Journalists Roundtable

Dec. 9, 2005

Transcript:

>> Michael Grant:
It's Friday, December 9, 2005. In the headlines this week, a Maricopa County Superior Court judge has ruled State Representative David Burnell Smith has to give up his office for violating the Clean Elections Law. The Arizona Supreme Court, in a unanimous ruling, says convicted killer James Hamm may not practice law. And Attorney General Terry Goddard has filed suit against several top-name drug makers, charging the companies inflated their wholesale prices. That's next on "Horizon."

>> Michael Grant:
Good evening, I'm Michael Grant. This is the Journalists' Round Table. Joining me to talk about these and other stories are Robbie Sherwood of the "Arizona Republic," Howie Fischer of Capitol Media Services, and Paul Giblin from "The Scottsdale Tribune." Maricopa County Superior Court Judge Mark Aceto has ruled that State Representative David Burnell Smith has to leave office for violating the Arizona Clean Elections Law. Robbie, have you been following the story right from the get-go. What did the judge say in his ruling?

>> Robbie Sherwood:
It was a very short ruling. It said simply that Representative Smith is holding office illegally, and that he must follow the Clean Elections Commission's order to step down and vacate his office. He didn't elaborate on the ruling, and so there's some talk that one of the main reasons he decided against Representative Smith was sort of a technicality. The Attorney General's Office in addition to alleging that Smith overspent by the key number that triggers the get out of office card, that he failed to file a timely appeal, 14 days after the final order, that he -- and the judge for all we know may have thrown him out just on that technicality. He didn't really elaborate.

>> Michael Grant:
Looking at his ruling, you could go either way. You could go on the procedural issue, you didn't timely appeal, therefore the Attorney General saying you're holding office illegally for that reason because you've now got to file a ruling is correct. Or he could be ruling on both procedure and the merits, and I guess Robbie, the only real question he asked was just a question to Smith's attorney about, gee, what about 50-plus years ago when the Supreme Court ruled on this issue.

>> Robbie Sherwood:
Right. The judge was a pretty cool customer. He didn't really tip his hand which way he was leaning. The Smith attorney, they're arguing the clean elections law that allows this appointed board to throw a lawmaker out of office for a campaign finance violation runs afoul of the Arizona Constitution, which is silent on that, or at least only sets up two methods to get rid of a lawmaker, either impeachment or recall. He was arguing this, and the judge very politely and quickly interrupted him and said, except in 1948, in which a judge threw out an attorney general who had committed a felony, and that's been the law. Smith's attorney said, well, the Supreme Court erred.

>> Howard Fischer:
And I'm sure the Supreme Court will be anxious to hear that. Here's another piece.

>> Michael Grant:
Different court, though.

>> Howard Fisher:
Yes. But here's the other piece of it. You do have certain constitutional rights. For example, people talk about the right to remain silent, things like that, and we see it all the time. Do you waive those rights? The question is, when he signed his forms and said, I will take clean elections money and comply with all the Clean Elections Laws, including in that law that you forfeit your office if you overspend more than 10%. Did he waive that right? Obviously the judge didn't get to that, but I think a strong argument can be made, you cannot say, I have these rights, when in fact you have a signed form saying you waive that right.

>> Robbie Sherwood:
The judge had that argument reformed because the clean elections institute, a private watchdog organization, did an Amicus Brief, alleging he waived those rights. The main thing we need to point out, Smith is not out, he's not going anywhere. Aceto very quickly granted him a two-week stay of the order to allow him to get before an appeals court judge and file an appeal without having to give up his office. We haven't heard what the court is going to --

>> Michael Grant:
Paul, you talked to Smith, you indicated he was going to be filing paperwork on Monday?

>> Paul Giblin:
Right, he was going to file on the technicality. He believes he filed his appeal within the proper amount of time and the judge erred in not accepting his appeal.

>> Robbie Sherwood:
I got my law degree from Matlock University, so I'm not really an expert on this stuff, but they say the rules are particular about this, and he filed an appeal before the final order. It seems that's sort of not reading the fine print. At the end of the day, that -- not reading -- reading the fine print might be what got him in trouble from the beginning.

>> Howard Fischer:
We get to the issue where the Supreme Court has had, depending on circumstances, is substantial compliance enough or do we have to be strict, for example, on initiative petitions, the Supreme Court has said it's close enough, we'll let initiatives go to the ballot. But on some other election matters they say if you do not comply with the letter of the law. The question is, where's the court fall on this matter? There's one other issue that's interesting. He takes this to the court of appeals, whereas he could ask the state supreme court to see it in an expedited fashion. He's obviously not interested in an expedited ruling. They've had a case on university of tuition for close to a year now. He may figure, if I drag this out, I can complete my term.

