Arizona Clean Elections-The Dirty Little Secret-From Whence the $ Comes

These are trying economic times. Just ask the petty criminal who is slapped with civil or criminal fines for everything from driving without having a license in his possession to shoplifting from Walmart. It can be tough to come up with the cash to pay a $340 fine for attempting a five finger discount on a $20 DVD. Yes, this is a stupid crime-- who could possibly be that desperate to own a movie? And yes, it is an expensive nuisance for the retailer. And yes, to maintain a civil society we need a system that provides proper punishment and deterrence. I get that and applaud that. This is not about that.

Through my own empirical study (about a decade of working misdemeanors in various municipal courts) I have found that even in the best of times very few people have the financial resources to pay their fines outright; fortunately for them, the court offers a pretty reasonable interest free payment plan for a flat $20 fee. Most of the people who commit these crimes and/or civil infractions are among the lowest classes in our society. Many of them are simply mentally ill.

The interesting part of the fine method of dealing with such miscreants is that the fines themselves often form the basis for the succeeding violation such as when their license becomes suspended for failure to pay and they drive anyway because they have to get to work or to their girlfriend's house; or they shoplift again because their meager entitlement payments don’t provide them enough money to live on and pay their fine payments. Clearly, someone who cannot pay these fines cannot pay for insurance. A ticket for suspended license and no insurance adds up to nearly $1800. A good majority of misdemeanor and civil violators are living in poverty and the fine system works very well to prolong that status and often exacerbate it.

And a hefty percentage of these folks, such as the mentally ill, are on disability. If I had a penny for every time a defendant replied “I am on social security and have to wait for my check to come in” to a query regarding their ability to pay I would be on a beach somewhere right now and not hanging around here trying to make a living. So for these people the fines represent a transfer of our tax dollars from one program to another.

How ironic then that these are the people (and until recently a large subgroup consisting of illegal immigrants) upon whose backs we have chosen to finance elections. Yes, you read that correctly, this is where 53% of the money that fills the Arizona Clean Elections coffers comes from.

Of course, the elections system only gets a small percentage of the large percentage increase in the fine represented by the various surcharges that are tacked on each and every fine assessed in this state. True, most of the money raised in this manner is at least tangentially related to administering the criminal system which is a proper function of government. But some of the things mixed up in there have a remote connection. And funding elections has no connection at all. In my view this is taxation without representation and very insidious because it can never be properly challenged as such.

Let’s break it down, shall we?

Using as an example a violation that carries a $250 fine actually costs the defendant $479:

$ 250 base fine
20 probation fee (added to everycivil or criminal charge to fund probation departments)
117 (47%) criminal justice enhancement fund, a long list of programs share in this ranging from
fingerprints to county jails
17 (7%)pays the State, County and City costs of chasing down criminals
18 (7%) pays for the DNA testing program
32 (13%) medical services enhancement fund-uses include adding substance abuse
considerations to emergency medical response protocols and seeding the state spinal and
head injury trust fund
25 (10%) Clean Elections
479 Fine + 84% surcharges

In another ironic twist, the Clean Elections Act itself created several class one misdemeanors that apply to people who knowingly abuse the system. So sometimes the criminal actually funding this thing may also be the recipient of the dough. If that isn’t turning justice on its head I am the flying nun.

But back to my point: the largest amount of money for funding elections in this state comes from the people who are most likely least able to afford it. And in the case of felons who pay these fines (which are probably even slower in actually hitting the coffers given that most of them are in prison and therefore not working and therefore not paying fines) they can’t even participate in the system for they are no longer eligible to vote.

And it is most unlikely that the people who can’t even figure out how to keep their driver’s license active are able to figure out how to register and actually vote themselves so that probably applies to the misdemeanants as well. But of course, this is pure conjecture.

When you fund your government by surcharges that are hidden in the fines that the vast majority of the citizens are not even aware of you are doing government a serious disservice. In this budget axing that we are currently experiencing, these surcharges don’t ever come up, nor do the programs that they fund.

