Saturday, November 15, 2014

Some Thoughts on the 2014 Election

            In national politics, 2014 is “the year of magical thinking.”
            The Democratic Party's ideals match up better with the average person's.  Voters in four states upped the minimum wage and voters in Oregon and D.C. legalized pot.  These ain't Republican platform planks.  
            But Republicans captured the Senate, even though their plans weren't in the interest of most of us.
            First, for decades, whenever a president has reaches his sixth year with his party holding the Senate, his party loses the Senate.  It ain't just Obama.
            Second, Republicans blamed Obama for ebola, ISIS, gas prices, and the weather.  Meanwhile they projected that they could easily solve our problems, most of which do not have easy solutions. 
            The Republicans were aided and abetted by:
            The Supreme Court decision in Citizens United: Both parties, but particularly the Republicans, used a bundle of money, cleverly concealing its sources, on huge and mostly false attack ads within the final days, too late for meaningful defense by victims, or analysis by journalists.
            Short memories and poor analysis: When Bush deceptively dragged us into the Iraq War, it was obvious that Saddam had nothing to do with 9/11 and that attacking Iraq would create a bunch more terrorists clamoring for our scalps.   
             Although our underlying economic difficulties preceded him, Bush exacerbated our problems by supposing we could fight two wars while lowering taxes, and by doing nothing to address inequality;   Obama staved off Depression, got more people on health care with generally better policies, and  reached agreement with Republican leaders on a reasonable Immigration Bill that other Republicans then shot down.    
            Barack Obama: Obama isn't the Socialist Dictator the screamers scream he is; but he has distinct deficiencies as a president.   He's a much better orator than he is a manager;  he's less aggressive than I wish he were, particularly about articulating his accomplishments to the citizenry;  and he's a little too proud or particular to schmooze easily with donors or Senators he doesn't really feel like schmoozing with.  I doubt even Lyndon Johnson could have schmoozed and conned his way out of the Republican intransigence Obama faced right from the start; and Barack's no Lyndon.                                                                                                                                                                                                                                                                                                                                             
            Democrats could have campaigned on what they believed, and what Obama had accomplished.    Probably in some states the anti-Obama sentiment was so deep that trying to run from him made sense.  In most, it didn't.  A true low point was the Kentucky candidate for U.S. Senate refusing to admit she'd voted for Obama!  She looked like a weak, waffling idiot.  Everyone knew the answer.  The falsity rang clear.
            Racism: Although Republicans spoke of FDR almost as harshly as they do of Obama, I believe the fact that he's a black man (and “uppity,” light-skinned, and highly articulate) played a role in the depth of animosity he's inspired without actually doing anything very radical.  Race also played a role in his election: his color and his eloquence convinced voters he was a lot more of a change than he truly was.   Enhanced expectations meant greater disappointment.
            This should not be overstated: it's just a piece of the story; but it made demonizing him (to whites) a whole lot easier.   
             Mostly, The Republicans attacked Democrats wildly and offered us easy-sounding false solutions to everything.
             We have serious problems neither Bush nor Obama created.      
            The answers aren't easy.  Denying science, economics, and logic won't help.  Nor will claiming problems don't exist (climate change), are natural (rising economic inequality / people without healthcare), or have easy answers (immigration, Ebola, the Middle East, and the economy).   
            But “It's morning in America” still sounds great!
[The above column appeared today, Sunday, 16 November, in the Las Cruces Sun-News.]
[The concept of "racism" is worth an essay of its own.  When I was a kid, the term meant, more or less, "one who believes color is an important dividing line among people and that blacks and others are inferior to whites, and that keeping blacks in their place is an important, if not the most important, issue in any political discussion, decision, or campaign."  There were a lot of racists.  There were also a lot of people who were not racists (as the term was then defined) but who didn't feel like socializing with blacks, kind of felt they were either inferior or comical, but didn't think much about it and were sincerely courteous to the blacks, if any, they happened to meet.  To varying degrees, they were racists as we would now define that term.  In fact, I did not believe then that any of us, including myself, could be entirely free of racism. 
I'll post that essay later this week; but for now, let me mention that racism as we now define it includes folks for whom someone's blackness triggers thoughts of inferiority or is an impediment to friendship, or whatever, but also folks with the equally artificial concept that blacks they meet must be better than other folks.  Either way, the "racist" sees the race, and can't see through that to see the person clearly .  I know some folks saw Obama as somehow not a politician, but he certainly was.  Prescription for serious disappointment.  A friend says maybe some folks who didn't much like the idea of a black President voted for him to show themselves they weren't racist.  I don't know -- but that too was a prescription for minimal patience -- and perhaps an extra dollop of anger.
At any rate, I don't think it's right, in 2014, either to ignore race as a factor or to claim that it was the major one.]
[I'm no economist, but certain things are pretty clear from history:
1. Periodically a nation rises to the top with a new idea or new method of production or distribution.
2. Nations at the top are hampered in staying there by the need to police the world and protect their foreign interests, such as shipping lanes, colonies, and foreign markets.
3. A perfect storm (two destructive wars fought in Europe, the relative freedom of the U.S., the fact that we speak English, our vast natural resources, our distance from Europe  (so that our fields and factories didn't get bombed, or trampled by soldiers, and others) put the U.S. way on top.  The much-quoted fact that we were 6% of the world's population and controlled 60% of its wealth illustrates the situation.  What we did not necessarily understand was that our situation was abnormal, and could not be sustained forever.  We were never going to be a second- or third-rate country, but we were going to fall back to the pack, or have other nations' fortunes rise toward our level.  That process is not Bush's fault or Obama's, Reagan's or Clinton's.  
4. Great economic inequality is bad for a nation's productivity and economy.
5. Scientific consensus can be wrong, but we ignore science at our peril.  That authorities in Europe insisted the world was flat, or was the center of the universe (and killed folks for disagreeing) didn't make those beliefs "true.".  Evolution -- though we certainly have more to learn about how it works and perhaps some wrinkles we haven't spotted yet -- not only exists but is such a subtle and beautiful mechanism that any God should be proud to have  thought it up and put it in place.  Fossils and various discoveries that show the age of this planet is greater than 10,000 years will not dissipate because some Christian Churches don't agree or because some Indian creation theories are very different.
6. The best way to solve a problem, be it slavery, the Nazi threat to the world, the forces causing our declining international stature, climate change, or ebola, is usually not to ignore it or to stick our heads in the sand and pretend the threat is gone.  Usually facing it, learning what we can about it, and trying to identify actions we can take that are both effective and (economically, politically, and scientifically or logistically) feasible.
These seem to me pretty clear from history and science.  Many in U.S. politics deny some of them and haven't noticed others -- or pretend they know nothing to suit large contributors or conservative constituencies.  Sad.  They should be something more like leaders (as Jefferson and Franklin and Madison were) respecting our democratic control of the the country but shining light on areas of which we're ignorant They lack the vision, the insight, the objectivity, or perhaps just the guts.]

