Andrew McCullough's Blog

Tuesday, June 23, 2015

The flag must go?

I have been meaning to write something about the Confederate Flag controversy, and time is so limited. Below is something I posted to a friend's Facebook Page. It is a beginning. Hopefully I can come back and "flesh it out" a bit. I have a Confederate Flag in my office. I have had a few comments on it. Most pay no attention. It is not the version in the news, which was never official. It is the last official version of the flag, before the surrender, officially the flag of the "lost cause. As someone who defends lost causes in court for a living, I am inspired by it. I hope that I am not a racist. I try not to be. I am a lover of freedom, and I try and make that my cause.

The question is not so much about the flag, but about the "cause". If you see the civil war as a "crusade to end slavery", that ends discussion. I don't. I cannot imagine that the "Founding Fathers" had it in mind that a State could not leave the union; and the efforts by the central government to force its will on them were wrong. Huge parts of the South were burned to the ground, Thousands of people were killed. Wives and sisters of "rebels" were imprisoned simply for their relationship. Members of the Maryland legislature were arrested to avoid secession. A US Congressman was imprisoned because he made a speech saying that peace should be made. General Order No. 11, issued in Missouri in 1863, ordered four counties in western Missouri where pro-Confederate guerillas operated, depopulated - all residents outside of larger towns were ordered to leave, so they could not provide support to the rebels. Many innocent civilians were ruined. I do not read that history with pride. When parts of the USSR and Yugoslavia seceded, we went to their aid immediately. Anyone who has seriously read the history of the War Between the States would have serious doubts about what Lincoln did to "preserve the Union." Thus, the current effort to obliterate references to the history are, in my opinions, misguided. The two biggest military training camps in the South are named after Confederate generals. I expect they will be targets next. I do not agree with that. That being said, I do understand wanting to do something to prove the worth of black citizens. I do not think obliterating or whitewashing history is the right thing.

My "disconnect" here is that the Civil War (whatever you may want to call it) brought us the Fourteenth Amendment which gave us all rights against oppression by the States. It is the Fourteenth Amendment that gives us the right to seek redress of injuries by police officers and other officials of our own state government. I can hardly imagine life in the United States without these protections. But that does not mean that I support the violence used to obtain them. And it does not mean that I must disavow those who did nothing but resist what they saw as tyranny. the Sesqui-Centennial of the Civil War just ended. It was sad that there was little in the news about it. Many people have decided that any references to the Confederacy are just too "offensive", so we ignore it. I think important lessons of history were lost with such decisions.

A friend pointed out in a FB post today that several States pointed to slavery as the main reason for leaving the Union. Yes, that is what they said. But allowing it to be our main point is missing the main point. If a State has the right to secede (and I am convinced that they did before the 14th Amendment), the reason that they give for doing so does not cancel that right and give other states the right to kill them and burn their cities. Slavery was doomed by the march of human progress. This method of eliminating it was not justified.

Another friend quoted with disgust a passage from the Texas Secession Ordinance:

"She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery—the servitude of the African to the white race within her limits—a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?"

At the start of the Civil War, Texas had been a State less than 15 years. It was admitted to the Union as a "slave state". Did Congress not know what it was doing when it admitted Texas? Should they have refused to admit a slave state? Obviously, at the time, it was an accepted practice; and the agreement made as part of the admission was that they could continue this practice. Someone who looks at this from the view of the 21st Century has a hard time justifying or even understanding it; but things were not the same in 1860. So, Texas decided that the central government in Washington had violated the contract under which it entered the Union. I am at a loss to understand on what basis it became legitimate to kill them for this. Did we not know that several Southern States allowed slavery way back in 1776 when Independence was declared? Did we not know that such great Americans such as Thomas Jefferson (and ten other Presidents) owned slaves? On what basis do we now seek to go back 150 years and impose out moral viewpoint on them?

This next week celebrates the anniversary of the Stonewall Riots in NY. At that time, in 1969, everyone knew that gays were just criminals and needed to be locked up. So, once a month or so, the NYC police raided their hangout and arrested them for lewdness (cross-dressing being the main "crime"). One night, they fought back and refused to go quietly. The social change that came from that movement is no less amazing than ending slavery. But no cities were burned, few people were killed or imprisoned. Slavery was abolished peacefully around the civilized world. We are a very much more enlightened society than existed in 1861. But those who defended their homes and families against what they saw as an invasion should not be demonized. I do not approve of what the Union government did in the 1860's; and that does not make me a racist or a bigot.

