For Immediate Release: Monday, March 15, 2010

“Leftist media attacks can’t mask the absurdity of Massachusetts’s action”

Phoenix, AZ—When the Massachusetts Supreme Court handed down a decision defining marriage as “the establishment of intimacy,” millions of Americans read of the news with disbelief. Among them was conservative Arizona U.S. Senate candidate J.D. Hayworth, who accurately defined the ruling as “absurd”.

In response, former Congressman Hayworth offered an interpretation of the Massachusetts ruling. In it, Hayworth said, “I can make the point of absurdity with an absurd point: If you really had affection for your horse, I guess you could marry your horse. But it’s just the wrong way to go, and the only way to protect the institution of marriage is with the federal marriage amendment that I support.”

“But sadly, the liberal media, intent on defending the ultra-leftist, progressive politicians in Massachusetts, are attacking me for standing up once again for family values and for rejecting this absurd court ruling,” said Hayworth. “But they don’t intimidate me at all. I know right from wrong and as a staunch defender of the institution of marriage, I know I can count on millions of supporters across America to stand with me when our values are under attack – and when I am under attack for standing up to defend those values.”

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By: Judge Gerald A. Williams

North Valley Justice of the Peace

Many people know that I am also in the United States Air Force Reserve and that I perform my Reserve duty at Luke Air Force Base. Some people view military duty as some type of paid vacation because I’m temporarily away from my regular civilian job. Others confuse it with the National Guard. However, few people outside of the military understand what military lawyers do.

The short answer is that military attorneys, called judge advocates or JAGs, do more than wills and courts-martial. Although there are attorney client and privacy issues, I can tell you generally some of the projects I recently had something to do with.

While there was recently a tragic incident involving a stolen vehicle, a security incident and a law enforcement officer involved shooting at Luke AFB, most of the day-to-day operations of lawyers do not involve things that necessarily make the evening news. For example, I recently authored a labor law brief concerning actions taken against civilian employees. The Air Force had won the arbitration; but the union was essentially appealing the decision.

People with a military ID card are also entitled to free legal advice on personal civil legal matters. I was able to help a dependent wife, whose husband is deployed to Afghanistan, file a lawsuit. She had purchased a significant consumer product from a California company and had received neither the product nor a requested refund.

If I say something about Luke AFB, it almost always triggers a question about the F-35 Joint Strike Fighter. The Air Force recently held a series of public scoping meetings in Maricopa County because Luke AFB is one of the locations being considered for F-35A training aircraft. Those meetings are required under federal environmental laws. Next, a draft environmental impact statement will be prepared and that will be followed by public hearings.

I genuinely enjoy my military service and have done things as varied as serving as a medical law consultant to a regional medical center to defending an officer accused of a friendly fire event over Northern Iraq. As long as I can be useful, I will continue to serve.

Judge Gerald Williams is the presiding justice of the peace for the Northwest Regional Court Center. His column appears monthly in The Foothills Focus.

by Nick Dranias
Goldwater Institute
 
The U.S. Supreme Court has sent a strong signal that it will seriously consider intervening if the fate of matching funds in Arizona’s system of publicly funded campaigns is not determined quickly by the Ninth Circuit Court of Appeals.

In January, U.S. District Court judge Roslyn Silver ruled in favor of the Goldwater Institute and struck down the matching funds portion of Clean Elections, calling it “unconstitutional under the First Amendment.” However, a three-judge panel of the Ninth Circuit voted 2-1 to put Silver’s ruling on hold until it acts on the case.

In response, the Goldwater Institute Scharf-Norton Center for Constitutional Litigation filed an emergency motion with U.S. Supreme Court Justice Anthony M. Kennedy to lift the stay from the Ninth Circuit, arguing the Ninth Circuit “defied” the principles enforced in Citizens United v. FEC by keeping alive the threat of matching funds being handed out to state-funded candidates during Arizona’s 2010 election cycle. Justice Kennedy is the author of the majority opinion in Citizens United, which struck down laws that had prohibited groups of individuals–whether corporations, unions or informal associations–from freely spending their money to express their support or opposition for political candidates.