>> Paul Giblin:
And when he talks about it, it's much more exciting than a technicality of whether you met a deadline. He told me it's a big conspiracy involving the governor and the attorney general, and Planned Parenthood, and the clean elections commission, and independent counsel --

>> Michael Grant:
The "Arizona Republic."

>> Paul Giblin:
And all these entities got together in a big conspiracy to oust him. And I asked, why would they do such a thing? And he said, because I'm a conservative republican, and they want to get rid of conservative republicans. I said, have you looked around? There are a lot of conservative republicans, and if you were out there, someone coming from your district would be a conservative republican.

>> Howard Fischer:
It sounds better than "I didn't read the rules." It's like saying it's a vast left wing conspiracy or something like that. Of course you do that. It's a variation on the old adage that when the law is not on your side, you argue the facts, and when the facts aren't on your side you argue conspiracy.

>> Michael Grant:
I thought it was pound on the table. I like your punch line better. Actually several significant legal developments this week. The Supreme Court, Howel Howie finally tells James Hamm, you can't practice law.

>> Howard Fischer:
I realize the court ruled based on what they believe the law is. But I any they also recognize from a PR standpoint that if you want to keep the law in respect, you don't let somebody who took someone else into the desert outside of Tuscon to rip them off on drugs and pop them in the back of the head, that's bad image for lawyers. The law in Arizona says that you have to be of good moral character to practice law. And the court said generally speaking, since Hamm went to prison, he's proven that he wants to redeem himself, he's done good things since then, he went to law school after he got out and probably at this time he may be of good moral character. But you cannot ignore what got him there. And so we have to look at that, and have to look at, has he in essence redeemed himself, and is he truly sorry and has he essentially made good? One of the things the court said is, look, he's admitted he shot the guy. But he still insists to this day, 30-some years later, that he never intended to kill him, just rip him off. What Justice McGregor wrote is, you go out in the desert with somebody, with a gun, and you don't intend to kill them? It's not credible. So we don't think he's truly been rehabilitated.

>> Robbie Sherwood:
Wasn't there also instance of him being less than forthcoming about information, child support --

>> Howard Fischer:
There were issues about child support, when did he know his son by his first wife had not been adopted and he really owed child support? There was conflicting testimony in there and there was also an issue that he had had some dispute with his current wife, and they had to call police, but he never mentioned that on his application. I think the court was looking for reason not to let him practice.

>> Michael Grant:
I think probably the significant thing here is that the court stopped short of saying, if you are convicted of first degree murder, it just is a per se disqualification, but they got somewhat close to it.

>> Howard Fischer:
They did. They basically said it may be a virtually impossible hurdle to overcome. You'd really have to show that you have not only turned your life around, but you're truly sorry, you acknowledged your errors, you made good on your errors, and I had have a feeling it's not going to happen. The other reason it's not going to happen, if you remember when Hamm graduated from ASU College of Law, there was such an uproar, I don't think you can get into an Arizona College of Law if you're a convicted murderer.

>> Paul Giblin:
It's not a bad disqualifying factor, murder.

>> Michael Grant:
No, I think most people would agree.

>> Howard Fischer:
But now where's the line? We have embezzlers, we have -- who have taken client money, we have thieves --

>> Paul Giblin:
There are lawyers who can't get campaign finance law right either, but murder really is a higher standard.

>> Michael Grant:
I think Paul is suggesting, we've got a bright line there, maybe we can figure out other lines further down. The Attorney General going after, I found this -- the facts of this difficult, but the bottom line is, there seems to be quite a price spread going on in the cost of drugs and how much people are being charged for drugs.

>> Howard Fischer:
Well, it's even more convoluted than that. All drug companies list what they call an average wholesale price for their drugs. It's posted. And the reason AWP is important is that most insurance companies, hospitals, other people will pay AWP minus some discount. So it's supposed to be reasonably related to what the drug is available for. What has been found out, what Goddard found out, in some cases you've got a very big spread. For example, there's an anti-anemia drug the average wholesale price would be listed $180, it's actually being sold for $7. Saline solution, basically sterile salt, was being sold for $4 and marketed over $1500. Why this is important is to the extent that insurance companies are paying 80% of average wholesale price, 80% let's say of $1800 for something that can be bought on the street for $7, suggests somebody is get can ripped off. Medicare, insurance companies, and to a certain extent a few individual people who pay a co-pay based on 20% of what's left.

>> Robbie Sherwood:
You're right that this story was a little hard to understand, but when you focus in, anybody can look at the numbers. There was a worse example, $700 mark-up for something that was $2-$3. I thought only the federal government could do that with hammers and toilet seats, but apparently everybody can get in on the action.

