A Star Is Gone

When someone dies, everyone always says how wonderful and special the person was.

Sometimes it’s true. We feel the ache. We see the depth and unanimity of the community’s grief. Whether we focus on the devastating loss or on how lucky we were to have her with us, it hurts.

Karen Trujillo was a dedicated educator, highly competent and diligent, and she had a heart that never neglected the human side of whatever was going on. For two years her professional life was a roller-coaster. A teacher and NMSU administrator, she started 2018 as a newly-elected county commissioner; within weeks, she was appointed and unanimously confirmed as New Mexico’s Education Secretary, but within months she was back home just when the school district needed her, having fired its previous superintendent. She took that job just in time for a cyberattack followed by the pandemic. Everyone lauded her appointment, and her performance in an unprecedented situation was exemplary.

Her friend and co-worker Kelly Jameson, who called her “a consummate leader,” said Karen “never got to have what you would call a normal day. She navigated crisis after crisis after crisis, and handled it all flawlessly, with grace and bravery, and not once did I hear her shy away from anything without a solution.”

David Greenberg praised “her work ethic and passion for doing the right thing. She was constantly in motion, doing everything, totally engaged.” While Karen was still at NMSU, working on getting the federal “21stCentury Community Learning Center” grant for Las Cruces and Gadsden School Districts, she recognized that they could also do one for Hatch, and “sacrificed all her personal time for several weeks” to make that grant happen too because “she saw an opportunity to do something good for kids.”

Karen never lost sight of the goal, improving education any way possible; and no matter how tough it got she never lost sight of the feelings and needs of folks she worked with. Last June, an LCPS employee and her family were publicly insulted on Main Street with “We don’t want you N’s here!” At a responsive march the next Saturday, the victim said that Karen had unexpectedly “become like my second mother” during the intervening week, she was so concerned about the kids.” [see "Two Saturdays"]

At Friday’s press conference, you saw stuff you don’t see. Male friends and colleagues unable to speak because of their tears.

Ben Trujillo, Karen’s husband, said, “My sweet Karen will be missed. But know this, teachers, her administrative team, she loved what she did. And yeah sometimes it was really hard, really really hard. But as hard as she worked, I don’t think she felt she worked a day. It was her passion. And you guys need to know, she loved you guys.”

He went on to empathize with the young man who’d been driving the van. “I can’t imagine living with such a burden,” he said. “Accidents are accidents.” Not every man could utter those words, and so clearly mean them, less than 24 hours after suddenly losing the woman he’d loved and been loved by for decades.

The suddenness stunned everyone. One minute, you’re walking the dogs, the next . . . Friday most everyone was mumbling something akin to Dogen’s “At each moment, do not rely on tomorrow. Think of this day, and this day only, because the next moment is uncertain and unknown.”

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[The above column appeared this morning, Sunday, 28 February 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG’s website. A related radio commentary will air during the week on KRWG (90.7 FM) and KTAL-LP. (101.5 FM – http://www.lccommunityradio.org/), and is available on demand on KRWG’s site.]

[I sure hope no one took the opening lines of this column to suggest I don’t think every death matters. Each does, and being prominent or successful doesn’t signify. But Karen Trujillo was special, in her combination of purpose, extreme competence, untiring hard work, and heart. She cared for kids and the community in general, and repeatedly showed her deep concern for individuals, too. She also had deep roots in this community.

I didn’t know her well. We were acquaintances who saw things similarly and appreciated each other. At least, I appreciated her. She was always immediately available to talk with us on radio, even when she was too busy, and was always gracious and forthcoming. When the school district asked us to pitch in and do “play-by-play” during the pandemic-induced "Drive-by Celebrations" for graduates of the six local high schools, she was extremely helpful and then unduly grateful. Karen helped make it work, and helped make it a delight. I don’t know whose idea it was, but at that moment (and looking back), it seemed a brilliant effort to give the kids something memorable that may even have been more fun for many than the traditional graduation. (The couldn’t call it “graduation,” for some legal reason.) Karen made it happen. ]

[By the way, her family is establishing with NMSU a scholarship fund in her name to support aspiring teachers, according to a news release from the school district.  The fund will be administered by NMSU. In lieu of flowers, Trujillo’s husband encourages the community to contribute to the fund through secure online donations at https://advancing.nmsu.edu/givenow. After selecting the donation amount, contributors can choose ‘other’ in the dropdown menu and write-in “In memory of Dr. Karen Trujillo” to ensure contributions are deposited to her fund. Contributions are tax deductible. ]

 

Moonrise, 26 February 2021

A Voice for the New Mexico Civil Rights Act

We need a New Mexico Civil Rights Act because although we have many state constitutional rights, there’s no reliable way to enforce them. So said the New Mexico Civil Rights Commission, and the Legislature is working on it.