More soon? P

Friday, June 05, 2015

From the New York Law Journal

Joel Stashenko, New York Law Journal
June 8, 2015
ALBANY - Pole dance routines by exotic dancers in an Albany-area juice bar are an expression of artistic merit, but the private couch dances performed for individual patrons are not, a state tax department administrative law judge has ruled.
The distinction drawn by ALJ Joseph Pinto Jr. is an important one for the outcome of the state Division of Taxation's latest attempt to collect sales taxes from the Nite Moves club on couch dances. Of the $4.9 million in sales reported in a state audit of Nite Moves between 2005 and 2010, just over $3 million came from the private dances performed in small rooms off the main stage of the nightspot. Auditors contend that the club and its proprietors owe the state just under $530,000 in unpaid taxes on the private dances and on cover charges for the period.
The same club challenged its tax bill for 2002-05, also on grounds it was due the exemption for artistic performances on First Amendment grounds. That bid was ultimately denied in 2012 in a 4-3 ruling by the state Court of Appeals in Matter of 677 New Loudon Corporation v. New York State Tax Appeals Tribunal, 19 NY2d 1058 (NYLJ, Oct. 23, 2012).
Pinto rejected the claim of Nite Moves' owners that the couch dances, being artistic in nature, fall under the same state sales tax exemption that state Tax Law §1105(d)(5) provides for admissions to a "theater, opera house, concert hall or other hall or place of assembly for a live, dramatic, choreographed or musical performance."
Nite Moves owners Stephen Dick Jr. and Stuart Cadwell provided sufficient evidence to make their case that the admission fee, $4 before 5 p.m. and $11 after that, is not subject to sales tax because it provides access to the pole dance routines offered on a continual basis by a changing cast of dancers.
Those, Pinto wrote in Matter of 677 New Loudon Corporation, 824333/824334/824335, are sufficiently choreographed, costumed, illuminated and practiced by dancers to represent a dramatic or artistic presentation.
He cited the testimony presented by several dance experts about the artistic merit of the pole routines, but said he found most persuasive the testimony of two Nite Move dancers, identified of "Alize" and "Taylor," "who, without pretense, provided a more visceral description of the business and their art, in contrast with the theoretical opinions of the more erudite experts."
Both performers have backgrounds in formal dance, Pinto noted, and both told him of efforts they made to practice and perfect their pole dances, including studying other dancers in person and on YouTube and the hours they spent practicing their multiple routines.
"Taylor had a repertoire of about 40 songs and planned movements that she used for her stage routines," Pinto wrote. "She invested heavily in her costumes and shoes and they were integrated into her dances. She described in detail at the hearing while her videos were played and told of how she utilized repetition, pole movements and the use of a fictional character of her own creation to interact with the audience."
Pinto held that the just under $1 million in cover charges Nite Moves collected for the 2005-10 period are exempt from sales taxes under the exemption for admissions to artistic or dramatic performances.
The dancers and the experts submitted far less evidence about the private dances, and those do not have the artistic merit to justify the state sales tax exemption, Pinto said. Nite Moves' dancers generally charge $20 for each three-minute lap dance they perform topless and $30 for a nude dance, according to the ruling.
Among the factors that distinguish the private dances from the pole dance is that they were performed in a confined space, they were not choreographed and the music was chosen by the club, not the dancers, Pinto said.
He cited the testimony of the supervisor of the Nite Moves audit who said the "private dance was essentially a full body rub" and far different than the pole dances the supervisor observed in his 10 to 15 visits to the club.
"The overriding preoccupation of both management and dancers was luring patrons to small rooms for the ultimate in physical contact with the performers and having them remain there as long as possible to maximize revenue, not the performance of a choreographed dance or artistic performance," Pinto concluded. "The components necessary for a theater ... are absent from the private dance rooms." Pinto rejected the club's attempt to have the tax statute declared unconstitutional, noting that the Tax Appeals Tribunal or its hearing officers lack the jurisdiction to consider constitutional challenges to tax statutes.
Nite Moves was represented by W. Andrew McCullough of Midvale, Utah.
McCullough said Pinto's determination is "much better" than the outcome of the earlier litigation. "Instead of one expert, we brought in five this time," McCullough said Friday. "Instead of half a day for a hearing, we took two days. We are relatively pleased."
However, McCullough said he has not had a definitive discussion with the club's owners of whether they will want to appeal Pinto's decision to the state Tax Appeals Tribunal.
"There was some discussion of maybe this is the best we are going to get," McCullough said. "But there was also some discussion that we may want to keep doing this. For me, this is a great case: It may never end."
Division of Taxation attorney Osborne Jack argued for the tax department.
Nite Moves' owners failed in their attempt to get the U.S. Supreme Court to hear an appeal of the Court of Appeals' ruling in their previous litigation (NYLJ, Oct. 16, 2013).
The administrative law judge who initially heard Nite Moves' earlier tax challenge case, Catheine Bennett, found that the club's dances qualified for the sales tax exemption, but her determination did not distinguish between the artistic merits of the pole dancing and the private couch dances (NYLJ, March 26, 2009).

