Sunday, May 29, 2016

With Respect, I Dissent on End-of-Life Rights

I like and respect Bishop Oscar Cantú, but his recent column on end-of-life laws deserves a strong response.

Any religious group may view this issue as it chooses; but none has the right to dictate to me whether I can end my life if an incurable disease is causing me deep pain or discomfort the doctors cannot relieve.

It's my body. You may believe that yours belongs to God. Fine. Mine belongs to me and my wife. If it imprisons me in a world of pain, incurable by medical science, I should be allowed to leave it if I so desire. 
Bishop Cantú makes two major points: 
“First, legalizing assisted suicide would allow an undue and tragic pressure to enter the equation for families dealing with a terminally ill patient.”

This objection – a very reasonable concern to which Amsterdam and other jurisdictions have found reasonable solutions – does not justify keeping me imprisoned in misery. A more compassionate law could allow me the option, but require a doctor or two to certify both my sanity and my condition. The worry that families will pressure dying parents to commit suicide to stop the financial bleeding is real; but those who would do that could do it now, without legal sanction. If greed outweighs ethics and familial love, it will override the law in a nanosecond. So keeping suicide illegal could might prevent a truly incapacitated person from killing himself or herself, but would not prevent a malicious son or daughter from pushing a parent into suicide and providing the means.

The Bishop writes, “Secondly, New Mexico already has a tragically high rate of suicides. . . . I can see a very easy jump in logic from legalization of suicide for a terminally ill cancer patient to a young person suffering from clinical depression, or someone who has suffered the tragic loss of a loved one.”

I can't see that jump. Again, people whose hearts are bent on suicide will manage it. That's particularly true for physically healthy young people, capable of methods not easily available to a bed-ridden cancer or ALS patient. Laws won't stop 'em; and as to helping them, that would still be illegal under any reasonable law. Suicidal young folks don't care what the law is. Can you see a large contingent of high school kids occupying the lobby of the Roundhouse to press for a law that would allow them to kill themselves if they get sad?

Bishop Cantú's His claim that the Church's position is based on human experience and the wisdom developed therefrom is unconvincing. Like the Church's position on birth control (which the inventor of birth control, himself a Catholic, wrongly assumed would be favorable) it is a determination by unmarried old men that their God would or should oppose it. (It's hard to imagine Jesus, as I imagine him, standing by the bedside of a still conscious but absolutely miserable dying person and insisting s/he spend extra days or weeks in misery, because church rules require it. Of course, Jesus would miraculously cure the person; but most of his servants, even the most dedicated ones, haven't that power.) 
Stripped of religious considerations, why shouldn't an incurably sick person have the right to end a miserable life that can't improve? Doesn't hurt anyone else. Doesn't cost the public money. Doesn't pollute our environment. 
Each state should carefully craft a law that allows people in such dire straits to help themselves exit, with expert help, creating effective safeguards against abuse of that power. Someone you love may desperately need that law.
[This column appeared in the Las Cruces Sun-News this morning, 28 May, and is also up on KRWG-TV's website.  I invite comments, questions, and criticism.]

[The part about liking and respecting Bishop Cantú deserves emphasis.  I don't know him well.  He was a guest on my radio show soon after he was posted here, and I liked him immediately and respected him.  He gave answers that were thoughtful, human, and real.  He seemed a caring, capable person.  Yeah, I disagree with his Church's position on some issues; but he seems a good man, and I have not found all clerics (Catholic, Muslim, Protestant, Buddhist) to deserve that simple label.
[But both belief and intense personal experience have given me a strong opinion on this matter.]

[The New Mexico Supreme Court may soon decide this question for us, in a case called Morris v. Brandenburg.  In that case, a district court held that prohibiting a physician from assisting a person with a severe, incurable situation who wanted to expedite his or her death violated a fundamental liberty interest of the patient.  The New Mexico Court of Appeals reversed, writing:
A New Mexico statute makes “assisting suicide” a fourth degree felony and defines the proscribed conduct as “deliberately aiding another in the taking of his own life.” NMSA 1978, § 30-2-4 (1963). The question presented is whether this statute may constitutionally be applied to criminalize a willing physician’s act of providing a lethal dose of a prescribed medication at the request of a mentally competent, terminally ill patient who wishes a peaceful end of life (aid in dying) as an alternative to one potentially marked by suffering, pain, and/or the loss of autonomy and dignity. The district court concluded that Section 30-2-4 is invalid under two provisions of the New Mexico Constitution as applied to any physician who provides aid in dying to a patient. In reaching its conclusion, the district court determined that aid in dying is a fundamental liberty interest and that the State did not meet its burden to prove that Section 30-2-4 met a strict scrutiny standard of review. We conclude that aid in dying is not a fundamental liberty interest under the New Mexico Constitution. Accordingly, we reverse the district court’s order permanently enjoining the State from enforcing Section 30-2-4. In addition, we affirm the district court’s determination that, for statutory construction purposes, Section 30-2-4 prohibits aid in dying. Finally, I would also remand to the district court for further proceedings regarding the remaining aid in dying claims raised by Plaintiffs, including the entry of findings and conclusions concerning whether Section 30-2-4 meets the intermediate standard of review required for important individual liberty interests under the New Mexico Constitution and/or whether it passes a rational basis standard of review as applied to aid in dying.

