EspressoPundit

     Ruminations of an over-caffeinated political junkie

let's do tea

July 2005

Finally, a complimentary letter that's not from my mom.

Greg

The writer has an excellent point.  I hadn't noticed the Republic's editorials disguised as news.  How's this for some examples.

GOVERNOR BACKS LAND PROPOSAL

July 30

Gov. Janet Napolitano on Friday came out strongly behind a ballot proposal to protect nearly 700,000 acres of pristine state trust land from development.

(the next one is the only real editorial of the group.)

Saving outstanding stretches of Arizona's amazing landscape. Putting extra dollars into schools. Enhancing local plans for development. What a dynamite combination.

And they're wrapped together in a ballot initiative, Conserving Arizona's Future. The measure was filed with the secretary of state last week and would update the state Constitution's rules for managing state trust land. At last.

STAGE SET FOR BATTLE OVER LAND -
PRESERVE OR DEVELOP STATE ACREAGE?

July 7

A private group of conservationists, educators and business leaders, including the McDowell Sonoran Land Trust and the Nature Conservancy, began drafting a 2006 ballot initiative after legislative attempts to reform how the state manages 9.3 million acres of trust land failed in February.

 July 30, 2005

Here's Judge Posner on blogs (via instapundit)

Compare this to Richard Ruelas' email to me about "actual Journalism."

 

The charge by mainstream journalists that blogging lacks checks and balances is obtuse. The blogosphere has more checks and balances than the conventional media; only they are different. The model is Friedrich Hayek's classic analysis of how the economic market pools enormous quantities of information efficiently despite its decentralized character, its lack of a master coordinator or regulator, and the very limited knowledge possessed by each of its participants.

In effect, the blogosphere is a collective enterprise - not 12 million separate enterprises, but one enterprise with 12 million reporters, feature writers and editorialists, yet with almost no costs. It's as if The Associated Press or Reuters had millions of reporters, many of them experts, all working with no salary for free newspapers that carried no advertising.

Well said.

J. James Estrada has some interesting comments in the American Thinker

During the opening days of the Clinton administration, Bill and Hillary fired all existing U.S. Attorneys and had them replace with their hand-picked choices.  Napolitano, who will run for re-election next year, was their pick for the District of Arizona.  For a Governor who was to be tough on crime, the news that Arizona leads the nation in crime could not have been a welcome statistic to her 2006 campaign office.

No worries.  Napolitano friend and confidant, Sue Clark-Johnson, runs the Arizona Republic as its Chairman and CEO.  As virtually the only paper in town, the Republic is free to run stories friendly to Napolitano on the front page and all the rest craftily hidden in obscure sections.

Ouch!

Check out Robert Franciosi post at El Gringo

Intel brings $3 billion and 1000 hi-tech jobs to the Valley and Talton is still whining.

Arizona's challenge and opportunity is shown by Intel failing to make the cut in the Monday edition of the influential Web newsletter Good Morning Silicon Valley. Instead, the top of the news was Yahoo buying Pixoria. 

It did make the San Jose Mercury News--the official puppy-trainer of Silcon Valley. Talton may cite "...smart policy, public-private partnerships, university research and incentives for high-end jobs," but the San Jose Birdcage Liner cites good, old-fashioned "tax incentives and a skilled manufacturing workforce," and Talton's own colleagues put the tax break a the top of this list. They followed that with a well-educated work force--which is a surprise since we are repeatedly told that only knuckle scrapers and mouth breathers would live in this unhip, desolation--and government officials willing to loosen the red tape.

Goldwater is in ...via KVOA in Tucson

Republican Party activist Don Goldwater, a nephew of the late U.S. Sen. Barry Goldwater, confirmed Friday he will seek his party's nomination to challenge Democratic Gov. Janet Napolitano.

July 29, 2005

The Tribune's Le Templar sent me this email

Hi Greg!
I've been following your postings under the title "absence of malice"
with interest, since I have reported frequently on Constantin Querard,
etc al. I'm not going to make any effort to defend Robbie Sherwood or
the Republic; the big dog can take care of itself.

But I did want to mention a couple of things.
First, Constantin knows there's an attorney general investigation. That's why Constantin's lawyer sat through two days of testimony in the
administration appeal hearing for David Smith. Refusal by the attorney
general's office to confirm an investigation exists means nothing; the
AG almost never comments about on-going criminal investigations
(Colorado City being the only recent exception that I'm aware of).
 You have received email from at least one witness who has been
interviewed. Similar people also have told Constantin and others about
their interviews, providing a glimpse into what's going on.

Furthermore, Assistant AG Diana Varela, who staffs the Clean Elections
Commission, made a vague reference in a letter last year to one of
Constantin's vendors about a parallel but independent investigation.
Varela wrote she knew the vendor already had provided documents to
another section of the AG's office. But Varela said she didn't have
access to those documents and the vendor needed to provide another copy to her as well.

On a related subject, I believe there's been a misstatement of the
Clean Elections commission's action in relation to the complaint about
Constantin's vote-by-mail piece. The commission concluded that state law gives that state agency no authority to investigate such issues, so the complaint was dismissed. The commission never ruled on the substance of the complaint.

Thanks for listening to my thoughts.

Le Templar

Here's a copy of the response I sent him. 

Le, thanks for your interest.  You raise some excellent points.  First, you
are right that the Clean Elections investigation was dropped because of lack of jurisdiction, not a ruling on the substance.  Second, there may indeed be an AG investigation.  When I started writing the piece, I assumed there was an investigation. But we are not sure and the AG hasn't confirmed, so Robbie can't listen to those rumors and then decide to print that there's an investigation. Especially since the AG represents CCEC so there will clearly be some AG activity.

My point in the Absence of Malice piece was that Robbie should have written that the Maricopa County Republican Party suit was dropped, that the Maricopa County Republican Party apologized and that the CCEC investigation was dropped (and stated the reason).  Additionally, he should have provided caveats that indicated there was no confirmation of an investigation and that the evidence of the existence of an investigation was circumstantial.  I think that would have been quality reporting. 

