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The Skinny

BIG BOX REDUX: It was a twisted legal path for Tucson's Big Box Ordinance last week, when attorneys for Wal-Mart managed to snatch defeat from the jaws of victory in their drive to force a public vote on the City Council's recent restrictions on 24-hour megamarts.

On Monday, February 7, Judge Robert Donfeld ruled that City Clerk Kathy Detrick had to accept the referendum petitions Wal-Mart had purchased for $33,000 last November. Detrick has rejected the petitions, saying they conformed to state law rather than the slightly tougher City of Tucson regulations.

Donfeld's sweeping ruling, in fact, declared that the city had no power whatsoever in the matter of referendum and initiative drives, so state law was the sole authority in these matters.

A big win for Wal-Mart -- or so it appeared, until the attorneys for the city, the neighborhoods and Wal-Mart were back in court 48 hours later to determine the number of signatures needed for a referendum under state law.

That's where the legal quirk came in. Under the city referendum statute, petitioners need signatures totaling at least 10 percent of the total votes cast in the most recent mayoral election. But under state law, referendum drives require a total of 10 percent of the total votes cast in the most recent City Council election. In most communities, where council members are elected by ward, the provision makes sense. But in Tucson, where council members are elected citywide, that means that the people who voted in the 1997 council election voted as many as three times.

Advocates for the Big Box Ordinance argued that meant, under state law, that Wal-Mart and their political mercenaries would need 15,856 signatures -- far and above the 14,770 they claimed to have turned in, back when they thought they needed only 7,073 sigs.

Judge Donfeld seemed skeptical and was trying to work out a new ruling when Wal-Mart attorney Lisa Hauser started talking -- and, according to courtroom observers, wouldn't shut up.

Hauser has been quite the political player in recent years. Following a stint as a legislative lobbyist, she became a staff attorney to the Symington administration after a feud erupted between Fife and former Attorney General Grant Woods. (Hauser earned an infamous reputation during that period for stonewalling public records requests.)

Like one of those know-it-all attorneys on The Practice, Hauser kept telling Donfeld what his decision should be, driving co-counsel Frank Cassidy into a near-nervous breakdown as he tried to get her to pipe down. Apparently, relations are fraying between the Wal-Mart co-counsels.

Donfeld, evidently weary of Hauser's lecture, ruled consistently with his earlier decision: state law required 10 percent of total votes, not ballots cast. And if anyone knows the difference between total votes and total ballots cast, it's state lawmakers.

Donfeld's ruling left the Big Box Ordinance intact until Tuesday, February 8, when the attorneys were back in front of Donfeld again. Hauser and Cassidy found a similar case which would have decreased the signature requirement. But the neighborhoods surrounding El Con and city attorneys had already appealed Donfeld's earlier decision, so they argued he no longer had jurisdiction in the case.

After hearing arguments on both sides, Donfeld agreed he didn't have jurisdiction anymore -- and then he proceeded to offer a "Solomonesque" ruling that instructed City Clerk Detrick to begin verifying the signatures, while providing that, "as to the parties in this action only, the ordinance shall remain in effect pending an appellate decision."

What does that mean for the Big Box Ordinance as a whole? Not even the city attorneys knew for sure as they left the courtroom. As of press time, the lawyers were analyzing to discover whether the ruling meant that Home Depot, which was not a party to the action, could now get a building permit and pour a foundation at El Con.

Not coincidentally, Home Depot attorney Si Schorr was relaxing in the last row when Donfeld made his ruling. It's a powerful lawyer indeed who can win a case from the back of the courtroom.

MEANWHILE, BACK AT THE MALL: With the Big Box Ordinance in place while the legal process drags on, you'd think Mayor Bob Walkup would be using it, as well as the status of Dodge Boulevard, as leverage in his negotiations between Hell Con Mall and the surrounding neighborhoods.

But Walkup, although he's meeting with neighborhoods to hammer out an alleged "compromise," seems to think the Big Box Ordinance is doomed to fail in front of voters, and he insists Dodge must remain open.

The neighbors continue to push for Dodge to close, but that lacks support from the City Council majority -- Walkup, Fred Ronstadt, Shirley Scott and Carol West -- that seems prepared to approve a development agreement this Monday, February 14.

BEASTLY BEHAVIOR: State lawmakers, apparently disturbed by the fact that the public has banned steel-jaw traps and cockfighting through initiative efforts, are trying to squash similar efforts in the future by passing a law requiring a two-thirds majority for voters to pass initiatives regarding wildlife.

This measure is nothing less than a full-frontal assault on the public's right to make law in a democracy. But the effort has the staunch support of Rep. Barbara Blewster, a freshman lawmaker from Dewey who's best known for her comments about the hooked noses of Jews, the cushy life slaves enjoyed on plantations and the need to arm teachers to maintain a safe environment on high-school campuses.

Explaining her position, Blewster said, "We really have to watch too much democracy, because it's mob rule."

So true -- especially when compared to cerebral pursuits like cockfighting.

BILINGUAL EDUCATION: Fans of the Nogales High School Apache boys basketball team -- young and old -- were primed February 2 to capture top honors in tastelessness. During a tight game at Pueblo, Nogales boosters -- including parents and other adults, students and members of the junior varsity team -- used well-organized chants to spur their team. "De-fense" and "Nogales, Nogales, Nogales" chants were loud, coordinated and effective. Almost sounded like a college crowd.

But then the JVs and others broke with "culero, culero, culero" when a Pueblo player was called for a foul or when one went to the line after being fouled.

What was foul -- and what certainly detracted from the Apaches' fast, aggressive and ultimately winning play that night -- was the sadly predictable game the adults and the assistant coaches played. They faked that they didn't hear the nasty culero chants. Guess they figure it's OK to chant, roughly translated, "ass licker."

Nogales Superintendent Raul Bejarano was notified that night of the over-the-top trash talk and promised he'd look into it. But two of the parents he trusts reported the Nogales fans were simply saying "lero." Huh?

To his credit, Bejarano said he will continue to review the matter as well as instruct coaches, school officials and student fans that such trash "will not be tolerated."

We're sure the parents and their wonderful kids were using the opportunity to impress the Salpointe talent scouts.

We'll be in touch.

BESIDES, SHE'S TOO BUSY WITH HER SENSITIVITY TRAINING COURSE: It was the usual boring and predictable story about how supposedly inspiring and uplifting the Senior Olympics are. Then KOLD-TV, Channel 13's weekend news co-anchor Dan Marries turned to his partner in mediocrity, Valerie Cavasos, with the clever observation, "How come we didn't see you out there, Valerie?"

To which the quick-witted and sensitive anchorchick replied, "Come on! I'M NOT THAT OLD!!"

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