>> Michael Grant:
I did get the impression that if successful, there's a fair amount of dollars waiting here for precisely that reason.

>> Robbie Sherwood:
Certainly, it's also a multi-state effort. There's a lot of attorney generals getting in on this, so it might be a large class action type thing.

>> Howard Fischer:
Here's the other shoe yet to drop. The people who benefit financially, the pharmacy companies, the people who manage this and decide what's in the formulary, perhaps Arizona's copper card, if in fact they are charging one price to people based on a false price, it's fine to say we're going to charge the drug companies who benefit by selling more drugs, they may be the next ones to be in legal trouble, and that's where it will get interesting.

>> Michael Grant:
New ballot initiative launched this week which would add 80 cents to a pack of cigarettes. Money generated from the tax would be used to fund early childhood development programs. Howie, who's behind this one?

>> Howard Fischer:
This is a long-time goal of Nadine Basha. While people think of her as Eddie Basha's wife, she's an expert in her own right, she's been a teacher, she has a masters in early childhood development, she's served on task forces, and she said here's the basic problem. We're all struggling over how much to put in full-day kindergarten, we're all struggling over how much to put in k-12, but you've got a bunch of kids who approach school, get to school and they're not prepared. Because nobody funds 0-5 period. And there's no interest in the legislature in doing it. So she said, look. Let's go out and find a way of coming up with a couple hundred million dollars a year, and rather than have a one size fits all and say we're going to only fund these programs, let each community decide what they need. Some communities may need good, qualified day care, some communities may need well-baby screening. Use this money.

>> Michael Grant:
So the money collected I assume at the state level from the 80-cent-a-pack tax would be allocated based on population?

>> Howard Fischer:
In essence. Most of the money would be allocated based on each region's population with half of that money specifically earmarked for kids coming from homes where the families are living below the poverty level. 25% would go to statewide projects, and everything else. Now, here's where it gets real interesting. We passed in Arizona a series of tobacco tax hikes, originally decade and a half ago was 18 cents, we added 60 cents for one, 40 cents for another, for health issues. You can say there's a nexus between health problems, stop smoking programs, and tobacco. I asked Nadine, let me make sure Iunderstand. What is the link between people smoking tobacco and early childhood development? It came down to basically, it's the only one that sells.

>> Michael Grant:
But Paul, as Howie points out, they've passed before, and been fairly popular on the ballot. People keep asking, though, is it good to fund programs with a revenue source that you're actively frying to stamp out?

>> Paul Giblin:
That's interesting point. If it makes it too expensive for people to smoke, then your revenue source goes out. But there's also the other thing, smoking kills people, it's a tough call.

>> Howard Fischer:
You're basically saying, your going to educate them so they can die early -- i'm not sure --

>> Paul Giblin:
It is a weird source. But --

>> Howard Fischer:
They looked at other things. They went out and polled and spent a bunch of money polling and said, that doesn't poll well, sales tax, so the fact is, fewer than 25% of Arizonans smoke. I know, let's take on this.

>> Robbie Sherwood:
There were some internal debate over what to tax. Some sort of syntax was probably needed in on the to get the public relations machine going. There's probably more money to be had to be equalizing the difference 12 between the taxes between beer and liquor, or hard alcohol. But they're going to lose that battle so it's easier to pick on smokers.

>> Michael Grant:
Well, some debate but resolution democratic national committee was in town late last week and over the weekend, and for about the fifth time, I think this started happening every four years in the 1980's, they're suggesting Robbie a western presidential primary.

>> Robbie Sherwood:
When the east coast media finally pays attention to us, maybe we'll stop asking for this. There's some method to the madness, and Arizona sort of proved their point, I think, in the last time, when the governor sort of moved our primary up to bring some national attention to Arizona's and the west's issues, and for a few days it sort of worked. We had a debate here, we had some attention, we had some big media things, and so I think there's been a wish by the Rocky Mountain states or a plan by the Rocky Mountain states, at least the democrats in those states, to bring on a one-time primary for the west and bring that focus to all.

>> Michael Grant:
Interestingly enough, though, I guess you can make the argument that, well, yeah, Arizona got that attention, does it really want to go into a larger pool, and maybe diffuse the attention?

>> Robbie Sherwood:
Maybe they're behind the scenes calculating this won't work and we'll get to keep our -- you don't necessarily lose if you get to keep your primary, but you're probably right in the sense that this was pretty good for the last time, maybe we shouldn't bring everybody in. But you don't want to be a jerk with your Rocky Mountain pals.

>> Paul Giblin:
But Arizona is a leading player in that group that doesn't include California, and we are the biggest state, and the people are here, so maybe it would get more attention here, and keep a lot of it right there, in Arizona.

