers for obscene amounts of cash.” It’s “unseemly” and “vile.”

The “name of the game,” he said, is to “amass a colossal war chest to bombard voters.”

To be fair, Justice Willett said that he appreciates the attempt at judicial accountability. But what citizens get is “a real electoral crapshoot.”

In his remarks, Justice Willett added something that would give succor to those who prefer judicial elections. He said that in merit-selection systems, we still must scrutinize “who picks the pickers.” He said that JPR systems overall favor “big-firm, Bar-friendly folks.”

(I’m not sure that conclusion is correct. It might be helpful for JPR advocates to explore that question. If it’s a myth, they should address it. And if it’s true, they should explore why it is.)

Minnesota’s Justice Anderson also replied to the audience question (in a milder, Minnesota-like way).

“The judiciary is uniquely susceptible to damage from the fundraising and campaign problem. Even if you posit that there is no effect on impartiality, the public and attorneys’ clients don’t understand that.”

“Fair and impartial,” he continued, “is something that benefits all of us.”

Justice Anderson concluded, “If you’re in the camp that says you don’t want to give up your ‘right’ to elect judges, you should rethink that.”

Before heading into the weekend, I’ll end with Justice Willett, on what it takes to prepare for the campaign season:

Despite his own misgivings about judicial campaigning, he knows that “when it’s time to campaign, you buckle your chin strap, put on your game face … and raise money.”

Follow Justice Willett’s most excellent tweets here.

Have a great—and impartial—weekend.

Follow @azatty

 

Proposition 207: Could the Best Lawyers Yield a Better Downtown?

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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Still in the Crease

The attacks on the Goldwater Institute continue unabated.

As I’ve written about before (here and here), the Goldwater Institute has gone hammer and tongs after what they characterize as a bad deal for taxpayers, Arizona, Glendale residents, and all the best values as we know them. Their fight is in regard to Glendale’s efforts to keep the Phoenix Coyotes hockey team in that city.

Goldwater smells quite a bit of the giving-away-the-farm odor, all to benefit a private entity. That would be a violation of the Arizona Constitution’s Gift Clause, the Institute claims.

But to mix sports metaphors, hockey supporters have mounted a full-court press—against the Goldwater Institute.

(Today’s Arizona Republic has a story about the Coyotes’ travails. Read it here.)

I wondered last week about the strange melding and churning of self-interest that leads someone to support one side in the battle.

On the one hand, you might very well enjoy hockey. Or at least you may like having hockey as a dynamic part of a vibrant package that keeps Glendale hopping.

But on the other hand, you may want your city officials to get the best possible deal when they’re waving your tax dollars around. And here and across the country, city councils have a poor record of that; they are known to give away far too much to private entities that threaten to pull up stakes, even when it’s unlikely they will.

So in a “don’t waste-my-tax-dollars” sense, I’d expect the Institute’s position to be a bit more popular than it has been. But in the PR war over the Coyotes, rank-and-file residents have been rallied pretty effectively to mount the barricades in support of the team’s owner (or maybe it’s more accurate to say they’ve been rallied to keep the team in the city).

What I have not heard (and what I think I expected) is a groundswell of thanks or support to the Institute for looking out for how public money is spent.

And maybe that says something about residents of any city. No one wants money wasted. But they do want development to occur. And if a little gifting occurs along the way, perhaps residents are OK with that.

Yesterday, I was driving in what I think is northern Glendale (we were on Happy Valley Road west of the I-17—you tell me). There, I spotted an SUV with its windows chalked with a message: “Keep the Coyotes in Glendale.” Next to that was the imprecation “Say no to Goldwater.”

On the passenger side of the car, the owner had drawn the universal symbol for “No,” a circle with diagonal line, with the word “Goldwater” in the center.

Pretty inside-hockey, if you ask me. I’m not sure how many drivers will understand the news items drawn on the car. But if I’m right, more and more will understand it as the media blitz comes to a head.

 

Clean Elections at the Supreme Court Today

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.

