Andrew McCullough's Blog

Wednesday, April 16, 2014

Salt City Throwdown

April 16, 1014

Rather than write very much this evening, I am going to post a link here to a recent interview I did with the Salt City Throwdown, a podcast in Utah. We spent an hour talking about politics, my campaign, and my law practice. So, if You can find some time to listen, you will learn a lot, I hope. And then tell a friend.

Thanks, and I will post more here soon.


Wednesday, December 25, 2013

Wild ride Continuied

Today is Christmas. It is a day of quiet in a sea of turmoil. Last night, as I got ready to go to church for Christmas Eve service, I heard the news that the Tenth Circuit Court of Appeals will not issue a stay of the District Court's ruling over same sex marriage. So far, Utah County (and I think a couple of others) have refused to issue same sex marriage licenses. The Utah County clerk indicated that he was waiting to see that the Tenth Circuit did about the request for a stay. Now we know; and we will see what happens tomorrow. There have been long lines of those who wish to marry. They have been very anxious, because the privilege could be taken from them at any moment. Now it appears that this will not happen. By the time the Tenth Circuit issues a ruling, there will have been thousands of weddings. It will be difficult to put the genie back into the bottle.

Meanwhile the Governor has appointed a new Attorney General, Sean Reyes, an attorney who lost in the primary election last year to John Swallow. He is, of course, going to run in the special election next year. And he will certainly put all possible efforts into overturning the two recent marriage rulings by the Federal courts. So, I watch the amazing events with great interest. If I were Attorney General, I would do what I could, within my authority, to abandon the appeals and to allow those who wish to marry the freedom to do so. I remember what Mildred Loving said regarding her ground-breaking appeal to the Supreme Court (Loving v. Virginia, regarding the right to marry someone of a different race) - that she just thought people should be able to marry the one they loved. Seems simple enough to me.

There were many who thought that the Governor should appoint someone as Attorney General who would not immediately start campaigning for election, and could give full attention to the mess in that office. He chose not to do so. Hopefully the new Attorney General will be a bit more up front with how he finances his campaign. Nevertheless, for the people of Utah, the change of direction will not be as substantial as we would hope. We will still have someone in that office who will spend taxpayer money defending State efforts to tell us how to live our private lives. He will not only fight the marriage appeals, but he will fully prosecute the "war on drugs" and put many more people in prison. I offer a change in direction, where the State is not our "big brother", and where there is more freedom. Help me pass the word. And let freedom ring!

Friday, December 20, 2013

What a Wild Ride

December 20, 2013

December 2013 has brought such changes to the legal landscape, in Utah and elsewhere, it leaves me almost breathless. Several years ago, an independent polygamist named Tom green was arrested, prosecuted and convicted of bigamy. Tom did not do anything more than many others had done without arrest, except that he refused to be quiet. An overzealous small town prosecutor went after him and won; and Tom went to prison,. The prosecutor was rewarded by defeat for re-election. My firm filed a "friend of the court" brief in Tom's support, claiming that Tom and his wives were protected by guarantees of freedom of religion and freedom of speech,. The Utah Supreme Court ruled against us.

More recently, Cody Brown and his three wives, living in my hometown of Lehi, starred in a reality show. They were not arrested, though they were actively investigated by the Utah County Attorney, making them very nervous. They sued the State in Federal Court, once again claiming that they were protected by constitutional guarantees of free speech and freedom of religion. a couple of weeks ago, the Federal Court ruled in their favor. The Judge (a law school classmate of mine) did not formally legalize plural marriage in Utah. He simply pointed out that, in the Twenty-first century, people do live together without being married in the eyes of the State. The fact that these people all each other husband or wife does not prohibit them from living as they please. Only if they wrongfully obtained multiple formal marriage licenses will they be subject to prosecution. It is a decision that is very much in line with common sense. Needless to say, however, there are those who have been very upset about this decision, saying it sends the state back to the dark ages of polygamy, They also claim that it gives comfort to those polygamists who abuse children and commit welfare fraud to support their large families. The decision does not do those things, but certainly, some see it as an attack on "traditional marriage." So, there has been a lot of discussion of it, and a lot of criticism.

