Goldwater Institute

The decision in Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett came out today (PDF), a 5-4 decision ruling Arizona’s Clean Election laws unconstitutional. The dissent, it seems to me, has a much better case than the majority: the program does not discriminate against any candidate or point of view, and it does not restrict any person's ability to speak.  In fact, by providing resources to many candidates, the program creates more speech and thereby broadens public debate. ... At every turn, the majority tries to convey the impression that Arizona's matching fund statute is of a piece with laws prohibiting electoral speech. The majority invokes the language of "limits," "bar[s]," and "restraints." ... It equates the law to a "restrictio[n] on the amount of money a person or group can spend on political communication during a campaign." ... There is just one problem. Arizona's matching funds provision does not restrict, but instead subsidizes, speech. The law "impose[s] no ceiling on [speech] and do[es] not prevent anyone from speaking." ... The statute does not tell candidates or their supporters how much money they can spend to convey their message, when they can spend it, or what they can spend it on. ... In the usual First Amendment subsidy case, a person complains that the government declined to finance his speech, while financing someone else's; we must then decide whether the government differentiated between these speakers on a prohibited basis--because it preferred one speaker's ideas to another's. ... But the speakers bringing this case do not make that claim--because they were never denied a subsidy. ... Petitioners have refused that assistance. So they are making a novel argument: that Arizona violated their First Amendment rights by disbursing funds to other speakers even though they could have received (but chose to spurn) the same financial assistance. Some people might call that chutzpah. Indeed, what petitioners demand is essentially a right to quash others' speech through the prohibition of a (universally available) subsidy program. Petitioners are able to convey their ideas without public financing--and they would prefer the field to themselves, so that they can speak free from response. To attain that goal, they ask this court to prevent Arizona from funding electoral speech--even though that assistance is offered to every state candidate, on the same (entirely unobjectionable) basis. And this court gladly obliges.(See my previous argument against the Institute for Justice's position on this, with some subsequent clarifications on other aspects of the law.) The majority position on this issue is that the unconstitutionality arises from the way that the subsidy to clean elections candidates is tied to campaign spending by the non-clean-elections candidates; I take it that had the subsidy been a fixed amount the argument would not have worked at all. There's a good overview of the issues at the SCOTUS blog.

The judge has ruled in Preston v. Hallman, and again it goes in favor of the Prestons. As expected, he ruled that the city’s decision to revoke their permit was “arbitrary and capricious” since it did not meet any existing standard for denial. The judge ruled that Tempe must re-issue their permit and allow their business to open. The city has 30 days to file an appeal. I haven’t heard how the judge ruled on the other issue, which I predicted might go the city’s way, but it doesn’t matter for the overall outcome–it was enough for the Prestons to prevail on either of the two issues, and they won on the one that they had a very strong case for. The Goldwater Institute has issued a press release about the victory, and the Arizona Republic has run a story on it. (Previously.) ...

In late June 2007, Tom and Elizabeth Preston obtained a use permit from the City of Tempe to open a tattoo studio. The Prestons signed a five-year lease and invested $30,000 in the property, but then a local neighborhood group appealed to the city, arguing that this would have a negative impact on the neighborhood, lowering property values and increasing crime. (Other businesses in the same area include a liquor store, bail bondsman, lingerie shop, check cashing store, and an adult video store.) Tempe Mayor Hallman and the City Council voted unanimously to override the zoning officials who had approved the permit on the basis that there was a “perception” that the business would contribute to neighborhood deterioriation. The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation has taken the case on behalf of the Prestons, with former Institute for Justice litigator Clint Bolick as the primary attorney for the plaintiffs. In a previous hearing in May, the court ruled in favor of the Prestons and remanded the case back to the City Council for reconsideration. The city then asked for a new hearing on the grounds that it had found some new relevant case law, and that hearing occurred at 11 a.m. today before Maricopa County Superior Court Judge Robert Oberbillig. The judge first stated, that the city’s motion for reconsideration in today’s hearing was appropriate and that the hearing would take place, setting aside the plaintiff’s objections to that. He then focused most of the hearing on two issues. First, what was the appropriate level of burden of proof for the appeal to the city which revoked the permit? And second, did the city provide “credible evidence” that the Prestons’ business would lead to neighborhood deterioration? Burden