However, his unwillingness to print the favorable outcome of the suit and investigation is unprofessional.  Furthermore, I think Robbie's duty to update was enhanced by the fact that he printed 9 stories in 7 months about Querard and even after the Party suit was dropped, the Republic's Lesley Wright wrote that Querard had been criticized by the Party.

I haven't even gone into the fact that the Republic printed glowing pieces about the effectiveness of Mainstream AZ and then completely ignored it when Mainstream clearly faced an AG investigation and was found in violation and paid a $5,000 fine.  Robbie's double standard makes the stories more egregious.

Greg

 

Becky Fenger raises some good points

Well said. 

I'm pretty skeptical of these centrally planned, public/private "economic development" developer giveaways anyway.  My guess is that Glendale will eventually rue the day they first heard the name "Ellman" and that eventually, they may rue the day they heard the name "Scruggs". 

UPDATE ON  Absence of Malice

The response to the absence of malice/Constantin Querard piece has been overwhelming.  This site has been flooded with hits and positive email.  A reporter from Arizona Capital Times called Sherwood and asked if he stood by his story.  And the Yellow Sheet Report provided additional details concerning the Clean Elections investigation. 

No one was surprised by the apology, but the commission's disposition of the complaints is a somewhat different matter.  The Commission's ruling said that pursuant to Rule R2-20-208 (B) the complaints were unfounded. 

However the Yellow Sheet Reports misunderstood a key point of my argument.  YSR points out that:

If no indictments are handed up against Querard, Patterson can claim street cred and take on the mantle of a proven pundit.  Otherwise, Patterson, like Geraldo Rivera will have gathered the peo9ple for a look at The Vault and uncovered only a few old bricks and a lot of stale air. 

Let me make one point perfectly clear...I have no idea if there is an AG investigation or not. 

I tried to make that point clear in the original piece.  My point is that on July 15, 2004 Sherwood wrote that Querard “sent an anonymous mailing last week to Republican voters that is now being investigated by the Attorney General's Office.”

He offered no evidence, no caveats, no references to anonymous sources.  He simply made the statement that the AG was investigating.  That claim was repeated on  July 16th, August, 21st, August 26th, August 30th and September 3rd.  The claim was repeated on January 23, 2005--nearly seven months after it was first printed--and for the first time, we learn that the AG has not confirmed that there is an investigation.  So, what evidence do we have that there was or is an investigation?  None.

My point is that not that there isn't an investigation.   My point is that a reporter can't simply claim an investigation is ongoing, repeat the claim numerous times over a seven month period, then eventually admit that the AG hasn't confirmed the existence of the investigation and move on.

One year after Sherwood's original claim, he has still presented no evidence that Querard is or was under investigation.

If Querard is indicted tomorrow, Sherwood will still have violated journalistic standards by repeatedly printing the allegation, offering no evidence in support of the allegation and taking seven months to point out that the AG didn't confirm the existence on an investigation. 

Combine this with Sherwood's refusal to print that the lawsuit was dropped and that the Party apologized to Querard, and Sherwood's refusal to print that the Clean Elections Commission ruled that the compliant was unfounded and I believe we have a very troubling pattern indeed. 

July 27, 2004

This is going to be interesting...

It's ironic that Congressman Jeff Flake has spent his entire Washington tenure carving out a position as perhaps the most conservative member of Congress, from one of the most conservative districts in the nation.  Yet on the issue that is most important to the district, immigration, he has chosen to side with the moderates.

From the Business Journal

Flake is cosponsoring a federal guest worker bill along with Sens. John McCain and Ted Kennedy.

It looks like Congressman Flake may pay a high price for this moderation. 

State Rep. Russell Pearce -- a business ally on taxes but adversary on immigration issues -- is considering a run for either governor or Congress next year.

Pearce, a conservative Republican from Mesa, is looking at either challenging Democratic Gov. Janet Napolitano or East Valley Congressman Jeff Flake next year.

But isn't "conservative Republican from Mesa" redundant?

Jeff may not lose, buy he's probably going to spend next summer walking the precincts of Mesa saying, "I'm sorry I broke my term limits pledge, it's not an amnesty bill." and "I've never met Ted Kennedy, I don't know Ted Kennedy..."  Then he will get to the heart of Mesa and start saying "I've never met John McCain, I don't know John McCain..."

The Brilliant Mark Steyn on Valerie Plame...

The British suicide bombers and the Iranian nuke demands are genuine crises. The Valerie Plame game is a pseudo-crisis. If you want to talk about Niger or CIA reform, fine. But if you seriously think the only important aspect of a politically motivated narcissist kook's drive-thru intelligence mission to a critical part of the world is the precise sequence of events by which some White House guy came to mention the kook's wife to some reporter, then you've departed the real world and you're frolicking on the wilder shores of Planet Zongo.

Speaking of Planet Zongo...Here's Benson on Rove...

Rumor has it that...

...you can add Don Goldwater to your list of Gubernatorial contenders.

Children don't try this at home...

Here's an interesting email exchange between Richard Ruelas and myself. 

Here's a sample in which Richard points out my lack of a J-school degree.

I don't know why you would withhold names. Again, one of the differences between blogs and actual journalism.

"actual journalism" Ouch.  Read the whole thing, it's a hoot.

Goldwater Institute on Jon Talton

GI sent this out today...

We have mail on Talton as well.

Greg,

By the way . . . My wife and I spent some time in San Diego last weekend.  Of course, San Diego is one of the cities Jon Talton believes we should emulate here in Phoenix . . . San Diego, after all, has a trolley . . . Nuff said! . . . What he fails to mention is that what was once one of America's best run cities is now on the verge of bankruptcy!  They just went through a period where they had 3 MAYORS IN 9 DAYS . . .Yes, three mayors in nine days!  One mayor resigned, one went to jail and the interim mayor theoretically, anyway, should stay in office until a new mayor is elected.  As San Diego is part of California, naturally the front runner for mayor is the owner of a surf shop and she appears to be headed for the top job.  She'll probably succeed Barbara Boxer as a US Senator when she goes to her GREAT REWARD (whatever that is!)