Sunday, November 2, 2014

Update: Minimum Wage Machinations in Las Cruces

I suppose I should be grateful that Mayor Ken Miyagashima engineered a compromise in which the City Council won't immediately eviscerate the petition-mandated ordinance it enacted to raise the minimum wage.

But I'm still troubled.

I'm troubled by a City Councilor who says she canceled her newspaper subscription when she got elected, so as not to be influenced. This attitude reminds me of certain religious proselytizers who used to stop and chat while I gardened. They frequently recommended books to me, but when I once recommended one to them, they replied, “Oh, no. We already know the truth.”

If I were a City Councilor I'd be interested in what others had to say, particularly others whose views I didn't generally share. I'd scan “Sound Off” daily.

I'm troubled by a City Councilor who takes very questionable positions and, when questioned, doesn't respond to the substance of the question but complains he's being threatened and cloaks himself in inspirational quotations.

Does it bother you that you're the major advocate for violating the City Charter to mute the minimum wage hike, when your wife's job is to lobby government officials for the Restaurant Association, which desperately wants to keep the minimum wage down? 
“George Washington said, 'It's better to be alone than in bad company.'”

I think the councilor drew the distinction that his wife lobbied state legislators – and presumably had nothing to do with her employer's op-ed against the minimum wage hike here. Then it surfaced that his wife had been leading a petition drive in Albuquerque regarding tipped wages. So maybe municipalities are part of her job description.

“My only regret is that I have only one life to lose for my country.” (No, he didn't say that. Yet.) I still think he's sincere, though misguided. In his place I'd have a hard time maintaining objectivity, though from uxoriousness, not financial interest. I'd also recognize that voting on a healthy-food issue would undermine public trust.

It troubles me that when a councilor asked if the council might get sued for violating the City Charter, the City Attorney blandly assured him “No.”

Charter says “If there are enough petition signatures, enact the ordinance unchanged or let the people vote.” Councilors, acknowledging a popular majority would vote “Yes”, enacted the ordinance – while laughing up their sleeves about eviscerating it next week.

That Charter language sounds pretty mandatory. But it doesn't say explicitly that we can't immediately repeal the ordinance the people lawfully ordered us to enact.

But does the Charter provision mean anything? It's a way people can bring something to the Council's attention so the Council can use its discretion.

Gathering thousands of signatures seems excessive, for just that. And why does the Charter provision start, “The people shall have the power . . .”?

Arguing the City's position in court might work. Might. But the City Attorney dismisses casually the possibility that a neutral judge might notice how completely the City's action violated the spirit and intent of the Charter, note that even while enacting it the councilors were giggling about repealing, and order some remedy.

Do we want that kind of legal advice for Las Cruces, the kind that ignores serious risk to tell the majority what it wants to hear?

Does Las Cruces want that kind of publicity? A dozen minimum-wage workers suing a council that's playing tricks on its citizens and trying to slither through a possible loophole?