of Proof The burden of proof argument centered around two parts of the City of Tempe’s Zoning and Development Code. These were Section 1-305 (D), which says: Hearing Officer – Appeals. Any person aggrieved by a decision of the Hearing Officer under this Code may file an appeal to the Board of Adjustment, or the Redevelopment Review Commission as applicable, within fourteen (14) calendar days after the Hearing Officer has rendered its decision, in accordance with Part 6, Chapter 8, Appeals. Appeals of the decisions of the Hearing Officer shall be heard de novo by the Board of Adjustment, or the Redevelopment Review Commission as applicable.and Section 6-802(C), which says: In the event that a decision made under this Code is appealed, the appeal does not invalidate the approval. The holder of the approval may proceed with a use or development at their own risk.The plaintiffs argued that this second section means that the permit was granted and created a vested right for the Prestons to use the property, and that in the event of an appeal the burden of proof was on the city to demonstrate a reason to revoke, rather than a completely new (“de novo”) process that was as though they were applying for the permit for the first time. The city, by contrast, put emphasis on the first passage, arguing that the appeal hearing was “de novo” and had no burden of proof on the city. The city argued that the “at their own risk” phrase in the second section indicated that the permit was, in fact, conditional and did not give the Prestons any vested rights. The plaintiffs were previously victorious on this issue on the grounds that the second section did entail a vested right for the plaintiffs. This time around, however, the city argued that case law from outside of Arizona demonstrated that there was no vested right. They agreed that the city made a botch of this case from a customer service perspective, in that the Prestons were not told that their permit was conditional and could be appealed, and they were in fact sent a letter by the city telling them to go ahead and start doing work on the property to meet other requirements of the city, such as the addition of windows. The judge seemed amenable to the city’s argument, and questioned Clint Bolick over this thoroughly. He noted that the Arizona cases presented by the plaintiffs on this issue were not in the context of a pending appeal, though Bolick disagreed with the judge, pointing to a 1939 case from Iowa City, Iowa, Crow vs. Board of Adjustment. The city responded by noting that a 1981 Iowa Supreme Court case, Grandview Baptist Church v. Davenport, argued the opposite–that a church couldn’t apply a vested right during a pending appeal to keep a storage shed it had built. The judge then pointed out that there were two arguments of equitable estoppel here–one is whether the city’s actions in granting the permit shifted the burden of proof to the city and in favor of the plaintiffs for the subsequent appeal, and second regarding the potential for damages to be awarded to the plaintiff. He set the second issue aside, and then asked to continue the hearing to the question of the city’s evidence of negative impact by the Prestons’ business, which would become relevant if he ruled in favor of the city on this first issue. The Credible Evidence Issue On this issue, the city got a thorough grilling by the judge. The relevant context here was the city’s use permit test criteria, part (c) of which supplies a ground for denying a use permit if a proposed use will cause: Contribution to the deterioration of the neighborhood or to the downgrading of property values which is in conflict with the goals, objectives or policies for rehabilitation, redevelopment or conservation as set forth in the City’s adopted plans, or General plan.The hearing officer for the initial permit application ruled that this was not the case, but the City Council and Mayor overturned the permit on these grounds based on complaints from neighbors. The judge made it clear that the city had the burden of providing not just evidence, but credible evidence that this would be the case. He noted that in the city’s filings, it expressed concern that the tattoo studio is a “de facto adult business” which would contribute to a clustering of adult businesses (even though there is no clustering provision in statute) and thereby would cause a deleterious effect on the neighborhood. The city’s attorneys then noted that Tempe does now have an anti-clustering ordinance, which the judge seemed to suggest was not good for the city’s case, but rather evidence that they didn’t have the necessary ordinances in place at the time of their decision. He asked, “why even discuss a clustering effect” at this hearing? The city responded that it was an issue raised by the neighbors, to which the judge responded that the city should have responded as the hearing officer already did on that issue–sorry, we don’t have an ordinance on that, but we need another reason, such as contravention of the city’s general plan or some other plan. But the hearing officer approved the use permit, and noted that it was in furtherance of, not in detriment to, the city’s general plan. The city’s attorneys noted that the city didn’t object to the business in general, and that Mayor Hallman had said that he hoped the Prestons would keep their business in Tempe. At this point, the judge noted that the Prestons have had a successful tattoo business in Mesa for 15 years with no complaints, and