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Transcripts

October 8, 2003

Host: Michael Grant
Topics:
· Democratic Presidential Candidates' Debate;
· Randy Bailey's Brake Shop/Eminent Domain case
In-Studio Guests:
Sam Coppersmith, attorney and Democratic political analyst;
Chuck Coughlin, political analyst and political consultant High Ground political consulting firm;
Clint Bolick, Vice-President, Institute for Justice, a Washington D.C. based public interest law group that represented Randy Bailey

>> Cary: Tonight on "Horizon," political observers across the country turn their attention to Arizona as the state prepares to host the democratic presidential candidates debate. We'll have a preview. Plus one business owner celebrates a victory in an eminent domain case against him as other property owners face similar predicaments. We look at eminent domain. Good evening, I'm Cary Pfeffer filling in tonight for Michael Grant. First up in the news, Arizona gay rights advocates have suffered a court defeat. The Arizona Court of Appeals has upheld the constitutionality of Arizona's ban on same sex marriages. A gay couple in Phoenix had argued that marriage is a fundamental right and that prohibiting it for same sex couples violates constitutional protections for due process of law. However, a unanimous three-judge panel of the appellate court ruled that the fundamental right to marry does not encompass to marry a same sex partner. Democratic presidential candidates will gather in Phoenix tomorrow to debate. The event offers two opportunities for Arizonans, one to hear where the candidates stand on issues and, two, for our state to jockey for position in the political arena. As of now, nine democratic candidates will vie for your vote in our primary here in February and here to talk about the candidates and the issues, attorney and democratic political analyst Sam Coppersmith and Chuck Coughlin, political analyst and high ground political consultant from the high ground political consulting firm. Thanks to both for being here. It's a great way to sort of split this up. This is a debate and people get a chance to hear from these candidates but it's not like a chance they didn't get to hear from some of these in previous debates. Sam, this is really also about promoting what Arizona is and the place Arizona now plays in the democratic race.

>> Coppersmith: Clearly it's an opportunity for Arizona to take the stage. You will hear probably a lot of the same things you've heard from the candidates beforehand. It doesn't make much sense to change what you're talking about during the middle of a campaign but it's an opportunity for them to talk about Arizona issues, and it's certainly an opportunity for Arizona to play a major role in a democratic nominating race which has never been the case before.

>> Cary: And there are nine candidates. They have bleachers up so they can fit them all in there practically.

>> Coppersmith: It's a big stage. They used to have spectaculars there.

>> Cary: We should also mention you don't have a particular candidate in this race at this time.

>> Coppersmith: It was a big deal Monday but when Senator Graham dropped out, what is it --

>> Cary: You are now a free agent. Chuck, talk a little about this from the Republican side of this equation. It certainly is a focus on the Democratic Party but also the idea that Arizona politics in general gets some attention on the national stage is probably good for everybody.

>> Coughlin: That was actually the original intent of the bill was created and the primary was initially created at the behest of Senator McCain in the '98 presidential cycle to give his candidate, then senator Graham, I think Sam and I must join together in never supporting a Graham candidate again, they seem to not be able to make it to Arizona, but it was clearly an opportunity for Arizona to highlight its politics on the national stage and to give Arizona voters and I think that's what the candidates will be doing tomorrow night, is while they'll address their national issues, this is where Arizona voters will really begin to pay attention to the race. I think this is where the green flag gets dropped and the race actually begins in Arizona.

>> Cary: We've already seen, Sam, Howard Dean spending money in television spots here in Arizona. Who else is going to sort of make that kind of a splash or play that kind of a role? Will General Clark end up playing that kind of role? You have to look at those top two or three candidates.

>> Coppersmith: You know, what's fascinating here is that the candidate who many many people is the insurgent candidate, Dean, has the best funded and has opportunity to go on television but I would think in many ways by going on television what you're doing is not necessarily trying to persuade people, you're trying to send a message both to voters and other candidates about how serious you are about contesting in the state. It's going to be a fairly low turnout primary. I think you have to basically assume that there probably aren't going to be that many more people that voted and maybe less people than voted in the gubernatorial primary in 2002 and while there was a clear favorite in Governor Napolitano was a contested primary. In a crowded field like this with nine candidates, with maybe only half of them will be major by the time people vote, it's going to be a relatively small number of votes and I would say this is very much going to be which campaign decides that they're going to organize in Arizona, they're going tide their voters, get early ballots and -- TV is just basically going to be a validation message. It's not going to persuade people.