Say someone violates your right to free speech or worship. You can sue to make them stop; but if they aren’t forced to pay damages, suing may have little impact; and if there’s no attorney-fees provision, you’d better hope a well-funded nonprofit or an especially committed lawyer offers to represent you.

Our Inspection of Public Records and Whistleblower statutes work because judges must award attorney fees if you win. A lawyer who believes your case is righteous and winnable has some chance of getting paid; and the public entity may behave better and settle cases reasonably, to avoid big payouts.

The U.S. enacted a law (42 U.S.C. §1983) 140 years ago that allows suit on federal constitutional violations and recovery of damages. In the late 20^th Century, when Congress added an attorney fees provision, that statute became a powerful tool to right constitutional wrongs.

Unfortunately federal courts tacked on “qualified immunity,” which basically means you not only have to prove an official violated your rights, but that s/he did so in a way that another case previously acknowledged. That might be reasonable in the first case on whether wearing or burning a flag is protected speech; but courts have gone crazy. A cop in a home shoots at the family dog and hits a nearby child instead. Court dismissed the §1983 action because there hadn’t been a case of someone accidentally shooting a child while trying to shoot a dog. Given our Fourth Amendment protections, you’d think §1983 would apply to cops stealing $250K in rare coins during a search; but while the judge agreed it was bad conduct, he couldn’t find a previous case holding that stealing was an unreasonable search and seizure.

“If the law says that, the law is an ass,” in Mr. Bumble’s words. The Commission agreed, and recommended we not allow the qualified immunity defense here, although the vote was close. Cities, counties, and cop-shops screamed. It seems fair that if you’re going to lower the legal boom, officials should have a clue that what they’re doing violates constitutional rights; but the new law (or an amendment) could address that directly, and not so drastically. The issue doesn’t seem a valid objection to the entire law.

Other important considerations are whether or not to allow punitive damages (Commission voted “No,” 5-4); whether to cap compensatory damages (Commission didn’t, I wouldn’t, but a legislative committee added a $2,000 cap); and whether the individual government employees at fault should pay too (they won’t, so far).

My gut says officials who violate constitutional rights should pay, if their conduct is really bad; but cooler heads point out that hiring could get tough, if middle-class cops and others started worrying that an honest mistake could cost ‘em big bucks. The point is to have an impact on cities and counties, and improve training and supervision, not just to punish one person. (The Commission also recommended improving the Law Enforcement Academy’s training and enforcement.)

The House has signed on, 39-29. I hope the Senate will, too.

But all sides warn that the public shouldn’t expect this to be a panacea, effecting some sweeping reform of law enforcement.

Still, it’s progress.

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[The above column appeared this morning, Sunday, 21 February 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG’s website. A related radio commentary will air during the week on KRWG (90.7) and KTAL-LP. (101.5 – http://www.lccommunityradio.org/), and is available on demand on KRWG’s site.]

[ The Civil Rights Commission Report is available at on this state website, and is readable and not overlong. There are also Public Comments, which are illuminating in tat they illustrate that the basic need for the civil rights act is something folks of all political persuasions agree on. It’s one of the rare points of agreement between the Koch-ish Americans for Prosperity, say, and myself. I liked a couple of comments from noted defense attorney Gary Mitchell:

I do support a civil cause of action for violations of civil rights which does away with the doctrine of qualified immunity and allows attorney fees and costs to the prevailing party. The greatest denigration of the Federal Civil Rights Act is the doctrine of qualified immunity. New Mexico without doing away with it will face the same fate. Furthermore, why should be at this time, in this day and age continue to tolerate violations of the civil and constitutional rights of human beings. We can talk all way about police reform but I assure you if police had to pay for violations of civil rights reform would be quick and thorough.

Question 2:Do you believe allowing people to bring lawsuits to recover for violations of the New Mexico Constitution would improve how Government agencies and officials operate and/or the policies and procedures they create?

You bet it would and in a heartbeat. Ask yourself why we should continue to tolerate discrimination anywhere at anytime.