asked, “So on what basis was this rejected?" The city attorneys noted that nobody from the city has objected to tattoos, but it was complaints by third parties, neighbors of the business who “want some other type of business–a Starbuck’s, or a drugstore,” to stop the clustering. They made reference to a study from New York City (perhaps referenced by the complaining neighbors?) arguing that clusters of adult businesses contribute to neighborhood deterioriation and crime. They admitted that a tattoo parlor is not an adult business under city code, and again, that there was no anti-clustering ordinance at the time. (I find it interesting that both of the city’s examples of preferred types of businesses are in the business of drug distribution. The space, in fact, remains vacant to this day, demonstrating that the real choice is between the Preston’s business or no business at all.) The judge then asked, “Where’s the credible evidence? A New York study that’s apples and oranges? A real estate person who steps up to the microphone [and offers objections]? If there’s no credible evidence, [then] this [decision] could be arbitrary and capricious. If we have an anti-clustering statute, the permit process should incorporate that.” He offered a few specific objections to the NYC study and its applicability here, and noted that in order to have substantive due process in the permitting procedure, the applicant needs to know up front that there are rules objecting to clustering. He stated that the city seemed, in effect, to have a secret unadopted city plan that requires third party intervention to enforce requirements that are not in the city’s plans or ordinances. And he noted that the city had already overruled the arguments of the third parties in its initial granting of the permit. At this point, the judge asked Bolick if he had anything to add, and he asked permission to give another argument on the previous point, arguing that it was the city’s actions that caused the defendants to engage in detrimental reliance upon their representations. The judge told Bolick that “you’re still missing the first step in the analysis–that it’s a person who knows the law. It must be reasonable detrimental reliance.” This exchange suggests to me that the judge will rule in favor of the city on the prior point. Bolick responded that there is a factual aspect to the meaning of the statute, and that the Prestons would never have made the investment if not specifically told to go ahead and do so by the city and by a hearing officer. Bolick then made a few remarks on the credible evidence issue. He pointed out that the City Council and the City Attorney said in deposition that the city’s standard must be satisfied, but the city also admitted that the business is in furtherance of the general plan. The judge said that the city is now focusing on a prior point, that the business is “detrimental to the public.” Bolick said this is a post hoc change of the city’s legal position and asked how a permit applicant would know. He stated that “there’s not only no credible evidence for the city’s position, there’s no evidence.” And he also noted that “there are constitutional dimensions to ‘arbitrary and capricious’–there has to be a standard." Immunity for Damages At this point, the judge said there were a couple other issues to discuss. If the city didn’t meet its standard and so has to issue the use permit, there’s an immunity for damages issue. The city has argued for immunity to damages on two grounds. First, absolute immunity on the grounds that its action was a legislative action, as per an opinion from the city attorney. Second, immunity on the grounds that the “at your own risk” clause was sufficient warning to the plaintiffs. The city added a third argument, noting that while they want the case to be decided based on the current record, they have other documents that are relevant to a decision about damages. Specifically, they argued that there are emails between Preston and his contractors which appear to make the contracts conditional upon the granting of a permit and so neither Preston nor the city should be liable for that. Bolick agreed that there should be a separate factual review on damages, but that plaintiffs should win damages if they either win on the burden of proof issue or if they win on the “arbitrary and capricious” issue and it’s an administrative act. The judge observed that the City Council has a legislative function, a judicial function, and an administrative function, and that if this was an administrative function, this was not a matter of determining fundamental government policy. Bolick cited the Reynolds case (?) and another to the effect that issuing a building permit is an administrative act. The city attorneys objected that Reynolds didn’t involve a de novo appeal process, and that the city was going forward on the assumption that it was a legislative process, as argued in a position from the city attorney on which the City Council relied. The judge asked, “is it clearly not judicial?” The city said that perhaps it might be, if the judge ruled that there couldn’t be a de novo review in this case (i.e., if they lost on the burden of proof claim) and were thereby acting in an appellate capacity. After a few more exchanges, the judge indicated that he would deliberate and be back shortly to issue a ruling from the bench. A few of us gathered outside the courtroom to talk, including Bolick, the plaintiffs, a few other supporters of the plaintiffs, and