>> Coughlin: Yeah, Sam is right. You're looking at 780,000 registered Democrats in the state. You've got a 40-some -- 44% turnout, you're looking at 350,000 maybe voters divided between maybe four, five candidates at that time that are really viable. You're looking at somebody who is going to be able to tend of the day say I got 110,000 votes and took the Arizona primary.

>> Cary: And spent X amount of dollars.

>> Coughlin: In time. It's going to be -- it's a strategic issue, too, in terms of you have Iowa first, you have New Hampshire and then you roll in three principal other states, South Carolina, Oklahoma and Arizona on the same day. Arizona being the only western state that goes that day. So I think we'll get --

>> Coppersmith: The biggest state --

>> Coughlin: And it goes to the point -- I think Bob Robb had a column in the paper today about boots on the ground. It's organizational ability. In that one, I think the thing that's interesting in this race, the candidate that seems to have the best organizational ability on the ground right now would probably be senator Kerry and I would remind Arizona voters, I always look at trends and I think songus won the last caucus from Massachusetts, Dukakis won a democratic primary out here. They seemed to well when it's a trench war campaign. He has the support of the firefighters nationally. I would expect him to make a serious charge here in Arizona.

>> Cary: Which would be key for him because he's a candidate who is not necessarily always pushing through and being as successful on the national stage as some had expected.

>> Coppersmith: This could be a very significant opportunity for the Kerry campaign in part because people who don't know Arizona as well as Arizonans who are going to determine which race gets front page play in the newspapers, which then becomes important for the rest of the country, may not realize the advantages that, say, a senator Kerry has here in organization in Arizona and the fact a Massachusetts Democrat would do well in Arizona may have bigger resonance than other candidates would. One thing you would say, thigh actually the -- I think actually the number would it take to win the race are going to be slightly less than you would think in part because I think probably anywhere from a third to maybe even as high as 50% of the votes are going to be cast early by votes -- by vote by mail and vote by mail when people get their ballots they tend to vote within about a five day period when they get their ballot if they apply or closer to the end of the election. You're going to have maybe a quarter of the votes will be in the bank before we have the results of the Iowa caucus.

>> Coughlin: Yeah, I want to get back -- and I think there's some issues that are going to play out here that are unique to Arizona voters that they care about. Immigration is getting a big discussion in Arizona right now. There's an initiative on the streets, talk about how we respond to that and the lack of federal response to that. It's a very sensitized population to that right now. I think that issue is going to get a pretty good discussion and I think -- I looked at some of the candidates' positions today on the website. I think senator Dean's position on that is going to get challenged on that in the southwest. His position is, I would say, in some -- some ways more conservative than most Republicans and so I don't think it's even most -- even most moderate Republicans. I would expect that to be part of the debate tomorrow night and part of the discussion. I would -- I think Arizona voters ought to ask that question.

>> Cary: Talk about General Clark and what kind of role you think he'll end up playing and where this plays out.

>> Coppersmith: This will be interesting because in many ways you have governor Dean exceeding anyone he can's expectations getting in the race I think even his own that he would have this kind of success.

>> Cary: Correct me if I'm wrong, this is the second debate that general Clark --

>> Coppersmith: This is General Clark's second debate. His first opportunity he had just been in the race. That's a pretty elevated stage to make your Broadway debut. Most people don't -- other than Melanie Griffith don't quite start out at that level. I think he will -- he had the benefit of curiosity and now needs to make a more substantive -- and he also needs to kind of pull together a campaign organization. He obviously got in very late. He has some fund raising strengths but needs to take the raw material and organize it very quickly. It's sort of thing that probably would take a four star general. We'll see fit translates to politics.

>> Coughlin: Yeah, most -- I think Paul Johnson, former gubernatorial candidate, former Mayor of Phoenix, signed up with the general's campaign today, which I would think would give him his first prominent Arizona Democrat to join onboard. Raul GRIJALVA, congressman from Tucson is with senator Dean's campaign. I expect he'll have a strong showing in Southern Arizona and Tucson. Mary Rose Wilcox has been supporting Joe Lieberman. The firefighters and Diaz, the former campaign manager of the governor is with Kerry. Congressman Pastor with is with congressman Gephardt and today, of course, Mr. Johnson joined the general's campaign. Everybody is sort of lining up, and I think until today Mr. -- the general didn't have a body on the ground. So now I think he has a body on the ground.

