Andrew McCullough's Blog

Wednesday, June 15, 2016

Letter to Hinckley Institute of Politics

Hello -

I am an attorney in Midvale and Chair of the Libertarian Party in Utah.

This morning's Trib reports a poll on the governor's race, sponsored by your institute. It has 2 parts, including a poll on the November race for Governor. The questions asked in that poll apparently assume that there will be two candidates on the ballot for Governor only. Despite that question, the results show 4% for "other" in a race featuring Gov. Herbert, and 9% for "other" in a race featuring Jon Johnson. I am assuming that no effort was made to identify the name of the "other" candidate for voters who took that option. If I am wrong about that, I would really appreciate any information you might give me as to any extended results.

As I'm sure you are aware, Utah now has a "debate commission" and that commission will set up one televised debate between candidates for major office. Candidates will be invited to that debate depending on support shown for them in a poll. If the names of "other" candidates are not included in a poll, obviously the chance of another candidate showing much support in that poll is substantially diminished.

I realize that you have no duty to the "minor" parties of this State to include us in the polls; but by failing to do so, you are determining whether we will show support of not. Therefore, you might even say that you are "making the news, rather than simply reporting it". We express our hope that future polls can be worded so that an accurate determination can be made as to the level of support for our candidates. That way, we can see if we are being treated fairly by the media and the Debate Commission. Minor parties have a real role to play in an election campaign. While our candidates are not likely to be elected, we can and do bring new ideas to the debate, and we change minds and bring about change in public policy. the Libertarian Party, for instance, has supported "marriage equality" since 1971. We did not have to "evolve", but instead, we brought that issue before the people, and they did evolve to the point where public policy did change. We would hope that those who make the decisions as to which ideas are heard by the people will not shut us out of the important public forums.

I note also that polls have been published this week on the races for President, Governor and 4th District Congress. We are anxious to know whether there may yet be results coming for other congressional races and for the Attorney General's race (in which I am the Libertarian Party candidate). If you can tell me anything about any of that, I would also greatly appreciate it. Once again, it will be important to us to know if there was an adequate chance for someone to express preference for "other" candidates, and so help qualify us for debate participation.

Thank you for any consideration you can give.

Thursday, April 21, 2016

Andrew McCullough for Utah Attorney General 2016

April 21, 2016 Everyone knows that Utah is basically a one party state. The full weight of that knowledge, however, did not occur to me until I recently started working on my first financial report for the elections office for the 2016 election season. As I prepared my own report, showing very little financial activity so far, I had occasion to look at the financial situation of my Republican and Democratic opponents. The current attorney general, Sean Reyes, has received many multi-thousand dollar campaign contributions from large corporations and large law firms. He also reported $250,000 left over from his previous campaign two years ago.

Our Democratic opponent, Jon Harper, filed a report showing $20,000 in contributions, mostly from his own family. Mr. Harper does not yet have a web site; and his Facebook page was started on April 14. I am not criticizing or making fun of the Democratic candidate. I am merely pointing out, that at least at this early date, the disparity in resources and the level of effort makes it very clear, at least at this early stage, that there really will not be an election for attorney general in Utah this year, but simply a coronation. Mr. Reyes will spend whatever is necessary, and nobody else will be heard.

That is a sad situation. The democratic process thrives on an open debate and a free exchange of ideas. There will be none of that in the 2016 election cycle. Nobody really has much of a choice. The die is already cast.

So, if you have read this far, you are wondering why I even bother to be a candidate. I don’t have a lot of resources, and I don’t have any illusions of victory. In the past, organizations who might otherwise support my view on the issues have automatically endorsed the Democratic candidate on the assumption that he has a better chance of winning. It should be perfectly clear at this point that Mr. Harper does not have a better chance of winning. His lack of activity so far signals that he is aware of that himself. But there is still substantial value in doing what we can to give the people a choice, and making an effort to be heard. The current attorney general is a strong religious conservative. During the recent Court actions over same sex marriage, he made that most obvious. At great expense to the taxpayers, he hired a team of LDS attorneys from out of state to make the argument that marriage is not about individual love, but is designed for raising children. In making that argument, he appeared to discount the value of marriage between older people who cannot raise children, as well as those who might have medical problems. He simply failed to recognize the whole concept of enduring love between two individuals of whatever sex. That just didn’t seem so important.

The current Attorney General wants to preserve the drug war, and apparently thinks that putting more people in jail will actually remove drugs from society. He ignores the fact that the whole thing has been a total failure since Richard Nixon first declared it. The continued arrest and detention of marijuana users in particular is a travesty of justice. Our side will win this war. The days of marijuana prohibition are numbered. But I am the only candidate for Attorney General who will say this. Possession and use of marijuana needs to be decriminalized, and it needs to be done now. Not only does the current Attorney General vigorously defend this irrational criminal scheme, but he regularly uses it as grounds to remove children from their parents. Nobody with any common sense still believes that this is good policy. But, once again, I am the only candidate who will come out and say it.

In the recent legislative session, the current Attorney General opposed civil forfeiture reform, endorsing “policing for profit” which deprives people due process of law. His general support for “Law and order” brings us closer to a police state.

At the very least, it is important that those who dissent from the 19th century views of the current administration make as much noise as possible. Marriage equality is here to stay, and nobody can stop that. Legalization of marijuana, at least for medical purposes is inevitable. Change will come, despite what the current attorney general and his allies may do to try and stop it. We can encourage change, we can help it move along and we can change the nature of the debate. Please join me in doing what we can to be heard. Make a contribution if you can. Tell your friends and neighbors the good news. Help us put up signs, pass out literature, and use social media to spread the word. The Republican Party’s immense financial and organizational advantage can be slowly eroded, if we work at it. We cannot expect anyone else, such as the Democrats, to do it for us. Utah Democrats don’t promote much of an alternative view anyway. Do what you can. We have nothing to lose but our chains.

Monday, March 07, 2016

Marijunana laws in Utah

I spent the morning listening to the Utah House of Representative committee hearings on medical marijuana. The less inclusive bill passed committee, after two substitutions. The more inclusive bill did not. As I listened to the long-winded explanations and debate, it became even more clear to me that they were debating the wrong thing. Much of the debate was on how to make sure this is not a step towards "recreational" legalization, and the sponsors dutifully reported on all of the regulations to avoid that. As a Libertarian, however, I do support full legalization. My clients should not be pulled over, searched arrested, convicted of a crime, and possibly have DCFS take their children away, for smoking pot, which is perfectly legal just to the east. Perhaps it is time to dump the talk of tightly regulated medical use, and just tell it like it is. They can't stop people from smoking it, and they should stop ruining lives by trying.

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. https://en.wikipedia.org/wiki/General_Order_No._11_%281863%29 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.

http://img.ksl.com/audio/2014_10_23_doug2.mp3

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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