How come Jon Talton never mentions this stuff?  All we hear about is the trolley and maybe the TRENDY GAS LAMP DISTRICT!  We never hear about municipal bankruptcy, mayors and councilmen going to jail, sweetheart contracts, a tragically under funded pension fund, or a union dominated municipal workforce that is bankrupting the city.  He never talks about the cost of housing in San Diego where the average home is much pricier than even Phoenix now.  I believe the average price is around $600,000!

Did Jon Talton check this stuff out, or did his powers of inquiry end once he found out that SAN DIEGO HAS A TROLLEY? 

Pretty cool, huh? 

Name withheld

and now for something really important...

In all the Constantin hoopla yesterday, I didn't cover a truly important event.  Garry Hays of Snell and Wilmer and formerly of the ACC had a birthday and he and is wife celebrated it with the birth of a baby.  Congratulations Garry. 

We've got Mail...

Wow, espresso pundit was deluged with mail in response to the "Absence of Malice" post that was too hot for the Republic's website.  One question came up repeatedly, so I should answer it before presenting some mail samples.

QUESTION: Did you contact Republic reporter Robbie Sherwood to see if he verified that there was an AG investigation?

ANSWER:   Yes, we exchanged a series of emails that he indicated were off the record.  They contained no information that led me to believe he had verified the investigation past the rumor stage.  I tried to reflect his points in my story without violating the privacy of his emails. 

UPDATE:  I just received an email from someone who says he has been interviewed as part of an AG investigation.  He knows of others who have been interviewed as well. 

There may indeed turn to be--or have been--an AG investigation.  But we don't have enough information to make a blanket statement about it even today, much less on July 15, 2004. 

There were quite a few emails like this one. 

Greg

Thank you for setting the record straight on Constantin. It was a great injustice and a real smear campaign by the media.

Name Withheld

Greg,

I think your story on Constantine is about 80% accurate. Tom Liddy was right to bring the lawsuit. Constantine’s mailing was clearly misleading. 

I think your point about the media bias is absolutely accurate. I also think it was good of you to point out that these investigations never materialized. I know what it is like to have a reputation attacked because of “alleged” behavior.

Name Withheld. 

That's an excellent point.  In fact the Judge ruled that the pieces were misleading when he granted the preliminary injunction that prevented the database from being used.  I alluded to that fact in my post when I wrote that many believed (the piece) had the appearance of being an official Republican Party document.   But I should have been more clear. 

Greg,
 
The Clean Election Commission investigation is really the most egregious one.  By digging back into the cost of the names which Querard provided to his candidates, they established a completely different standard for conservatives than they hold for liberals.
 
When the unions provided office space to Napolitano, the commission ruled "willing buyer, willing seller" as the standard for the transaction.
 
When the Republican party and Dem party provide names for $200 per 100,000 they don't have to do any cost allocation at all.  That doesn't come close to taking into account the cost of those names.
 
The names belonged to Querard and if he wants to sell them for $400 per 100,000 you have a willing buyer/willing seller standard and you also have a market place standard from the parties for the value of a name.
 
Querard is only being investigated by Clean Elections because he is a conservative.
 

Name Withheld

(Actually, the Clean Elections investigation was dropped as well, but the Republic didn't print that either.)

There was one email in defense of the Republic's standards and I'm awaiting the author's permission to print it. 

July 25, 2005

Absence of Malice?

You will find no better example of media bias and malfeasance than the case of Constantin Querard.  You remember poor Constantin--he’s a “campaign consultant to a stable of socially conservative legislative candidates,” and “part-time Arizona Right To Life employee” who sports a “slicked back” Gordon Gecko hair cut.  In today’s media environment, that alone equates to 3 strikes. 

By the middle of last summer, rumor had it that Constantin had more to worry about than his slicked back hair and stable of Conservative candidates.  Gossip in political circles focused on a possible Attorney General investigation into an absentee ballot solicitation many believed had the appearance of being an official Republican Party document.  

By last July 15 we learned from the Arizona Republic’s Robbie Sherwood that the rumors were true.  Sherwood reported Querard “sent an anonymous mailing last week to Republican voters that is now being investigated by the Attorney General's Office.”

Later, we were to discover that, “Republican Party officials and a pair of lawmakers filed suit Friday against a campaign consultant to a slate of socially conservative legislative candidates over a questionable early-ballot mailing last month.”  And finally, we learn that “the Citizens Clean Elections Commission also opened an investigation Thursday into Querard and eight of his publicly funded clients.” 

By September, Constantine was facing the triple whammy: an Attorney General investigation, an investigation by Clean Elections and a lawsuit by the Maricopa County Republican Party. 

Mr. Querard became the summer’s hottest political topic.  The Republic’s Sherwood followed up the July 15^th article in which we learned about the AG’s investigation with a July 16^th article on the front of the Valley and State section that contained the line. Ahwatukee political consultant Constantin Querard confirmed this week that he paid for and mailed the anonymous flier, which is now under investigation by the Attorney General's Office.

On August 21, Sherwood again reports that “Constantin Querard, a political consultant from Ahwatukee, is already under investigation by the Attorney General's Office” 

By August 26, Sherwood is able to provide additional details of the investigation “The Attorney General's Office is investigating the mailing for potential campaign finance violations, such as not registering as a political committee and not telling recipients who paid for the mail piece.”

On August 30^th, The Republic’s Richard Ruelas, relying on Sherwood’s reporting, calls the mailer a “scheme” and reiterates that “The Arizona Attorney General's Office also opened an investigation.”

By September 2^nd We get an update on the Republican Party lawsuit and Sherwood reports that Querard has effectively thrown in the towel.  “A political consultant to a slate of socially conservative Republican legislative candidates said Wednesday that he is "out of business" until a judge rules whether it's legal for him to use voter phone numbers and mailing addresses, gleaned from a questionable early-ballot mailing, to help his clients.”