With such cases, if a state action violates a fundamental liberty interest, the state has to have an extremely good reason.  Where it violates an individual interest that is important but not "fundamental", it still needs to be furthering an important state interest.  Thus the "intermediate" standard of review.  
However: one of the three judges dissented.  Judge Linda M. Vanzi wrote:

our judicial obligation is to give effect to the liberty interests of all New Mexicans in accordance with the guarantees of our Constitution. . . . I would hold that the New Mexico Constitution protects aid in dying as a liberty interest subject to heightened scrutiny. While it is impossible for me to conclude that governmental infringement of the right to aid in dying could be justified by any lesser interest than that required for constitutional rights previously recognized as “fundamental,” the required level of scrutiny need not be determined in this case. For the State concedes that mentally competent, terminally ill citizens have a fundamental right to decide for themselves when and how to end their lives, and it provides no acceptable justification for denying them the only means available to effectuate that right in a peaceful and dignified manner—a lethal dosage of medication prescribed by a willing physician acting in accordance with the established standard of care for aid in dying. It is beyond dispute that the suffering of these citizens “is too intimate and personal for the State to insist, without more, upon its own vision . . . , however dominant that vision has been in the course of our history and our culture.” Casey, 505 U.S. at 852.

I'm hopeful that the New Mexico Supreme Court, which heard oral argument in October 2015, will reverse the Court of Appeals.  I think it should do so.  If you read the words and think a moment, only the right to live could be a more fundamental personal right to an individual than the right to end life under such circumstances; but as the U.S. Supreme Court noted in 1997 in Washington v. Glucksberg, hundreds of years of western laws and rule disapproving suicide undermine the argument that it's a fundamental liberty interest.  Further, as Judge Vanzi noted, the NM Cout of Appeals opinion said it was legal for patients to stockpile medicine and end their lives -- they just can't have any assistance from a physician!   Ideally, our Legislature would act on this. 
Even under federal Constitutional law, Washington v. Glucksberg is not the final word, as the U.S. Supreme Court, in deciding Washington's statute on assisting suicide was not invalid on its face, specifically did not reach the precise question here.  As the NM Court of Appeals opinion noted:

Five Justices wrote separately, reserving the possibility that the Court might recognize a constitutional right to “physician-assisted suicide” in certain circumstances, while relying on different grounds and different reasoning. Justice Stevens concurred in the result, explaining that all of the patient plaintiffs had died during the litigation and that the majority opinion held that “Washington’s statute prohibiting assisted suicide is not invalid ‘on its face[.]’ ” Id. at 739 (Stevens, J., concurring). Justice O’Connor joined the majority opinion “because [she] agree[d] that there is no generalized right to ‘commit suicide[,]’ ” stating that there was no need to reach “the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death” in the context of what she characterized as the facial challenges presented in Glucksberg and the related case, Vacco v. Quill, 521 U.S. 793 (1997).11 Glucksberg, 521 U.S. at 736 (O’Connor, J., concurring). Justice Ginsburg concurred “substantially for the reasons stated by Justice O’Connor.” Id. at 789 (Ginsburg, J., concurring). Justice Breyer also joined Justice O’Connor’s opinion, “except insofar as it joins the majority[,]” writing separately to say that our legal tradition might protect a "right to die with dignity,” at the core of which “would lie personal control over the manner of death, professional medical assistance, and the avoidance of unnecessary and severe physical suffering—combined[,]” and to emphasize that terminally ill patients experiencing “severe physical pain” might have a constitutionally protected interest. Id. at 789-91 (Breyer, J., concurring) (internal quotation marks omitted). Taking a completely different approach, Justice Souter stated that “the importance of the individual interest here, as within that class of ‘certain interests’ demanding careful scrutiny of the State’s contrary claim, cannot be gainsaid[,]” but did not reach the question whether “that interest might in some circumstances, or at some time, be seen as ‘fundamental’ to the degree entitled to prevail” because he was “satisfied that the State’s interests . . . [we]re sufficiently serious to defeat the present claim that its law is arbitrary or purposeless.” Id. at 782 (Souter, J., concurring) (citation omitted).

So this issue may find resolution in the state or federal court system and/or the Legislature.  My guess is that the New Mexico Supreme Court will agree with Judge Nash, not the Court of Appeals; but in New Mexico, a decision on either side will likely be controversial.]

Saturday, May 28, 2016

Farmers' Market, 28 May 2016

just a quick post, few words, images from main street, closed for farmers' market.  BUT if your photo is here and either you'd like a copy or you'd like the image removed for any reason, please let me know immediately and i'll comply.  add a comment to the blog and/or if we don't know each other please email me: the address is my name, petergoodman, backwards, at -- that is n, a, m, etc.  almost like a Tibetan-sounding name, namdoog retep, except with no space between.  (I'm not writing the email address out in normal fashion to avoid 'bots recording it for scam artists or folks who send out junk email.)
great market, by the way: usual great breakfast at Bakehouse, good conversations with several close friends, a really refreshing massage, good music, and some good food to take home, despite the way recent hailstorm ravaged local gardens.  yet also deep sadness, missing one wonderful presence who won't ever be there again.
Anyway, . . .



Blue Eyes

Old Friend

Explaining It

Present and Future

Thursday, May 26, 2016

A few more images of our friends . . .

