Sunday, March 22, 2015

They're Massacring our Neighbors

Bianca is a farmer and a mother. Her son Jorge is a carefree young man, full of laughter. He plays his guitar and sings to her – when he's not fixing a neighbor's recalcitrant computer. He loves children, and attends a small teachers' college.

But he has disappeared.

Estanislao grows corn and beans and trades in food. Today, wearing a bright red cap reading, “Union Pacific – Building America,” he could be some NMSU student's visiting uncle.

His son Miguel attended the nearby teachers' college. One day a neighbor asked if he'd heard that 43 students had been taken, and that Miguel was among them. He rushed to the college, where another student said he'd seen Miguel taken. Then he searched the hills.

Angel Neri survived the terror. His brother explains that there was a collecta to raise funds for a demonstration. The municipal police attacked, shooting to kill. The massacre spread into town. Federales blocked off streets to keep students from escaping.

Angel called his father and brother, frightened. Previously, police had punched and kicked the students for speaking out, but this was different. Angel hid in a building. Then he and others ran to a clinica.

Soldiers came. Relieved, Angel and the others greeted them as saviors. The soldiers took their belongings and tossed the students back into the street, where the municipal police were still murdering people. Angel and others finally found refuge in a house, where a woman hid them overnight in a small room.

Since, even with the help of human rights lawyers, the parents can learn nothing.

The Mexican Government denies involvement. First it said that the students' bodies were in a mass grave, killed by outlaws; but Mexican forensic scientists disproved that. Then the Government said the outlaws burned everyone at a dump, and threw the ashes in the river; but Argentine forensic scientists dispute that. Other than one bone that apparently belonged to a student, there's no supporting evidence. A story that starts with “no police involvement,” when witnesses saw federal, provincial, and municipal police involved, is not a promising story.

These folks are our neighbors. They have come to the U.S. asking for our support because what else can they do, except shut up and go back to their farms and businesses, silently mourning their sons? They will not be silenced. Nor would we in their place.

We can't do much; but we can protest. We can speak out, with a safety they don't share.

We can write or call our President and Senators, demanding that the U.S. cease shipping weapons to a government that uses them to massacre its citizens. We can urge suspension of economic aid until the Mexican Government tells the truths, apologizes, and disciplines those responsible – and provides credible answers to Bianca and Estanislao, who insist their sons are alive.

These folks want only what we would want. They speak quietly but firmly, acknowledging that when they return they may be punished for telling us all this. Mexican newspapers do not freely discuss the incident.

Their stories are hard to tell, and Bianca wipes away tears as she speaks with me. Their stories are hard to hear, when I can do little more than mumble “Que lastima!

Their sons were – or are – good young men did agricultural work to help the teachers' college make ends meet. They wanted to teach. They wanted to exercise, and teach children to exercise, the kind of critical thinking and speaking we value so highly that our First Amendment enshrines it.
In his village, the children still ask Estanislao where Miguel is.
                                                   -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 22 March, 2015.]
[These folks visited Las Cruces this week on a tour designed to raise our awareness of this incident, the repressive governmental attitudes that spawned it, and the government's arrogant refusal to deal with this as it should have.  It doesn't help that the newspapers in Mexico are not so free to publish factual details and pertinent questions without retaliation.]

[WHAT CAN WE DO?

For one, express our views on the Ayotzinapa "Disappearances" to our President and U.S. Senators, as well as directly to the Mexican Government.  In addition:

Amnesty Internationall has this campaign regarding Ayotzinapa, with form letters readily available to express your shock and disgust to Mexican officials
SOA Watch has pushed for an end to the Mérida Initiative along with all military training for foreign governments for years. http://www.soaw.org/

The US government has actually suspended aid to Mexico before over human rights violations, the most serious being in 2010. But it's always been for very shallow reforms. This year, though, the Obama admin actually gave more offensive aid to Mex shortly after the disappearances. http://readersupportednews.org/news-section2/318-66/27933-obama-backs-mexico-govt-despite-calls-to-suspend-military-aid-due-to-atrocities

Action and expressions of opinion in the US to address need not be focused specifically on Mexico to help.  Rethinking our free trade policies could help displace fewer people in Latin America from their land. Anything to stop militarization here will help. More generally, as we've seen around the globe, the U.S. should be a lot more selective than it is in making arms deals.  Flooding the world with cheap arms solves nothing except the bottom-lines of arms manufacturers and dealers.