I am grateful to Miyagashima that we may not have to test conflicting legal views in the courts.
But in the long run, he did the anti-$10.10 camp the best favor it could have asked for.

[The column above appeared in the Las Cruces Sun-News today, Sunday, 2 November.]
[After I'd written this column, I finally managed to speak with City Attorney Pete Connelly.  The conversation was courteous on both sides, but distinctly unilluminating.  I noted I'd heard him answer "No" to the question about whether the City would get sued for violating the City Charter if the counselor's eviscerated the ordinance.  He confirmed that his view was that the Council had the authority to repeal the ordinance.  I asked him what, if that were so, the City Charter provision meant.  He said the City Charter was very clear that the petition-mandated activity was finished once the council enacted the ordinance, leaving the Council free to do as it wished.  I noted that gathering signatures, etc., was a lot of work, and asked whether he supposed anyone would put the provision in the Charter and not intend that the ordinance survive more than a few days.  (I referred to "getting six million signatures, and he got kind of stuck on that, repeating it two or three times in a questioning tone, so I changed my phrasing to "a bunch of signatures" or something, but I still didn't get a meaningful answer.) He told me he hadn't written the Charter.  I told him I disagreed, and thought the City would likely have gotten sued if it immediately repealed the ordinance -- and that the case would be an interesting one, not the slam-dunk for the city that he purported to believe it would be; and I asked him to imagine I argued that the charter provision would be rendered meaningless by his interpretation, and asked what he'd say on the subject if pressed by a judge.  He reiterated that in his view the City Council had the authority to repeal the ordinance if it wanted to.  Recognizing the futility of further questioning, I urged him to have a nice day, and he reciprocated.
Don't assume he hasn't anything to say.  He may be playing it close to the vest, in case the council does end up eviscerating the ordinance and  someone does sue.  He may just not like me very much, a feeling I suspect is growing common in city government just about now.  He may have been in a hurry to go home, as it was nearly 5.  He may think I might end up as a lawyer adverse to the City in this mess. Or he may realize he doesn't have a very good argument on that point.  
His view would ignore the spirit and clear intent of the Charter provision.  It would render the procedure outlined by the Charter meaningless, a nullity.
He could still argue that even so a court should not act to do justice, because of practicalities and because the minimum wage issue is political.]
[The work session on 27 October was interesting.   The councilors made a spirited defense of themselves against charges they had conspired.  I don't know that they did conspire.  I've tried to avoid making unwarranted accusations.  But they just don't get the part about a breach of the people's trust.  I'd love to hear one of them explain coherently why they have the right to ignore the intent of the City Charter.  Their legal argument is based on the apparent fact that no one thought to explicitly state the obvious.  That could win or lose in court.  But their argument that immediately repealing or eviscerating the ordinance would reasonably strike most citizens ad a breach of trust?  I haven't heard much argument, except that they were elected to use their discretion -- which is exactly what the City Charter forbade them to do in this situation.]

Wednesday, October 29, 2014

Allen Weh Is Way out of Line

The time-worn phrase “Patriotism is the last refuge of scoundrels” might be Allen Weh's motto.

This post concerns Weh's dishonest and despicable mailer attacking Tom Udall's patriotism.

Ironically, I received the mailer from a friend I had coffee with Tuesday. He had served in Viet Nam. He was wearing a cap that read, “I'm a Vietnam veteran – and proud of it.” He handed me the mailer, in which Weh touts his 38 years in the Marine Corps and questions Udall's patriotism. My friend wondered whether Weh crossed his fingers when he swore to uphold the Constitution, since Weh's mailer suggests he doesn't believe in the free speech portion of that document.  .

Nothing wrong with serving in the Marines. (My Marine father flew bombers in the Pacific during World War II.) Nothing wrong with bragging about it. But.

Udall not only serves in the Senate but comes from a long line of Udalls serving the country and the Southwest effectively. I'm see no basis for attacking his patriotism, and Weh offers none – except that “Tom Udall protested the war in Southeast Asia.”

Writing off the substantial number of people who rightly opposed that War shows Weh is unqualified to lead among civilians.

The Viet Nam War was wrong. It was immoral and against the interest of the U.S.

That surprised me when I was 19, just back from civil rights work in the South. I read everything in English regarding Viet Nam, and concluded the war was wrong – just as many U.S. leaders were concluding it was just plain dumb, though they continued to tell us how well it was going. Many who fought in the War later concluded the War was wrong and stupid. I think even Jim Harbison, who read a lot of the same books I did while he was already in uniform and headed for 'Nam, would agree the War was wrong, though he's proud of his service and remains loyal to his military comrades.

A recent high school reunion reminded me of those days. I met again some people who'd almost “unfriended” me over my civil rights and antiwar advocacy. Once I almost got beat up by guys on my own softball team for complaining when one of them said “Nigger” just because a black man had entered the bar to buy cigarettes. At the reunion, a couple of friends made a point of reminding me – and telling me they'd later come to agree with me on both issues.