>> Cary: What's interesting about that list that Chuck just went through, we're talking about a spread across the board, in other words, we're not seeing necessarily a clump of supporters under one particular umbrella. That is going to make it interesting as well. I mean, it seems like that sort of adds to the drama.

>> Coppersmith: To the extent there has been an endorsement race, which I think is going to be ultimately meaningless in terms of who is going to actually win when the votes are counted in February, senator Lieberman jumped ahead in terms of high profile endorsements, high profile being a term of art when you talk about state legislators. And the state legislators tend to come from solidly democratic districts that will have very low turnout in this kind of a special election. I think you will be surprised more of the votes will kind of come from the suburban districts that elect Republicans.

>> Cary: What's your sense of the Latino vote and the Latino influence in this primary? Any kind --

>> Coughlin: Pretty diffused. It's all over the board. You have some community leaders. I have never been one to say that -- and I think the last city council races in Phoenix sort of demonstrated that, that -- there's -- nobody I've been able to see has been able to put their arms around the entire Hispanic community. Very divergent views politically, different types of views on different issues, free agents in many respects. Lot of Republicans as we saw yesterday in California, people who will jump the party line. So I think I'm with Sam. It's that -- that segment of the electorate won't be as significant at the end of the day as the types of voters Sam's talking about.

>> Coppersmith: Cary, I think you'll see there will be a lot of support wide across a number candidates. It will take a while to coalesce, but I think the Democrats who will vote are probably all members of ABBA, which is anybody but Bush again.

>> Cary: I just want to make sure you did correctly hear Chuck say, I'm with Sam on that, because we won't necessarily hear you always say that.

>> Coughlin: Fairly rarely, actually.

>> Coppersmith: Always pre-primary, I think.

>> Cary: Right about this time is the only time.

>> Coppersmith: You know, honestly, I think most Republicans would like to see Carol Moseley do very well tomorrow night.

>> Cary: And what about them, just to finish up, Sam, I'm going to give you the last 30 seconds, a candidate like Carol Moseley Braun, what is her upside to being on that stage?

>> Coppersmith: The upside there is no downside. She has an opportunity to talk about her issues. It's also not necessarily bad for the process because it's important for people like Chuck to hear from some like Dennis KUCINICH so he knows what a real moderate looks like. The NRA has -- has a good position on the NRA, a tough position on immigration. What Dean has been able to do is to marry a very strong and empowering rhetoric to what is an essential moderate platform.

>> Cary: Need to wrap up and I appreciate it and we're going to keep in mind what you had to say, both of you, I appreciate your thoughts and see sort of how it plays out tomorrow on the stage.

>> Coughlin: Thank you.

>> Cary: Sam Coppersmith, Chuck Coughlin, we appreciate it. Eminent domain, a method used by government entities to obtain private property for public use. Most cases involve taking the land for parks and freeways and schools and other public purposes. They're not often protested. One Arizona case that was protested got national attention. Bailey's brake service in Mesa has come to a close but other eminent domain cases still hang in the balance of a court decision. Merry Lucero reports.

>> Reporter: Bailey's brake service sits on the busy corner of country club and main street in Mesa. The business has been here since 1974 and for the last four years Randy Bailey has been fighting to keep it here. Last week he won the fight.

>> Randy Bailey: Yahoo! Yeah, it's a great victory, you know, not just for me but for all Arizonans, City of Mesa people. It's an awesome deal.

>> Reporter: It's an awesome deal for Bailey because the City of Mesa wanted to take his property by eminent domain.

>> Bailey: It started to be designated as a re development area over four years ago and we started hearing rumors of it, going to city council meetings and listening to what they wanted to do, and wondering, where it affected me.

>> Reporter: The city did obtain five acres at the site, including the brake shop. Redevelopment plans of the area included a new ace hardware store owned by Ken LENHARDT. Bailey sued the city with the help of the Institute of Justice. They lost and then appealed. The appellate court's three judge panel ruled Mesa failed to prove that taking the land for private developers is for public use.

>> Bailey: If you're going to use the word redevelop, then redevelop, not this guy is out and you're in.

>> Kenneth Pillow: The lot is not too large, its not too small

>> Reporter: That is what Ken and Mary Ann Pillow of Tempe are hoping will happen in their case.