Last week, Justice Kennedy denied “without prejudice” the Goldwater Institute’s emergency motion after referring it to the full Court for consideration. The referral to the full Court was an unusual act, signaling the possibility that Justice Kennedy considered taking more sweeping action on the case. Instead, the Court decided to give the Ninth Circuit an opportunity to rule on the pending appeals, saying if the Ninth Circuit does not decide the matching funds issue by June 1, 2010, the emergency application can be filed again.

Because the state can start handing out matching funds to taxpayer-funded candidates on June 22, 2010, this shows the Supreme Court wants candidates and their supporters to have reasonable certainty about the rules that will apply to the 2010 statewide elections.

In fact, there is a good chance that the First Amendment will be vindicated before the primary election begins; oral arguments are scheduled before the Ninth Circuit on April 12, 2010.

Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.

We disagree with the court’s conclusion that our office has a conflict of interest and we will appeal that decision. We are encouraged that the court’s ruling authorizes the Maricopa County Attorney to appoint independent special prosecutors.

In accordance with that ruling we shall appoint special prosecutors to assume responsibility for the investigation of all matters relating to members of the Board of Supervisors and the Judiciary. This is what we have been seeking since the start of this investigation. However, the Board of Supervisors denied our repeated attempts to do so.  Had they facilitated the appointment of special prosecutors this protracted legal process would not have been necessary. We have also requested that the Board of Supervisors call a special meeting Friday to facilitate the appointment.

We are dismissing the criminal complaint against Judge Donahoe and the second Stapley indictment without prejudice pending the outcome of the appeal of the court’s decision and the appointment of special prosecutors.

Thomas loses big time – but wins

by E.J. Montini

Everything about the decision rendered by Judge John Leonardo appears to be a legal smack down of Maricopa County Attorney Andrew Thomas.

He dismisses charges against Supervisor Mary Rose Wilcox. He chides Thomas for conflict of interest and for bullying. For using his office to go after political enemies.

Then, at the very end of his ruling, after slamming Thomas for roughly eight pages, he gives the county attorney EXACTLY what he wants.

The judge decides that he will not prevent Thomas from appointing a “new independent prosecutor.”

The judge writes, “The MCA may appoint a special independent prosecutor on the condition that the new prosecutor is not independently subject to disqualification, and that the MCAO and the MCA relinquish total control of the investigation and prosecution of Defendant to the special prosecutor and refrain from any further participation in these matters.”

A few days ago, perhaps sensing that such a ruling might be in the offing, Thomas’s assistant Barnett Lotstein told me that if the judge were to say that Thomas must appoint a special prosecutor that he would be giving Thomas “what we been asking for all along.”

It’s uncertain exactly how such a prosecutor can or would be appointed, given all the conflicts that everyone has. But it seems to suggest that the case hasn’t gone away.

It should. Thomas should drop it. He never should have pursued it in the first place. But doing the right thing hasn’t been much of a priority in the feud between the prosecutor and county supervisors.

Meaning, I guess, that today’s ruling was a complete loss for Thomas’s office … except for the part where they won.

E.J. Montini writes for the Arizona Republic

A m e r i c a n  P o s t – G a z e t t e

Distributed by C O M M O N  S E N S E , in Arizona

Tuesday, February 16, 2010  

The duly elected sheriff of a county is the highest law enforcement official within a county. He has law enforcement powers that exceed that of any other state or federal official.

This is settled law that most people are not aware of.

County sheriffs in Wyoming have scored a big one for the 10th Amendment and states’ rights. The sheriffs slapped a federal intrusion upside the head and are insisting that all federal law enforcement officers and personnel from federal regulatory agencies must clear all their activity in a Wyoming County with the Sheriff’s Office. Deja vu for those who remember big Richard Mack in Arizona.

