Andrew McCullough's Blog

Friday, November 20, 2009

Another legal victory?

November 20, 2009

In all my years of practicing law, I have never had two days like the last two. For yesterday's news, see my previous blog posting. Today, the Utah Supreme Court, by a vote of 4 to 1, basically upheld a 10% "gross receipts tax" on adult businesses featuring nudity. But, after doing so, it invalidated the tax as it applies to escort agencies, as the terms of defining such agencies were too vague. Thus the law put many "legitimate" businesses in jeopardy. In this case, I represented five escort agencies and two dance establishments, so most of my clients "won", in that they do not now have to pay the tax. The other two lost, as they may have to pay the tax, depending on the degree of nudity of their dancers. It seems, however, that the legislature can put the tax on escort agencies back in effect by simply reworking their definitions, to make it more clear who they are after. So, the victory is not complete, even though it feels pretty good for some of my clients right now. Some of them are in line for big refund checks.

The court said that the tax was not aimed at dancing as entertainment, but was aimed at nudity, whether it was entertainment or not. Frankly the ruling conflicts with many rulings of other courts, including the U.S. Supreme Court. Other states are considering similar taxes, and this ruling could be very bad in the long run for all of my clients and for many others around the country.

Thank you Madam Chief Justice, for your principled defense of the First Amendment, even when you are the "lone voice crying in the wilderness". Your opinion will yet be vindicated.

So, watch this space for news of what I hope will be a Petition for review to the U.S. Supreme Court. And, Mr. Attorney General, the last two days are an indication that we will see lots of each other in court over the next several months. May the best cause win. And freedom is always the best cause.

Thursday, November 19, 2009

A Victory for Justice

November 19, 2009

On my birthday, in July, rwo years ago, a man walked into my office to tell me a story which put me in tears. He had just been released from prison, after four and a half years, for a crime he did not commit. The Attorney General had first agreed to a new trial, to avoid an appeal, and then the District Attorney dropped the charge. But not until after he had spent a lot of time in jail and prison. He had been convicted of an armed robbery in Salt Lake City at a time when he almost certainly was in Louisiana recovering from a stroke. He had been the unfortunate victim of the "all blacks look alike" syndrome that still exists in lily white Utah, and had been identified three years after the crime, when he walked into a restaurant.

Under a new Utah law, my client, Harry MIller, is entitled to compensation for the time he was incarcerated. But the Attorney General reads that law in a very restrictive manner, and has fought the compensation hard. Today, the Utah Court of Appeals agreed with me that the law is to be read in a less restrictive manner. We will at least have our day in court, and we will have our chance to prove that my client is entitled to compensation. It is the first of many steps, but it is a giant one, and cause for clebration.

I fully expect the Attorney General to ask the Utah Surpeme Court to hear a further appeal, and to delay justice for another year or so. Please, Mr. Attorney General, consider what you are doing, and let this matter go forward. This is not about being right, and looking tough. It is about doing justice to a man who has suffered through miscarriages of justice for years. Harry Miller deserves what he is seeking; and he deserves the right to go forward and prove his case as quickly as reasonably can be done.

Sunday, November 08, 2009

The "tea party" crowd

November 8, 2009

This morning's Salt Lake Tribune featured, on its front page, one of several articles I have seen over the last several days on the "far right" of the Republican Party, and their efforts to challenge the "moderate wing" of their party. Of particular interest in this regard is the Conservative Party candidate for Congress in New York last week who forced the official Republican candidate, a relative liberal, out of the race, and ended up throwing it to the Democrat. The other main story in that regard is the conservative who is campaigning for Senate against the Governor of Florida. And here in Utah, of course, there are three more conservative canidates who are trying to oust Senator Bennett, even after our conservative Attorney General withdrew from the race last week.

Those who are on the right of the party are designated as the "tea party" group or crowd, and feature some who have been active in rallies and demonstrations protesting Federal taxes. They have been heard to boo both Senators Hatch and Bennett for not being conservative enough.