In particular, the Merida Initiative, through which the U.S. has contributed billions in the past few years to help fight drugs, contributes to the militarization of Mexican police forces --- and to the arrogance that allows them to commit atrocities such as Ayotzinapa against the Mexican people.  One can't say Ayotzinapa couldn't have happened without the Merida Initiative, but continuing to provide an abundance of arms to forces that do such things can't be in our best interest -- let alone the Mexican people's!]

Sunday, March 15, 2015

Lies Fuel Recall Campaign

Recently I visited with eighteen voters who'd signed the recall petition against Olga Pedroza.

Each voter asked to take his or her name off the petition. All but one described election fraud, whether or not s/he used that term.

The lies varied.

The first lady said she hadn't signed any recall petition, and wouldn't. Had she signed any kind of petition? Yes, but for some public good. A young boy with her said it was about some parking lot. She then recalled that it was to save the PAL Boxing Gym from being torn down for a parking lot. Recall wasn't mentioned, she said. When she realized the fraud, she was angry.

The recall-targeted councilors have said nothing to indicate they want to close PAL. As one voter pointed out, the City doesn't even own the land. (He was a friend of Austin Trout who'd also been told the petition was to save PAL.)

In late December, the City Clerk warned the recall folks against further fraud. January 12th, PAL's Chairman of the Board published a letter in the Sun-News saying PAL hadn't been threatened, wasn't involved in the recall, and wished the recall proponents would stop misusing PAL's name to hustle signatures.

Petition circulators continued to use the baseless PAL story. They probably know that District 3 voters mostly like Olga Pedroza and favor the minimum-wage hike that elicited the spurious recall effort -- but also love PAL.

There were other lies. One elderly woman, who'd apparently spotted Olga Pedroza's name on the petition and asked about it, said she was told recall meant “to bring her back into office.” A man said he was told Olga was against the minimum-wage hike.

When I mentioned the “recall means to bring back to office” line to a young woman who'd also talked to some voters, she exclaimed that one had told her the same thing. She wrote me, “[E]very single person wanted to be removed from the petition. It was really upsetting actually, most of the people were very confused and it was clear that they had been given bad information.”

It is frustrating to talk to good people who've been bamboozled and hear them express surprise and anger, then apologize for being taken in. I'd known there was fraud, but not how it permeated the whole recall operation.

This stuff shouldn't happen. (In fact, misrepresenting the purpose or effect of a petition in order to get signatures is a 4th-degree felony under New Mexico law.)

Wednesday a Republican woman complained that these folks had just lied to her. In Gill Sorg's district, they told her they were recalling “Bill” because of the pet-licensing issue. I'm not even sure the pet-licensing issue had been voted on before the recall started.

Who are these people? Apparently some rich businessfolks in the County bankrolled this thing; the Koch Brothers' “Americans for Prosperity” is apparently involved. Its local head, Pam Wolfe, has been working actively on the recall. (Certainly the truth quotient of this operation resembles AFP's in various elections; and the Koch Brothers intensely dislike the minimum wage.) 
 
