Sunday, October 27, 2013

Our Lawless Governments

New Mexico governments are on a rampage recently, trampling on laws and constitutional rights and causing sometimes unnecessary lawsuits.

Our Governor abruptly deep-sixed mental health providers; and now the City of Las Cruces is suing the State over the Gross Receipts Tax.

A bad bill rushed through the legislature at the 11th hour, unread by most legislators, cut cities' incomes but let them hike the GRT very slightly. Martinez allegedly warned cities not to exercise that right. Las Cruces did so. The State called the increase illegal because it didn't specify certain points – but the City doesn't see that requirement in writing.

Earlier, the State closed more than a dozen mental health providers, replacing them with an Arizona concern.

The State said an audit showed “credible allegations of fraud,” so that federal law required the State to impose the death penalty on all those companies, sans trial.

Actually, that law permitted the State to ignore the “requirement” in the public interest. Avoiding a disruptive change for patients, and keeping several New Mexico companies alive until proven guilty, would seem to qualify.

The State refused to show us the documents, in probable violation of state law, and got sued. Recently it released a little more of the audit. The auditors say they “did not find what we would consider to be credible allegations of fraud.”

No findings of fraud. No findings of “credible allegations of fraud.”

That the State had contacted the Arizona company months before the fatal audit even began adds to questions about whether Governor Martinez simply did what she wanted, for political reasons, without regard to law or fairness.

Maybe there was fraud. The State's behavior suggests not. While some Republican group paid a bunch of bucks for slick radio ads supporting the Governor's action, state officeholders refused opportunities to appear on the radio to articulate their defense, if any – and face questions. One agreed to participate in our radio program – then never answered further phone calls or participated

In July a jury found Dona Ana County had violated the law in firing Jorge Granados. The County was ordered to pay damages and attorney fees.

Now the County opposes Granados's lawyers request for fees. By statute, they get the fees – doubled. They took a gamble, working long unpaid hours for months or years to right a wrong, as they saw it; and the doubling could also deter further such wrongdoing.

The County objects that there were two lawyers – though we saw two in court for the County, and Raul Carrillo didn't do all the legal research and drafting for the defense.

Granados was turned down by all the Las Cruces lawyers he talked to. Then his El Paso lawyers won a case that the County lawyers thought had little chance. Questionably County motions that failed caused some of the legal fees; and the lawyers had to do all their trial preparation twice, because the County won a last-minute postponement from September 2012 to late June 2013.

The County's lawyers (and/or insurers) don't know when to hold 'em and when to fold 'em. (Ask Mr. Slevin.) They're appealing, against long odds. We or the insurers will likely end up paying two sets of lawyers to discuss these issues in the appellate courts.

One county attorney recently denied me a public record the NM Public Records Act clearly required him to show me. He claimed that a certain case supported him. I wasted time reading the case, discovering he was dead wrong, and writing a letter threatening suit. Then he backed down. In February, he startled everyone at a very long hearing by announcing in an odd, rambling way that he suddenly saw the case in a new way – at 3 a.m., after about nine hours.

More recently the same lawyer advised the Extraterritorial Zoning Authority (ETA) to deny two members of the public the right to speak during “Public Input.” We had a basic Constitutional right to do so. Generally, when a government opens an area to public speech, it can't outlaw speech based on content. The lawyer claimed that although we were going to discuss general issues, our statements might somehow be taken as improper ex parte communications about a zoning-change request that might be made at some future date.

But when public officials aren't too confident in their abilities, and suspect they'll screw up, they try to err in what seems the safest direction.

NMSU also doesn't respect free speech or the Constitution. It brought three criminal charges against a some-time student who attended a job fair open to the public and stood quietly out of anyone's path beside the NSA table with a sign suggesting “If you want to work for Big Brother, apply here.” The next day, another student lightly tossed a copy of George Orwell's 1984 onto the NSA table. That's a succinct political statement, but it ain't a crime.

More lawsuits waiting to happen, because of official arrogance, incompetence, or testosterone.

[The column above appeared in the Las Cruces Sun-News today, Sunday, 27 October.]

[One difficulty at 845 Motel Boulevard is that the place seems to be run by the lawyers.  More than once this year they've put the commissioners in a tough spot, because none of the commissioners are lawyers themselves and thus can't fully judge the advice they get -- or, if they suspect something's off-kilter, understandably have a tough time disobeying their lawyers.  Further, I have a strong feeling that as to a couple of commissioners the lawyers have either been involved in questionable action against them or have threatened them.  There are also rules -- put in place to keep commissioners from meddling in matters left to the county manager's discretion and judgment -- that hamstring those commissioners who might like to take action regarding the lawyers.   We can only hope that one retires soon and a new city manager doesn't promote from within to replace him.
With regard to the ETA incident: I'd like for it not to end up in court.  However, the initial response by the county offered no legal support for the county's position, but merely asserted that the county lawyer was right and we were wrong.  That's unfortunate, but further discussion might lead to a resolution.]