Two very different treatments of this hesperaloe, who was a little redder in the late afternoon light.  This year I'm going to collect their seeds and start a whole shitload of these suckers in the spring.  

The palo verde gets all splendid right about now, every year.  Bees seem to like it, too.

And I can't resist the Bird of Paradise blossoms: showy, almost over-the-top, but all over the place, too, always catching the light a little differently than they were a moment ago.

The desert willow reminds me of Klay Thompson, just doing his job, quieter than Draymond and not quite so obviously special as Stephen, but then you look up and realize he's performing beautifully, and consistently, in the background.   Guess these two treatments aren't that much different, though.  (Maybe I need to add in one that's more abstract.)  But the desert willow seems a vastly underrated tree for where we are.
This, maybe?

But eventually it's time to find a glass of wine and commune with the moon or something.  Or just watch the daylight fade, without really watching, letting the night sounds mix with memories and half-formed thoughts, or share a laugh.  It'll never be just this moment again, even if you take a photograph.

Sunday, May 22, 2016

Mark D'Antonio Should Continue as our District Attorney

In 2012, Democrat Mark D'Antonio beat District Attorney Amy Orlando, Susana Martinez's protegé

Martinez/Orlando mandated a scorched-earth policy: get rid of paperwork that might help D'Antonio and his people get oriented. D'Antonio invited everyone to reapply and hired all but one of those who did so; but Martinez people viewed staying as “disloyal.” Most top staff left. 

Four years later, James Dickens, a ten-year Martinez assistant, then Orlando's chief deputy, is challenging D'Antonio – in the Democratic Primary. In 2012, Dickens didn't apply to work under D'Antonio. He joined Republican Diana Martwick, 12th District DA, despite the long commute to Alamogordo. Dickens registered Democratic in 2013.

After winning a tough election against incumbent Orlando, D'Antonio brought serious and positive change. Do I agree with his every decision? No – but I'm not a prosecutor. 

Martinez/Orlando reportedly charged defendants with higher-level crimes than the facts warranted, knowing that lingering in jail facing those charges would soften up some defendants to plead to anything. (In 2015, the Court of Appeals overturned defendant Flores's conviction for letting his infant child die, because Martinez/Orlando had violated his Constitutional right to a speedy trial.)

A district attorney should aggressively prosecute crimes, particularly violent crimes, and should represent the community and victims' interests. But s/he also has a duty to justice. As one lawyer said, “D'Antonio was quoted the other day as saying 'people charged with crimes have rights.' I never heard that from Martinez or Orlando. And it's not a sign of weakness. It's a sign of respect for our system.”

That's a key difference. Respecting everyone's rights doesn't equate to “soft on crime.” Actually, it makes for better protection for the community. Trampling on defendants' rights means sometimes watching folks like Flores walk free. 

This race raises two interesting questions: what's Dickens doing in the Democratic primary? and has he committed a serious ethical violation?

He says he became a Democrat because on key issues Democrats, more than Republicans, are working toward the kind of world he wants for his children. (See my blog for details.) He sounds convincing.

But until last month all his campaign contributions were to Republicans, ranging from Martinez to 2014 sheriff candidate Craig Buckingham, and including several Martinez judicial appointees (all fellow former prosecutors under her). 

Would Dickens bring back Martinez-style handling of the office? One lawyer notes that while Dickens may have good instincts personally, the entire legal environment he's grown up in has been questionable: Martinez/Orlando, then the 12th District. A major campaign contributor is Matthew Gaddy - who gave Martinez big bucks both times she ran and helped fund the vicious attempt to recall three of our city councilors.

The ethics issue concerns Dickens's use or abuse of the electronic Case Management System. Attorneys are meant to use CMS for state business. Dickens looked into 48 Las Cruces cases during January-March, then told the Sun-News about it. The files contained confidential information. He used state resources for his own political purpose. D'Antonio, in a letter to Dickens's boss, called this “a serious ethical breach . . . potential criminal activity.” Dickens told me he could have had legitimate reasons for looking at some cases. (48 seems a lot.) He then asserted it was no big deal. 

Experienced neutrals are reluctant to comment, but one called the action “very unusual” and a New Mexico D.A. stated, “I can tell you I wouldn't do it.”