a reporter from the Arizona Republic. At around 1 p.m., the bailiff summoned us back into the courtroom, to inform us that we were all dismissed and the judge would be issuing a written ruling, which is apparently what he did at the May hearing as well. My understanding is that the plaintiffs win the case if they win on either of the above two grounds, the burden of proof issue or the credible evidence/“arbitrary and capricious” issue, and the case will not go back to the City Council this time. Of course, it may be appealed by the losing side. My best guess is that the city will prevail on the first issue and the plaintiffs on the second. CBS Channel 5 was also filming the hearing, but you heard the details here first. I’ll update this post with information about the decision after it happens. The Goldwater Institute’s website has more on the Preston case. (The photo of the Maricopa County Court House in downtown Phoenix, above, is a Creative Commons licensed photo (attribution, noncommercial, no derivative works) from the flickr photostream of Steve Minor, user lumierefl. Click on the photo to get to that photo in his photostream.) UPDATE (July 9, 2009): The Prestons won their case, again, on the grounds that the city’s decision to revoke their permit was “arbitrary and capricious." I haven’t heard how the judge ruled on the other issue. The city has 30 days to appeal the decision; otherwise they must issue the permit and allow the business to open.

Talk about great timing–a few minutes ago, I received an email from “Governor Sanford” with the subject “Join Me.” I thought perhaps it might be an invitation to travel to Buenos Aires. But no, it’s an appeal from the Goldwater Institute to join, signed by Mark Sanford, the Republican Governor of South Carolina who is in the news today for confessing that his recent week-long disappearance was to visit a woman in Argentina that he’s been having an affair with. I suppose they can be sure the recipients are more likely to open such an email today, though I’m not sure how much Sanford’s name will result in people giving them money. BTW, Fox News ran a caption on Sanford’s confession press conference identifying him as a Democrat, just like they did with Republican Rep. Mark Foley of Florida back in 2006. ...

As newspapers decline and die, it’s good to see other opportunities opening up to support investigative journalism. Along with wire services, which are beefing up their staffs and seeing growing profits as their content is syndicated to more and more places including websites and broadcast media, think tanks are also getting into the business. (There are also other nonprofits that support investigative journalism, such as the Center for Public Integrity.) The Goldwater Institute has hired investigative reporter Mark Flatten from the Tribune to investigate and report on cases of government corruption, abuse, and waste. Flatten is an award-winning reporter who has covered state government for nearly 20 years in Arizona, including covering the impeachment of former Gov. Evan Mecham, the AzScam corruption scandal, and the alternative fuels fiasco. Flatten is the only reporter who has ever been banned from the floor of the state legislature, which occurred at the order of former Arizona Speaker of the House Don Aldridge (R-Lake Havasu City) because of Flatten’s reporting on links between Aldridge and Max Dunlap, who was convicted for his part in the 1976 murder of Arizona Republic reporter Don Bolles. In 1976, Aldridge was a member of the Maricopa County Board of Supervisors, and he accompanied Dunlap to the law office of Neal Roberts on June 2, the day a bomb went off under Bolles’ car, allegedly about a runway paving problem at the Mohave County Airport (as reported in the Kingman Daily Miner, June 28, 1976). On June 3, Roberts and Dunlap met at Durant’s Restaurant to discuss raising $25,000 for the defense of Bolles’ killer, John Harvey Adamson, who was at the time facing a minor criminal charge and had not yet been caught for the murder. A May 10 NPR story describes the Goldwater Institute’s job ad for this position and raises concerns about political bias infecting any stories produced. While I think that’s a real concern, I think it’s often better to have stories come from an advertised bias rather than pretend objectivity. In any case, Flatten’s stories have gone after abuse regardless of party (Mecham was a Republican, the alternative fuels fiasco was caused by a Republican, and AzScam caught both Republicans and Democrats taking bribes). I look forward to seeing what he will investigate and write about in this new role. UPDATE (October 19, 2009): Flatten has published his first major investigative piece since being hired by the Goldwater Institute, and it’s an account of how a federal program designed to provide business opportunities to the disadvantaged is being used by political insiders for their own benefit, including County Supervisor Mary Rose Wilcox. Wilcox obtained the Chili’s Too franchise in Terminal 4 at Sky Harbor Airport as an Airport Concession Disadvantaged Business Enterprise (ACDBE), which requires that the owner participate in the day-to-day operation of the business, which she does not (though perhaps her co-owner does?). She also received a $450,000 loan from Host International which meant she didn’t have to bring any money to the table, a loan which violated city policy (the City of Phoenix owns and operates Sky Harbor). Flatten’s “High Fliers” report may be found here.