Please read carefully what folks ask you to sign. Unless you have strong personal beliefs that your councilor is dishonest or malfeasant, resist helping force the City to spend money on a pointless special election. If you've signed a recall petition in error, or because you were misled, contact me – or write the City Clerk a signed letter with your name and address printed legibly, the date, and your request to have your signature withdrawn or expunged. Including your phone number will help the Clerk confirm that you wrote the letter.
                                                        -30-
[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 15 March.]
[Let me make this clear: I'm not suggesting that if you're trying to recall a City Councilor you can't express negative opinions about the person, even if they're both inaccurate and unrelated to the real reason(s) for your recall campaign; but using a complete fairy tale, often without even mentioning that the petition seeks to recall a councilor, is wrong and illegal.  These councilors' support for raising the minimum wage was the triggering event in the recall campaign; and the folks bankrolling it have other complaints, including the Organ Mountains / Desert Peaks National Monument; and it's fair to raise other complaints and opinions.
But these folks have lied from the start.  First, newly-arrived Jeffrey Isbell, sort of a cartoon character hired to run the campaign, alleged that the councilors had misused emails for political purposes. He kept saying "We" were incensed or angry, suggesting the citizens were angry and that he was somehow one of them.  He had no apparent proof -- and likely no reasonable basis at all for his charges.  Yet he kept saying "We've seen documents" that suggest the misuse.  (If he had, he never showed them to the public.)  His pal Pam Wolfe, of AFP, filed an IPRA request for the emails, and eventually got them; but if there were any improper uses of emails, Wolfe and Isbell haven't shown them to us.)
They also alleged that the three councilors were employed by radical organizations.  That's fair as to Nathan: his environmental group is hardly "radical," but they're entitled to their opinions.  But neither Olga Pedroza nor Gill Sorg was employed by any organization other than the City of Las Cruces. 
They also strongly implied that the councilors or certain elderly supporters were intimidating minimum-wage opponents by breaking taillights.  Uhhh, right!
But the goofy charges on their websites are one thing.
Flat-out lying to voters, asking them to sign one thing when the petition says something else, crosses the line.  It's little different from plain fraud: selling me a car by telling me it has a complete new engine and transmission in it when it has no such thing.  Sure, I should look for myself or have a trusted mechanic inspect the thing first; but your lie is still unethical and quite likely illegal.
These folks have mostly sold the recall to voters on grounds unrelated to their real purposes (which is questionable but legal) and on facts that they know or should know are false (which ain't legal), because they know their recall is anything but "grass-roots."
As a fellow said about similar tactics that recall-backer Gary Coppedge was involved in during a controversy in Oregon, "They kept forming astroturf groups."
It's refreshing that most citizens see through the nonsense and that others who erroneously signed a petition are withdrawing their namesBut it's saddening to realize that they presented this thing to so many voters as protecting the PAL Center -- often without even mentioning recall!]
[And the real fault in the recall campaign is that it's unrelated to any kind of malfeasance or corruption, or even any real belief in such, but is a bald-faced effort by rich businessfolk to intimidate the three councilors and any future councilors who might want to vote their consciences, not the Chamber of Commerce's agenda.]


Sunday, March 8, 2015

Protecting the Whistleblower Protection Act

Republican State Rep. Larry Larranaga is trying to destroy one of New Mexico's best laws. The Whistleblower Protection Act protects public employees who speak up regarding crimes and malfeasance by other public officials.

The law protects individual rights, encourages honesty and efficiency in government, and saves us money by allowing public employees expose waste and misconduct. If you have a good-faith belief you've seen such conduct, you can speak up without fear of retaliation. I like that.

Larranaga doesn't.

First of all, he'd take out malfeasance altogether: you could still report an actual crime, but bosses committing non-criminal malfeasance (wasteful, unfair, or dishonest) could keep doing what they're doing.

His other changes would reduce the whistleblower's protection and even intimidate whistleblowers.
He'd limit protection to people who speak to their employer (right!) or the media. Your boss could fire or otherwise punish you for telling a state legislator, a good-government commission, or maybe even your minister.

He'd still let you sue if you got fired or demoted for reporting misconduct to newspapers, but would erase protection against other kinds of punishment. How do you like your new office in the windowless boiler room? You could report something the public should know and get transferred from your office in Santa Fe or Las Cruces to the one in Gallup or Lordsburg. (Your kids will love it there!)

Sorry, Larry, but suspension, demotion, and dismissal aren't the only vicious and effective ways a boss can punish an employee and intimidate others who might want to speak up.

The current law protects you if you reasonably believe, based on the facts available to you, that what you saw was misconduct. Now it wouldn't.

As mentioned, while you could still report crimes, Larry would strike out “malfeasance in public office” and “gross mismanagement, a waste of funds, an abuse of authority, or a substantial and specific danger to the public.”

So if I work in the municipal motor pool, and I see that all the sanitation trucks have a flap that flies out when you turn a corner, and could easily hit a pedestrian on the edge of the sidewalk, and my boss refuses to spend the money to repair that, he can fire me for reporting the problem – even if I potentially saved lives. Have you some reason to protect the bad actors among public employees, Larry?

Under Rep. Larranaga's proposal, you couldn't sue for retaliation if reporting the wrongdoing was part of your job duties. A cop vows “to protect and serve” us. If the Chief ordered fellow cops to do something that seemed efficient but actually created a danger, and one officer reported it, the City could argue as a defense that reporting was part of the whistleblower's job duties, because it helped “protect” us. So no special protection for the whistleblower. I think the city should lose that argument; but if I were a cop gambling that the law would protect me for reporting the problem, the new “part of job duties” language could give me serious pause for thought.