I like both men. Dickens is pleasant, and an experienced prosecutor, but I don't see that he would improve the office. I do see significant risks. I'll vote for D'Antonio.
[The column above appears in the Las Cruces Sun-News this morning, Sunday, 22 May, and will appear shortly on the KRWG-TV website under News --> Local Viewpoints.  I welcome comments, questions, and criticism here or on either of those sites.]
[On circumstances of Dickens's departure from 3rd J.D.: D'Antonio says he invited everyone to reapply.  Those who did reapply had no break in service.  Dickens says: (a) D'Antonio did not immediately make it known that people were welcome, (b) when that invitation was made, Dickens had already talked to the 12th District, and that (c) he wouldn't have been Chief Deputy under D'Antonio.   
D'Antonio says the top lawyers left en masse -- and that Dickens never spoke with him.  D'Antonio never said Dickens could not continue as Chief Deputy, because Dickens never asked, but D'Antonio concedes that the likelihood of Dickens being Chief Deputy was pretty limited.  He also says that knowing Dickens loathed his commute to Alamogordo, he reached out to him twice during the past four years to offer him a job. Once Dickens declined, once he didn't respond at all.
Who do I believe? D'ANTONIO.
First of all, the context: almost everyone close to Martinez left if he or she could afford to.  As D'Antonio puts it, "They were told that if they worked for me they'd be persona non grata, and that she'd get them jobs.  And she did."  She not only appointed many of her ex-prosecutors as judges, others suddenly got employed by entities where she had influence: CYFD, juvenile detention center, and friendly (Republican) DA's such as Martwick in the 12th.  (I've spoken to someone whom Martinez appointed to a judgeship but who later became a Democrat and worked for D'Antonio, and he told me he changed parties mostly because of conduct toward him by Republicans, though he wouldn't get specific.)  Interestingly, in 2013 Martinez judicial appointees Beverly Singleman and Richard Wellborn became Democrats, and Nelson Goodin (according to Wellborn, though Goodin denies it) thought seriously about switching parties.  That's the same year Dickens switched, but there may be no connection.
Secondly, Dickens's account doesn't sound real credible.  He had written a very negative letter about D'Antonio, and so might have special reason for concern; but if he'd had some interest in staying where he was (rather than undertaking a long daily commute!), wouldn't he have asked D'Antonio about his situation?  D'Antonio certainly hadn't told him he had to leave.  If I had a wife and two or three kids and a community and a church, I'd sure make a quick phone call to D'Antonio if I had the least interest in staying on.  So his account lacks credibility, and is almost internally inconsistent.  (He implied to me, but didn't actually state, that D'Antonio had told him he wouldn't be Chief Deputy; and one has to doubt that ceasing to be Chief Deputy was a deal-breaker, because in going to the 12th J.D. he didn't stay a Chief Deputy either.  He just had a longer commute and a Republican boss.)
Third, more context: reportedly Dickens and the ten others who left did not leave any transfer memos to help their replacements on cases, and had no consultation with attorneys who had to start fresh on old cases.  "They left us high and dry," D'Antonio recalls.  (This is supported by an email inadvertently left behind.)  To me (as a lawyer and as a taxpayer) that's not how things ought to have gone down.  (Dickens says he was careful to leave his case-files in good order.)]
[Anyway, the fact that Dickens made no inquiry, left immediately when all the others did, and went (as they did) somewhere Martinez had influence is pretty suggestive that he had no interest in working under Mr. D'Antonio.
Finally, I believe D'Antonio because although we have our differences and he ain't perfect, I don't think he's lied to me.]
[I do think that when I finally get around to reading the entire file, I'll agree with some of the DASO personnel that jailer Chris Barela should have been prosecuted.  My sense of the situation is that some of what Barela did that appears illegal was time-barred, so that D'Antonio could do nothing; and that other things he did that appear illegal didn't put money in his own pocket but passed county resources to others.  That has a lot less impact on a jury than lining his own pockets would have had, and a savvy prosecutor could reasonably conclude that a conviction in a jury trial would be unlikely.]
[At any rate: D'Antonio (who himself had been a Republican until not long before he ran) took on a hell of a tough challenge in 2012, and prevailed.  Thereafter he stuck to his principles despite some harassment from the Governor's Office.  He's been a good DA, although I think he can improve.  Why would citizens -- particularly Democrats -- want to toss him out for someone who may still be a Martinez loyalist?]
[I should also mention that Dickens is very convincing when he talks about why he switched parties.  While carefully avoiding criticism of Martinez, he discusses his personal learning curve about how important community mental health resources can be.  He also notes that the absolutist "We gotta get rid of all the illegals" view didn't suit him too well, because he knows (and has in his family) immigrants from other countries.  Similarly, the absolutist view articulated by the National Rifle Association troubles him.  He notes that everyone has the Constitutional right to bear arms, and says that's fine, but "there are some simple steps to limit" some of the unnecessary dangers that presents to the public.  He favors prudent steps to keep firearms out of the hands of people who aren't sane -- and he didn't see such steps as inconsistent with the 2nd Amendment.  Talking with him, I wished he was still here, working as a prosecutor under D'Antonio.  He had some good suggestions.  (However, he declined to discuss with me some of his views on social issues, and gave an excuse that didn't sound real valid to me.)  Dickens shouldn't be our next D.A.; but I wish Martinez/Orlando hadn't leaned on some capable and experienced prosecutors to refuse to work with D'Antonio.  D'Antonio's fresh approach and their experience and observations might have yielded an even better four years.]
[Sorry to have gone on at such length; but I've tried to be fair to everyone.]

Thursday, May 19, 2016

Desert Spring - Faux Toes

Our little patch of desert has been exploding with color, despite the spring winds.  Here are some recent images.  All but the first couple have been played with to make them resemble a painting or some other non-photographic medium.  We call those "Faux toes" -- the French word for false, and a goofy way of letting the name sound almost like "Photos."
Not all of the plants on this page are native to this locale, I confess. 

ocotillo blossom at sunset
Prickly Pear Cactus at Sunset
Prickly Pear Blossom

Easter in the Desert

Desert Colors -- Ocotillo & Bird of Paradise


Prickly Pear
BOP 8288-1

BOP 8288-2

Monday, May 16, 2016

Sheriff's First Amendment Lawsuit Bites the Dust -- as Predicted

Friday the 13th proved unlucky for Doña Ana County Sheriff Kiki Vigil, when the U.S. District dismissed in its entirety his “free speech” lawsuit against County Commissioners Billy Garrett and Wayne Hancock.