This afternoon I had the pleasure of hearing writer Jeff Benedict speak about his book, Little Pink House, which is the story behind the Kelo v. New London case that went to the U.S. Supreme Court in 2005. That case, which ruled that New London did have the right to use eminent domain to seize private property and turn it over to another private entity–effectively retranslating the Fifth Amendment’s use of the words “public use” into the meaning “public benefit”–was a case I thought I was familiar with. But Benedict’s talk revealed that while I was aware of some of the facts relevant to the legal case, I really had no idea about the whole story. In his short talk, he conveyed some of the events and details that did not make it to the national press, but which make the story all the more interesting. The political battles between state and city government, the plan to get Pfizer to stay in Connecticut when it was looking elsewhere, and the personalities involved made for a genuinely moving talk even when we already know how the story ends. I look forward to reading his book. ...

The City of Phoenix’s $97.4 million sales tax subsidy to the CityNorth retail center project in north Phoenix has been declared unconstitutional, a violation of the Arizona Constitution’s gift clause. All three members of the appeals court agreed, writing in their opinion that “We think these payments are exactly what the Gift Clause was intended to prohibit." The city’s subsidy would have granted $97.4 million in sales tax revenues (or less, not to exceed 50% of the sales taxes collected by CityNorth businesses) over 11 years to the project developer, the Klutznick Company, in return for 3,180 parking spaces, including 200 parking lot spaces set aside for public use for “park and ride,” for the next 45 years. The ruling found that the only public benefit for which the city could legitimately be paying were the 200 “park and ride” spaces, and that the city may still pay market rate for those 200 spaces (probably about $6 million over 45 years), but not for the other 3,180 spaces. The appeals court’s ruling may be found here (PDF). Congratulations to Goldwater litigation director Clint Bolick and the owners of the six small businesses that were plaintiffs in the case: Meyer Turken of Turken Industrial Properties, Ken Cheuvront of Cheuvront Wine and Cheese Cafe and Cheuvront Construction (and Democratic State Senator), Zul Gilliani who owns an ice cream shop at Paradise Valley Mall, James Iannuzo of Sign-a-Rama, Kathy Rowe of Music Together, and Justin Shafer of Hava Java. The Goldwater Institute team initially lost the case, Turken v. Gordon, at the trial court level in Maricopa County Superior Court. The City of Phoenix tried unsuccessfully to get an award of $600,000 in attorney’s fees from the Goldwater Institute in an attempt to chill future public interest lawsuits; now they’ll no doubt appeal to the Arizona Supreme Court. (Previously.)

Arizona ballot proposition 101, the Medical Choice for Arizona amendment, says this: Be it enacted by the People of Arizona: 1. Article II, Section 36: Constitution of Arizona is proposed to be added as follows if approved by the voters and on proclamation of the Governor: ARTICLE II, SECTION 36. BECAUSE ALL PEOPLE SHOULD HAVE THE RIGHT TO MAKE DECISIONS ABOUT THEIR HEALTH CARE, NO LAW SHALL BE PASSED THAT RESTRICTS A PERSON’S FREEDOM OF CHOICE OF PRIVATE HEALTH CARE SYSTEMS OR PRIVATE PLANS OF ANY TYPE. NO LAW SHALL INTERFERE WITH A PERSON’S OR ENTITY’S RIGHT TO PAY DIRECTLY FOR LAWFUL MEDICAL SERVICES, NOR SHALL ANY LAW IMPOSE A PENALTY OR FINE, OF ANY TYPE, FOR CHOOSING TO OBTAIN OR DECLINE HEALTH CARE COVERAGE OR FOR PARTICIPATION IN ANY PARTICULAR HEALTH CARE SYSTEM OR PLAN. ...