Bighorn County Sheriff Dave Mattis spoke at a press conference following a recent U.S. District Court decision (Case No. 2:96-cv-099-J (2006)) and announced that all federal officials are forbidden to enter his county without his prior approval ……

“If a sheriff doesn’t want the Feds in his county he has the constitutional right and power to keep them out, or ask them to leave, or retain them in custody.”

The court decision was the result of a suit against both the BATF and the IRS by Mattis and other members of the Wyoming Sheriff’s Association. The suit in the Wyoming federal court district sought restoration of the protections enshrined in the United States Constitution and the Wyoming Constitution.

Guess what? The District Court ruled in favor of the sheriffs. In fact, they stated, Wyoming is a sovereign state and the duly elected sheriff of a county is the highest law enforcement official within a county and has law enforcement powers exceeding that of any other state or federal official.” Go back and re-read this quote.

The court confirms and asserts that “the duly elected sheriff of a county is the highest law enforcement official within a county and has law enforcement powers EXCEEDING that of any other state OR federal official.” And you thought the 10th Amendment was dead and buried – not in Wyoming, not yet.

But it gets even better. Since the judge stated that the sheriff “has law enforcement powers EXCEEDING that of any other state OR federal official,” the Wyoming sheriffs are flexing their muscles. They are demanding access to all BATF files. Why? So as to verify that the agency is not violating provisions of Wyoming law that prohibits the registration of firearms or the keeping of a registry of firearm owners. This would be wrong.

The sheriffs are also demanding that federal agencies immediately cease the seizure of private property and the impoundment of private bank accounts without regard to due process in Wyoming state courts.

Gosh, it makes one wish that the sheriffs of the counties relative to Waco, Texas and Oklahoma City, Oklahoma regarding their jurisdictions were drinking the same water these Wyoming sheriffs are.

Sheriff Mattis said, “I am reacting in response to the actions of federal employees who have attempted to deprive citizens of my county of their privacy, their liberty, and their property without regard to constitutional safeguards. I hope that more sheriffs all across America will join us in protecting their citizens from the illegal activities of the IRS, EPA, BATF, FBI, or any other federal agency that is operating outside the confines of constitutional law. Employees of the IRS and the EPA are no longer welcome in Bighorn County unless they intend to operate in conformance to constitutional law.” [Amen].

However, the sad reality is that sheriffs are elected, and that means they are required to be both law enforcement officials and politicians as well. Unfortunately, Wyoming sheriffs are the exception rather than the rule . . . but they shouldn’t be. Sheriffs have enormous power, if or when they choose to use it. I share the hope of Sheriff Mattis that “more sheriffs all across America will join us in protecting their citizens.”

If Wyoming Sheriffs can follow in the steps of former Arizona Sheriff Richard Mack and recognize both their power and authority, they could become champions for the memory of Thomas Jefferson who died thinking that he had won those “states’ rights” debates with Alexander Hamilton.

This case is not just some amusing mountain melodrama. This is a BIG deal. This case is yet further evidence that the 10th Amendment is not yet totally dead, or in a complete decay in the United States. It is also significant in that it can, may, and hopefully will be interpreted to mean that “political subdivisions of a State are included within the meaning of the amendment, or that the powers exercised by a sheriff are an extension of those common law powers which the 10th Amendment explicitly reserves to the People, if they are not granted to the federal government or specifically prohibited to the States.”

Winston Churchill observed, “If you will not fight for right when you can easily win without bloodshed; if you will not fight when your victory is sure and not too costly; you may come to the moment when you will have to fights with all the odds against you with only a precarious chance of survival. There may be a worse case. You may have to fight when there is not hope of victory at all, because it is better to perish than to live as slaves.”

by Dave Robinson Keene Free Press March 31, 2008

by Nick Dranias
Goldwater Institute
 
Almost a month ago, the U.S. Supreme Court declared in Citizens United v. F.E.C. that there is no such thing as a “de minimis”–or insignificant–denial of free speech. The ruling should have immediately sparked a sweeping repeal of campaign speech regulations that were previously justified as imposing only a “de minimis” burden. An axe, not a scalpel, should have been taken to the volumes of complex, vague and burdensome campaign laws. Instead of seizing the moment, it appears Arizona Secretary of State Ken Bennett wants follow the lead of U.S. House Speaker Nancy Pelosi.