So I don't see anything unpatriotic about speaking up when my country is going off the tracks – or even breaking the law (nonviolently) to make a point.

Blacks and whites are equal. We had no good reason to destroy Viet Nam and the lives of so many Vietnamese and young Americans. Those are facts. If Allen Weh doesn't think so, I question his intelligence or his commitment to seeking and speaking truth. (I wouldn't question his patriotism. Although the war did great damage to the U.S., he didn't make the relevant decisions. He did what he was told.)

Weh's mailer touts his allegiance to the U.S., which is fine, though not particularly helpful in assessing his leadership qualities.

He accuses Udall of having no allegiance to the U.S. That's nonsense. It exposes Weh as either a moron or a man who'll tell us anything in order to get elected – or both.

In effect, he accuses me of having no allegiance to the country, because I've questioned its commitment to its ideals, such as equality and freedom, and criticized a wasteful and tragic war before most people came to share those views. I feel as if standing up for the interests of my country, at great personal cost, I exercised more patriotism than contemporaries who weren't soldiers and weren't antiwar advocates, but stuck to their own personal concerns.

Allen Weh is way out of line.

He might also be dangerous. His mailer shows he'll say whatever's expedient, without regard to truth. It says that even though most of the folks who ran the war for us, like McNamara, either recognized then or realized later that it was not good for us, Allen doesn't. And by attacking Udall for exercising his right to free speech, he suggests he'd support a more authoritarian regime in which such rights were severely restricted.

Why would New Mexicans ever want to put him in a position to attempt that?
[I wrote hastily as a possible replacement for the Sunday column I'd just sent in when my friend showed me the mailer and mentioned how appalled he was by it.  (Maybe Weh will question his patriotism too, now, since he was indeed in Viet Nam.)  Then I decided to stick with the column I'd already submitted. 
Note: I render Viet Nam as a two-word name because it originally was, and I used to feel that our country's failure to note even that symbolized our country's ignorance about (and lack of respect for) the country it was destroying.]
[My ex-soldier friend reminds me that the mailer is a little strange in another way: Weh brags about fighting in the jungles and offers himself as "A commander who will lead."  But he's not running for a command position.  He's running for a legislative position, which is very different -- and part of his duty would involve listening intelligently to his constituents' diverse views.]
[Finally, I wondered about the accuracy to Weh's accusations based on Udall's votes:
He accused Udall of voting to reduce cost-of-living adjustments for military retirees.  Maybe, maybe not.  Near as I can figure, the vote he references was to invoke cloture (end a filibuster in the Senate) with regard to a vote to concur with a proposed House amendment to a senate amendment to H.J. Res. 59, the Continuing Appropriations Resolution.  The cloture vote succeeded, 67-33, so Udall had plenty of good company, including some prominent Republican Senators.  
Fact is, the vote wasn't about COLA.  It was to stop a filibuster to a compromise between the House and Senate Budget Committee Chairs.  Rules called for a one-hour debate.  Some right-wing dissidents tried to ignore the rule, and the Senate voted to close debate and vote.  The measure included the Bipartisan Budget Act of 2013.  It looks as if Weh's minions took this one way out of context to mislead voters.
Udall's vote was a vote not to let right-wing fanatics shut down the government over ideology -- not, it appears, a vote against COLA.  I'm not sure how voting to keep the government open amounts to "turning his back on our veterans," as Weh alleges, when those veterans would be among the first victims if the government had to shut down.
Similarly the allegation that Udall "Voted against the protecting the second amendment for vets" turns out to be an effort to surmount an NRA campaign to block Newtown-inspired legislation aimed at keeping assault weapons out of the hands of people who shouldn't have them.  The amendment sponsor, speaking on the Senate floor, said the real problem was that we were "no longer a moral nation" and that Congress should deal with that problem, not the gun problem, which he called a mere symptom.
That is, as I rather expected, Weh lifted these votes way out of context to mislead voters.]

Sunday, October 26, 2014

A Thought on Education

Ever watch a young child?

Other than getting fed, their defining characteristic is curiosity. They're driven to learn as much as possible about everything around them. That's how you survive, if you're a lion cub or a quail chick.
Curiosity is a natural passion. It cools as we start feeling somewhat comfortable on Earth, but it persists. If pressure from parents and schools doesn't kill it, it can last a lifetime.

Unfortunately, schools often kill curiosity.

The late Bob Wichert used to say, “Everything is in the hands of its enemies.” Schools usually are.
Schools should recognize that children have a natural passion to learn, although they may not care to learn exactly what your schedule says you're to teach them today. We all develop different interests and distinct characters; but the actual intellectual content of school's first six or seven years could be learned by an average 13-year-old in about six weeks.

That last fact is articulated by A.S. Neill, author of Summerhill. (Adapting his principles to a public school would be a real challenge; but so is adapting Christ's or Buddha's precepts to daily life in the 21st Century.)