Now I am all for the check off box on the income tax return as a means of allowing people to contribute to elections funding which is entirely voluntary. For those who don’t like the political process this is a nice way to feel like you are participating without having to give money to a particular party or be identified with a particular candidate. Of course, they have no control over how that money is spent, but not to worry, as government has created an entire agency to do that job for them. So they know what to expect.

But I can’t believe the poor shoplifter ever gives this whole idea even a thought. Unless of course he was able to get all the way out of the store with the Manchurian Candidate safely tucked between his legs.

References: azcleanelections.gov as of 2/3/2010;
ARS § 12-114.01
ARS § 41-2401
ARS § 41-2421J
ARS § 41-2419
ARS § 36-2219.01
ARS § 16-954

What Does This Tell You?

From Harper's Magazine, February 2010, excerpt from Harper's Index:

 

Number of architects nominated to design the 2010 "New American Home" for an annual home-builder's convention: 3

Portion of the home completed by November, when the builder ran out of money: ¾

 

 

 

This speaks volumes about where we are right now.

First, we have grandiose ideas about how to "celebrate" everything. This is a result of the marketing culture that we have become accustomed to which is ingrained in the promotion of everything from Cheetos to choosing not to have an abortion and producing a Heisman trophy winner instead. Anything marketed properly can sound great. But is it real? And does it matter? Because once the marketing has done its job we are already on to the next thing.

But what happens is that the bigger picture is completely overlooked. Without context we aimlessly move from marketing scheme to marketing scheme. The only satisfaction comes in finding something to move along to. No engagement for any length of time.

Just ask a politician what should be done to solve any of the multitudes of problems we are currently facing. You get marketing platitudes and the sense that he has some numbers cruncher stashed in the basement doing the real work of finding the answer while the politician is out delivering the message, but somehow they never let that basement dweller out. And nothing actually gets done. But that's OK because we just move on to the next thing, there are so many. Sure, we will circle back around to that topic eventually but the same thing happens again. At some point time will run out. What is amazing is how long it is taking.

Back to the Index data: It is 2010 and we have been in a residential real estate meltdown for almost two years now. So let's have a home-builder's convention!

What?

Yeah, why not. But true to form for our current economy, the money is gone before the job is done. No surprise there, except perhaps that financing was found for even ¾ of it. But why would you start building if you did not have it all lined up before hand? Perhaps they counted on getting a bailout. Or maybe they were betting costs would fall to make up the difference. But who is going to reduce their price when the risk of the job failing before completion because it is underfunded from the outset is so obvious?

Who is responsible for this? I doubt we will ever know. Chances are the guy in charge is long gone; off the hook by his very absence or his bankruptcy or his incarceration. When you are using other people's money, there is little reason to exercise any personal responsibility. For every Bernie Madoff there are thousands of small time crooks who never get caught. And even when they do so what, the money is gone. No resources left to even tear it down. That is the case just down the street from my house where a three story shell of an oddly designed "luxury condo" complex sits rotting upon land that once held some modest but pleasant low slung red brick apartment complexes surrounded by beautiful green lawns.

As a final observation maybe this is the true representation of the New American Home: incomplete and unfunded. Three quarters of a house is really about all we have built ourselves over the last quarter century. I guess when the rain starts coming through the open quarter of the house and hits us in the face we might actually wake up and take matters into our own hands and seal it up. In the meanwhile, we all seem to be waiting for a guy with a big hammer to show up and lead the way. Is that person you?


Thanks to the Flicker photo, identity unknown.

MY WONDERFUL NEW YEARS DINNER MENU

 

Every bit as incredible as it sounds.

A FEW SUGGESTIONS TO AVERT THE COMING DISASTER

Another legislative session is underway in Arizona for whatever that is worth. Judging from last year expectations should be low-the problem they started off with then has grown by half again as much. Being that this is an election year expectations should be even lower.