Secretary Bennett has joined Pelosi’s drive to preserve the barriers to political entry swept away by Citizens United. Instead of outright bans on campaign speech by individuals who associate through corporations or unions, the Secretary of State wants to kill campaign speech through regulation. Secretary Bennett wants to threaten class 6 felony charges against any individual or group spending $500 or more to promote their political ideas unless they register with the State and continuously report their expenditures every 24 hours during an election season.

Political elites easily navigate such laws. But they will confuse ordinary people, deter them from seeking a voice in politics, and entrap them with mistakes that will expose them to serious criminal charges. Advocates of these new regulations have no idea how they would impact newer methods of political expression, such as Internet blogging.  And no one at a recent meeting called by the Secretary of State could identify any actual problem the regulations were meant to fix. The justification was that something had to be done, and the State could always clean up the mess later. Besides, the advocates reasoned, the Supreme Court did not strike down reporting laws.

Only politicians, bureaucrats, and lobbyists could agree with the argument that anything that can be regulated under the Constitution should be regulated. Citizens United does not embrace prior restraints on free speech in the guise of campaign registration and reporting requirements. Rest assured, if Secretary Bennett and Speaker Pelosi go too far, the Goldwater Institute won’t let the State transmute the golden principles applied in Citizens United into a leaden excuse for diminishing our most fundamental rights.

Nick Dranias holds the Clarence J. and Katherine P. Duncan Chair for Constitutional Government and is Director of the Joseph and Dorothy Donnelly Moller Center for Constitutional Government at the Goldwater Institute.

PHOENIX–At a Superior Court hearing, Maricopa County Judge Kenneth Mangum decided the City of Phoenix must turn over public records related to a deal it is making with the Wyndham Hotel by February 19, 2010. The City was ordered to turn over some documents to the Goldwater Institute and other documents to Judge Mangum for his review.

In December 2009, news reports stated that the City was offering a sizeable tax break to the Wyndham Hotel through a sales-lease back arrangement. Concerned that unconstitutional tax breaks could be given to the hotel, the Goldwater Institute requested public records to see the development agreement and other related public documents on January 5, 2010. The City refused, saying no documents would be made public until a development agreement has been signed.

“The City of Phoenix admitted in court that it has documents that it can turn over to the public now, and that it is willing to do that,” said Carrie Ann Sitren, an attorney with the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. “It is disappointing that it took a lawsuit and the Court’s valuable time to have them comply.”

The City said it was concerned some of the documents could affect its negotiations with the Wyndham Hotel. Because of this, Judge Mangum decided the City must turn those specific documents over to him for a private inspection. Judge Mangum will then decide if those particular documents should be released to the public.

Read more about this and other Goldwater activities to protect individual rights and keep government within its constitutional limits at www.goldwaterinstitute.org/litigation. The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.

PHOENIX–The City of Phoenix refuses to share with the public any records that might reveal details about a proposed tax exemption to help a downtown hotel remodel its rooms and hallways. The Goldwater Institute filed a new lawsuit today to compel Phoenix under the state’s public records law to release documents related to the City’s secret negotiations with the Wyndham Hotel at 50 E. Adams St.

The Arizona Republic reported on Dec. 16, 2009, that Phoenix was  offering sizeable tax breaks to the Wyndham through a sale-lease back arrangement that Phoenix has used frequently in deals with favored developers. The Wyndham would use the tax incentive to complete $10 million in construction remodeling, the Republic reported.