Well, today the roof really fell in on the advocates of "traditional marriage". another Federal Judge invalidated the Utah law, and a State constitutional Amendment prohibiting same sex marriage. The lawsuit, brought by three same sex couples, claimed that recent Supreme Court decisions, as well as a decision by the Ninth Circuit Court of Appeals, made Utah's ban on the practice unconstitutional,. The Court agreed. Sometimes a court making such a momentous decision, will delay implementation of the ruling until the state considers and appeal and attempts to obtain a stay of the ruling. This decision did not do that, and was effective immediately, by its terms. County clerks in four counties started issuing marriage licenses within hours, and marriages have taken place. The temporary Attorney General is seeking an emergency stay, but it is not likely to be heard until after many more marriages are performed, Wow! The internet was ablaze with the news today, and I pretty much lost my ability to get any meaningful work done at the office.

Meanwhile, our elected Attorney General has resigned, and new information of his possible wrongdoing is released daily. The temporary Attorney General is faced with multiple crises; and he does not know if he will still be in office next week. Three Republicans picked by their party, are vying to be appointed for a year until the next general election. They all support appeals of these earth-shaking decisions; and the litigation is likely to go on and become ever more expensive. Personally, of course, I am thrilled by both of these Court decisions. The State has interfered with out personal relations for too long. If I were Attorney General, I would do my best within my authority, to end the appeals and to allow the rulings to be implemented.

Sunday, November 24, 2013

The Game is Afoot

November 24, 2013

Almost from the day he was elected as Utah Attorney General, John Swallow was very controversial. He was accused of various acts of misconduct in his personal finances, his campaign finances, and his dealings with those under investigation by the Attorney General's office. People stopped me on the street to tell me that, if they had only known what he was like, they would have voted for me. My personal opinion tended to be that he was a bit sleazy, but that I had no evidence of the kind of misconduct that should result in his removal from office. But for a guy who often openly displayed his credentials as an active member of the LDS Church, he did seem to be lacking in moral character.

Nevertheless, I was stunned to turn on my computer last Wednesday evening and receive a "heads up" from my Facebook friend, Robert Gherke (who writes for the Salt Lake Tribune), that criminal charges might be coming soon. And then an updated message that a resignation was possible in the next 48 hours. It all came so fast. By the time I woke up on Thursday, it was all but over. The resignation came on Thursday afternoon. On Friday, a report from special counsel to the Lt. Governor suggested several campaign violations which could be charged as crimes. Wow! And then the radio started to talk about an interim appointment and a special election. So, I got out my election code, and found that there will be an appointment by the governor, until the next general election, which will be next November. The appointment must go through the Republican State Committee, as Mr. Swallow is a Republican. Until Thursday, I had given no thought whatsoever to running for office again next year. But all of a sudden, it appears I am once again a candidate for Attorney General. I have run before as a Libertarian candidate. Last year, I received 53,000 votes, or 5.4% of those cast. My party supporters seemed to assume that I would run again; and so far I have not come up with a good reason not to run. Yesterday, the friend who supplied me with campaign signs last year, called to discuss making some new ones.

I have explained here before that I see the role of a "minor party" candidate to be that of changing the nature of the debate. Last year, my two opponents campaigned for "family values" and promised to be tough on crime. I campaigned for smaller government and more freedom. Utah is a traditional, conservative, state. We are not going to be in the forefront of change. But anyone who is observing our society can see that major changes are coming. The "war on drugs" that has put thousands of our young people in jail, is a total failure. Colorado has now legalized the sale and possession of marijuana. I have never tried it (nor have I ever tried a cup of coffee). But it seems obvious beyond debate that putting people in jail for smoking it is a disastrous policy. Marriage equality will come to this country no matter how hard the battle to stop it may be. The State simply must step back and admit that there are some areas of human activity that are not properly regulated or prohibited by the state. And rather than making plans to build a huge new prison, we should be working to downsize the ones we have. So, the game is once again afoot. We have been given a major new opportunity to make our voices heard for more freedom, and less oppression. If you agree that this is an opportunity that we should make the most of, get involved. Make a small contribution ($50 or less remains confidential), tell your friends, put a bumper sticker on your car (they are magnetic and will come right off). Find me on facebook and "like" my page (McCullough for Attorney General). Together we can "change the world", even if only a little.