Arizona is bankrupt; plain and simple. To make that point even more poignant, we just sold off our state buildings. Oddly, government is underwater but in just a couple of days the private sector had no trouble coming up with $750 million to buy its hardware. What that says is that there is money out there, but it only gets spent where there is an opportunity to get something in return.

I submit that people like Carl Hayden, Barry Goldwater, John Franks, Justice Rehnquist, Burton Barr, Bob Stump and John Rhodes are spinning in their graves. Although a young and sparsely populated state, way out here in the neighborhood of Mexico, our juxtaposition on the frontier of the American experiment bred independence and led to some of the great thinkers of the mid 20th century. Their ideas and hard work had a major influence on the development of the entire country, paving the way for democracy to reach its most highly performing period. Locally, practical solutions to problems were brokered while the core values which celebrated Arizona’s unique environment and wide open approach to living in it made their way into the fabric of the limited government that the people needed.


Suddenly we find ourselves on the wrong end of the worst fear that was harbored by the native Arizonan of the 1970’s – we have become East L.A. No, actually, we are even worse, for it is true that even with as bad off as the California financial situation, Arizona’s on percentages far eclipses it. How did we get in this mess? Growth. The addicting elixir of uncontrolled growth that finally self destructs much like apoptosis, the “programmed cell death” brought on by a parasite that has loved that cell to death, after sustaining it as long as possible. Up until now we welcomed new residents with open arms. But business has never followed. We have loved our state to death after sustaining it on the act of growing as long as possible.

A couple of particularly brave politicians are just starting to spout about how we need to do something to attract businesses from out of state in order to improve our economy. The Governor railed about this in her State of the State speech on January 11, 2010. Some have finally dared to suggest that the financial disaster and existing regulatory structure in this state are actually deterrents to bringing in new interests. They cite as an example the dozens of solar projects that are prepped and ready save one key component-financing. Unlike state buildings that are already built and fully occupied and not going anywhere anytime soon, people with money see too much risk associated with the regulatory uncertainty that is endemic in this State to invest in anything new. That is part of the equation.

The other important part of the problem is that the same handful of people and business interests that have been running this state with near monopolistic fervor for the last 30 years are desperately clinging to their power bases and in doing so are leaving a horrific mess in their wake. Our problems have a local genesis; they cannot be blamed on the global recession; we have had no earthquake or hurricane. This is entirely the making of those who, as part of the big residential land rush that has fueled our growth, brought with them the formerly foreign concept of government dependence to what was once a state of rough riding cowboys who happily relied upon their own chutzpah to make their way. And the power brokers were OK with that as long as it did not impact their domain.

Examples of the kind of nonsense that goes on to inhibit the economic drivers that will pull us out of it abound. Unless something is done to make some fundamental changes in the way we interact with business, all of the cuts will further paralyze and suppress the economy, driving closer and closer to resembling our impoverished sister nation to our south.




Regulation is a necessary tool to ensure that bad actors don’t spoil the things we love and need about our surroundings. But implementation of those regulations is the key to making them work. We have a command and control approach in Arizona. Big brother is tasked with watching every step along the way. Permits are need for everything imaginable-private property owners are subject to zoning codes, building codes, licensing and taxation at every level: school district, city, county, state and federal. Micromanagement is the mode of operation. Everything must be planned and proposed through the use of licensed professionals. But although those professionals are often required to seal/stamp their work evidencing that they are licensed and trained to perform that task, we don’t trust them. Instead they are subject to review by government monkeys who are most often college graduates working their first jobs or folks who disliked the competitive pressure that comes with the profit making private sector. This silly review process adds huge amounts of time and money to projects despite producing absolutely nothing in terms of value. And it oddly focuses a great deal of discretion in the hands of those who are often ill equipped to exercise it. Whether frozen by the fear that any decision will be a wrong one or energized by the fact that the natural lack of specificity makes creating requirements very easy, the typical bureaucrat wields inordinate power over the citizenry.

