Andrew McCullough's Blog

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.
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