 

SLAPP Version 2

This morning, I wrote about an Arizona Republic editorial. So let me round out the afternoon by writing about another.

Earlier this week, the Republic op-ed folks penned an editorial titled “Goldwater, come down from Mount Olympus.” It took the Goldwater Institute to task for raising questions about Glendale’s potential deal with the Coyotes hockey team. According to the newspaper, all those persistent questions—and the threat of a lawsuit—may endanger the deal—and then the Coyotes would head north to Winnipeg.

I wrote before about the strange world we occupy right now, in trying to keep a hockey team in the desert. And now we see a joint effort by cities and the hometown newspaper to keep the complaining to a minimum.

But I kept expecting to read something else in the Republic editorial. Something like, maybe, “Thank you, Goldwater Institute.”

That’s not to say the GI doesn’t have a bull-in-a-china-shop tendency. They do. But asking how public money is spent, or demanding answers about how public resources will be safeguarded? That used to be considered praiseworthy. In fact, that used to be the job of the newspaper.

I am no expert on whether the Coyotes deal is a good one for the City of Glendale or for the Valley (though I’m pretty sure it’s a good deal for the Coyotes owners). But requiring clear answers to questions before plunging in is a valuable role.

After all, look at the concessions the Institute wrought with a little saber-rattling: tens of millions of dollars of additional guarantees.

Is that enough? Should the Institute say uncle? I don’t know. But imagine where we’d be in this Valley if municipalities—and our booster-ish newspaper—stepped up and asked hard questions when private entities have their hand out.

They should try it—there’s room aplenty up on Olympus.

Read the complete editorial here.

 

Oh, SLAPP!

The past week has seen a skirmish turn into an outright battle between the City of Glendale and the Goldwater Institute. The War of the Gs is over a deal involving public monies and a hockey team. The desert has never been more lively.

Most recently, both entities have threatened to sue each other: the Goldwater Institute over what it claims may be a violation of the state Constitution’s Gift Clause, and Glendale over what it claims is the institute’s tortious interference and unlawful interference with the City’s business affairs.

Not unexpectedly, Goldwater lashed back, saying any City lawsuit would be “frivolous and unsuccessful.”

Commentary has sprung up musing on whether Glendale has a hockey stick to stand on, or whether it is inappropriately attempting to squelch open debate. And that got me wondering about SLAPP suits.

As you likely know, that is the acronym for a “strategic lawsuit against public participation,” “a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”

Are the days of slap shots in the desert numbered? Zbynek Michalek of the Phoenix Coyotes breaks his stick on a slap shot against the Los Angeles Kings, Feb. 18, 2008 (Harry How/Getty Images North America)

I have never run a city, and I’d have to admit that the Goldwater Institute can have the tendency to rankle; in fact, that may part of its signature. But would it be appropriate for a municipality to sue another entity—or even a person—for demanding answers about how public money will be spent?

Are there are any SLAPP experts out there who could explain if the Arizona version applies in this kind of case? Here is the law (A.R.S. §§ 12-751–12-752 (2006)).

I suppose the question would be whether the Institute’s actions crossed into territory that is unprotected by the statute. For example, is threatening to sue over a proposed deal protected? And is contacting bond-rating agencies and underwriters protected?

Inquiring minds want to know. Especially before any of us start to mouth off to our elected officials on some future item with which we disagree.

 

Paper Chase

[This story contains corrected copy, identified below.] 

PhoenixLaw Dean Gene Clark

The Phoenix School of Law was the venue for an important event last evening. Amidst a panel of distinguished speakers, the school celebrated the launch of the newest volume of its Law Review.

What? Not enthralled yet? Well, pay attention.

The Phoenix Law Review has reached the grand old age of three—that’s 3! And already, its staff are jumping into issues of significance to the state and its legal community.

The new volume is called the “Arizona Government Issue.” It includes “A History of the Arizona Courts,” written by the Arizona Chief Justice herself, Rebecca White Berch. So right there, it’s worth the price of admission.