Just in the last two days, even in this economy, I have been witness to insane stories of progress stymied by misdirected regulators. Building permits are stalled while federal, state and county personnel gnash teeth over the conflicting roof load calculations that have arisen with the HUD adoption of new standards for manufactured homes. Another building permit is stalled over 8 weeks in Northern Arizona after the homeowner spends $26,000 designing a special foundation to fit the soil conditions, the likes of which the permit issuer had never seen before and had no clue how to review. A permitted activity in an agricultural setting was halted for 6 months while the regulatory authorities sort out who is really in charge, all the while the farmer is complying with the program specifically created to avoid this situation. While an appeal is pending the window of opportunity to finish the job while the complaining neighbors were away is hindered by continued territorial argument. A major investment to create a natural gas storage facility, which has been publically called for over nearly a ten year period, is turned away when the regulators unilaterally decide it cannot be permitted but once that regulator is dethroned the standards that will be used remain vague and subject to government discretion. These lists can go on and on.


What can be done? There are calls for reform but fundamental changes are needed. First, cost/benefit analysis should be a part of any legislation that is proposed. A bill has been introduced to inject greater cost/benefit scrutiny, but only after the legislation has been passed and the statute is being implemented through the rule making process. By then it is too late.

Fees for actual services must be determined with an allowance for overhead. Currently there are numerous programs that purport to charge fees but the money in turn is not used to fund the program. Buying a permit should be no different than buying a sausage, the cost of the sausage of bringing that sausage to market is included in the price and the shopper makes the decision according to value. Businesses should be able to make the same judgments when they are forced to have their work reviewed from the public perspective.

We need to take a real look at why we have permits for the things we do. Why do we need a government official to “sign-off” on a foundation design? If they establish the standards that should be enough. Any professional hired to design that foundation would have insurance and a license. If he stamps that plan as being in accordance with the standards and it turns out that it isn’t his insurance should pay to fix it and his license should be on the line. No different than when you hire a lawyer. No one looks over that lawyer’s pleadings or briefs before they are filed with the court to second guess that lawyer’s legal reasoning. Why engineers put up with this insult in the first place is beyond me.

I remember a time when a city inspector came by to review my residential remodel. It was me and him. He stood looking at the ceiling joists for a good long time scratching his chin and muttering to himself. I finally asked what was the trouble? He was trying to figure out if the joist was crooked or if it was simply an optical illusion. Together we determined the latter and I got my green tag. I will forever remember the futility of that exercise, the fact that the job had to stop for it to happen, that my money had to pay for it and that this guy clearly was looking for some way to justify his job but was having trouble finding anything. Amazing waste of resources (and in fact counterproductive because it actually allows for mistakes to be made by shifting the responsibility from the guy doing the work to someone else, another case of transferring personal responsibility the is endemic in this crumbling system, but I digress).

But even if we can’t feature giving up this aspect of command and control, why not conscript the engineering community to watch itself. For example, a lawsuit filed valued at less than $75,000 is automatically assigned to the next attorney on the state bar list who must act as an arbitrator. With the filing of a permit request, why not conscript the next engineer on the list to do the review? The lawyer does not get paid for this activity in the name of community service. Should the engineer? Should it not be the private sector that bears this risk? That way they can properly manage it. It would not be long before the market would sort out the competent from the incompetent, unlike the way we do it now which props up the incompetent at taxpayer expense.

This pattern repeats in every aspect of government: OSHA, unemployment appeals, groundwater management, cosmetology, zoning, and on and on. Just a few fundamental changes to transfer the power back to the marketplace where it belongs will reset the government priorities, decrease costs, eliminate risk and jump start the economy.

There is no time to wait. We need to live up to the expectations of our ancestors and inject some common sense back into our institutions. Political will is never easy to overcome but these times certainly present unprecedented opportunity to do just that.

Special thanks to Jake Adams for the black and white saguaro/barbed wire photos.