On Jan. 5, the Goldwater Institute asked to see the development agreement, and any other public records related to the proposed sale-lease back arrangement. The City responded that no agreement has been reached. The City also said it won’t release any records related to the negotiations until a “development agreement is executed,” claiming this would protect the City’s interests and is allowed under state law.

A Goldwater Institute attorney says this stance is alarming because Phoenix residents won’t have any idea what tax breaks might be involved until after the City has signed a contract, which means residents won’t be able to raise objections or determine if the City is complying with Arizona law until it is too late.

“The public has a right to know if Phoenix will obtain real, tangible benefits in this development agreement and not just give tax breaks to a business that should pay for its own remodeling work,” said Carrie Ann Sitren, an attorney with the Goldwater Institute. 

The City of Glendale tried to claim a similar exception to the state public records law during its negotiations with new potential owners of the Phoenix Coyotes hockey team. But in response to a separate Goldwater Institute public records lawsuit, Maricopa County Superior Court Judge Edward O. Burke ruled that Glendale was violating the law, and that the public was entitled to review at least some documents even as talks with the Coyotes continue.

While Glendale initially complied with Judge Burke’s order, the City has refused to release any new documents for months. The Goldwater Institute has asked the judge to hold Glendale in contempt of court, and a hearing is scheduled for Feb. 12, 2010.

By filing this lawsuit, the Goldwater Institute Scharf-Norton Center for Constitutional Litigation seeks to uphold transparency in government policy-making that enables citizens to understand the plans of public officials and to voice any concerns. The complaint is available here.

Read more about this and other Goldwater lawsuits to protect individual rights and keep government within its constitutional limits at www.goldwaterinstitute.org/litigation. The Goldwater Institute is an independent government watchdog supported by people who are committed to expanding free enterprise and liberty.

by Nick Dranias
Goldwater Institute

For all Americans, 2010 is starting off as a watershed year for free speech. In the landmark Citizens United v. Federal Election Commission decision, the U.S. Supreme Court ruled corporations, labor unions, and other groups can spend money on political campaigns as part of their free speech rights. The Court struck down a law that threatened criminal charges if a corporation publicly presented a documentary about Hillary Clinton during an election cycle.  The Court’s majority opinion, written by Justice Anthony Kennedy, declares “under our law and our tradition it seems stranger than fiction for our government to make…political speech a crime.”

In his opinion, Justice Kennedy attacked every doctrine that has ever attempted to belittle the importance of various aspects of free speech. He rejected the idea that less effective means of communication can be more intensely regulated than more effective means of communication, such as blocking a little-known documentary film but allowing newspapers and bloggers to freely endorse candidates at any time. He also rejected the notion that only viewpoint discrimination is bad and discrimination against specific speakers is okay, underscoring the reality that the same danger of censorship exists whether the government discriminates against disfavored speakers or disfavored ideas.

Justice Kennedy clarified what the First Amendment is and what it’s not. He explained that it is fundamentally about preserving freedom from government restraint, favoritism and censorship, and the unfettered ability to communicate one’s thoughts. The First Amendment is not about promoting equal time for all to speak.

Justice Kennedy also spelled out what “compelling state interest” justifies regulating free speech, and it is only the goal of preventing corruption or the appearance of corruption. Kennedy specifically said preventing “distortion” or excessive influence by wealthy or powerful factions is not a compelling reason for the government to regulate campaign speech.

Finally, Justice Kennedy underscored that the least restrictive means of regulation must be used when it comes to free speech. This conclusion is significant because there has been a movement away from this concept in other lawsuits towards a more vague definition of regulations being “narrowly tailored” to create a regulatory structure for each specific instance brought before a court.

In my opinion, there has not been a more important U.S. Supreme Court decision since Brown v. Board of Education.

Nick Dranias holds the Goldwater Institute Clarence J. and Katherine P. Duncan chair for constitutional government and is the director of the Institute’s Dorothy D. and Joseph A. Moller Center for Constitutional Government.