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Turken v. Gordon (1/25/10)

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This is a rare type of constitutional opinion: it makes its subject easier to understand, not harder.

The case arises out of CityNorth, which some of you may be sick and tired of hearing about but which the rest never heard of. To make a long story short (which the opinion admirably does), CityNorth is a huge office/shopping/etc. project that developers got people excited about before announcing that they didn’t have the money for. They asked for government help. Phoenix agreed to split tax revenue with them (to the tune of $97 million a year or so) in return for the exclusive use of 200 parking spaces and the non-exclusive use (i.e., the public could park in the building if they were lucky enough to find open spaces) of another 2980. 

Plaintiffs sued, arguing that the deal violated the Gift Clause. Article 9  §7 of our constitution prohibits government from making “any donation or grant, by subsidy or otherwise, to any individual, association, or corporation.”  Millions for a few parking slots was, Plaintiffs argued, a barely-disguised subsidy to the developers.  The City replied that the money wasn’t just for parking spaces but for more and better business, jobs, tax revenue, happiness, motherhood, apple pie, and all the other things in the standard package of real-estate-developer promises. The trial court ruled for the City; the Court of Appeals ruled for the Plaintiffs; the Supreme Court ruled for both.

The legal point of the opinion is to clarify Gift Clause law, which it does well. The public expenditure must be (1) for a “public purpose”  and (2)  proportional to the consideration received (or at least not “grossly disproportionate”). “Public purpose” is broad; the court agreed that getting public parking spaces met the test. But the consideration must be that actually obtained in the agreement, not the alleged indirect benefits. So, government can’t pay a developer big bucks and receive a pittance plus pie in the sky – that’s a subsidy, not a purchase. The parking spaces themselves have to be worth what Phoenix would pay.

Are they? The court, no doubt wisely, finds that “difficult to believe.” But it finds it even more difficult to say “no” to the City of Phoenix. Instead of remanding for a finding that would kill the CityNorth deal, it announces that its holding will have prospective effect only. This is because its earlier holdings may have “confused” government lawyers and because “various amici [namely, other cities and towns and developers] have claimed that a number of public-private transactions were entered into . . . under a similar misapprehension.”

The court is of course correct to say that the amici “claimed” to have similar projects in the works. Its careful use of the word is a respectful bow to the law of evidence – which the court then head-butts to the ground by quite obviously accepting the claim as fact and basing the resolution on it. (To the court’s credit, though, the opinion is also careful repeatedly to put  the word “panoptic” – which an earlier case had employed – in quotes. We hope this signals that courts should stick to words they understand rather than indulge in others whose only value is impressive mystery.)

Its interesting that all those government types were “confused” in the same direction. Normally, you deny retroactive effect only when you’re changing the law; here, the court makes clear that that’s what its not doing. We trust that no private industry will ever be naive enough to rely on the “mass confusion” defense, no matter how big the industry nor how tangled the law.

This is a political case; almost everyone within 100 yards of it is either a lawyer-politician or a politician-lawyer. (That often happens in constitutional and elections cases – a reason, perhaps, for the legal confusions so often found there.) Political cases tend to have odd outcomes – odd, that is, to plebian lawyer-lawyers – and that’s just life in the big city, or at least in Phoenix.

How odd this one is remains to be seen; the Supreme Court remanded to the Court of Appeals, which had addressed only one of the Plaintiff’s constitutional arguments. In the mean time, we know that the Gift Clause means what it has always meant, except during that period when law was suspended due to confusion.

State v. Pierce (CA1 1/21/10)

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We recently complained that the courts can’t say anything in less than nine pages, so we have to give credit where its due. This case deals with a fairly substantial issue in six. And we don’t want to seem ungrateful – we’re just trying, as always, to be helpful – when we point out that it should have been even shorter.

Pierce committed first-degree murder as a minor. He was sentenced to natural life. His argument on appeal was that natural life for a juvenile murder is unconstitutional.

The opinion deals with this in just two pages. Pierce cited the U. S. Supreme court case holding that the death penalty for a juvenile crime is unconstitutional. As various courts have pointed out, the case doesn’t apply to non-capital sentences.