On September 3^rd  Sherwood reports on the status of the lawsuit and adds more details of the investigation.  Sherwood reiterates that “The Attorney General's Office is already investigating Querard for reputed campaign-finance violations regarding the early-ballot mailing.” The article mentions that someone from the AG’s office attended the civil court hearing on the matter. But neglects to mention that the AG is counsel for Clean Elections.

On September 5^th, Richard De Uriarte writes a long article for Viewpoints and mentions the Maricopa County Republican Party suit. 

On January 23^rd, Sherwood  reports on A1 that, “The Attorney General's Office declined to comment on the probe. It was launched over the summer to look into an Ahwatukee political consultant.”  (The wording provides a clue of what’s to come.  It should have caught my attention, but I missed it.) 

By January 30^th, Sherwood is openly mocking Querard in the Political Insider.   “For someone who has the Attorney General's Office sniffing around his books and looking into reputed campaign-finance law violations, Ahwatukee political consultant Constantin Querard isn't keeping a very low profile.” 

At least ten articles over seven months by three Republic reporters refer to Constintin Querard’s troubles.  And then….silence.   

Six months is an eternity in politics, so I had forgotten about the story.  But I attended a meeting last week and someone pointed Querard out.  I wondered how he could show his face in public.  I introduced myself and eventually asked how his legal troubles were going.  I was surprised by the answer and frankly stunned that I had never seen the resolution in print.   

Clean Elections dropped their investigation after determining that they had no jurisdiction.  The Maricopa County Republican Party dropped their suit and on March 29^th of this year and filed a statement in court which reads in part: 

"Maricopa County Republican Party deeply regrets and apologizes for any and all inconvenience, embarrassment, expense, humiliation, adverse publicity and other damages and harms Constantin Querard has suffered or experienced as a result of the filing of this action against him without the express approval of the Maricopa County Republican Party Committee." 

Despite being the target of stories about the investigation and suit for an entire summer, Querard was unable to get Sherwood to print that the clean elections investigation and Republican suit were over.  The remarkable apology from the Party was printed in the Tribune and Ahwatukee Foothills News, but not in the Republic.  

Not only did the Republic ignore the apology, On June 24—three months after the Party dropped the suit and issued its apology--Republic reporter Lesley Wright slipped this comment into an article about Representative Rick Murphy  “Querard, who has been criticized even by the Republican Party for questionable campaign activities.” 

But what of the Attorney General’s investigation?  Incredibly, it appears that there may never have been an Attorney General investigation separate from the work the AG performed as counsel for Clean Elections.  It appears that Sherwood didn’t manage to verify the rumors; he simply printed them.   

I should have realized something was amiss when the January 23^rd story indicated that the AG declined to comment on the investigation.   Sherwood’s previous four stories stated definitively that the AG was investigating.  How could Sherwood have been sure about the investigation if the AG has declined to comment?   

At a minimum, Sherwood needed to quote an anonymous source close to the investigation and disclose that there was no official confirmation of the existence of an investigation, or present some evidence that an investigation was being conducted.  Instead, Sherwood led the July 15^th 2004 story with:  Querard “sent an anonymous mailing last week to Republican voters that is now being investigated by the Attorney General's Office.”  There are no caveats, no “sources say,” no indication that the AG hadn’t confirmed this rumor.   

There is, however, one person who is in a good position to know if the AG investigated Querard, that’s Querard himself, and he’s willing to comment.  In fact in an effort to rebuild his reputation, he’s been shouting from the rooftops.  Querard told me that with respect to the Attorney General, he was “never subpoenaed or deposed...  never retained counsel for this (he already had it from the other matters)...  never confirmed that I was a target of anything...” 

Over one year after Sherwood wrote that Querard was under investigation by the Attorney General, no evidence has surfaced to indicate that there was ever any Attorney General involvement other than as counsel for Clean Elections.   

So what is Constantin Querard’s remedy?  Frankly, there probably isn’t one.  Newspapers are an assembly of fiefdoms, and if the political reporter from the Republic spends a summer raking you over the coals, mocks you in the Insider and then ignores you when you have been exonerated, what are you going to do, write a letter to the editor and say he’s biased?  Get in line buddy.   

How about legal remedies?  Being unencumbered by a law degree, I would guess that if Querard is declared a public figure that Sherwood can print just about whatever he wants with impunity.  Is Querard a public figure?  Got me.  When the July 15^th 2004 story about the AG investigation was published, Querard was an obscure consultant working out of an apartment in Ahwatukee.

Maybe he should have his attorney call Sherwood’s editor and have a chat.  After all, sometimes that’s the only way to get a fair shot—especially if you are a “campaign consultant to a stable of socially conservative legislative candidates,” and “part-time Arizona Right To Life employee” who sports a “slicked back” Gordon Gecko hair cut. 

July 21, 2005

What's next, the Blues Brothers?

As John Belushi’s Bluto Blutarsky discovered in Animal House, you are supposed to do a raunchy movie than THEN go the the United States Senate.  Not the other way around.  That would be a good lesson for Senator McCain.

July 20, 2005

More on the Judges

Fellow blogger George Diaz makes an excellent point that my previous post on Judicial power wasn’t clear.  If your aren’t up to speed, you would do well to start here and then here.

 To set the record straight, I believe that it was inappropriate for judge Silvia Arellano, and Judge David Talamante’s names to be on the Los Abogados press release claiming that a County Attorney’s decision was "clearly wrong and sets a terrible precedent. 