Sunday, October 13, 2013

Doing what I can

October 13, 2013

I am going to start on this while I have a few minutes, and see how far I get. Have been doing a lot of thinking about where I am in life and what I am doing, lately. My law practice is basically my life. I am in the office almost every day. When I am not, I am thinking about what I need to do when I get there. My practice is, of course, unusual. I do my fair share of regular criminal defense, but mostly I represent various aspects of adult entertainment. And, of course, I delight in battling "the establishment" (or "fighting the man"). Without such activity, I often say that I would have little reason to get up in the morning.

So, this weekend is perhaps a major crossroads. while I have several cases pending that are worth fighting, there are two that have claimed the lion's share of my time, efforts and passion over the last several months (in one case, years). On Tuesday morning, the United States supreme court will decide whether to hear our appeal of a 4-3 decision of the New York Court of Appeals to the effect that it is "not irrational" to treat exotic dancers in a club differently than those who dance in other settings. There is no law in New York which mandates different treatment, just the opinion of an auditor in the sales tax department, who thinks that we should not be treated the same as dancers who are "artistic". And, while an administrative law judge in the Tax Department agrees with us, the appeals tribunal and the courts have not been kind to us.

There is a line of case law that says that government cannot use taxes as a way to treat disfavored expression (and yes, another line which says that exotic dancers are engaging in expressive activity). We should have won this case in the New York courts; but we didn't, because judges there, as in other places, did not like what we do. Just being before the Court of Appeals was a lifelong dream come true. My mother's best friend was a clerk there; and she would be so proud of me. But, in the court of Appeals, one judge asked me to concede that our dancers were not very much like the Bolshoi ballet. I did, but reminded him that pole dancing is being considered for status as an Olympic sport. I was shocked and horrified when his point of view prevailed on a bare majority. that leaves us in the "court of last resort". The Supreme Court, of course, does not hear a lot of cases. It is an uphill battle to get them to listen to a case. And obviously Justices Scalia, Thomas and Alito are not interested in people like us. So, while I am on pins and needles, I am depressed that I am counting on a court filled with "establishment" judges who do not see my point of view worth serious discussion.

And, in an interesting but chilling coincidence, I will be in court a bit later on Tuesday to hear the judge's decision on my legal action against the Utah division of Professional Licensing (DOPL). In that case, we are challenging the validity of a RULE adopted by the division particularly to prevent licensed escorts and others from touching their clients. This same rule was before the legislature last year, but did not pass. so, DOPL enacted it on their own, we believe without authority to do so. This RULE transforms the profession of massage therapy into a tool used to harass entertainers. The actual law passed by the legislature describes massage therapy as just that, a therapeutic healing technique. The rule, however, requires a professional license for "touch plus movement". those who are reading this, please take a moment and contemplate this. If an entertainer puts her hand on her client's arm, she must not move it, or she has committed a Class a misdemeanor. And, yes, I have had several clients prosecuted for this. This would be laughable, if it were not so serious. And, while the judge seemed to understand and sympathize during oral arguments, I cannot help remember on this long and dreary weekend, that he gets his paycheck from the same government that employs the agency we are fighting.

So, Tuesday could be a day of celebration. It probably won't be. Even if the Supreme Court turns us down, it will not be the end of our fight in New York. And certainly the decision in Utah will not be the end of that case, no matter what happens. The loser will appeal; and the case will go on for a while. And I have another appeal to be filed later this week on another adult entertainment issue. But Tuesday is that rare day that threatens to crush my spirit. It seems that I work so hard, and so often I do not achieve what I hope to achieve. I do not practice law just to make money. In fact, I am not very good at that part of it. I do it because I have a vision of a more free and more just society; and sometimes I wonder if it is worth the pain. This is one of those times.