>> Michael Grant:
Speaking of attention, all eyes are on Scottsdale. They've decided to crack down on strip clubs in Scottsdale.

>> Paul Giblin:
This is still going on from when Jenna Jamison, a famous pornography star, bought a portion of Babe's Cabaret, one of two clubs in Scottsdale.

>> Michael Grant:
I'm personally not familiar with it, Paul, but I'll take your word for it.

>> Paul Giblin:
She was in the Howard Stern movie, "Body Parts." Was that the name of it?

>> Michael Grant:
"Private Parts."

>> Paul Giblin:
But other people know her from her other roles. But these strip clubs have been operating there for decade, and she brought a lot of attention, and the city council is now very interested in strip clubs. There had been laws on the books about how close a dancer could be from the patron, which were just never enforced. Lap dances were one, which is when a stripper dances on your lap. And they just weren't enforced at all, and now they started enforcing these things, and writing up the two strip clubs in Scottsdale. While they're doing that, they're also next month going to consider new policies that would effectively ban strip clubs. The dancers would have to be way far away, there would be no alcohol sales, and in other cities, they go totally nude when you ban alcohol sales. They're talking about banning that as well.

>> Howard Fischer:
Here's the problem. Number one is constitutional. Because of the fact that the Supreme Court has protected topless dancing and nude dancing as an artistic form, they cannot ban that. They may be able to set a certain distance between these things. You can't zone it out. You can't make it impossible. The second problem becomes the extent you link this to alcohol, the state has rules that says only we get to regulate what happens in places that have alcohol. So the state has the rules about body part coverings and everything else, and some of the lap dance stuff, and I think if Scottsdale tries to weigh in they're buying a lawsuit. The third piece of this is, where the heck do the Scottsdale city council members think these patrons are coming from? They're Scottsdale patrons! And some of them are Tempe, but the fact is, there is a call. So we're going to have people drive even farther to the clubs in Phoenix, get drunk and drive back into Scottsdale and cause accidents. What moron thought of this? [laughter]

>> Paul Giblin:
The tourism trade, you can't ignore that. When you say Scottsdale residents and Tempe residents, there's plenty of tourists coming here and going to the clubs as well.

>> Howard Fischer:
And spending money, which goes to Scottsdale sales taxes!

>> Michael Grant:
But Paul, is there also -- is there also the counter element in terms of, there's a lot of tourism in Scottsdale, and we don't like the reputation that -- and the -- pardon the expression, the exposure we seem to be getting on this issue.

>> Paul Giblin:
Well, Scottsdale tourism people would tell you it's a very dynamic community. There are tourists who go golfing, and those who buy classic automobiles, and there's a certain segment who go to strip clubs. They all seem to get along. But one of the interesting, the best regulations they have is strippers have to wear name tags and if they don't -- they can get written up for that. [laughter]

>> Howard Fischer:
Why do you think? -- Hi, my name is, and why are you steering at my breast?

>> Michael Grant:
Let me get to education-related issue before we shut her down here. Lawmakers are trying to consider how to make four-year college degrees more accessible?

>> Robbie Sherwood:
There was a very long interim committee hoping to get a recommendation for some definitive legislation to say, this is -- we need to allow community colleges to grant four-year degrees. Couldn't quite get there. I think Howie knows what they did recommend, but it was pretty vague. They couldn't keep a quorum, you had people who are very much opposed to this thing running in and out of the room, and not willing to vote for that sort of recommendation.

>> Michael Grant:
Contention obviously being between the community colleges and the universities systems.

>> Robbie Sherwood:
Absolutely. They feel like even though the community colleges are asking for a narrow set of degrees, nursing and fire science, it's the proverbial camel's nose under the tent. And some -- like the University of Phoenix, some of these niche market universities were fighting the hardest. I don't know if they can rely on prestige --

>> Michael Grant:
Likely to be a large issue in the upcoming legislative session. But panelists, we're out of time. Thank you very much.

>>> If you'd like to see a transcript of tonight's program, please visit the website. You'll find that at www.azpbs.org. Click on the word "Horizon." that's going to lead you to transcripts, links, and information on upcoming shows.

>> Reporter:
Controversy over the FDA's decision not to sell Plan B over the counter and do pharmacists have a right to refuse to dispense medications on moral or religious grounds? And one of the few World War II Hispanic pilots. Monday night at 7:00 on Channel 8's "Horizon."

>> Michael Grant:
Tuesday a look at parking and other improvements at Sky Harbor airport. Wednesday, a "Horizon" special on Arizona's health insurance, and Thursday we'll give you a preview of next year's legislative session. That's next week on "Horizon."

>>> Thank you very much for joining us on a Friday edition. I'm Michael Grant. Have a great weekend. Good night.