>> Kenneth Pillow: This is my home. It's been my home for 36 years. If I move, it won't -- it won't be a home. It will just be a house that I'm living in. I don't think I'd ever get to the place I could ever call that home.

>> Reporter: The City of Tempe has slated this a redevelopment area. The plan, new townhouses on this spot.

>> Mary Ann Pillow: If I have to move, it's very hard to find a house for land.

>> Reporter: Mary Ann is now transplanting her long tended garden of herbs and vegetables into pots because she doesn't know how long she will be here.

>> Mary Ann Pillow: How could the politics, the -- the government, because city is part of the government, have the nerve to come and take away from the poor working people to give it to the rich ones? And still to us first if you like or you want, to they say, I demand you. You're going to be moving. You like it or not. What right do you have if you let them do whatever they want, American people don't have no rights.

>> Reporter: The Pillows turned down purchase and relocation offers from Tempe. The city had already filed to condemn the property when attorney Tim Moultin got involved.

>> Moultin: But when I looked at this case and did my research, the first thing I saw was article 2, section 17 of Arizona constitution, which is the provision the Bailey court ruled upon. And it essentially says this, it's a special constitutional provision dealing with eminent domain, and it says this: you cannot use eminent domain to take private property for private use.

>> Reporter: Moultin says the Bailey case was like a lightning strike in the Pillows' favor. They could still end up in the Supreme Court but the Mesa city council says that's not likely. The Pillows are head to do court in November but the Tempe city attorney says they're willing to work with them on a resolution, including allowing them to stay. That's what the Pillows say they want, to keep their property and stay in their home.

>> Cary: The Institute for Justice is a Washington D.C. based public interest law group that represented Randy Bailey. Clint Bolick is vice-president and he joins us now to talk about this case as well as the Pillows and eminent domain in general. Is the decision that came down in the Bailey case, does that end up having any sort of influence on any other cases? Where does that --

>> Bolick: Absolutely. And hopefully not just here in Arizona, but the Court of Appeals has statewide effect in terms of its decisions, and as a result, unless this case is overturned by the Arizona Supreme Court, and I don't think that's going to happen, this is the law of the land in Arizona.

>> Cary: And because it ended up getting national attention, showing up on "60 minutes" and that sort of thing, it's drawn the issue of eminent domain to a national debate sort of topic.

>> Bolick: That's right. We've been fighting these kinds of Robin hood in reverse transfers of property from one owner to a wealthier owner for the last several years all around the country, in Illinois, Mississippi, Connecticut, all over the place, and getting a precedent like this is very, very important.

>> Cary: Let's talk also, about the flip side of eminent domain. There is a reason that it's on the books. There is a use for that particular law. And it's a use that's been recognized for years in freeways, parks, schools, that sort of thing. Talk about.

>> Bolick: There's no question, eminent domain can be used freely for parks and hospitals and all of those sorts of things, schools, and the owners have to be paid just compensation. But in the last couple of decades, local governments have gotten into the real estate business. It's amazing how these folks work so hard to become elected officials, and as soon as they do, they become real estate agents. The pendulum has swung to the point where eminent domain in the context of clearing out blight or slums or whatever the city wants to call it, it's no longer the last resort. It's the first resort. If your house could be generating more tax income as a Krispy Kreme doughnuts, for example, the city will not think twice about taking it away from you, and this decision will hopefully put an end to that reflexive use and very, very tyrannical use of eminent domain.

>> Cary: At the same time, you're not coming out against Krispy Kreme doughnuts?

>> Bolick: That would be one of the last things by do. I only mentioned them because they happen to be using eminent domain in North Carolina for their new corporate headquarters. I will keep eating them, though.

>> Cary: Let's look at the Pillows case. We just saw an interview with them. You have this come that's lived in the home for years. It seems because they're not a business they would not have the same kind of legal standing that the obvious sort of situation that the Bailey's brake shop had.

>> Bolick: I think their situation is even stronger. I think everyone realizes that we as Americans believe that a person's home is that person's castle, and to take someone's home, to wrench them out of their home, is just something the government should do only if there is absolutely no alternative. And for someone like Mr. Pillow, who has lived in his home for decades, this is just ridiculous. I really hope that the city backs down, because the city is wasting taxpayer money going after their home, and so the taxpayers are going to get it two ways, not just one.

>> Cary: And because of the high profile that the Bailey case ended up having, it seems like even though there is not always a direct connection, that timing, the fact that case just ended up having the decision made on it, how much of an impact does that end up having on somebody like the Pillows.