But then I remember that there are good times. A couple of years ago, I received word that my client who had been imprisoned for 4 years for a crime he did not commit, would receive payment from the government for his imprisonment, despite the best efforts of the Attorney General to stop us. In tears, I walked out to my secretary and told her the news. And then I said "Next time I want to quit because of the constant frustration, please remind me of this day." Yes, there are times when it appears worthwhile. Tonight I am struggling to keep that in perspective.

Maybe things will look brighter on Tuesday. and, despite it all, I probably won't quit. I do hope, when it is all done, there will be enough good days to have made it worth the fight. We will see.

Sunday, August 04, 2013

"Shouting the Battle Cries of Freedom"

August 4, 2013
I have not written a blog here since the election last November. Just too busy with other things. This one is going to be a work in progress. It likely won't be finished in one session.

Our nation is in the middle of commemorating the Civil War Sesquicentennial, noting 150 years since that war. I am old enough to remember the Centennial in the 1960's. It was much bigger. It seems that now it is not politically correct to remember the southern heritage, or to "glorify" the Confederacy. That puts a damper on things. Almost everyone now assumes that Mr. Lincoln was a great hero who did what had to be done to end slavery and bring freedom to all.

This view, however, ignores a dark side of the Union war effort. We forget that Mr. Lincoln arrested southern sympathizers in the Maryland legislature to avoid them voting to secede; and that he imprisoned an Indiana Congressman who spoke out against the war effort. When the Supreme Court ordered him freed, Lincoln refused to obey their order. Now we see parallels in current history with the government doing things of which we disapprove, in the name of national security and safety. In the words of John Dickinson, a dissenting member of Congress in the movie 1776: "No one approves of these things; but these are dangerous times."

A few weeks ago was the 150th anniversary of Gettysburg, generally assumed to be the point at which the southern cause became lost. There was a lot of attention paid to this, and the postal service issued a commemorative stamp. This month marks the 150th anniversary of another incident which is far less known, and much less understood.

In Missouri, the people were very much divided in their loyalties. The state militia tried to organize to fight for the south, but was quickly broken up and expelled from the State. In response, smaller bodies of southern sympathizers loosely organized into guerilla bands and fought Union troops in a bloody little war of their own. The Union commanders tried to suppress this effort by making war on the southern-leaning population, including women and children. One such effort was General Order Number 10, which authorized the imprisoning of the wives and sisters of men known to be fighting for the south. In August, 1863, there were several such young women in a makeshift prison in an old warehouse in Kansas City. The old and unsafe building collapsed on their heads killing four young women and injuring several others, on August 14, 1863. Among the dead was the 14 year old sister of a local guerilla leader known to friends and foes as "Bloody Bill" Anderson.

Needless to say, Bloody Bill and his friends were mad as hell. Some 8 days later, on August 22, 1863, they struck back. In the words of John McCorkle, another guerilla who also lost a sister and who later wrote a book about it: "We could stand it no more."

On the morning of August 22, Bill and his friends hit the pro-Union town of Lawrence, Kansas. This city was the headquarters of the Jayhawks (and still is, famous for their basketball teams), a band of men who had raided Missouri slaveholders and burned them out of their farms. It was also the home of their former leader, now a US Senator, Jim Lane. They wanted to get him and hang him for his crimes. When the raid hit, they made so much noise that Senator Lane jumped out of his bed and watched his home burn from a nearby cornfield.

Others were not so lucky. Up to 200 men were killed. Some were new army recruits in a local training camp. Most were just in the wrong place at the wrong time. Much of the town was destroyed (but no women were harmed).

The guerillas then took off, with local Union Militia trailing them. They dispersed into the countryside and were never caught, except for one fool who got drunk and was left behind. He was killed by an angry mob.

The Union government reacted to this by racheting up the violence another step. You might see a similarity here to the police reaction to the Matthew Stewart incident: more guns and more armor. General Order Number 10 was now followed by General Order Number 11, which essentially depopulated several western Missouri counties, driving out all the people, who were feared to be aiding the enemy. So, it got worse. More people died or lost their homes. All in the name of freedom.