Last night I went to hear Gene Healy of the Cato Institute speak about his new book, The Cult of the Presidency, at the Goldwater Institute. I had a chance to speak to him briefly before his talk, and said I’d buy a copy of his book if I liked his talk. I did like his talk, and did buy his book–the clincher was the “illegal” cover of his book. He said that he had sent the galleys to John Dean, former Nixon White House counsel who has become a vocal critic of overreaching executive power, for a blurb, only to receive word back from Dean that his book cover violates U.S. law regarding the use of the presidential seal. (This was ironic in light of Healy’s previous book, Go Directly to Jail: The Criminalization of Almost Everything.) The Onion was sent a cease-and-desist letter by the Bush administration in 2005 for using the presidential seal on its website. In my non-lawyerly opinion, neither The Onion nor the book are actually in violation of the law since the law prohibits the use of the presidential seal in a commercial context that suggests presidential endorsement or approval, and it’s pretty obvious in both cases that no presidential endorsement or approval is implied. Healy’s talk criticized the expansion of executive power from the original description in the U.S. Constitution. While George Washington described himself as “chief magistrate” and refused to start wars with the Indians without Congressional approval, subsequent presidents have expanded their power. Academics of both conservative and liberal stripes have ranked as the “best presidents” those who have engaged in bold exercises of power, while those who have taken more limited roles in line with the Constitution are ranked among the worst (such as Warren G. Harding, whom Healy identified as the best president). Even William Henry Harrison, who served only 30 days as president, receives low poll rankings. By contrast, presidents such as Woodrow Wilson (whom Healy identified as the worst president, for actions such as throwing Eugene V. Debs in jail for criticizing the draft) and Franklin Delano Roosevelt (who put 110,000 Japanese into internment camps and attempted to subvert the U.S. Supreme Court by packing it with six additional appointees loyal to him) are identified as among the best presidents in polls. And today, we have Hillary Clinton saying that she’s prepared to be “commander-in-chief of our economy” from the moment she takes office, yet that’s clearly not the job of the president described in the Constitution, where the only reference to CIC is “Commander in Chief of the Army and Navy of the United States.” Healy identified his first moment of apprehension that things had gotten ridiculous about public expectations of the role of the president as a 1992 presidential town hall debate, in which Denton Walthall said (p. 132 of Healy’s book): The focus of my work as a domestic mediator is meeting the needs of children that I work with, by way of their parents, and not the wants of their parents. And I ask the three of you, how can we, as symbolically the children of the future president, expect the two of you, the three of you to met our needs, the needs in housing and in crime and you name it … [emphasis in Healy]None of the candidates challenged Walthall’s assumption that citizens of the United States should be treated “symbolically” as children of a president-father. Healy also spoke about what he called “situational Constitutionalism,” where Republicans oppose expansions of executive power when a Democrat is president, but are happy to expand it with a Republican president, and Democrats do the opposite. It occurred to me that the timing of his book could lead to such a criticism of his work, except that he has been a consistent critic of the Bush administration’s abuses. It’s too bad it didn’t come out before Bush’s re-election, though I doubt it would have made any more difference to the outcome than James Bovard’s The Bush Betrayal, which came out in August 2004, just before that election. In the Q&A, a self-identified liberal* asked if Healy thought that Bush was the worst abuser of executive power in light of his signing statements refusing to enforce, follow, or be bound by various laws. Healy answered that he didn’t consider the signing statements to be the worst of Bush’s actions, since at least they were written openly and not hidden. He said he considered the internment of Japanese-Americans in WWII to be worse than anything Bush has done to date, and that he found other actions of Bush’s to be worse than the signing statements, such as his warrantless wiretapping, his misuse of military commissions, elimination of habeas corpus, etc. He followed that up by saying that what he fears most from Bush’s legacy is that by expanding executive power under a “time of war” doctrine for the “war on terror”–a war that will likely never end–he has effectively made the powers permanent. The similar abuses of the past were during wars that at least were temporary conditions. I look forward to reading his book. * There were a few liberals in attendance, including a member of the Green Party who asked me if it was considered gauche to go for seconds on the food provided–I said no, I was taking seconds myself. UPDATE (May 6, 2008): Also see Mike Linksvayer’s report on Healy’s talk in San Francisco. ...