Neill ran a private boarding school in England. Many students were rich. Many were “troubled.” They weren't permitted to harm other students physically, or fornicate. Otherwise, there were few rules. If a kid wanted to wander through the woods all day observing trees and bugs, fine. Kids have an innate compulsion to develop their minds and bodies. The point is mental development, not the alphabet or the date of the Battle of Hastings.

Summerhill held regular classes. Attendance not required. Most kids probably attended them. One kid never went to class, but when it came time for the exam students had to pass to go further in school, he decided to take it. In a few months he learned enough to pass.

Schools should recognize children's natural curiosity and use it, as a sailor uses winds and tides.
We can memorize the meaning of two-parts-hydrogen-one-part-oxygen, the presidents' names, and Hamlet's soliloquy; but the real deal is exercising and developing the muscle called “mind.”

Schools should at least adopt doctors' guiding principle: “Do No Harm!”

At present, do schools do more good than harm?

Watching kids who were home-schooled (like a young friend from a conservative New Mexico cattle-raising family, or our niece and nephew in the New Hampshire woods, off the grid in a straw-bale home their father built) I'm often impressed. These kids seem to sharper, brighter, and more focused.

Not everyone has the leisure or ability to home-school kids effectively; and I don't favor heavy religious indoctrination; but the folks running schools should be humbled by the comparison.
In India, an experimenter left a computer with bunch of kids in India. He left them no instructions; but when he returned. they'd learned – together – how to use the things. (They were slowed by having to learn enough English to work with the computers.)

He left some kids a problem to solve concerning DNA. When he came back, they'd hit a snag. He asked a young woman to help. She protested she knew nothing about science. He told her to encourage them. For a couple of months she kept repeating “OmyGod, that's amazing!” several times a day. They solved the problem.

Consider in this context the battle over standardized testing. A prime example of the tail wagging the dog, standardized testing ignores the uniqueness of each child; daily school attendance “standardizes” them more than enough. Adjusting teacher's salaries based on how their charges do on those tests compounds the damage. First, do no harm!
[The column above appeared in the Las Cruces Sun-News today, Sunday morning, 26 October.]

Sunday, October 19, 2014

Minimum Wage Machinations

Painstakingly, following the City Charter's requirements, CAFE and volunteers gathered thousands of valid signatures on a petition to increase the minimum wage. The Charter gave the council only two choices: enact the ordinance as it stands or reject it and let the citizenry vote.

In September, acknowledging that a popular vote would favor the ordinance, a 4-3 City Council majority enacted the ordinance immediately.

The same four had earlier enacted, when they realized CAFE would have the signatures, an ordinance calling for a much smaller hike in the minimum wage. Now city government threw a red-herring into the path, asserting a need to “reconcile” the ordinance with the earlier contradictory one. Under New Mexico law, the later ordinance effectively repealed the earlier. City officials abandoned “reconciliation.”

Three of the four also spoke of quickly watering down the ordinance. That's not what the City Charter contemplated. It would be illegal. It would be such vile chicanery that it would thoroughly destroy citizens' trust in the Council. It would also spark a lawsuit that would exacerbate tensions, cost the taxpayers unnecessary money, and probably result in a court order against the City. City might have to pay plaintiffs' costs and/or legal fees, too – all for the convenience of the business community.

Thus we hope those Councilors didn't mean it or will rethink taking any such action.

Watching the 6 October council meeting, I wasn't sure the message had quite gotten through yet. There was again talk of using the Council's discretion and wisdom – which is exactly what the Charter directed the Council not to do under present circumstances.

There was also a suggestion that one Councilor should recuse himself. The law states: “A Legislator or public officer shall treat [his or her] government position as a public trust. . . . A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest.” (full provision reprinted on my blog post today)

The Councilor – who's respected and who'd mentioned the problem himself at an earlier stage – is married to a lobbyist for the Restaurant Association, which has taken a strong position against the ordinance. She's not an engineer or a secretary or a Human Resources Director. Her job is to influence government officials to act in ways her employer approves of.

No one questions his ethics or hers; and I believe that once the Councilor has studied the law more carefully, he'll insist on recusing himself.

Some of his allies replied by threatening to demand Councilors who'd gathered signatures for the ordinance recuse themselves. With all due respect, that's a wholly different situation.

Having a strong view on something, even speaking publicly on it (as Councilors have do on many matters) is very different from having a personal individual financial interest in the result.
This is a legislative, not a judicial, decision. Councilor Miguel Silva, acting in a quasi-judicial capacity at a recent zoning hearing, recused himself recently when he had no financial interest but shared the Tortugas Pueblo's distaste for commercial development near Tortugas Mountain. That was proper.

A councilor or state legislator usually need not recuse when s/he has expressed an opinion or volunteered to help grow public support for something. (A judge should, or at least offer to.)

The view some expressed from the dais is dead wrong, legally and logically. It would mean that a candidate who got elected to the Legislature while demanding pension reform, better veterans' benefits, or a Campaign Finance Law would have to take no part in the discussion of the issue once s/he got elected. That ain't the law. Nor should it be.