Saturday, October 25, 2014

A Debate Breakthrough

After being excluded from the "official" debate sponsored by the "Utah Debate Commission", I was invited to an hour long debate with my Democratic opponent, Charles Stormont, on Thursday. The invite came only one day in advance, and was the result of the refusal of our current Attorney General to participate. Why should he? He is ahead and has all of the money. I thank the current Attorney General for his courtesy in deferring to me. It was an enjoyable experience. I wish I had more time to flesh out answers, but it was a big opportunity to be heard, after the media declined to admit that I exist. The streaming version is below.

We are on a roll. Tell a friend.

Sunday, October 12, 2014

Salt Lake Times Article on my Candidacy.

This is the rough draft of an article to appear on the Salt Lake Times legal newspaper in the next week or so.

Utah Libertarian Makes His Case To Be Attorney General of Utah

By Alicia Knight Cunningham, Esq.

The Intermountain Commercial Record asked Libertarian Candidate W. Andrew McCullough to respond to questions regarding his party’s platform, why he’s running, his priorities if elected and his views on his chances of winning. His responses are highlighted below.

Why are you a member of the Libertarian Party? What part of the party’s platform resonates with you?

I am a freedom lover. I do not like the government telling me what to do. The Libertarian Party works for me. I was the Treasurer of the Young Republican Federation when I was young -- and naïve -- and I was active in Barry Goldwater’s campaign. I am a disaffected Republican because the Republican Party has become the party of the religious right. Republicans are on a moral crusade, and I do not agree with that. I am still a conservative on economic matters. I just want a more free society.

Why are you running?

I have been practicing law since 1973. I have seen over and over again attitudes in the Attorney General’s office that I think are unreasonable. For example, I had a beautiful young friend that had a slight speech impediment. She spoke a little slowly. She was stopped for a minor traffic violation and the officer wrote in her report: “The lights are on but no one is home.” The officer charged her with using drugs and took her down to the police station. He suspected marijuana test and inflicted her with a blood test. It took two weeks to get the result so he put her in jail. He tore her car apart looking for drugs. He demanded that they do a full body cavity search looking for drugs. I screamed bloody murder and the Attorney General’s office said: “To hell with you.” In the end, we got a small settlement, but it was not enough. I became a windmill tilting politician that day.

Again, four or five years ago I was sitting in my office. A man came into my office. He had just been released days before from prison where he was serving time for a crime he did not commit. He wanted compensation, and there was a new Utah law that allowed him to seek compensation. I talked to the Attorney General’s office and said, “You know and I know that he did not do it. He has an alibi. He has witnesses.” They said, “We do not care. We can block this on a technicality.” The District Court did rule against us, but the Court of Appeals granted the compensation. When I got the call that they were writing the check, I cried.

In both cases the Attorney General’s office should have represented the interest of the people. I do not think that the Attorney Generals we have had understand the proper role of their job.

What are your priorities if you win? Will you follow the platform of your party?

I do not deny that on a given day the majority of the people may disagree with what I might do. Last week the majority of the people in Utah wanted same sex marriage to be illegal. The majority lost. What won was individual freedom. It is in the interest of personal freedom for the state to stand aside and say ‘We do not care who you marry.’