Vice Chief Justice Andrew Hurwitz

Her excellent article is surrounded by eight others, only some of which I have begun reading. And that is because I just got a copy last night. In fact, the volume wasn’t even printed until the day before the launch symposium. Now that’s called hitting a deadline!

A law review, as they say, takes a village. But everyone present last night took the time to praise 3L Anthony Tsontakis. It was his idea more than a year ago to publish a volume coincided with the centennial of the Arizona Constitution.

Tsontakis describes himself as “a history kind of guy,” and he says his interest in government and elections grew through clerkships and internships at the Secretary of State’s Office (working with Joe Kanefield (an editorial board member of Arizona Attorney Magazine), at the Arizona Legislature and at the Goldwater Institute. (And another shout out to board member Keith Swisher, an assistant professor at the school and the volume’s faculty advisor.)

Anthony Tsontakis

Anthony Tsontakis says that he contacted 50 to 70 people about possible articles, and then saw them through to publication. Preparations this week required “three consecutive all-nighters” and “53 straight hours” of work (Attention, legal employers! Hard worker on deck).

Tsontakis says that he hopes “the volume will demonstrate that today there are three bona fide law schools in the State of Arizona.”

The work—in the volume and in the launch symposium—paid off. (In fact, when I toiled away on law review as managing editor of the Hastings Comm/Ent, we never had lobster ravioli. All rise for the great catering!)

The evening began with PhxLaw Interim Dean Gene Clark talking about “the magic of the success of this book.” He then introduced Nick Dranias, an attorney with the Goldwater Institute.

[The following three paragraphs contain corrected copy.]

Dranias is one of the volume’s authors. He wrote “The Local Liberty Charter: Restoring Grassroots Liberty to Restrain Cities Gone Wild.” He wins for most evocative title, and for getting things off to a rousing start. In his remarks, he said that the Arizona Legislature “is designed to do one thing well: gridlock and stasis. Well done!”

Nick Dranias, Goldwater Institute

Of course, Dranias was being complimentary, for he appreciates a body designed to “throttle back public passions.” Any body that fosters caution—“looking before you leap”—in terms of legislation is close to the heart of the Institute. 

Dranias was humorous and ironic when he clarified, “As much as we would like to put the pedal to the metal and have the legislative process generate a conservative libertarian utopia, it tends to generate gridlock instead, and by design. But we must yield to temporary evils to secure the benefits of a written constitution.” (his corrected eloquent words, not mine).

Vice Chief Justice Andy Hurwitz was up next, and he spoke from his experience in all three branches of government. He admitted that “I learn something new every time I read our Constitution.” And so did we.

In his wide-ranging remarks, he talked about the constitutional provisions that involve judges, and the history of the State Bar sending names to the Governor for final selection.

He recalled that, when he was Chief of Staff to Gov. Bruce Babbitt, the then-conservative State Bar would send one name only for each opening. But Babbitt wasn’t going to be fenced in, and the Bar later would agree to send more.

Justice Hurwitz also remembered a time when electing judges was the norm—and not always such a good one.

As a young lawyer at the firm later named Osborn Maledon, Hurwitz arrived at court one day on a matter—only to find his opposing counsel already engaged in conversation with the judge.

“Drawing myself up to my full height, I said, ‘Your honor, this is highly improper.’”

Christy Smith, Office of the Governor

But, he laughed, the judge simply replied, “Sit down, sonny. We’re not talking about your case. He’s also my campaign manager—we’re talking about my election.”

The Vice Chief Justice declined to say how the matter turned out.

Finally, Christy Smith spoke. She is Deputy General Counsel to Gov. Jan Brewer, and she encouraged law students in attendance to consider a life in public service. In fact, she believes that there should be more lawyers serving in the Legislature (no word on whether the Governor shares that view).

March 2009: The AZ Constitution

All in all, a momentous evening to honor a great accomplishment. Congratulations, and well done.

Read more about the Law Review of the Phoenix School of Law.

And read our own March 2009 story on the history of the Arizona Constitution, written by Hon. George T. Anagnost.