Mr. Diaz refers to the Code of Judicial conduct and its five cannons. Indeed Cannon 4 states:  [i]A judge shall conduct all of the judge's extra-judicial activities so that they do not:(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;[/] 

In my opinion, a judge who participates in a statement claiming that an act is "clearly wrong and sets a terrible precedent" can in no way claim to be impartial.  In fact, a judge has clearly pre judged the situation if he or she makes statement like:  

Our extensive legal research has caused us to conclude that Patrick Haab's arrest and detention (of the undocumented immigrants) was unlawful, and there can be no honest debate whatsoever about that conclusion," 

Several readers have pointed out that having Judge Silvia Arellano, and Judge David Talamante’s name on the letterhead is probably an oversight.  Perhaps that’s true.  The judges in question may not have known that Los Abogados was going to issue this press release.  However, the judges are on the Board of Los Abogados and one would assume that a statement of this nature would have to be approved by—or at least shown to—the Board of Directors.  And the members of Los Abogados--who are, of course, attorneys--should have known that if they were going to issue a statement of this nature, they should have vetted it with the judges whose names were on the letterhead.  

Mr. Diaz asks another good question.  Should Los Abogados have bought new letterhead for this specific press release?  Yes.   If the judges on the letterhead didn’t approve the statement, Los Aabogados should have printed different letterhead, used the letterhead of one of the other signors, or issued a disclaimer similar to the one that George prints at the bottom each of his posts.   

The views expressed are those of the author and do not necessarily reflect the opinions of the author's employer, family, friends, colleagues, neighbors, or pets.

Is this a big deal?  No.  Mr. Haab is not going to be prosecuted and if he were, I’m sure the court would ensure that he wasn’t tried before judges Arellano or Talamante. 

However, the judicial branch jealously guards its reputation for impartiality and professionalism.  The judiciary is constantly being scrutinized by those who believe that beneath that patina of impartiality lies a body of activists who wish to impose their political, moral and philosophical views without regard to trials or evidence.  A press release that includes the names of two judges and appears to pre judge a high-profile case on a politically sensitive topic makes that veneer appear much more thin. 

That’s why there is a Code of Conduct and a Cannon 4.

July 18, 2005

This very funny email was in my inbox. 

Update on the Judicial Use of Power

If you missed the original post, see  below

The cool thing about being a "pundit" instead of, you know, having a "job" is that I don't have to actually look stuff up.  I never really liked looking stuff up, and since I'm not a lawyer, my readers generally roll their eyes when I look up legal stuff anyway.  So now I just pose a legal question and someone who is a lawyer, or plays one on TV, sends me something that looks really official and I post it and let the lawyers decide if it's credible or not. 

So last Thursday, I questioned the appropriateness Judge Silvia Arellano, and Judge David Talamante allowing their names and titles to be used on the letterhead of the press release that claims that Maricopa County Attorney Andrew Thomas' decision not to prosecute Mr. Haab was "clearly wrong and sets a terrible precedent."

An alert reader has provided an answer to my question.  It seems that Judges have rules of ethics that are, like, written down and everything. How cool is that?  Take a look at Rule 81.4.A(1) and tell me if it conflicts with the statement that:

"Our extensive legal research has caused us to conclude that Patrick Haab's arrest and detention (of the undocumented immigrants) was unlawful, and there can be no honest debate whatsoever about that conclusion,"

Here are the rules.

Arizona Revised Statutes Annotated Currentness
Rules of the Supreme Court of Arizona (Refs & Annos)
VII. Judicial Ethics (Refs & Annos)

Rule 81.  Arizona Code of Judicial Conduct (Refs & Annos)

Canon 4. A Judge Shall So Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations

 
A. Extra-Judicial Activities in General.  A judge shall conduct all of the judge's extra-judicial activities so that they do not:

 (1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office;  or

(3) interfere with the proper performance of judicial duties.


B. Avocational Activities.  A judge may speak, write, lecture, teach and participate in other extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this code.


C. Governmental, Civic or Charitable Activities.

 (1) A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge's interests.


(2) A judge shall not accept appointment to a governmental committee or commission or other governmental position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice.  A judge may, however, represent a country, state or locality on ceremonial occasions or in connection with historical, educational or cultural activities.

 
3) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice.  A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund-raising activities except that a judge may be an announced speaker at a fund-raising event benefitting indigent representation or public institutions of legal education.  A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice.

 (4) A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of the judge's judicial duties.  A judge may serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:

(a) A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.

 (b) A judge should not solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of office for that purpose, but a judge may be listed as an officer, director, or trustee of such an organization, so long as the listing is not used for fund-raising purposes.  Except as permitted by paragraph (C)(3) above, a judge should not be a speaker or the guest of honor at an organization's fund-raising events, but may attend such events.

 (c) A judge should not give investment advice to such an organization, but a judge may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.

  Canon 5. A Judge or Judicial Candidate Shall Refrain From Inappropriate Political Activity

  A. Political Conduct in General.

 (1) A judge or a candidate for election to judicial office shall not:

(a) act as a leader or hold any office in a political organization;

 

July 14, 2005

Judicial Use of Power

I have a few friends who are judges, and a lot of friends who want to be judges.  Although their views differ widely on many issues, they all tell me that there's no problem with Arizona's method of judicial selection.  It seems that the state's judges are above politics, handle issues with the utmost professionalism and avoid using their positions to advance a narrow social agenda. 

I was even beginning to buy into it.  But I was dragged back to reality when I noticed the names of two judges on the press release that generated this article.

"Our extensive legal research has caused us to conclude that Patrick Haab's arrest and detention (of the undocumented immigrants) was unlawful, and there can be no honest debate whatsoever about that conclusion," attorney Francisco Gutierrez said on behalf of Los Abogados Hispanic Bar Association.

The press release adds that Maricopa County Attorney Andrew Thomas' decision not to prosecute Mr. Haab was "clearly wrong and sets a terrible precedent."

I guess the "extensive legal research" is much more credible with the "Hon." Silvia Arellano, and "Hon." David Talamante on the letterhead. 

I'm not a lawyer, and I'm a little rusty on my rules of evidence, so tell me what facts allowed Los Abogados to conclude that Mr. Haab's act was "unlawful,"?  Was it, perhaps, something they read in the newspaper, or saw on the news?  Maybe they have been watching CSI for CLE.