So why is the opinion six pages long? Because it does what most criminal opinions feel obligated to do: it describes the crime in extended and entirely useless detail. The contention here was not that the sentence was inappropriate to the crime but that it could not be imposed at all, as a matter of law.

And yet the opinion tells us about the planning of the crime, its motivation, how the various perpetrators got to the scene, what their names were, what kind of weapons they had, and even what they were wearing. It also recounts several of Pierce’s unrepentant statements to police, including expletives that – having included them for no reason at all – it then censors  in such a way as to draw attention to them.

We know perfectly well that the kids and naifs who draft these things think that a statement of facts should be a summary of all the evidence. Its obvious that no adult has ever taught them that the only facts in an opinion should be those required to understand, interpret, and apply the holding, and that none has never bothered to edit the stuff they churn out. So perhaps that much isn’t their fault.

But what about the expletives? Do they think they’re being modern and clever by including “shit” in a judicial opinion and giving it pasties (“s**t”)? Does it make their pubescent pulses race to think that they’ve done something slightly “naughty”? Or is the pretense that they’re being “gritty” and “real”? And where are those adults, who merit selection assures us are the best and the brightest? The buck has to stop somewhere.

Andrew R. v. DES (CA1 1/14/10)

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This custody dispute illustrates a problem with statutory interpretation and drafting.

When Jocelyn’s child was born, she and her boyfriend Andrew signed an acknowledgement of his paternity. Under the statute (25-812), this results in the entry of an order by the clerk that has the effect of a judgment of paternity.

The statute says that the acknowledgement can be rescinded within sixty days and that a party “may challenge a voluntary acknowledgment of paternity . . . at any time after the sixty day period only on the basis of fraud, duress or material mistake of fact” under Rule 60 (though the statute now says “Rule 85 of the family law rules of procedure,” the family-law folks having decided that they need their own rules even if those duplicate the standard rules).

Eight months later, now in a custody battle with Andrew (and the DES, the State having taken the child for various reasons), Jocelyn filed a Rule 60(c) motion to set aside Andrew’s acknowledgement. Andrew opposed it. (And there you have the facts you need; for some reason, but predictably nowadays, the opinion goes into entirely unnecessary detail about Jocelyn and Andrew’s sordid and sorry lives.)

Rule 60(c) (and Rule 85(c)) motions may be made no more than six months from the entry of judgment. So, was Jocelyn’s challenge made too late?

The trial court thought not, because someone had mentioned that there might be a paternity question in earlier hearings in the custody case, at least one of which was within the six months. The judge granted Jocelyn’s motion on grounds of fraud (the theory apparently being that neither she nor Andrew really thought he was the father, or that they thought he might not be the father, or some such) and ordered genetic testing.

The ruling on a 60(c) motion is appealable because of 12-2101(c), which the court should have mentioned but didn’t, instead giving useless, boilerplate cites as the basis of jurisdiction. Statements of jurisdiction are, like statements of the standard of review, just boxes for opinion-drafters to check; actually thinking about them is optional and rare. The standard-of-review discussion here is also a mindless copy-and-paste job.

A majority of the Court of Appeals reversed the trial court, concluding that six months is six months and that eight months is not six months. Mentioning something in court hardly counts as making a motion raising the issue. The trial court should therefore have denied the motion.. The dissent argued that the statutory language “at any time after the sixty day period” means that a challenge under the statute is not limited to six months. That actually isn’t a bad argument since the court has a duty to try to make the words “at any time” mean something, with the result that the majority and dissent throw 27 pages of arguments back and forth at each other. One might argue, though, that they never really boil down to much more than “that’s what the statute says because that’s what it says to me.” The dissent thinks that genetic testing is the better way to do things, anyway; the majority replies that the statute allows people to get a test if that’s the way they want to do it.

The culprit here is a technical drafting problem with the statute. Integrating a court rule into a statute is a bad, bad idea that is, unfortunately, not unique to this one. Just what the interplay between the two is supposed to be – especially where, as here, somebody has (unthinkingly, we think) added superfluous words – and what happens when anyone wants to change either are endless arguments just waiting to happen. It can also raise delicate questions about the balance between court and legislature – which, thankfully, this case didn’t.