Question 3:If you are familiar with the doctrineof qualified immunity, do you believe qualified immunity should be a defense to a lawsuit for violations of the New Mexico Constitution?

Absolutely not. Qualified immunity in its simplest sense implies that police officers and government officials are so ignorant, so poorly educated, so steeped in improper conduct and methods we must give them an excuse-yet my preschool grandchildren know when they are doing something wrong to someone and when they are not treated someone equally. Surely we could and should expect greater knowledge than a four year has from police and government officials.

Question 4: Should government actors found liable for civil rights violations be indemnified in such actions by either their government employer or its insurers?

Yes, most certainly because that will make certain employers do their due diligence in hiring and having performance standards. ]

And prominent defense attorney Michael Stout’s comment on qualified immunity is short, sweet, and accurate:

Question 3:If you are familiar with the doctrine of qualified immunity, do you believe qualified immunity should be a defense to a lawsuit for violations of the New Mexico Constitution?

No. As I understand it, the initial concept of qualified immunity in federal law was well-intended to protect against abuses, but the exception has swallowed the rule resulting in the abuses of government actors escaping accountability .Government actors must be presumed to know the constitution; if an actor violates constitutional protections s/he should be held accountable ]

[NOTE: Last Sunday’s column discussed the widespread hope that the New Meixco Legislature would \rescind the old statute (unenforceable under Roe v. Wade) criminalizing abortion. Both houses having voted top do so, and the Governor favorable to the move, it seems to be happening. ]

Organ Mountains

 

 

 

Emotions Run Deep on Abortion - Including my Emotions!

I research and study most political issues, cogitate, seeking some reasonable conclusion. Some issues, my gut gets. Research and logic are secondary.

In 1968, a female relative (call her Mary) wanted to end a pregnancy. She was in college and not intending to marry her boyfriend. As abortions were still illegal in New York, she asked if I could help. I was seeing an older woman of 26, who’d had a pregnancy ended by a noted doctor who passionately believed abortion should be legal. She said the procedure was incredibly simple.

It was very cloak-and-dagger. Mary had to stand on a certain street in some New Jersey town, wearing a tan trench coat and holding a Paris Match Magazine. A car took her away, and eventually brought her back.

Unfortunately, an irregularity in Mary’s cervix meant that the doctor couldn’t complete the abortion, but gave her some medicine that would complete it within a few days. Mary was obviously unwell, but visiting a hospital wasn’t feasible under the circumstances. That weekend in my girlfriend’s apartment was miserable for everyone. With a less responsible physician, or without our help, Mary might have died. Many did, from back--alley abortions or attempts at home remedies.

I’ll spare you further details, but since then I’ve hoped not to see more young women suffer as Mary did, simply to end an unwanted pregnancy. Imprudent fornication shouldn’t be a capital crime.

Roe v Wade was decided in 1973. Now, the present Supreme Court may trample all over precedent and legal norms to toss out that decision, not because the Constitution has changed, but because of justices’ political and/or religious beliefs.

An old New Mexico law makes abortion a felony. Polls show that majorities of U.S. citizens and New Mexicans do not agree that all abortion should be illegal, although many think abortion should be restricted or illegal late in a pregnancy. I’ve talked with anti-abortion activists, and understand their passion on the subject; but I don’t care to see doctors and pregnant women (or girls) jailed for something that’s been legal longer than they’ve been alive. Nor should anyone have an experience like Mary’s, or die trying to do what a doctor can (usually) accomplish safely.

If the Supreme Court permits states to outlaw abortion, New Mexicans should decide then what, if anything, we want to do. Folks on all sides should be heard, doctors and psychologists should testify, and the Legislature should make the best and most informed decision possible. We should NOT revert automatically (perhaps instantly) to a law based on long-ago norms. It’s 2021.

I know some Christians wish passionately to prohibit everyone from having abortions. (Other Christians believe that women should decide such things with their doctors.) We all should be heard. It’s a tough issue. People on all sides have strong emotions supporting their views.

There are solid grounds for rescinding New Mexico’s law. Our Constitution discourages legislation based on Christian or Islamic or other religious teachings. It recognizes people’s rights to pursue happiness, and at least some “zone of privacy” with which the government can’t interfere. It does not recognize fetuses as persons.

It’s odd that many who strenuously oppose a woman’s choice in this matter also oppose contraception and are the least willing to expend government funds on poor or troubled children.

Urge legislators to let New Mexican women make 21^st Century choices.