U.S. District Judge Kenneth Gonzales dismissed the suit on a Motion to Dismiss, which amounts to saying that even if he assumed the truth of everything the Sheriff alleged in his complaint, there was no viable lawsuit here.

A key issue was the Complaint's failure to allege a “clearly established” constitutional right.

Vigil had alleged that after he spoke up about various issues, the Commission retaliated by removing him from the dais at meetings and ordering an ethics investigation of him. He claimed that violated his constitutional right to free speech.

Unfortunately (as we wrote soon after this turkey of a lawsuit first gobbled its way into court) the defendants, as county officials, have qualified immunity, and the sheriff would have had to plead that a “well-established” constitutional right was violated. First Amendment free speech is well-established; but there's a significant question as to whether a county official can claim that right regarding exercise of speech related to his county duties. Neither the U.S. Supreme Court nor the 10th Circuit Court of Appeal has decided that issue. (New Mexico is in the 10th Circuit.) A very persuasive 3rd Circuit case had decided there was no such protection, while a 5th Circuit case had decided there was. Under those circumstances, no one could reasonably allege that the right was “well-established.”

Vigil had alleged four counts: (1) retaliation for exercise of free speech rights; (2) a request for an injunction against such retaliation; (3) punitive damages; and (4) a declaratory judgment under New Mexico law. The Court dismissed the first three, with prejudice (meaning they can't be re-filed) and declined to take federal jurisdiction over the state declaratory judgment issue.

As noted, on an early motion to dismiss, the court is required to accept as true “all well-pleaded allegations.” Even so, there was nothing here. For example, punitive damages are applied in connection with a substantive cause of action, but there's no independent count for punitive damages.
The Court also rejected Vigil's request to amend his complaint to add another claim and add County Manager Julia Brown and County Counsel Nelson Goodin as defendants.

The Court ruled that although Vigil had the right to amend, any amendment would be “futile” and could therefore be rejected immediately. 

Vigil sought to add further claims of retaliation as well as a claim that by refusing to pay for the Sheriff's private lawyer in a case brought against him by the County, the County and the New Mexico Association of Counties had violated his rights; but the court pointed out that “as Defendants Garrett and Hancock correctly observe, it is well-established that a party to a civil proceeding does not have a constitutional right to legal counsel. Accordingly the individual Defendants have not violated a constitutional right to access the courts.” Thus, the court said, allowing Vigil to add such a claim would be “futile.”

Whatever the merits of some of the political issues involved, this lawsuit was an obvious waste of time when filed. Fortunately for us taxpayers, District Judge Gonzales acted promptly and decisively to toss it out. 

Asked for comment, Commissioner Hancock said he was “immensely relieved,” adding: “It's just further evidence of how out of touch the Sheriff really is.” 

Sheriff Vigil is traveling out of state (and let me reiterate congratulations on his son's graduation from law school) and couldn't be reached immediately, but I've left messages for him.

As I wrote in my December 6 column "The Sheriff's Lawsuit is the Wrong Answer to some Serious Questions",Vigil's responsive lawsuit strikes me as nonsense.” Not only was the issue of a public officials right to constitutional free-speech protection up in the air, Vigil (who would have been laughed at by voters if he claimed getting removed from the dais had intimidated him from speaking up) alleged a pretty hypothetical sort of “damage.”

[This post is also up on the KRWG-TV website and will also appear on the Las Cruces Sun-News website today.  Note: the December 6 column  ("The Sheriff's Lawsuit Is the Wrong Answer to some Serious Questions".html) was my initial discussion of this lawsuit, and on January 16 (in conjunction with a January 17 column) I posted “"County Sheriff an Underdog in his Lawsuit against County Commissioners" predicting the 12(b)(6) dismissal.]

[Actually, it's probably worth mentioning that the federal lawsuit had other problems, which may or may not have contributed to the decision to dismiss with prejudice: first, changing the composition of the dais (which reportedly involved other independent non-commissioner elected county officials, not just Vigil) would be a pretty small "retaliation" even if Vigil could have proved it was retaliation; second, the sheriff was walking a thin line between alleging actual damage (that this small-time stuff scared him out of speaking his mind on important public matters, which it obviously hadn't and which would have demeaned him) and putting it all in hypothetical terms.  Finally, although the investigation of the sheriff seemed kind of dumb at the time, the commissioner-defendants might well have been able to show that it was required of them under the circumstances, which would have killed that as an alleged instance of retaliation.]

Sunday, May 15, 2016

Where's OUR Political Party?

What we're experiencing this year is a wave of righteous anger at the perversion of our democracy.

But let's focus on why we're angry, rather than on where that anger takes us. 

Yes, it takes us to fervid support of a 75 year-old socialist and a narcissistic reality-TV figure who'd be comical in any other context. (I don't equate them: Sanders has a clue, while Trump cares only about Trump.)

The secret to their appeal ain't a secret. Trump shouts, “I'm pissed off!” Most people are, and many flock to support him. Desperate, voters don't notice that the billionaire is acting angry and that if he truly were angry it wouldn't be for the same reasons we are. People who aren't racist or xenophobic ignore those qualities in him. Christians ignore his obvious misogyny and profanity – and even rationalize supporting him by saying that God is using Trump for His own good purposes. 