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 19 October.]
[I've spent a lot of time looking into this issue.  I dashed off a column when the City Council adopted the ordinance on 8 September.  Then I realized the Sun-News was going to editorialize on Sunday and Steve Fischman had penned an op-ed piece for Sunday's Sun-News, all of us expressing similar concerns, so I wrote on something else instead.  Later I wrote and abandoned a second column.  In response to questions in an email from a prominent citizen who's less sympathetic to the minimum wage hike sought by CAFE, I did some legal research on the City Charter and on the New Mexico statute regarding construction of statutes or ordinances.  I also spoke with Councilors, the City Manager, the City Attorney, CAFE, and others So here's a supplement to the column -- with apologies for its length.  I wanted to touch on a variety of points different people have raised.]

The initiative petition:
The relevant City Charter provision is 8.06:

Sec. 8.06. Initiative petitions; action by council.
When an initiative petition has been finally determined sufficient, the council
shall promptly consider the proposed initiative ordinance in the manner provided
in Article II. If the council fails to adopt the proposed initiative ordinance
in its entirety within sixty (60) days after the date the petition is finally determined
sufficient, it shall promptly submit the proposed ordinance to the voters
of the city.

That's  pretty clear: the City Council can adopt the ordinance in its entirety or promptly submit the proposed ordinance to the voters.
At least, that's what I would argue if I represented some minimum-wage workers aggrieved by the council's action.
The council would argue, through its lawyer, "Well, we did adopt it.  That makes it an ordinance on our books.  And we can amend or repeal ordinances, including that one, at our discretion.  City Charter doesn't specifically say we can't."
Well, we'll see.  One problem with the city's position is that it reduces the initiative provision in the charter to a bad joke.  That is not a result an unbiased judge would care to approve, on a challenge by citizens the citizens the charter was written to protect.  
I won't discuss the legal arguments more deeply here, because dispensing free legal and tactical advice to the City isn't necessarily part or my job description.  There's an outside possibility some folks (not CAFE) might ask me to make those arguments more formally.     

Statutory Construction and "Reconciliation"
Let's start with the law, which seems pretty clear.  (One note, though: these rules are mostly for courts or agencies dealing with a statute (or ordinance), having to interpret the legislature's (or city council's) words, and doesn't purport to direct the legislature or city council to do anything at all.)
N. M. S. A. 1978, § 12-2A-10
§ 12-2A-10. Irreconcilable statutes or rules
A. If statutes appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later-enacted statute governs. However, an earlier-enacted specific, special or local statute prevails over a later-enacted general statute unless the context of the later-enacted statute indicates otherwise.
B. If an administrative agency’s rules appear to conflict, they must be construed, if possible, to give effect to each. If the conflict is irreconcilable, the later-adopted rule governs. However, an earlier-adopted specific, special or local rule prevails over a later-adopted general rule unless the context of the later-adopted rule indicates otherwise.
C. If a statute is a comprehensive revision of the law on a subject, it prevails over previous statutes on the subject, whether or not the revision and the previous statutes conflict irreconcilably.

Note that this (a “Uniform Statute” enacted in New Mexico) is intended to guide judges and others construing statutes. The “harmonize” language means that where possible a judge should construe apparently constricting statutes in a way that harmonizes them. I don’t know that it means to suggest or require that the Legislature (or, here, City Council) do anything to “reconcile” statutes. Further, one might reasonably question where such “reconciliation” would be legal in this particular case, where the later statute was enacted under the City Charter’s explicit mandate that the council enact the petition-driven ordinance or put it on the ballot – no third option. 
Annotations to statutes are often helpful.  Here, century-old precedent confirms that this principle of statutory construction has been the law in the New Mexico for a very long time.  It's difficult to see just why it was used in an apparent attempt to delay operation of the minimum wage ordinance.
Under “Repeal by Implication” several Annotations support our view:
  • In absence of repealing clause expressly designating the prior enactment to be abrogated, no new statute will be allowed to sweep away existing legislation unless its terms are such that the new and the old cannot stand together consistently.”
  • Where later of two statutes having same object and relating to the same subject is repugnant to earlier statute, earlier statute is impliedly repealed to extent of repugnancy, even in absence of a repealing clause.”
  • A statute may be repealed without being referred to by a subsequent statute on the same subject, when the last statute is wholly irreconcilable with the former and both cannot stand together.”
  • Though repeals by implication are not favored, yet courts declare them in cases where the last statute is so broad in its terms and so clear and explicit in its words as to show it was intended to cover the whole subject, and, therefore, to displace the prior statute.”
  • “”Repeal by implication is not favored, butan earlier law is necessarily repealed by implication when it is absolutely irreconcilable with a later law.”
I quote so many to stress that this is no novel concept.  Too, the second annotation suggests that the Mayor's recent insistence that CAFE should have included a clause repealing the hastily-enacted $8.40 ordinance isn't really supported by the law.