Is Democracy on Life Support?

Has this 233 year experience outlasted its usefulness? This question keeps coming to mind as I recall being taught somewhere along the line that even as far back as the latter part of the last century our form of government was the most enduring on record. And why not? As Winston Churchill famously remarked "… democracy is the worst form of Government except all those other forms...."

But I can't but wonder if it is winding down at this point. Last Saturday, in the second week of December, I was making my usual rounds to the YMCA and the Farmer's Market while listening to NPR. A report was issuing forth from Washington D.C. about the unprecedented Senate session on the second consecutive Saturday in December.

Just about then I passed the parking lot of a large commercial center. In a prominent corner there was an amalgamation of Maricopa County Sheriff's vehicles, including busses, ribboned by caution tape. I recalled the news article that Sheriff Joe was conducting operation Bad Parent and seeking to execute on some 1500 arrest warrants issued for back child support. To his credit he was conducting a toy drive for the unfortunate issue of these ne'er do wells who have now cost the public triple for their reticence to fund their own children: first by causing the state to pay support for the kids (the myriad programs that we fund to feed, educate and provide health care for the young innocents), the legal costs of assessing the unremitting parent for the amount that, based on their income they should have been paying (which is no where near the actual cost incurred in the whole legal charade) and now the law enforcement resources for hunting them down and adding their care and feeding to the list of ever growing state expenses. [I suspect the actual cost of dealing with these bums far and away eclipses any return on that investment, but who would ever pay to study that?]

In my mental free association I got to thinking about the recent antics of the Sheriff and our County Attorney as chronicled that morning in Laurie Robert's column: Indictment of two county supervisors, criminal charges against a county judge who coincidentally had found in contempt a Sheriff's office detention officer who was out of jail while his case is on appeal to the same court where the presiding judge went to block a possible search warrant even as the Sheriff has just submitted a request for a $7 million budget appropriation from the half-indicted Board of Supervisors to retain even more high powered legal advice to keep this kind of stuff up. [And yes, there is a whole corollary of similar shenanigans on the Supervisors side of the equation.]

Meanwhile, at the capitol, the state is literally bankrupt and fringe party elements are being stripped of Senate committee chairmanships via the wholesale elimination of the committees while the Governor's call for a temporary sales tax increase is so far behind the eight ball that it could not even get on the ballot and become effective in this fiscal year which is half over but already nearing a zero balance in the coffers that fund its very existence.

Simultaneously, the corporation commission is hearing a water rate case for several hinterland populations that involves such complexities and vagaries that dozens of "experts" are needed to evaluate the calculations of the proposed rates which will represent up to 200% increases for water users who themselves have no experts or money to hire them but are irate and activated never the less.

It struck me that the fundamental problem with the evolution of democracy is that politicians exist for power and the easiest way to do get it is to erect extremely complex and wide ranging programs that contain volumes of rules and regulations so dense and complicated that even the experts have trouble discerning and assembling them. One certainty is that there are inevitably holes in these regulatory schemes which require constant tinkering, thus rendering them incomprehensible over time as it is never clear just which version is applicable when. But it certainly represents job security for a huge panoply of players all of whom are funded, in one way or another, by the people at the bottom of the food chain for they hold the least amount of power.

That might be OK but for the fact that each and every one of these regulatory schemes presents opportunity for corruption through the use and misapplication of the power amassed by the people (and "experts") who are in charge of interpreting and applying them. The complete lack of notice to the public that results causes each and every one of us to, at any given time, be in jeopardy of unwittingly committing a violation of a civil or criminal nature without even knowing that the broken rule even exists.

The fact is that, like so many high profile folks in Maricopa County, we are all indictable.

As bad as all of the above sounds, it is merely scratching the surface of the endemic problems we are currently facing as a society within our political organizations at every level from the HOA on up. It is like Atlas Shrugged at the Animal Farm and the dish ran away with the spoon.