Whatever evidence they used to arrive at their conclusion must have been pretty compelling because they have added that "there can be no honest debate whatsoever about that conclusion,"  Wow, an honest debate about the conclusion that Mr. Haab's act was unlawful, there's a word for that, let me see...oh yeah...that would be a "trial"--presided over by "judges" who don't make up their "mind" by reading the "newspaper." 

July 13, 2005

The Bullet Misses Jim Irvin

From the ninth circuit. 

Finally, an Honest Reporter

Ever try to buy lunch for a Reporter?  Good luck.  They will tell you where you can put your tuna melt.  Want to search the campaign finance reports to see if your favorite journalist supports the same candidates that you support?  Keep looking.  You see reporters are, like, Constitutionally prohibited from such activities--appearance of impropriety and all that. 

But not Jon Talton.   No, Jon is the featured speaker at the Democratic Party's Nucleus Club fundraising lunch. 

For a measly $35 you can hear Talton recite the 3 columns in his repertoire--Phoenix is a wasteland without true leadership, light rail or biotech, but Denver and San Diego are totally cool because there are plenty of grunge opportunities for the creative people and by the way, don't go to Wal Mart because your job will be shipped to China. 

But don't worry the money goes to a good cause.

Through its monthly lunches, the Nucleus Club raises a steady stream of funds for the Maricopa County Democratic Party and its grass-roots operations, while at the same time provides a regular meeting place for those interested in current events and politics. Over the years, the Nucleus Club has raised thousands of dollars to provide materials and services vital to the Maricopa County Democrat Party organization.
 

Finally, a journalist who will use the status supplied by his position to actively support the causes about which he writes.  Maybe I should buy him a tuna melt. 

Update:  Here's a letter in defense of Talton

Greg-

I find Jon Talton's leftist rants and constant touting of command and control, socialist style central planning to be as insufferable as you do.  He's predictable and is always resorting to name calling to try to mask his writing and persuasive deficiencies.  Since he can't refute conservatives on the merits, he pulls out all manner of invectives to describe conservatives in the hopes that just hurling a few nasty epithets will cause readers gloss over the logical flaws that are a constant mainstay of his columns.

Having said that, I have to report that I once attended a Downtown Young Republicans meeting that Mr. Talton attended and spoke at.  Admission was free, but I suspect that if there was an admission charge it would not have mattered.  It would be better if Talton declined any speaking invitation that amounted to a fundraiser, but a palatable alternative is to make himself available to both parties, which he seems to do, although I don't know any group that would want him except those of the far left, e.g. the Nucleous Club.

You should check out the writings of Joel Kotkin.  He's an urbanist and a Democrat, but one that is critical of the holy grail of "coolness" that Talton, his hero Richard Florida, and the Phoenix City Council, with their dumping of hundreds of millions of dollars into the rathole that is downtown Phoenix (figuratively, I like downtown just fine), quest for at our considerable expense.

As always,

July 12, 2005

From Russia with Love

Governor Napolitano vetoed the bill that would have allowed local law enforcement agencies to work with federal authorities to enforce immigration laws.  In the wake of the criticism that followed, she called a closed-door “summit” of law enforcement agencies to address the problem.  She’s vacationing in Russia and will not be attending the summit.

The folly of the current policy was made tragically apparent yesterday in Queen Creek where police are searching for Rodrigo Cervantes Zavala in connection with the death of three people and abduction of two children. 

Arpaio said he was frustrated that Cervantes Zavala was still in the country illegally because he'd had several previous run-ins with law enforcement.

Cervantes Zavala was arrested on suspicion of domestic violence assault in Glendale in 1995 and 1998 against an ex-wife, Last year, Cervantes Zavala pleaded guilty to third-degree burglary, a class-four felony. He was sentenced to two years of supervised probation, along with 120 hours of community service, restitution payments and the forfeiture of his shotgun. 

How many summits will it take before it becomes obvious that local law enforcement agencies should be empowered to turn illegal aliens—especially those with felony convictions--over to the Border Patrol?

John Greene makes an excellent point on the same topic below.

July 11, 2005

John Greene has an announcement.

“it is simply mind boggling that after vetoing a bill that would allow local law enforcement to assist in the enforcement of federal immigration laws and play a meaningful role in addressing our serious border problems, the incumbent governor would now try to take credit for the very plan she vetoed..."

In the Jib Jab parody tradition, here's Hillary in 2008.

This is funny.. 

Friday's with Fidel...

Greg

I enjoyed the rebuttal regarding the Jon Talton column.  How can the Arizona Republic let this guy write a business column?  It used to be, back in the Jurassic period when I grew up, that even in a liberal paper the one bastion of conservatism would be the Business page.  The writers would typically have a background in business, banking, or economics.  Jon Talton has none of these and really doesn't know much of anything about them.  He is simply a leftist reporter that gets to write a column on the Business page.  Why not let Fidel Castro write a column on the Business page?  They could call it Free Enterprise with Fidel. 

Name withheld

There is no more liberal paper in the state than the Arizona Daily Star, Pravda on the Pueblo, the Red Star etc.  But Richard Ducote writes a good business column and editorial writer Jim Kaiser has an MBA from Stanford.  They understand business and they don't treat it with contempt. 

Here's the latest example of Talton's leftist rants.

After four years of a so-called War on Terror, the jihadists showed they could execute a sophisticated, multifront attack in the financial heart of one of the safest cities, in a nation with one of the most capable intelligence services.

Critics say that the war in Iraq has been a costly distraction from hunting down the terrorists, and it even may have become a recruiting center. But Iraq was never primarily about terror. It was about oil, although not the way conspiracy theorists believe.

That's straight out of the Michael Moore/Daily Kos playbook.  What's it doing on the business pages?

I admit it.  I would be a lousy TV writer.  Since I don’t watch TV, my ignorance would be very apparent, but most importantly my disdain for TV would show through.  The good folks who read the TV section don’t want some middle aged pseudo intellectual to tell them that TV stinks and they need to get a job--or worse, that TV was better when I was a kid, or it’s better in France.

