Tucson Weekly: Power Of Attorney (April 23

Lawyers Have Paralyzed Democracy.
By Emil Franzi
FORGET ABOUT YOUR opinions on the relative merits of incorporation movements among satellite communities around here. Instead, check out why the latest incorporation bill was briefly killed (before rising again a day later) in the Rules Committee of the Arizona House: Because the Committee's counsel, Alex Turner, decreed that existing cities have "vested rights" to stop incorporations, so the citizens of Tortolita and Casas Adobes were not entitled to incorporate in the first place, and any bill retroactively preserving them would be unconstitutional.
Never mind that there are plenty of legal arguments the other way. A good start is that the rights of people transcend those of governments, and that rights are naturally established without the aid of governments, which only recognize them. Unfortunately, those basic American concepts apparently are becoming obsolete. And besides, that's not the issue. The issue is: Who governs? Those we choose or those we do not?
Currents We've degenerated to government by lawyers. Critics who gripe about "judicial tyranny" are missing something far more insidious: the total immersion of the process of government and the construction of policy into one profession, one group, one club, one mindset.
We wonder why those we elect have become almost unable to function in fulfilling what we--and often they--consider to be our collective will. It's because they really aren't in charge.
Every governing body, from the lowest school district to the Congress of the United States, is guided and ultimately controlled by its attorneys. In the case of Congress, many members are attorneys. In the case of local jurisdictions, the governing bodies often do not have the power to choose their lawyers and must accept what is assigned by the county attorney or attorney general. All Arizona boards and county commissions are assigned a lawyer. The result is the micro-management of all policy decisions.
These lawyers do more than advise. They control, as Lenin's commissars controlled the Red Army.
Their principle role is to second-guess what a judge might decide. H.L. Mencken once defined a judge as a law student who grades his own paper. That privilege has now been extended to lawyers appointed to guide governing bodies.
The opinion of any attorney is exactly that. That's why the Supreme Court issues so many split decisions. And the role of the judiciary in a tripartite system is unquestionably vital in the preservation of personal freedoms, which the Founding Fathers clearly understood. Democracy is not--nor should it be--an absolute, which is why they chose representative government.
But representative government has now mutated. Judicial review has led to a new concept--pre-judicial review. Our representatives are constantly overruled not by the judicial branch, but by a sub-species.
The Legislature kills a bill because its constitutionality is "questionable" to one lawyer. The county supervisors are told they cannot pass a growth ordinance for the same reason, by a another lawyer biased from a long-term relationship representing the development industry--a case any honest judge would have recused himself from deciding.
And we don't see much of it because it's done behind closed doors in executive sessions that our elected officials are legally precluded from telling us about. At least judges have to pass out their bad decisions in public.
The most powerful elected official in Arizona and many other states is not the governor, but the attorney general. He currently has a horde of lawyers crawling around every department and board and commission opining on everything. And he apparently has other powers we're just now becoming aware of.
Look closely at the tobacco deal. Arizona Attorney General Grant Woods personally selected the law firms to represent our state in a case where the lawyers will make more than $600 million as part of the settlement. He also personally guaranteed them full reimbursement for any costs involved above that--without even bothering to notify the respective chairmen of the two appropriations committees in the Legislature!
Even if the deal falls through, the taxpayers eat millions more. Some would see Woods' deal with his fellow lawyers as usurpation of power, but the Attorney General disagrees. And his opinion counts.
The perceptive have observed this metamorphosis of power and decision-making and acted accordingly. The rich and powerful like it--they can afford to hire better lawyers. It has impacted our entire society, even beyond government, and helped tame most of the American media.
A crook named Charlie Keating knew how to use it. Many in the media knew what he was doing, but no one reported it, because Charlie threatened to sue. And the bean counters judged the potential risk not on the truth or the viability of the case, but on the potential cost. The threat of any litigation has stifled much of the press, particularly on the local level.
And this widespread obeisance to the bottom line as dictated by the attorneys has altered the political landscape. Those who wish to reform the system no longer run for public office. They go to law school and get foundation grants and file lots of lawsuits. The leading government reformers in Arizona at the moment are guys like Tim Hogan and David Baron with the Center for Law and the Public Interest. And they make public policy based on which policies they challenge in court. While we may consider many of their causes to be noble, remember one thing: Nobody ever got to vote for them, or their ideas.
That's how badly America has warped and morphed and strayed from representative government.
Remember it next time you wonder why the people you elect act the way they do.

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