Clint Bolick, formerly the primary litigator for the Institute for Justice, is taking on some good causes as a litigator for the Goldwater Institute’s new Scharf-Norton Center for Constitutional Litigation. He’s currently fighting against the City of Phoenix’s unconscionable and unconstitutional multimillion-dollar subsidy to the developers of the CityNorth project, and now he’s taking on popular Maricopa County Sheriff Joe Arpaio. In an article posted today called “Who’s in Charge?", Bolick points out two cases of apparent misuse of funds by Arpaio–using RICO funds to send staff to Honduras, and sending out nearly 200 deputies and “posse” members on “saturation patrols” that appear to be trespassing the jurisdiction of the Phoenix Police Department. Meanwhile, Bolick notes: Whatever the rationale the Maricopa County Sheriff’s Office had for those actions, both diverted scarce resources away from vital law enforcement duties that fall within the Sheriff’s Office’s core duties: • Unserved warrants, including those for violent offenders, number an estimated 70,000. • Dozens of criminal defendants have missed court appearances because deputies in charge of moving inmates were told to skip shifts due to excessive overtime. • The Sheriff’s Office closed three regional booking facilities in Surprise, Avondale, and Mesa, forcing police officers in all 26 Maricopa County jurisdictions to book criminal suspects at the Fourth Avenue jail in downtown Phoenix. The greatly increased transportation time removes officers from the streets and induces them to simply cite and release criminals.Arpaio has a long history of showy but useless or even counterproductive law enforcement activities, as well as costing the taxpayers millions by getting the MCSO sued repeatedly for wrongful death and injury cases as a result of abuse of inmates. But Maricopa County residents keep voting him back in, because he claims to be tough on crime and is often a good self-promoter. I hope that events like last October’s arrests of the owners of New Times and now Clint Bolick going after him will finally lead to his non-reelection for County Sheriff this year. Dan Saban, who’s running against Arpaio, is saying all the right things about integrity, civil rights, and combating waste, though he also seems to take a hard line on illegal immigration (which is another area where Arpaio has taken a hard line and engaged in some theatrical activities). He looks like a marked improvement to Arpaio. UPDATE (April 2, 2008): Looks like Goldwater lost round one today on CityNorth, a project where the city is giving $97.4 million in taxpayer subsidies to the developers of a shopping mall over the next 11 years, and claiming that it is for the 3,180 parking spaces in the parking garage the project is building, 200 of which are reserved for carpoolers using park and ride city bus services for the next 45 years. If the subsidy is considered to be for those 200 spaces, that comes out to $487,000 per space over the 45-year period, or $10,822.22 per space per year. The average parking space annual lease price in Phoenix is $684, and ASU recently estimated that a parking garage would cost $14,000 per space to build. In other words, if instead of paying nearly $100 million to CityNorth, the city instead had purchased land and built its own parking garage, the construction would have cost less than what the city is paying for the first two years worth of the 45-year lease on the 200 spaces. And that doesn’t count the additional $10,000/week of taxpayer funds that has been spent on lawyers fighting for this subsidy. The Goldwater Institute has announced that it will appeal. UPDATE (April 9, 2008): The New York Times has editorialized that Arpaio should be subpoenaed about his anti-illegal-immigrant sweeps: For months now, Sheriff Joe has been sending squads of officers through Latino neighborhoods, pulling cars over for broken taillights or turn-signal violations, checking drivers’ and passengers’ papers and arresting illegal immigrants by the dozen. Because he sends out press releases beforehand, the sweeps are accompanied by TV crews and protesters — deport-’em-all hard-liners facing off against immigrant advocates. Being Arizona, many of those shouting and jeering are also packing guns. Sheriff Joe, seemingly addicted to the buzz, has been filmed marching down the street shaking hands with adoring Minutemen. ...