“At least he's getting everyone disturbed,” a local Tea Party leader remarked recently. Voters are screaming for an end to business-as-usual.

Our “democracy” has become more and more of an oligarchy in recent years. Inequality has risen steadily, as the wealthy have used their influence to make it that way. “Carried interest” loopholes, union-busting, “privatization” of public functions, extraordinarily low taxes on the wealthy, “free” trade agreements, corporate “incentives” and tax dodging, Citizens United, etc. It's a strong web woven without your welfare or mine in mind.

And the “program” is to widen the gap: still-lower taxes; a government too weak to defend us from price-fixing shenanigans; false advertising; unhealthy products and dangerous financial games approved by revolving-door watchdog agencies staffed by folks fresh from Wall Street or Big Pharma; and a steady combination of voting restrictions and gerrymandering to weaken our electoral voice. 

We feel the economic squeeze. But the oligarchy is adept at convincing us that its goals are ours. “Libertarianism” sounds great when it's about smoking dope, loving whom you please, owning guns, or belching and farting loudly, but what it really means is freeing the Kochs from those nagging penalties for dumping mercury in the water. 

Small government sounds like more money for each of us (and fewer speeding tickets), but it likely means less money, with corporations even more free to price-gouge, sell us worthless stuff, and poison us in myriad ways. 

The oligarchs are also great at convincing us that it's all the fault of welfare mothers and people with unconventional sexuality. While corporations rob us blind and feed us poisonous food and drugs, the news is full of bathroom wars. 

Both parties deserve blame. The Republicans represent rich folks and corporate ownership. The Democrats represent a managerial / bureaucratic / technocratic class that's also doing well. Neither represents the poor, or the average working-class schlump (of whatever color and faith) sitting in a favorite chair watching network TV and drinking Budweiser. 

Make no mistake: in our current situation, I see a real difference: Democrats will nominate better judges, be more open to folks who look or act differently, and even, when it's convenient, push for economic equality. Republicans will hew closer to the über-rich agenda. Democrats at least recognize a human component to climate-change. Environmental concerns used to be a bipartisan issue, but Republicans have declared all-out war against science.

In a more perfect world we'd have a party for us. Not a party for Big Oil and Big Pharma and McDonald's and Walmart. A party for us plain people who don't hate anyone or need to be filthy rich, but want a just and healthy world.

[The above column appeared this morning, Sunday, 15 May, in the Las Cruces Sun-News and will appear later this morning on the KRWG-TV website under News --> Local Viewpoints.  I invite comments and criticism at either or those sites, or here.]

[I kind of anticipate that this column will piss off a lot of local readers who frequently agree with me: there's a significant difference between the two parties, it's important to elect Democrats this year, so where's the appreciation for the Democratic Party?   Fair enough; but one needs to try to speak the truth, as one sees it, even to friends.  Perhaps particularly to friendsIt would be fair to ask why I assume Bernie Sanders won't be the Democratic nominee, and/or don't express more appreciation of him.  And I don't mean to lump him together with Donald Trump.   But I do mean to express empathy with folks who are tired of both parties.]

[A friend re-posted a Facebook message that “When a faithfully married black president who was the son of a single-mother, the first black editor of Harvard Law Review, and a professor of constitutional law is considered unintelligent, immoral, and anti-American by the right while a xenophobic, misogynistic, “serially philandering,” trust-fund kid who quotes from the National Enquirer, peddles conspiracy theories, routinely calls women ugly and fat, calls McCain a loser for having been a prisoner of war, and who has advocated torture and the bombing of women and children has captured the hearts of a majority of Republicans, this is white-supremacy, folks. Plain and simple.”
There's some merit in that: and in many ways I think the Obamas have been a breath of fresh air, serious and graceful people whose ambitions are mixed in with a healthier portion of good intentions and intelligence than we find in most recent presidents; but I also heard from folks pointing out that we've continued to fight wars in the Middle East, and assassinate people there, and the huge economic inequality has continued to increase during recent years.  Some folks who say "A plague on both your parties" aren't racist and aren't repeating what they heard on hate radio.
I never forget that my first vote for president was cast for Eldridge Cleaver.  The huge sores in the U.S. Government didn't seem to me small enough to be covered by the bandaid Hubert Humphrey seemed to be.  We got Nixon.  Years later, admittedly older, I thought a Gore Presidency would be sufficiently better than a Bush Presidency that my daughter's campaigning for Ralph Nader was unfortunate.  Now?  I sympathize with the desire to sit this one out, or vote Libertarian (although as noted above, the Libertarians, who once ran a Koch brother for national office, are not the answer: express your distaste for spending all our money on unnecessary foreign wars and corporate tax-breaks, and get a government that would diminish our protection from corporate malfeasance and appoint reactionary corporate pawns to the Supreme Court?), but race go to the polls to vote for the Democratic nominee against a Trump or a Cruz or a Ryan.  The differences between the Democrats and the Republicans are too significant for me to waste my vote protesting the definite imperfections of the Democratic Party.]

Sunday, May 8, 2016

Why We Need Wayne Hancock and Dr. David Garcia

Wayne Hancock is a dedicated and conscientious public servant, and voters should retain him as county commissioner.