First, let me set the record straight. The "tea party" movement was started by members of the Libertarian Party, and has only recently been co-opted by conservative Republicans. Libertarians do not like taxes, not even slightly, and we have been having small protests on April 15 for many years. Now that the Republicans have been ousted from power, and only because of that fact, conservative Republicans have started making noise and have pretty much taken over. Well, those who fight against taxes are welcome, but this is not a "conservative" movement, at least from the beginning. We Libertarians were not very pleased with the recent Republican administration either. The Bush administration needed lots of tax money to wage wars and to spy on our own people. Frankly, having Republicans join, and take over, the tea parties makes me very uncomfortable. I have been fighting Republicans for years, because they have been preying on fear to create a survelliance state, which is decidedly less free than I want it to be.

I attended a "tea party" event this summer in Salt Lake. I had been promised, as Libertarian Party Chair, that I would get to speak. Then they changed their minds; but it was not the simple anti-tax rally that I had hoped it would be. It was filled with the kind of narrow minded propaganda which we hear every day from Shawn Hannity, Rush Limbaugh and Senator Chris Buttars. These are not my people, and I was not comfortable there. One speaker actually quoted the 14th Amendment to the Constitution which makes all people born in this country natural citizens. The comment brought loud boos from the anti-immigrant crowd, who accused the speaker of being stupid or crazy. Well, guys, that is what the Constitution says -- read it for yourself. No amount of yelling can change that.

Some see the Libertarian Party as the far right. While we do support anti-tax protests, we hopefully have little in common with people like Chris Buttars, and other members of the "far right". It is important for us to exist, as we have a genuinely different view. While many Libertarians supported Ron Paul last year, he ended up endorsing the far right Constitution Party's candidate for President. Personally, I disagree with as many of his positions as I agree with. If you are looking for an alternative, but are not in the market for the religious right which is seeking full control over the Republican Party, you might consider us.

Where do I differ with conservatives? Here are some examples: Get out of Iraq. End the war on drugs. Repeal the Patriot Act, and stop spying on our citizens. Get out of people's private lives -- if gays want to marry and can find a church who will perform the service, it is none of the government's business. Traditionally, marriage is a religious rite. the government should not be involved. Want to learn more? Join the party which truly fights for freedom, for everyone.

Wednesday, November 04, 2009

Elections and politics

November 4, 2009

It has been too long since I blogged. Will try and make up for it here just a little.

Last night, Republicans won the Governor's races in both Virginia and New Jersey. Republicans are crowing that this is a referendum on the Obama administration.
Well, everyone is concerned about the economy and the deficit. Hopefully, this will remind the President that we cannot spend our way back to prosperity on borrowed money. But, the Republican Party in my native State of New York continued its march to oblivion, losing one of the three congressional seats (out of 29) it has held there. National Republican leaders, including Sarah Palin and Rush Limbaugh had endorsed the New York Conservative nominee against the Republican, and the result was a Democrat victory. Is the country on a move back to conservatism? I certainly hope not, and the results from yesterday do not show this. The sometime Republican Mayor of New York was barely re-elected, though he outspent his opponent well over 10 to 1. Most other races in the City went to Democrats.

Perhaps the most interesting election was in Maine, where the voters refused to approve of the new law passed by the legislature which legalized gay marriage. At the same time, they approved of a more liberal medical marijuana law. Mixed results for those of us who think neither item is any of the government's business. We still have so far to go to our goal of getting the government out of our personal lives. Now is not the time to quit. We need to keep working at it, confident that we will win in the long run.

Here in Utah, Attorney General Mark Shurtleff withdrew from the U.S. Senate race today for family reasons. I actually like Mark (but not his politics) and wish him and his family well. It is now one year from the election for Utah's Governor, the Senate, and a host of other races. Our little Libertarian Party receives inquiries every day, and I joke that we will soon be bigger in Utah than the Democrats. There are many people who do not like the choice between the two "major parties". The Democrats are way too free with our money. The Republicans, while claiming they are for smaller government, constantly interfere with our personal lives, pushing their personal ideas of morality on us with the force of the State. We need to build a real third alternative, and today would be a good day for you to get involved in it. Join us in the fight for real freedom.
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