July 9, 2005 

Letters, we got letters...

Wow, my July 8th post about Janet's view that the rules only apply to regular people generated a lot of mail...

The first letter deserves a special introduction because it is from the Democrat friend who wrote the subtitles for John Greene's Gubernatorial announcement which has become one of the most popular espresso pundit posts. Naturally, the most popular espresso pundit post would be one that I didn't write.  Go figure. 

Receiving email is my favorite part of blogging.  But I especially enjoy feedback from Democrats because it reminds me that there are plenty of really bright, concerned, articulate Democrats who care a great deal about Arizona and I shouldn't confuse them with the MoveOn.org crowd. 

The Rules only apply to regular people...

That, my friend, is the question of the year.

Napolitano and Judicial "Merit"

Greg

Your piece about Napolitano was classic.  And you are right on about merit selection of judges---a topic with which I have more than just a nodding acquaintance. 

Isn't it curious that Arizona's "enviable" system of judicial selection is only employed in two of our fifteen counties?  And, the two counties (Pinal and Mohave) which are approaching the 250,000 population threshold to throw them into the "merit" mix are fighting legislatively  to raise the threshold  to 500,000 so as not to have to give up their rights to elect their judges. 

If you ever inclined to do a "plugged in" on that it would be fabulous.  The Republic refuses to give a drop of ink to anything but the information funneled to them by the AZ Supreme Court, the AZ State Bar and the Judges Association. 

Also, Merit Selection is, unfortunately, wrongly named. it would be more appropriately termed: diversity selection (never diversity of ideas, however) or best buddy of Janet's selection. 

Name Withheld

Here's one from my favorite fan...

Boy, you're hot now!  The 'sins of Janet' may not be recognized by the average political neophyte.  Even though the nightly newspaper is read before discarding (oops recycled)  it is hard to sort thru all the 'stuff' to get to the bottom line issues.  The executive summary is so much easier!  Keep up the good work... 

Love mom

Isn't she sweet.

Regarding The "Constant Touch Exemption" in the Constitution

Hey Greg,

Does Tim Nelson realize that in 1912, we did have modern communications like the telegraph etc?  So if a Governor was absent from the state then, they would still be able to be in contact with the home office.  Don't you think those folks who wrote the constitution considered that fact?

In 1912, you had telegraph service between the mainland and Hawaii. In 1901, radiotelegraph service was instituted between five Hawaiian Islands. By 1903, a Marconi station located in Wellfleet, Massachusetts, carried an exchange or greetings between President Theodore Roosevelt and King Edward VII. In 1905 the naval battle of Port Arthur in the Russo-Japanese war was reported by wireless, and in 1906 the U.S. Weather Bureau experimented with radiotelegraphy to speed notice of weather conditions.

In 1909, Robert E. Peary, arctic explorer, radiotelegraphed: "I found the Pole". In 1910 Marconi opened regular American-European radiotelegraph service, which several months later, enabled an escaped British murderer to be apprehended on the high seas. In 1912, the first transpacific radiotelegraph service linked San Francisco with Hawaii.

Is the 9th floor that clueless, or are they counting on the fact that Arizona's Public Education system continues to dumb down its students with its union teachers and figure the public won't read through their nonsense.

Name Withheld

Well said.  Of course, my non-lawyer view of Constitutional interpretation is that even if times change, you don't just claim that a provision no longer applies and simply ignore it.  You should, perhaps, you know, amend it.  But, I guess that's kind of quaint. 

Here's an interesting letter from a guy who must have a Kerry sticker on his Volkswagon Microbus. 

Greg

quite clever stuff in your newsletter, and i don't mean the house
pet-related "good dog, you're such a clever boy" use of the term. when did the word "clever" get such a pejorative connotation anyway? but i digress

as a latecomer to your e-screed, i hope you'll permit me the delayed
response to your june 22 entry correlating marijuana use with john kerry
support

might i suggest you follow up with a study correlating homebrew crystal
methedrine use with bush support? you will find an even greater correlation of meth use to bush voting than the ganja factor with the "evildoer" liberals. let's think about that for a moment. the blue state slacker libs mellow out with a joint (and to complete the picture, with an oak-y, buttery chardonnay in hand) and vote for a decorated war veteran. the red state whacked meth-heads vote en masse for a stay-at-home champagne squadron pilot and past-life cokehead. without needing to dissect this bush administration's (NOT that of his honorable and skillful father) uninterrupted, embarrassing and tragic record of policy failures and prevarications, one can simply ask, "the users of which of these drugs generally act more sanely?" being someone who can't tolerate chemicals any stronger than trader joe's vitamins and yes, the occasional espresso, i can't purport to speak from experience. but i suppose a lack of experience and qualifications actually makes me something like your commander-in-chief. "mission accomplished and yeehaw"

best regards,

joe

p.s. do keep up the well-written, interesting and ultimately good-humored newsletter. please add me to your distribution list.

One reader noticed that Janet vacationing in Russia

Greg:

Napolitano seems to have learned her tricks from Putin. Is she over there to learn more?

Name Withheld

Here's an idea...Nah.

Greg

Nice… you really should be a columnist for the Republic… make a pitch to Ken Western that you can carry the brash conservative ball… as opposed to our man Robb who carries the snooze button for the conservatives.

Name Withheld

July 8, 2005

The rules only apply to regular people...

From this morning's Republic:

Janet Napolitano expects to take all the powers of her office with her when she heads to Russia on Sunday for a two-week trip, even though the Arizona Constitution says the secretary of state takes control while the governor's gone.

I especially like the part about the so called "Constitution."  How quaint, Secretary of State Brewer thinks that Janet should follow "the law."  Mrs. Brewer apparently doesn't realize that the rules don't apply to Governor Napolitano. 

Can't get a prescription drug benefit through the Legislature?  Don't worry about it, you can establish it by executive order. 