Should someone have repealed the $8.50 ordinance more formally? 
My view is, not necessarily, although it would have been cleaner.
The parties keep pointing fingers at each other on this one.
The CAFE ordinance language existed, at least in draft, before the Council enacted the $8.50 red herring in a desperate effort to stave off the $10.10 ordinance.
City councilors say CAFE should have included a repeal provision in the ordinance.  CAFE supporters says the language was shown to the City Attorney, and approved, and that maybe if there was any such requirement he should have told CAFE.  
That doesn't matter a hell of a lot, except that it was another effort by some of our councilors and the business community to generate a technicality and then try to use that technicality to block the minimum wage.
Fact is, (1) I don't know that there was such requirement, but (2) if there was such a requirement it would seem that the City Attorney could reasonably have mentioned it to CAFE in connection with the language of the $10.10 ordinance (if the $8.50 ordinance existed by then) and (3) if there was such a requirement the City Attorney might reasonably have thought to inform the council of it and ask if he should prepare an ordinance repealing the $8.50 ordinance in time for the Council to consider the $8.50 repeal along with the $10.10 initiative ordinance.  Maybe he did.  All we can say is that IF (as $10.10 minimum wage opponents have argued recently) there was such a requirement, then either the City Attorney or the Mayor or the Councilors, or all of the above, kept silent and lay in wait to trick their own citizens out of the fruits of their petition-gathering labors.

New Mexico law on recusal
Again, here's the statute, the Government Conduct Act:

§ 10-16-2.  Definitions.
F. "financial interest" means an interest held by an individual or the individual's family that is: (1) an ownership interest in business or property; or (2) any employment or prospective employment for which negotiations have already begun;
H. "official act" means an official decision, recommendation, approval, disapproval or other action that involves the use of discretionary authority;
L. "substantial interest" means an ownership interest that is greater than twenty percent

A. A Legislator or public officer shall treat [his or her] government position as a public trust. [S/he] shall use the powers and resources of public office only to advance the public interest and not to obtain personal benefits or pursue private interests.
B. . . . shall conduct themselves in a manner that justifies the confidence placed in them by the people, at all times maintaining the integrity and discharging ethically the high responsibilities of public service.

10-16-4. Official act for personal financial interest prohibited; disqualification from official act; providing a penalty.  
A.   It is unlawful for a public officer or employee to take an official act for the primary purpose of directly enhancing the public officer's or employee's financial interest or financial position.  Any person who knowingly and willfully violates the provisions of this subsection is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978. 
B.   A public officer or employee shall be disqualified from engaging in any official act directly affecting the public officer's or employee's financial interest, except a public officer or employee shall not be disqualified from engaging in an official act if the financial benefit of the financial interest to the public officer or employee is proportionately less than the benefit to the general public. 

I think no one contends that 10-16-4A applies; but 10-16-4 very well might.
The law does not differentiate between a councilor and his or her spouse.  So in essence, imagine that the councilor's day job is as a lobbyist for an association that vigorously opposes the $10.10 minimum wage.  Enactment of this wage, by state, county, or municipality, is a sort of failure for that lobbyist.  Denying the raise, by any means, would seem a success.  That being so, ought the councilor to be voting on the issue?  I do not see how.  Inevitably there is the appearance of impropriety, even if the councilor could separate mentally his two obviously conflicting and obviously important goals.
How Did We Get Here?
CAFE and its allies diligently followed the City Charter.  They worked on this for more than a year, quite publicly.
The Chamber of Commerce said no minimum wage hike was appropriate.  None.  Even late in the game, when a City Councilor said the business community was ready to talk and I thought briefly about trying to facilitate a dialogue, the Chamber again stated publicly that no raise at all should be enacted.
Had the Chamber of Commerce respected CAFE and the process, and public opinion, it might have engaged in a more meaningful dialogue with CAFE and had some influence on the ordinance.
Yeah, after CAFE had finished its work and the ordinance was on trace for either enactment or a spot on the November ballot, the Chamber and some councilors suggested CAFE should go back to the bargaining table, thereby losing its spot on the ballot.  I can see where CAFE wasn't interested in that idea!
Meanwhile, the Council keeps asking for more data.  There's plenty of data.  Plenty of positive examples.  Prominent local economists don't view raising the minimum wage as some disaster, but tend to think it's ultimate results would be positive for the local economy.

Where Is This Going?
Obviously I don't know.
I do not think that all four (Mayor Miyagishima and three councilors) will be so daft as to make major changes to the law, which resulted from an expression of popular will under the Charter.  That would lead not only to a lawsuit but to a situation that would spill over into all kinds of unrelated issues.  Essentially, the City Government would have acted so dishonestly, and so contrary to popular opinion, that it would be difficult for people of good will to trust or work with those folks. 
If even one of the four has a functioning conscience, the council will make no changes at all; and that's true also if the councilor who likely should recuse himself does so.
Most likely, the four will agree on what they consider to be some minor changes.  Create some exceptions for small businesses or even a specific type of business.  That would be technically improper and illegal, in my view, but whether minimum wage proponents would see it as worth suing over is another question.  In fact, CAFE and others might even agree with some minor tinkering of that sort.  (I understand that the ordinance, although it appears basically sound, could have the effect of helping chain bookstores in their competition with a local bookstore, Coas, which I very much like, and might help Starbuck's against Milagro's, whereas I much prefer the local coffee house.  If there's a constitutional way to avoid that, or a fair way to mute the effect, I'd be inclined to support it.  But I'm not CAFE.  Nor am I a minimum-wage worker.)
But changing the $10.10 or the time-frame would lead to disaster..