Even as I write this the guilt is rising up. I absolutely hate it when people criticize but don't offer up an alternative.

But frankly, I think it is time to start over. The question is how to do that without literally blowing it all up first. I am still mulling that over.

In the meantime, most of us will blithely go about trying to make it through each work day we are allotted between furloughs so we can get home and escape into our second lives facilitated through the constant and equally dumbfounding advances of technology – like porn and video games and serial affairs and facebook and movies and TV shows and Dan Brown novels and burning our own CDs (which is not as easy as it looks, much like every technology-based pursuit I undertake) and the Arizona Cardinals on Monday night football. Who knows how much longer any of this will last. Might as well enjoy it while we can.

But if you think of a better system give me a call. I will pass it along to the next generation so they can implement it. I think the boomers have jumped the shark for sure.

Judicial Reality-I Could Not Have Said it Better Myself

Phoenix Republic "My Turn" article, 12.9.09

Frank J. Conti is the elected Justice of the Peace for the Dreamy Draw Justice Court, which serves northeast Phoenix and parts of Paradise Valley and Scottsdale. You can reach Judge Conti at www.contiforjustice.com


It’s not that the judge doesn’t care

There are times when serving as a judge is an extraordinarily trying task. This is especially so in our current tough economic times, when many people in dire financial straits are involved in litigation.

Maricopa County's 25 justice courts must handle tens of thousands of debt collection and eviction cases a year, most resulting in displacement and/or bankruptcy for unfortunate families.

Recently a distraught woman appeared before me as a defendant in an eviction matter. Crying and nearly hysterical, she asked why the government is bailing out homeowners who can't pay their mortgage but does nothing for those who can't pay their rent. She implored me to take action to help her.

Unfortunately the law does not permit a judge the luxury of weighing the misfortune of all those who cannot pay their rent and choosing who is worthy of “a break” and who isn’t. No human being could accurately perform such a task. I had no authority to step into the landlord-tenant relationship and fashion a new bargain that the parties had not reached on their own accord. Nor could I grant her license to live on another’s property without paying rent as required in the lease agreement.

All I could do was ensure that her legal rights were protected and refer her to a social service relief agency to assist her in coping with the result.

Although it provided her little comfort, I explained the role of a judge in our legal system. A judge takes an oath to follow the constitution and laws, and cannot create new law from the bench in an effort to reach a desired result in a particular case. Sometimes the facts are heart-wrenching, and the temptation is great to muddy what the law clearly mandates.

It is at such moments that a judge must remain true to the oath of office. To do otherwise is to assume powers that do not properly come with a seat on the bench.

For instance, when the law says that a judge “may” do something, it allows wide discretion. When it says that a judge “shall” do something, it leaves no discretion at all. And in Arizona the law does not recognize financial hardship as a defense to the nonpayment of rent.

If I rewrite the law to suit my fancy in every case I render the law meaningless, and essentially make myself a legislator. If every judge acted in this way the law would mean whatever a particular judge felt it should mean on any given day, rather than what our elected representatives intended it to mean. Such a whimsical judicial philosophy confounds the notion of equal justice for all.

When judges do not limit themselves to the written word it creates uncertainty bordering on legal anarchy, as there would then be no reliable, consistent way for those who use our courts to measure the strength of their cases or predict outcomes. Fewer cases would reach settlement, clogging dockets that are already overcrowded.

So the next time you are in court and see your local justice of the peace apologize, hesitate, sigh deeply or wince before rendering a decision, you can probably guess that the judge is humbly doing what the law requires, rather than what the heart desires.
_____________________________________________
Frank J. Conti is the elected Justice of the Peace for the Dreamy Draw Justice Court, which serves northeast Phoenix and parts of Paradise Valley and Scottsdale. You can reach Judge Conti at www.contiforjustice.com

Talented Boys with a Big Message

http://www.youtube.com/watch?v=BZk6r44sD9E#watch-main-area

Check out this you tube performance. The kid on the right is practically a family member.