We met recently at a small locally-owned coffeehouse. As Wayne went in to get his coffee, he spotted a couple of stray napkins blowing around on the patio. He bent over to pick them up, put them in the trash, then went in. 

He's that kind of guy. The opposite of pompous; and naturally inclined toward doing the right thing.
Hancock has tried to do right by Doña Ana County. He's proud the County's gone five straight years without a negative audit finding. He's proud they got a glass-recycling facility. 

The commission has also started a public transportation system for the south county. Rural folks, some old and/or poor, were missing medical appointments. (La Clinica Familia reports 60% no-shows outside the city.) Students were missing classes at DACC. 

Critics confuse this system, perhaps intentionally, with the larger one ($10 million annually in bonds) that voters rejected. This more modest program? El Paso Metropolitan Planning Organization recently chipped in $109,000, and the NM Department of Transportation $419,000. A $264,000 investment has met an obvious need – and brought in $528K. Ridership has increased steadily.

Anti-Hancock sound-offs, some basing their points on columns I've written criticizing the county administration, misunderstand (intentionally in some cases) the facts and the law. Mad at Hancock because you think Chris Barela broke the law? A few years ago, when I reported some of what I'd learned to enforcement authorities, Commissioner Hancock also reported what he knew. So he ain't in cover-up mode. He was concerned, as citizen and as commissioner. Mad that the county settled a lawsuit or took it to trial? Quite possibly the insurer (NM Association of Counties) made that decision. Not the commission.

I do question the conduct of some county officials. Some county employees say Julia Brown should fire Debra Weir, then resign. I'm not sure they're wrong; but commissioners may know things we don't. It may be that the commission, in moving more deliberately and carefully, is make a better decision, based on the whole picture. Their care and deliberation could help avoid a lawsuit if they ultimately fire Ms. Brown. Running this county is complex. Employees are a major consideration, but not the only one. 

In four years Hancock has learned a lot about the complex mechanism that is our county government, and he's sincerely trying to improve it. We'd lose that learning if he left the commission. Same with Dr. David Garcia. Dr. Garcia is almost painfully sincere in his concern that things be done right. They're intelligent, thoughtful men with gumption and good instincts. That's more important than whether we agree on every issue.

A new commissioner trying to deal with the administration would be at a disadvantage. Meanwhile, Sheriff Kiki Vigil (who has warred with Brown and opined that Dennis Montoya would be a better manager) is actively backing three candidates. If elected, those three (if beholden to Sheriff Vigil) could fire Brown and hire Dennis Montoya. While Dennis is a smart guy, that's not the right solution. (I've tried to reach Vigil for comment.)

The key decisions that face us are more significant and complex than the bickering between sheriff and county officials. Mr. Hancock has a better grasp of those than his challengers, and has the maturity and strength of character to stand up against interests who would seek to abuse our precious and limited resources. That's why retaining Hancock and Garcia matters.

When we finished talking, Wayne bussed our table before I could even lend a hand.
 [ The above column appeared in the Las Cruces Sun-News this morning, Sunday, 8 May, and on the newspaper's website.  It will also appear presently on the KRWG-TV website.  I welcome comments, questions, and criticisms here or on either of those websites.]

[One note on the transportation system: There was a proposal for a transportation system that would have required something like $10 million in annually.  Voters rejected that, and made clear they thought it was way too expensive for this county.  The commissioners listened.  They put in place a system that should help meet the need but cost a fraction of the initial amount the voters rejected.  However, I should clarify my discussion of this in the column.  Apparently the $264,000 is what's been spent to-date.  (As of the end of April.)  Which in turn has netted $528,000 in grants.  The overall cost for the year should be another $56-$64,000 per month, depending on fuel costs and other variables.  Eight months at $60K each would be $480,000 -- a hell of a lot less than $10 million, but more than $264K.  On the other hand, there's a reasonable likelihood of further grants, too.  Thus I didn't want someone to attack this column by noting that $264,000 isn't the cost for the whole year; but it seems likely the ultimate cost, after subtracting out what grants cover, will be minimal.  That sounds like good business to me.]
[On Vigil and Montoya: I want neither to be an alarmist nor to ignore this point.  I can't say how likely it is that a revamped commission would fire Brown and replace her with Montoya.  What we know (from Sheriff Vigil himself) is that he is walking the streets for candidates in three districts, and has threatened current commissioners that they'll be gone.   If his candidates win, his level of control over them is another unknown.  Further, his reported remark that Mr. Montoya would be a better county manager than Ms. Brown may have been offhand.  Still, it's troublesomeUnfortunately, he didn't call me back.  I'd have liked to include his side on this.] 

Sunday, May 1, 2016

More Fireworks between County and County Sheriff

Tuesday was a long, difficult day, and hard to write about.

A county-hired consultant reported to the commission on why the sheriff's office has adequate numbers of personnel. Then a long parade of DASO personnel passionately disagreed. Later, DASO top brass attacked the study at a press conference. 

Sheriff calls consultant a hatchet-man, County says consultant is the best in the business – and authored a Department of Justice staffing document the Sheriff had relied on earlier. Consultant says 12-hour shifts are better than 10, Sheriff cites a study showing 10 is better than 12; consultant says 20,000 calls per year, DASO says 100,000. 