We incarcerate more people than any other country in the world. Iran, China – those countries we think of as being oppressive -- we put more people in prison than they do. It needs to stop, and it needs to stop now. We should not spend millions of dollars putting people in jail because of a moral judgment.

Last weekend I spent a few hours at the rally against police violence. The police have become militarized. They have machine guns to use against their own citizens. Too many people have died. It must stop.

What do you think of your chances?

When I was in high school Social Studies was my thing. I remember studying class was Eugene Debs. He ran repeatedly for President of the United States as a Socialist. Obviously, he did not win. Someone asked him, why do you keep doing this? You never win. You’ll never win. He answered: “But I am winning. I am the one who suggested the 40 hour work week. My ideas are winning.” And if you look at same sex marriage and marijuana – we’re winning. They cannot stop us. I hope that I am part of the group that changes the future.

When my friend was strip searched, I realized that I was not doing enough. So I took out the soap box and stood on it. I will not win. But perhaps I can change some minds and help people realize that things can be changed.

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Thursday, October 02, 2014

A Change is Gonna Come

An article in the Salt Lake Tribune last week contrasted the positions of the “major party” candidates for Utah Attorney General. Mr. Reyes, the appointed incumbent, believes it is his job to defend the laws of the State of Utah as far as he can, including seeking review in the U.S. Supreme Court. Mr. Stormont, on the other hand, believes that it is not in the interests of the State to continue to appeal a case that is very expensive, and is hopeless. The difference is indeed important, but the Tribune did not ask the really important questions, and did not get the important answers.

Mr. Stormont is a career State employee. When he inevitably loses his race for Attorney General, he will go back to being as assistant Attorney General, and doing what he is told. Today, while on leave of absence, he talks about changes in the office; but he does not talk about the changes that are really necessary. Because the important issues have not been addressed by the “major party” candidates, I have chosen to make one more effort to put the important issues before the public.

The Attorney General is an elected position, in the Utah Constitution. Some have suggested he (or she) should be appointed by the Governor. The U.S. Attorney General is appointed, and he serves at the pleasure of the President. In Utah, the Attorney General is independent and makes policy for the legal department. He often files “friend of the Court” briefs in cases around the country, to support legal positions he believes are important and correct. He makes important decisions as to how to interpret and enforce the law. He can decide what civil actions to file, and what appeals to take. He has “Prosecutorial discretion” as to what criminal charges to bring, and when to make “plea bargains” in the interest of justice. In most of these cases, it will make little difference which of the “major party” candidates might be elected. It will be business as usual, either with the Republican politician or the career bureaucrat.

I am the consummate outsider. I have never worked for the government, and I am not influenced by what government employees think is good for the government. I prefer to look at the job as legal counsel for the people of the State of Utah, and will work to promote their interests.

The “war on drugs” has become a war on the Fourth Amendment to the Constitution, which prohibits “unreasonable searches and seizures.” The police have been trained to see this important right as a “technicality”, to be dodged when possible. If there is a suspicion of drugs, they WILL find a way to get into your car or your house or wherever they think they are. And the basis for their suspicion can be weak. They might say they smell the odor of marijuana. It is hard to deny that, because there is no physical evidence left over from that smell. Or, they may say there is an air freshener in the car, in an effort to prevent them from smelling the drug. In a recent case, a client was held on a minor traffic case, while dogs were brought in, because a check of her driving record showed a previous drug violation. If I am elected, one of the first things I will do is insist that all police officers receive training on the Fourth Amendment, and why it should be important to them as well as those who are suspected of wrongdoing.

Separate from the Fourth Amendment implications, the whole question of putting people in jail for nothing other than possessing a small amount of marijuana (or other drug, for that matter) for personal use, should be re-examined. It is a terrible policy, and it is making a whole generation of young people into criminals. I would do my best to stop the “war on marijuana users”. I am the only candidate who would do so.

There are other examples of our major differences. A few years ago, I represented a man who spent over 4 years in prison for a crime he did not commit. We filed a legal action to collect compensation, as set out in law, for such situations. To my dismay, the Attorney General fought us tooth and nail; and they won at the trial level. I appealed to the Utah Court of Appeals, and I won. The day the State issued the compensation check, I cried, because I knew that my efforts had brought justice for one person, despite the best efforts of the Attorney General to prevent it.