Sunday, October 12, 2014

Law and Fairness Require Adequate Funds for Defense of Indigents Accused of Crimes

I want to revisit the issue of adequate legal counsel for indigent defendants. Folks accused of crimes who can't pay for a competent defense.  (See “NM Must Provide Indigents a Fair Defense” from 4 May 2014.)

As I mentioned in the earlier column, defense lawyer Gary Mitchell filed in several cases a motion asking the judge either to order New Mexico either to fund a competent defense, as mandated by U.S. and State Constitutions, or to dismiss the case. Put up or shut up.

Now District Judge Karen A. Parsons, in an “Interim Order to Provide Adequate Counsel Posthaste,” has indeed ordered the State to provide funds for effective assistance of counsel for indigent defendants in the 12th Judicial District.

After hearing testimony (from, among others, local lawyer Michael Stout, who chairs the NM Public Defender Commission) and reviewing papers, Judge Parsons stated that “a crisis exists in the 12th District regarding appointment of counsel for defendants in criminal cases.” (The same crisis would appear to exist here in the 3rd J.D.) 

After reciting the relevant Constitutional provisions and the policy to appoint counsel within 48 hours of learning of a defendant's need, Judge Parsons ordered changes to address the “emergency situation leaving defendants unprotected from violations of their Constitution[al] right to counsel.” She ordered the Public Defender's Office to provide counsel by 11 October for defendants who were without counsel on 1 October – and to provide counsel within 48 hours of learning of any other indigent defendant's need.

I commend Mitchell for taking a bold step to confront the systemic injustice. I'm glad Judge Parsons acted.

But truly solving the problem will require our representatives in Santa Fe to act. I'd urge anyone talking to candidates to seek a commitment to support reasonable and effective action to ensure that funds will be available for defense of indigents accused of crimes. It's something law and conscience require us to do, despite other high-priority matters we hope the State will fund. 

Others may disagree. Others may figure that where there's smoke there's probably fire, so the folks getting accused of crimes probably did something wrong, or that people who can't fund their own defenses should have been more prudent and put away money just in case. That is, when we have our own houses to pay off and kids to feed and educate, who wants to ante up for strangers accused of crimes?

Because we are each that stranger. Each of us could be in that position. As the well-known phrase puts it, “There but for the Grace of God go I.” 

But more because we inherited the blessings of a country without a King, Emir, or dictator, but with a plethora of freedoms. A country that ain't perfect but has some pretty fine ideals, including freedom, fairness, equality, – and justice for all. 

It feels good to live in a country where we honor (and can afford) “justice for all.” It feels good to contribute my share. (I'm a lot more willing to contribute than I am to some of our government's other activities.)

I also understand, as a lawyer, why “justice for all” costs so much. Not lawyers' greed, but funds for investigators, discovery, witness interviews, legal research, motions, and possibly expert witnesses. 
Maybe one solution would be to limit prosecutor and defense counsel to, say, only six pretrial attorney hours and two investigator hours on a particular case, and equalize the two sides' resources that way; but that would hardly facilitate a meaningful search for the truth. 

That's why I'll be mentioning this issue to legislators and candidates this election season.
[The column above appeared in the Las Cruces Sun-News today, Sunday, 12 October.]
[I do urge everyone to include this issue among the ones you stress when talking to a candidate for election or re-election to represent us in Santa Fe.  Sadly, it may turn out that the division between opinions will mirror party lines.  It shouldn't.  This is an issue of basic fairness --  and of following the law.  Our system of government stresses the adversarial process in which champions -- like the knights of lore -- clash vigorously, using the factual, legal, and oratorical weapons at hand in a contest we suppose will reveal the truth.  (Another country might use a system in which a magistrate investigates matters fully, requiring witnesses to appear before him or her as needed, and reach a fair conclusion.)  For that to work, prosecutors, judges, and defense counsel all need adequate funding.  We've rightly concluded (and federal and state constitutions mandate) that where someone can't afford a defense we should fund that defense.  Doing so without adequate funding is as effective as having medicare supply poor retirees with a primer on healthy foods to cure cancer, while rich folks get radiation treatments or surgery.]
[Anyway: counsel such as Mitchell, who step in where there's no public defender or the public defender has a conflict of interest, should be paid fairly for the work; and the Public Defender's Office itself should be adequately funded.  The former prosecutor in the governor's chair should know all this as well as anyone, and we'd hope she too would support adequate funding.]