Sunday, October 13, 2013

D.C. and N.M.

We're witnessing a pretty sad spectacle in Washington.

At its center, John Boehner lacks two oft-mentioned parts of the male anatomy. He knows well enough that defaulting on national financial obligations will do us serious harm, possibly for a very long time. He has assured other moderate Republicans he won't let that happen. But he's frightened of the Koch Brothers and the Club for Growth and other extremists prepared to challenge him in his next Republican primary. He's seen several moderate Republicans purged from the Senate and House by their own party.

Many callers to “Speak Up, Las Cruces!” urge President Obama to compromise, delaying the Affordable Care Act for a year and/or making other concessions.

I don't agree.

We have to pay our debts. They are legal obligations, duly approved by Congress where necessary. If we fail ? Our credit rating declines, interest rates rise for all of us, markets fall, and around the world, where everyone's accustomed to say or think “sound as the dollar,” folks grow nervous.

Why isn't President Obama as responsible for this situation as Ted Cruz and the screamers?

Imagine you and I have a partnership or business. We've agreed on many things, the business is functioning with the usual ups and downs, and we have fixed obligations – mortgage on or rent for our office, loans to repay on our trucks and machinery, and maybe subcontractors to pay every month. We've agreed to these obligations. All checks must be co-signed by the two of us.

Suppose suddenly I tell you that I won't sign any more checks unless my share of the profits rises from 50% to 70%, we hire my son as Treasurer, and we switch from one subcontractor to another. Fair? No. Legal? Sure, until and unless you go through a lengthy legal process and succeed in court, by which time our business no longer exists and we've both paid too much to lawyers.

So I shout, “Why don't you negotiate?” as Tea Party folks shout to Obama.

If you do negotiate, you've just bought another such conflict next month, and each month thereafter when I want something.

It's not about Obamacare. That program will or won't succeed. It was approved by the government, it's being implemented, and opinions vary as to its probable level of success.

It's about maintaining some semblance of ability to function as a democracy.

There are orderly ways to decide whether or not to pass laws – or rescind them. There are legal but somewhat questionable tools like filibusters (which have been overused recently) and refusing to bring up matters for a vote. Moderate Republican Congressmen say that if Boehner had allowed a straight vote on keeping the government open, enough of them would have voted with Democrats to pass it. What the Far Right is doing is legal (although the 14th Amendment's prohibition against questioning the validity of the public debt might trump their cards), but unwise.

In the long run, such tactics:
    • quite possibly destroy the Republican Party;
    • harm the poor and middle class by increasing interest rates, delaying social security checks and other needed help, and pushing the economy back down into the gutter;
    • increase tenfold the uncertainty that tends to discourage business expansion or the starting of new businesses; and
    • add to the doubts most folks have that our democracy can actually continue much longer.
Doesn't matter to the Koch Brothers. If government can't function, it can't make or enforce environmental and other regulations they find annoying. Higher interest rates shouldn't bother them, since it's you and I who may have to borrow for our next home or vehicle. They won't.

They also don't live in New Mexico. Steve Pearce should think long and hard about the fact that New Mexico will pay more than its share of the bill for the havoc he and his pals are wreaking.

Las Cruces, more than most U.S. towns, has an economy in which the military, the federal judiciary, Homeland Security, Whites Sands National Monument, the BLM, and numerous other federal entities play a huge role. Las Cruces has a relatively high percentage of retired folks – many on military or other federal pensions, others on social securrity. New Mexico has more poor children who need the federal help they get. We're also on the border: whether you focus on the need for such protection as those folks in the green and white trucks offer or on the need for all of those southern New Mexico residents in the trucks to get paid, the border matters too.

Of course, it won't happen. I don't think there's a high enough percentage of crazy folks in Congress yet. There'll be a short-term extension to facilitate some face-saving “negotiation”, and maybe they'll toss the medical device tax off the tailgate of Obamacare.

It's already costing us money. (Note the higher discounts required on new Treasury Bonds due for payment after October 17, the pervasive uncertainty intimidating businesses, and the hit our local economy is taken from federal and tourist and other dollars not being spent.)

And perhaps some day, particularly if the right-wing can gerrymander a few more absolutely safe districts in a few more states and legislate clever new ways to minimize the voting turnout among poor people, we'll be in even more trouble.
[The column above appeared in the Las Cruces Sun-News today, Sunday, 13 October.
This morning I wonder if it isn't a little too optimistic.
I recall intending to add some further analysis of what's going on in Washington; but there's a light breeze across the desert, the grey hummingbird is giving a dance performance, yellow butterflies are exploring some pink and white blossoms, and the baby digging snake has narrowly escaped the cat's claws and hidden under a flower pot.]