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.

Grady Gammage Jr.

The way we pick judges has all the makings of a yawner, right up there with shareholder voting rules and ski-lift instructions. And yet in Arizona and across the country, the topic is red hot.

This year, as in the past, the Arizona Legislature is considering some bills that would alter what many argue is the flagship method for judicial selection in the nation. As Morrison Institute executive director Sue Clark-Johnson said, “Arizona has been considered a model in the United States.”

In response to the possibility of Legislative action, the Morrison Institute at Arizona State University hosted a panel presentation on the topic on Tuesday, Feb. 22. (I previously posted some event photos at the Arizona Attorney Magazine Facebook page.)

Held at the ASU downtown Phoenix campus, the roundtable included:

  • State Senator Adam Driggs (R-11), a member of the Senate Judiciary Committee
  • Hon. Ruth V. McGregor, former Chief Justice, Arizona Supreme Court
  • Hon. Mary M. Schroeder, Judge, U.S. Court of Appeals for the ninth Circuit
  • Hon. William J. “Bill” O’Neil, former judge, Arizona Superior Court for Pinal County (and now the state’s Presiding Disciplinary Judge; we wrote about him in the January issue of AzAt)

The moderator was lawyer Grady Gammage Jr.

Former Arizona Chief Justice Ruth V. McGregor

The roundtable was great, as far as it went. But events like this come perilously close to the scenario of heartfelt preachers assaulting the ears of the choir: They tend to be slated from a particular point of view, which the audience shares. The only mystery is will there be catering?

Given that, how do you achieve a vibrant evening, one where the assembled learn something new and important about the topic?

Have a great moderator.

Props to all the panelists, but Grady Gammage did his job with elán. He poked, prodded and incited the four panelists. And although he pretty much agreed with them about everything, he spent the evening playing the role not of the agreeable piece of furniture—the death knell for a roundtable—but of the mildly disagreeable event interloper.

Mind you, when I say disagreeable, I heap the greatest of praise. For the moderator who plays devil’s advocate is the audience’s surest friend. His insistence on hard answers from speakers sharpened their presentations and made their positions crystal clear. It made them and their presentation look even better.

The evening opened with remarks by Sue Clark-Johnson and Dr. David R. Berman, an Institute research fellow. Berman gave a historic overview of the state’s merit selection process.

And then Gammage explained the political landscape that faces that process. In the current Legislative session, he said, there are currently 10 House Concurrent Resolutions (HCRs) and one House Resolution (HR) that would alter that process in some way.

  • Most of the proposals would add Senate confirmation.
  • Two would remove the State Bar of Arizona from the process.
  • One would change the length of judges’ terms.
  • One would retain Pinal County as a judicial election county (its growing population would otherwise automatically make it a merit-selection county).
  • One would require the Commission on Judicial Court Appointments to rank the nominees whose names it forwards to the Governor.
  • One would allow the Governor to add names of her choosing.
  • One would require Senate reconfirmation of judges.

Chief Justice McGregor was especially concerned about the Senate confirmation idea: “It seems intended to make the process more political, and nothing else.”

Sandra Day O'Connor makes a point at the roundtable discussion.

She continued, “When people say, ‘Judges are nothing but politicians in robes,’ that is wrong, and not the case in Arizona.”

Senator Driggs tried to give some insight into the thinking of his colleagues, especially in regard to the Senate confirmation idea.

“I think some may have visions of C-SPAN in their heads, a big vetting process [like U.S. Senate confirmation]. It’s a little bit of a fantasy, like all of a sudden everyone will be down there and paying attention.”

McGregor added what became a recurring theme of the evening—what exactly is broke that requires fixing?

“Most who have studied the Arizona merit-selection system say that it is the best. Even the U.S. Chamber of Commerce has said [to other states], ‘We don’t take a position, but if you have merit selection, follow Arizona.’”

Gammage got some laughs and raised eyebrows when he asked Judge O’Neil if Pinal County was resisting “becoming a grown-up county” and adopting merit-selection. O’Neil took issue with the question—not the “grown-up” moniker, but with the inference that residents wanted to keep judicial elections. He said that the majority of the county would like to be a merit-selection jurisdiction.

O’Neil added that in preparation for the move to merit-selection, the court there began performing trial-run internal reviews, which would become the norm under the new process. And in a county where the judges have always been elected, he said that “not all did that well.”

Judge Mary Schroeder shared more background about merit selection. She reminded everyone that Judge Thomas Tang, a respected jurist, was thrown out of his elected judgeship because of a single criminal case.

In response, “The business community got merit-selection passed in a referendum.”

She also was troubled by the seeming hostility toward any organized bar association. She recalled a previous battle over splitting the Ninth Circuit Court of Appeals. In testimony to Congress, Microsoft General Counsel Bill Neukom spoke in favor of the current Circuit. Many advised him to “play up” his Microsoft connection, and to downplay the fact that he was the President-Elect of the American Bar Association.

Gammage did not let the group off that easy, though. He urged them to discuss the ballot that contains “all those names” of judges standing for retention election.

“No one knows what to do with all those names. What an insulting process. If we agree that it is meaningless, and that it is not likely to have much impact, what is it for?”

“What is the effect on civic expectations,” he continued, “in what amounts to an essentially meaningless exercise? If the result is that 1 out of 50 gets marginal ratings, why send the names to the ballot at all?

Of course, panelists did not agree with his premise. But they did acknowledge that it creates a challenge for voters.

McGregor, Schroeder and O’Neil agreed that merit-selection’s very existence may serve to persuade those with more meager skills from seeking a judgeship in the first place. And that would mean those seeking to be retained would likely have high ratings

And Senator Driggs also spoke in favor of merit selection.

“I don’t care if someone is charismatic and goes to neighborhood picnics. I want them to know the Rules of Evidence.”

Finally, in the audience Q&A portion, a slight woman raised her hand and patiently waited her turn. When Gammage called on her, Sandra Day O’Connor, former Associate Justice of the U.S. Supreme Court, spoke loudly enough for everyone in the room to hear.

“I grew up on a ranch, and we followed the motto of, If it ain’t broke, don’t fix it. Well, it ain’t broke, and I don’t know what changes they’re going to implement.”