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[The above column appeared this morning, Sunday, 14 February 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG’s website. A related radio commentary will air during the week on KRWG (90.7) and KTAL-LP. (101.5 – http://www.lccommunityradio.org/), and is available on demand on KRWG’s site.]

[One point about criminalizing abortion is that it’s another “criminal law” that disproportionately harms the poor. The wealthy will always get abortions. I remember a silent film from around 1914 in which a crusading district attorney arrests an abortionist, only to learn that his wife and many of her friends have availed themselves of the man’s services. Folks with plenty of money usually can avail themselves of safe and comfortable abortions, even when it’s illegal. Poor folks often lack not only the financial resources but the contacts to make such arrangements – or, say, travel to Mexico. As with medical services generally, they get the less safe and sanitary situations, or none at all.]

[I do feel a little wrong in commenting at all. Men should not telling women what to do, and I am a man; but I’m also not telling anyone what to do in his or her personal life. I’m arguing that whatever you or I might think ab out abortion, even if we believe our God loathes the practiced, that is not a solid basis for a criminal law; and, of course, I’m arguing here that whatever law New Mexico would make in 2021 or 2022, if the Supreme Court tosses Roe v. Wade on the ash-heap, the state should make in the 21^st Century, not revive from more than a half-century ago. 

New Mexico’s first law prohibiting abortions was passed in 1907, and then amended in 1969. Under the old law, it is a fourth-degree felony to perform an abortion, and a second-degree felony if the woman dies during the procedure. There are exceptions for rape, birth defects and to protect the health of the mother, but all abortions must be approved in writing by a hospital board.]                                                                                 

[I have some lingering hope that these folks on the U.S. Supreme Court will not do away with Roe v. Wade, although they will at least weaken it with a thousand more cuts. I know what they’ve said and written, but I can’t rule out the possibility that in office some respect for law, and the process they’re supposed to be a part of, will deter them. But I ain’t bettin’ on that.]

 

Health Security for All New Mexicans?

Many New Mexicans say it’s time for a New Mexico Health Security Plan. I agree.

This Legislature should pass the Health Security Planning and Design legislation (HB203), to establish an approximately four-year, publicly accountable, transparent process to design that plan. Health Security is backed by a huge coalition of groups, including the Hispanic Farmers and Ranchers. Las Cruces, Anthony, and Doña Ana County support it. (There’s no real opposition except big insurance companies.) Three studies have concluded that creating our own health plan will be a great investment, through which we can confront problems of rising healthcare costs and a large uninsured population.

New Mexico’s Health Security Plan would insure almost all residents. (Federal retirees and military folks would continue with their federal plans, and ERISA-covered health plans could merge with the Plan or not.) Plan members would have guaranteed access to comprehensive, quality healthcare coverage, regardless of income, health, or employment. The Plan guarantees choice of provider, even across state lines, and is at least as good a benefit package as state employees receive. Hospitals and physicians would remain private.

The Plan would be run by an independent, non-governmental 15-member Health Security Plan Commission, with ten commissioners from around the state representing consumers and employers, and five representing providers and health facilities. The Open Meetings Act and Inspection of Public Records Act would apply, but patient confidentiality would be protected.

HB203 continues a carefully considered approach. It creates the Health Security Planning and Design Board to do the detailed design of the Plan, and pass that on on to the Commission. The Commission will complete the final design elements, have a cost analysis conducted, and develop a funding system, before obtaining final legislative and executive approval to begin enrollment. The Plan could begin operations in 2025.

Rather than all paying for a segmented system of hundreds of insurance plans, at greater cost and with greater complexity, everyone would be in one large pool, sharing the risk and reducing administrative costs. Public and private dollars would go into one fund, including federal and state healthcare money, Affordable Care Act federal subsidies, plus individual premiums and employer contributions (with caps). Employers could cover all or part of an employee’s premium obligations.

The Plan, like Medicare, makes private insurance supplemental. As with Canada’s excellent system, private companies participate, and make profits, but don’t run the system. Nor should they. (They sure don’t in most well-run countries.)

The Affordable Care Act provides for “State Innovation Waivers” that let states develop alternative health coverage systems that need not rely on the complex private insurance system. States are eligible for federal tax credits, subsidies, and Medicaid expansion funds.

A friend says, “It’s too big for New Mexico.” But it isn’t. As mentioned, we don’t move forward unless the detailed design satisfies both the Legislature and the Governor. That’s a limited investment for a possibly huge payoff. Meanwhile, millionaire CEOs of insurance companies get richer off our timidity.