>> Bolick: It should have an immediate and decisive impact. In fact, Tim Moultin, the Pillows' lawyers immediately asked to have the eminent domain proceedings dismissed, and there are others all around the state. Cities are doing this everywhere and I think they're going to have to think twice about it now and if they don't, they're going to end up not only losing these cases hopefully, but giving up a lot of attorneys' fees. The taxpayers ought to demand a stop to it.

>> Cary: Talk about other indicates that you've worked on where this kind of scenario has played out, because people have heard just now about the Pillows, the Bailey brake shop case ended up getting all that attention, but you're in sort of that part of world and have seen this happen in a number of different situations.

>> Bolick: Our first case was a few years ago involving Donald Trump. He decided that he needed a parking lot for his limousines next to his casino in Atlantic City, and he tried to take the property of a little Italian restaurant named SABATINI's and a very, very feisty lady, her home. This was the first time in a long time that a court in this case in New Jersey said, listen, this is not a public use, and that's what eminent domain is for. So I'm happy to report that the next time you go to Atlantic City you can still have a very good Italian dinner at SABATINI's.

>> Cary: And if somebody has to worry about parking their limousine, they will have to look elsewhere.

>> Bolick: That's right.

>> Cary: Any other cases that are sort of on the horizon as far as Arizona is concerned where these questions come up?

>> Bolick: They come up constantly, unfortunately. Although we're based in Washington D.C., we have a Phoenix office and we're looking at this carefully. The latest we've heard about is a golf course, Coronado golf course in Scottsdale. The city has announced it's taking a look at condemning that property and taking it for the archrival San Francisco giants to have a new training facility. Just last night the Scottsdale city council lifted the redevelopment cloud from downtown Scottsdale for them to now go forward and take this golf course would be outrageous and we will be looking at it very carefully.

>> Cary: Also, though, if you're a city planner you're saying we need to do some things with certain pieces of property. It may not be popular but at the same time the end use and the overall benefit is more than just perhaps that one or two families that one or two persons that are impacted.

>> Bolick: There's tons of things appear city can do. First of all, if a property is blighted, they can require the property owner to bring it up to standard. They can put brick sidewalks down and make the area look nicer. They can offer to purchase the property instead of going in and saying, we're buying your property and you don't have a choice about it. So, you know, for cities to say they don't have any tools, that's just because they're lacking in imagination.

>> Cary: And from a dollars and cents standpoint, if the institute for justice or some other lawyer doesn't come in and sort of take your case and become your champion, what kind of dollars can be involved in fighting this?

>> Bolick: Oh, just -- you know, literally hundreds of thousands of dollars, and that's why the Institute for Justice has played such a vital role. Typically in eminent domain cases the lawyers collect their fee from the compensation that's received from the property. That, of course, leaves the property owner really in a losing proposition because you've just turned a third or a quarter of your proceeds over to a lawyer, and it wasn't until we came in and said, listen, you know, this is not about a client paying us. We don't accept fees for what we do from our clients, we are going after this principle. If you don't want to move, we're here to fight for you, and it took that to get this decision.

>> Cary: And we're talking, again, hundreds of thousands of dollars?

>> Bolcik: That's right. Actually, we have incurred about $200,000 in fees so far.

>> Cary: But at the same time, now with victories on your side, it seems like those dollars and cents issues become less of a factor?

>> Bolick: I surely hope so. I think the pendulum is beginning to swing back in the right direction of respect for private property rights but we've got a long way to go before this battle is over.

>> Cary: Clint Bolick, thanks very much for being here. We appreciate that. For transcripts of this program, you can go to our website. That address is www.kaet.asu.edu. Click on "Horizon" and follow the links. You can find links related to topics we've covered and see what's on upcoming "Horizon" programs. And here's a look at what's coming up tomorrow on "Horizon."

>> Reporter: The Supreme Court has started its session but it's not expected to be the landmark session the court had last year. However, there are still several big cases before the court, including a ruling expected on McCain Feingold, the campaign finance law. We'll discuss that case and others with ASU law professors Paul Bender and Kathy O'Grady Thursday at 7:00 on "Horizon."

>> Cary: And thanks very much for watching. Michael Grant is taking a couple of days offer. We allow that once in a while. Thanks for watching. I'm Cary Pfeffer. We'll see you next time.

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