I am now involved in a couple of cases where regulatory agencies have asserted authority far in excess of what the actual legislative act gives them. Without exception, the Attorney General pushes for the most oppressive interpretation of the law. If I am elected, I will expect regulatory agencies to rein in their tendencies to over-regulate.

In 2004, the people of the State of Utah voted to eliminate most “civil Forfeiture”. This is done by filing a civil action against the PROPERTY of someone who may be suspected of a crime, and the property has no constitutional protections. The property is then taken by the police for their own use, even without a criminal conviction. I have had several cases where people have carried more money than the police think is reasonable. The money is taken from them, and it is up to them to show that they were not going to use it to purchase drugs, or for other illegal purposes. This should never happen, and I will work to change the policy of the State back to what the people voted for by ballot in 2004.

I have more experience in the legal system than either of my opponents; and I have seen first hand the kinds of things that the State has done to increase its power at the expense of the individual. If I am elected, you can count on a wholesale change of attitude in the Attorney General’s office. Tell a friend.

The revolution is here. You have nothing to lose but your chains.

Friday, September 19, 2014

Utah Family Magazine

My responses to questions sent from Utah Family Magazine. I do not know if the magazine has published them.

1. In relation to functions of the office for which you are running, what do you see as the 3 issues most pressing to families? How will you address those issues?

The state interferes with parents too often and too quickly.  I will work to make DCFS and other agencies more respectful of family ties and authority, and less likely to take children from the home or otherwise interfere with the family.  Only if a child is in real danger, the State should act

The state should try to keep families together when drugs or alcohol problems are present, emphasizing treatment over jail, which separates and destroys family units.  Addiction should be treated as a health problem, rather than a criminal one.   

The state should not impose its moral values on families which do not meet its definition of "traditional."  The state should not use mean spirited arguments to oppose the formation of family units (marriage) or to oppose adoptions into loving and supportive families.

2. How is your strategy different from those running against you?

I cannot speak for other candidates except to say that the present administration interferes far too quickly into very private family matters, and purports to impose an outdated moral code on "family values".  If I am elected, families will be more free to be who they are, and will not fear government interference.

3. What experience/qualifications do you possess that will help you in your efforts?

I have practiced law for over forty years, and have done much family law, including divorces, adoptions, juvenile court work and other work affecting families. I think I have gained a perspective that will help make some real changes in outlook in the relationship between the state and individual family units. 

Monday, September 15, 2014

The "Utah Debate Commission" poll for AG

Today the Utah Debate Commission published its poll results. They took a poll in August of the major races in Utah, and determined who they would invited to their televised debates, using the results. They have already sent some letters out to candidates telling them that they will not be invited, based on the results, even though those results were withheld until today.

The Debate Commission previously promised to publish the results by September 15. One can easily tell why they waited until 4:57 PM today to do it. The results show that only 53.5% of their sample voters are willing to commit to one of the "major party" candidates, and that the Democratic candidate has less than 13% support! Their website disclaims the poll as a predictor of the election results. Obviously! Over 31% of voters remain undecided, and there was a whopping 14.5% support for an alternative other than the two candidates who will appear at the debate. Since it is obvious that the voters want something other than the two "major party" candidates, why doesn't the Debate Commission invite everyone, so the voters can decide for themselves?

This is just laughable. The debate set a threshold designed to include only two candidates. KSL radio and TV have long used a threshold of 15% for their debates. It is a very good thing for the Democrat that they did not do that this year.

Join me in protesting this stupid "Debate Commission". I start from a decent base of support, over 5%. I need people to help my campaign with contributions; and I need people to put up signs, "share" the news on Facebook, and otherwise help spread the word. This could be the year of total embarrassment for the two "major parties". Now, wouldn't that be fun?

Read my previous blog posts to see my stands on the legal issues in this race. If you agree, do something to help.

"You have nothing to lose but your chains."

Candidate Party Affiliation Percentage Polled
Charles Stormont Democrat 12.6%
Gregory Hansen Constitution 3.9%
Leslie Curtis Independent American 5.3%
Sean Reyes Republican 40.9%
W. Andrew McCullough Libertarian 5.3%
Other 0.3%
Undecided 31.7%
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