This month, give a little thought to our history. Remember that the government's efforts to suppress "the enemy" are not new. In fact, they are quite mild alongside the efforts of Mr. Lincoln and his minions. So, it is now "politically correct" to see the Union war effort in the prettiest of lights - after all, the "enemy" kept slaves. And if you can make the other guys seem bad enough, just about everything is justified.

RIP, Josephine Anderson and Charity McCorkle, Susan Vandiver and Armenia Gilvey..

Saturday, November 03, 2012

More Freedom. Less Oppression

November 3, 2012 Up early for a Saturday. Having trouble sleeping lately. Too much on my mind. The Deseret News poll published this morning gives me only 3% of the vote for Utah Attorney General, with 18% still undecided. Still too many who do not know I am running. Please help pass the word. . . . Salt Lake City Weekly this week predicts that the Democratic Party in Utah will be beaten worse than in a long time this year, mostly due to Mitt Romney's presence on the ballot. I think the problem is made worse by the party's conscious decision to nominate active LDS members for all the high offices. This appears to be backfiring, as they no longer present a real choice. That leaves only alternative voices like mine. . . . I am going to add some material here from others. Please consider sending a link to this blog to others, to increase the number of people seeing it. Such an easy thing to help the cause of freedom. . . . Here is a great little video, less than two minutes, made my friend, Val. I'm impressed: . . . . I was also impressed this week by a couple of lawyers, both Democrats, who posted endorsements of me on their Facebook pages. Here is one from Ed Flint: A plea to all Democrats in Utah: Our party's candidate for Utah Attorney General is NOT the right person for that job. He also has zero chance of winning and is more interested in turning Weber County into a police state first, then expanding his evil empire to the rest of Utah. Of all the candidates, the ONLY one that's a capable, experienced trial lawyer and supporter of the Constitution is: W. ANDREW McCULLOUGH, LIBERTARIAN. If every Democrat knew what only a handful of Utah attorneys know from first-hand experience, our party would both reject Dee Smith and support Andy McCullough! VOTE!!! . . . . And here is one from Tyler Ayres: please vote for Andrew McCullough for Utah Attorney General. No, he's not the republican or democratic candidate but he is the best candidate for the job. I've known him for years, watched him work, and I am confident he would make an excellent AG. Furthermore, if we are going to start the process of repairing our broken country we need an alternative to the status quo. a vote for Andy is a vote not only for the AG but for a new outlook. please go vote.... in this instance not only does your vote count but it is vital to this movement! . . . . Rocky Anderson, former SLC mayor and third party candidate for President, was quoted in City Weekly this week seemingly favoring Democrat Dee Smith for Attorney General. Rocky and Dee Snith wouldnot likely agree on ANYTHING. When I wrote and asked him why, he sent this response: I didn't endorse -- and actually talked in the article about how much I love you doing what you do in our state. You ARE such a colorful person -- and I am so glad you're here! . . . . I am very thankful to those who have expressed support (some of which seems a little backhanded). I am sad at some of those who have expressed a lack of support. One thing is particularly bothering me. I have always supported the movement for equality for the LGBT community, and I bought a big ad in Q Salt Lake magazine for September and October. When equality Utah did their endosements this year, I filled out their questionnaire and never heard back. They later claimed they sent an ivitation for an endorsement interview. I did not get it (checked my competer for such messages). They did not endorse Dee Smith the Democrat, either (as is usual for them). Neither did the Stonewll Democratic Club. When I tred this week to post a mention of those facts on Equality Utah's Facebook page, I found that I am blocked from posting there. I am sad and a bit angry that it has come to that. But this little feud should not block the message that neither of my opponents have any sympathy for those who do not march in lockstep. If you are gay, if you smoke mj, if you like watching exotic dancers, if you drink alcohol, if you don't go to (the dominant) church every week, I really am your only choice to show your opposition to the establshment. I actually lead a pretty straight life. I have never yet had a cup of coffee (really). And I have many LDS supporters too. But I am strongly opposed to those who would make their choices mandatory for others. Help send the message. . . . . Please.
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