Who's right? Ask me after I investigate further.

More important: what's going on in this long-running dispute? 

Sheriff's deputies are angry. No raises for years – while a county-hired consultant working with the human resources department recommended raises for HR employees. (The raiselessness arose partly from the deputies' union's decision to focus on other issues.) Watching officers young and old leave for better-paying law-enforcement jobs. Working with old equipment. Deputy Ken Roberts demonstrated Tuesday how deputies often have to hold a radio as high as possible to make it work. 

The county administration is frustrated. I like Kiki Vigil, but sometimes his manner magnifies problems. Yesterday he stood up and loudly called Commissioner Billy Garrett a liar. (I looked into it, and found no lying. As usual, there were two differing interpretations of an ambiguous situation. Both Billy's view and Kiki's were honest, I think.)

Recently, using an outside vendor to repair cars, Sheriff Vigil exceeded the approved $10,000, and even the $50,000 the county manager had authority to approve. The commission was asked to approve all this after the fact, and declined. A law-enforcement official who dislikes both sheriff and commissioners told me a while back that the sheriff exceeded other budgets; and a commissioner privately confirmed that.

The sheriff says he's walking the streets in support of challengers for commission seats. He may not realize that some voters find it intimidating that a man with a gun is visiting to tell them how to vote. What also isn't clear is which came first: did his frustration with the county government lead the Sheriff to seek change, or did political considerations lead him to make honest differences more vitriolic than they needed to be?

Tuesday, most DASO personnel spoke pretty angrily to the commission. Mostly, the commissioners took it, with good grace. 

Garrett gave a long, heartfelt response, and made some good points, including a 25% increase in DASO's budget; but I cringed at his reaction to criticism that commissioners haven't ridden along with deputies: “Maybe I should do it, for the optics. But our job is making policy here,” was a troubling answer, from an otherwise great commissioner. 

It was hard to watch DASO officers bash commissioners for an hour. I know good people on both sides. Under the previous sheriff, some bad things happened to these officers. A few talked to me, and I wrote about it, despite threats to them and to me. I respect and like those officers. I've also talked at length with the commissioners. I respect and like them. We're lucky to have them serving – even if we don't agree on every issue. 

I'm not on any side. I'm telling friends at DASO that certain commissioners are trying really hard to be excellent public servants, and are doing a lot of good. And I'm telling friends on the commission that many of those deputies were yelling from honest frustration, not mean-spiritedness. A ride-along could only enhance understanding.

 [The column above appeared in the Las Cruces Sun-News this morning, Sunday, 1 May, and on the Sun-News website, and will be up shortly on the KRWG-TV website as well.   ]

[Let me make one thing clear: based on the past few years, I'd vote for the re-election of Wayne Hancock or Dr. David Garcia if I lived in their districts.  I say that despite having criticized the county administration on certain issues, notably the sluggishness with which county manager appears to have dealt with personnel issues and the concern among some county employees that despite her initial promise she's become part of the problem.  First of all, that isn't the only issue facing the commission.  There are many others, some of them complex.  These two men have brought integrity and experience to the table and have tried to deal with issues fairly and with good judgment.  By and large, they've done well.  And I trust them both.  Once you get past the slogans and sound-bites, they're both working hard to represent us well.]

[I do hope to look further into the staffing issue.  And other issues involving the sheriff's office and the county administration.   On the staffing issue, factual disputes such as the number of calls annually, as well as continuing discussions such as whether 10-hour or 12-hour shifts are best, should be easy to look into.
I disagree with the sheriff's side that the county commission had no business looking into the staffing issue: the commission had budget oversight and an HR department, the sheriff has made serious allegations about staffing levels, and the commission had every right to look into that.
But I wish the two sides could have agreed on a consultant and cooperated.  Under the circumstances (an ongoing civil war between sheriff on the one side and county manager and HR director on the other) there was every danger that hiring Mr. Weiss would look like an attack in that political civil war.  The commission did try for some cooperation, inviting District Attorney Mark D'Antonio to broach the subject with Mr. Vigil, and there was some discussion, but it isn't completely clear why that never bore fruit.  (I think the sheriff should have cooperated anyway; but I understand the feeling that it was a put-up job.)    
Aspects of the report and its presentation by the consultant did feel a little like watching an expert witness on one side in a trial -- someone who knows the field, but is clearly testifying on behalf of one side in a dispute.  I'll follow up by trying to ask the consultant, but his discussion of 9-1-1 calls is an example: the law (and logic) requires investigation of calls on which someone immediately hangs up, and  he seemed to be suggesting there were ways to cut down on those.  He recounted a situation in another town where 10% of the 9-1-1 calls turned out to be from a single hotel where people were trying to dial 9 then an outside number; but in a town this size, I gotta think someone would have figured that out if it were happening here.]
[Personal note: soon after I moved here, someone beat up someone else in the house I'd lived in in California; with my California cell-phone, I quickly dialed 9-1-1 -- then realized that of course the cell-phone would connect me with the jurisdiction I was physically in, not the one in the cell-phone's area code; so I hung up quickly, or explained to the person who answered what had happened.  About ten minutes later a DASO deputy showed up.  When my wife explained, he still politely insisted on coming inside to where I was and talking directly to me.  Otherwise, how would he know we weren't being held at gunpoint?]