What if no one signs up for it?  No problem, you can used DHS emergency funds to advertise for it.

Can't get Squaw Peak renamed?  Not allowed to name it "Piestewa" within five years of her death?  That's easy, have one of your aids call the Chairman of the Board on Geographic and Historic Names and make him an offer he can't refuse. 

Want to give your friend some judicial experience?  Cool, there's, like an opening on the Supreme Court.  That would be a great place to start.  Just make it known that he's your pick and that others need not apply for this "merit" position.

Agree with the Legislature that the Cardinals should live up to their original agreement to fund the stadium, but then change your mind when Mr. Bidwell is upset?  Just veto it. 

Is your base ticked off because you entered into a very public agreement to sign a Corporate Tuition Tax Credit bill in exchange for Med School funding and all day kindergarten?  No problem, claim the Legislators violated part of the agreement and then veto the provisions that you don't like, but sign the ones that you do like. 

Want to remain Governor while visiting Russia despite the clear Constitutional language that says the Secretary of State becomes acting Governor while you are gone?  Easy.  Have your lawyer declare that:

...with satellite phones, fax machines and the Internet, a traveling governor can stay in constant touch with her aides at 1700 W. Washington St.

Ahh Yes, how could we have missed the "constant touch with your aides" provision of the Constitution.  How silly.   It must be located near the "Arizona shall have no general obligation debt" provision that hasn't been read since, like, 1986. 

But hey, she should know.  After all, she's a lawyer.  Everyone knows that they play by the rules.  
 

July 7, 2005

Tom Cruise and Thayer Verschoor want your kids off drugs.

(State Capitol, Phoenix)  –   A key issue that the media seems to have overlooked in the recent controversy over antidepressant drugs is that while actor Tom Cruise has been able to sound the alarm bell about the serious dangers of these substances, government agencies charged with this responsibility have been slow to act.

Here's an update on the Plugged In exchange between Mike Newcomb and myself.

If you enjoyed the July 6th post below, you will want to know that Mike Newcomb responded to my post here...

Greg, I'm sorry you got your feelers hurt (sic) by my "portraying Christian Republicans particularly as fanatics and extremists." I had hoped the "fatwas" included in my post by prominent Christian Republicans would speak for themselves.

And I respond to him here. 

Mike and I are making a lot of progress in our public therapy/grammar/theology discussion. Although by now, he and I are the only ones reading it - I'm going to send a link to my Mom. We now both concede that we are not as smart as the governor. I concede that there are people who have said some incredibly stupid things in the name of God. And some of those people are Republicans.

However, none of those statements were made by Congressional Republicans, and I reject any attempt to equate the two. I also reject any assertion that Republicans in Washington can be compared to the terrorists who issue fatwas (Mike) or the Taliban (Jana), or for that matter that Wal-Mart is creating an economic Holocaust (Eddie).
 

As they say, read the whole thing. 

July 6, 2005

Mike Newcomb says he's smarter than the Janet and he couldn't have meant anything by those terrorist comparisons...after all, some of his best friends are Christians.

July 5, 2005

Here's an interesting letter.

Greg, last Friday the Tribune ran a front-page-above-the-fold story about the CSI Effect and Andrew Thomas's study of it.  He asked the networks to warn viewers about the show's fictional characteristics because jurors now have unrealistic expectations about real cases.  Anyway, it's nothing new to be critical of Hollywood, particularly for political or social reasons, but in this case it's a matter of public safety when more and more creeps walk because the evidence presented at trial wasn't like CSI.  Sadly, the Republic hardly mentioned it which means it may be ripe for a new media outlet like your blog.  Here's the press release and the report:

http://www.maricopacountyattorney.org/Press/default.asp


Well said. 

Tony Blair on Europe's failed social model...

"Some have suggested I want to abandon Europe's social model," Blair told the European Parliament last month. "But tell me: what type of social model is it that has 20 million unemployed in Europe, productivity rates falling behind those of the United States; that is allowing more science graduates to be produced by India than by Europe; and that, on any relative index of a modern economy -- skills, R&D, patents, IT -- is going down not up."

...and Powerline's take on it...

While the crisis is economic, the underlying problem is, I think, mostly ideological. It will be interesting to see what it takes for American liberals to tumble to the fact that the European model, which they long to import here, is a failure.

Maybe Jon Talton would be better off moving to London instead of Denver. 

Case Closed

School choice advocates have long maintained that forcing schools to compete raises the performance of public as well as private schools.  The education establishment treats this argument with disdain and argues that granting parents additional choices--especially with vouchers--is an "attack" on public education. 

Arizona has been enhancing parental choice for over 10 years and The Republic's Karina Bland has an interesting article on some of the results. 

The reporter, of course, doesn't write the headlines.  I think this one was written by Milton Friedman. 

Districts using marketing to attract more students Competition forcing schools to get creative

PHOENIX - Send your child to any school in the Phoenix Elementary School District and get free before- and after-school child care.

But wait, there's more: Enroll now, and your kid can attend free all summer.

That tempting offer is among the creative sales pitches being made this summer by public schools hoping to attract more students and the state funding that comes with them.

"We look at schools as a business, and we have to do what we can do market our business," says Mishay Tribble, assistant principal at Hamilton School in Phoenix's Murphy Elementary School District.

"If we think we're doing a good job, we have to get out there and let people know."

Hmm, school administrators can earn more funding by increasing their market share.  They accomplish this by increasing their school's quality and appealing to the needs of parents by offering more services.  These parents are now considered to be "customers."  So much for "attacks" and "dismantling."

Great Headline from the AP

'Catch and release' policy frees migrants to roam U.S.

It ain't over 'till it's over. 

The Republic's Richard DeUriarte is putting together a package on the 2006 Governor's race and sent out these questions.  My response is below. 

A message to my smart political friends:

Conventional wisdom suggests it's going to be very tough to beat Gov. Janet Napolitano in 2006. Arizona has usually been kind to incumbents. She doesn't make many political mistakes. She's run rings around her
legislative cr