Are we too small and too poor? Decades ago, Saskatchewan, Canada’s poorest province, enacted a healthcare plan that worked so well it ultimately became Canada’s national plan.

We have a similar opportunity to light the way. Please read up on HB203; and if you like it, tell your state legislators. Our county contains many poor and uninsured families, some with children. We owe it to them to at least make our best effort at this.

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[The above column appeared this morning, Sunday, 7 February 2021, in the Las Cruces Sun-News, as well as on the newspaper's website and KRWG’s website. A related radio commentary will air during the week on KRWG (90.7) and KTAL-LP. (101.5 – http://www.lccommunityradio.org/), and is available on demand on KRWG’s site.]

[To read more about the Health Security Act, and where it stands in the Legislature, go to http://www.nmhealthsecurity.org/ , the Health Security Campaign’s website, or check HB 203’s progress at http://www.nmlegis.gov/. To get involved, email dsmillen@msn.com. We discussed this recently on “Speak Up, Las Cruces!” (http://www.lccommunityradio.org/). I didn’t find much opposition to this bill, but would be interested in hearing from any group that strongly opposes it. I’d be interested in why, and possibly in discussing it further on the radio show.]

[To me, it seems worth trying. Given the extra money that goes into the administrative costs of so many insurers and the costs and headaches for doctors and other health providers of doing the paperwork for different entities, plus the excessive profits, plus the economies of buying in bulk, the concept seems promising. The need is obvious, with so many uninsured families in New Mexico, many of them poor. Unless someone shows us why it won’t work, why wouldn’t we try? Habit, timidity, and the lobbying of insurance companies aren’t adequate reasons to hang back.]

The road to Cuevas

 

Could We Recall Rep. Herrell? No.

As I was writing my most recent Sun-News column and Las Cruces city councilors were placing on Monday's agenda a resolution condemning the recent misconduct of Yvette Herrell, a friend was inquiring of the Progressive Voter Alliance whether or not voters could recall Rep. Herrell.

For better or for worse, no!

The U.S. Constitution contains no recall mechanism, and no senator or congressperson has ever been recalled by the electorate.  The Constitution's framers did debate the idea.  Maryland's Luther Martin advocated a recall provision, and certain states tried and failed to amend the constitution to add such a provision.  (Most recall provisions in state constitutions were probably implemented in the Progressive Era around 1900 to 1914.)

In 1992, Arkansas voters relied on the 10th Amendment statement that "The powers not delegated to the United States . . nor prohibited . . . are reserved to the States, respectively, or to the people," in amending their state constitution to provide for states to the terms of Congresspersons and Senators.  However, the U.S. Supreme Court held the amendments unconstitutional, writing that in our complex federal system, "Once the representatives chosen by the people of each State assemble in Congress, they form a national body and are beyond the control of the individual States until the next election."

However, individual chambers can expel members by way of expulsion, but that required a two-thirds majority.  There have been only 20 cases of expulsion in the history of the United States.  Expulsion has been used to punish members who have committed a serious crime, abused their power, or been "disloyal" to the U.S. 

New Mexico is not even among the 19 states in which the voters can recall state elected officials, as had been done on occasion in California.  (We are among 39 states that have provisions for recalling local officials.)

I share my friend's concern over Ms. Herrell's abysmal start as a Congresswoman.  However, having witnessed the abuse of the recall at the local level a few years ago, I suppose I have mixed feelings about this issue.  It's already problematic that the two-year Congressional term is so completely about politics rather than government.  Interfering with possibly trivial recall procedures could exacerbate that.  

New Mexicans could petition Congress urging expulsion of Ms. Herrell; but my wild guess is that success would be extremely unlikely.  Petitions take a lot of hard work; and the Democrats in the House, after impeaching Trump again (as, of course, he deserved) and trying to deal with Marjorie Taylor Greene (probably by stripping her of committee assignments, probably with some Republican cooperation) will not be excited about a similar effort, particularly because it would appear unduly partisan.  It seems likely, if she keeps to her current course, that Ms. Herrell will undermine her own viability as a candidate for re-election in 2022: she won't have Trump coattails, will have shown a lot of independents and moderate Democrats her true colors; and the district could be redrawn a little more equitably.   As things look now, fanatical loyalty to Mr. Trump will not age that well, even with many Republican voters.