The law protects contract employees who report misconduct. It wouldn't if Larry has his way.
Another proposed change would impose an unfair potential financial burden on anyone suing. Others limit damages, by delaying the employee's possible lawsuit while providing that back pay before s/he files suit doesn't count.

Most legislators favor punishing the bad guys – and eliminating waste of public resources.
Whistleblowers help us learn about such situations. There are already plenty of protections against frivolous charges by supposed whistleblowers.

Why do you want to make life so easy for the bad guys, Larry?
                                        -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 8 March, 2015.]
[As it's happened, this bill apparently was too far out and poorly crafted that it got tabled, with little hope of seeing daylight again this session.  Good riddance.]
[But the issue could recur in the future.  I gather New Mexico counties were pushing it.  (I read that NMSU President Garry Carruthers spoke out for it, which won't go down as one of his finest moments.  He's smart and experienced, so I'm guessing he didn't realize how badly this bill was written.)  This bill went way too far.  I gather the county's concern was that bad employees on the point of being terminated could misuse it and are misusing it to try to turn a profit when on the way out for legitimate work-related reasons.  
If so, the counties have a legitimate concern -- although sometimes it's hard to tell whether the "on the point of firing" is caused by the whistleblowing or not.  For a future bill, they ought to consult some good lawyers -- perhaps including some who litigate whistleblower cases from the employee's side  --  and craft language that would help address the purported problem without destroying the law.  This year's effort was like the proverbial effort to kill a mosquito on your glass coffee-table with a sledgehammer.]

Sunday, March 1, 2015

Some Ideas on Amending the City Charter

Recent minimum-wage initiative and recall controversies have taught us that Las Cruces needs to amend its City Charter.

The initiative provision requires that when citizens gather sufficient signatures, the City Council must either pass the ordinance as it stands or schedule a referendum. Last fall, the Council did neither. The Councilors ignored the charter, avoiding a popular vote by purporting to adopt the ordinance then changing it significantly.

We need to add teeth to the charter provision. The challenge is to ensure the Council follows the citizens' mandate, while creating flexibility to adjust to changed circumstances or new information. My suggestion: add language confirming that the ordinance becomes law if the citizens vote it in, or the council does, and that it cannot be amended for a significant period of time – say, one year – except by either a citizens' vote or a petition by the Council to district court for permission. The Council would have to show the court a significant change in circumstances or new information. Citizens could oppose the showing. The judge would decide.

More than one year out, the Council could amend the ordinance. Voters could petition to nullify the amendment, but would need fewer signatures than they would if the ordinance had not been petition-initiated.

Some Councilors suggest another change. Because the petition-initiated ordinance is an unwieldy tool, making changes difficult once the petition process starts, they would require petitioners to first try to get the council to pass the desired ordinance. Petitioners unsatisfied by the council's action could then petition as they can now. The process might improve the ultimate petition.

We know the recall process can be seriously and wastefully abused.

The recent recall attempt could never have happened with county officers. State law requires that would-be recallers petition the district court, appear at a hearing, and convince the judge to find probable cause to believe there's malfeasance. Rich crackpots can't make the county waste resources on a special election unless a court agrees there's some basis.

Under the City Charter, you can recall a councilor because you didn't like one vote, or because s/he broke wind too loudly at a council meeting.

These tools – initiative, referendum, and recall, along with direct election of senators – were put in force a century ago during the progressive era, to strengthen the role of common people in our democracy. I hate to weaken them; but witnessing a small group abusing the recall procedure this winter, I kept thinking we needed change. (Fortunately the recallers are failing.)

I wouldn't eliminate the recall procedure. We should be able to recall elected leaders.

One possibility would be a hybrid charter provision that would borrow from state law the requirement of consulting a judge, but wouldn't allow the judge to nix the whole thing. Rather, if the judge agreed there was something more than political foolishness, the group could trigger an election as under the present Charter; but if the judge disagreed, the number of signature required to force an election would rise by, say, 35 to 50%. That is, absent a judge's blessing, you'd need a stronger show of interest from the community.

(A second possibility would be to increase the vote threshold, without involving a judge.)

Finally, we need a practical way to investigate and punish recallers whose operations are as rife with fraud as the current campaign to unseat three councilors. Election fraud is a crime. The Charter should provide that significant fraud can disqualify the whole campaign; and there should be a private right of action, under which voters could bring an action against recallers who commit 4th-degree felonies as freely as these folks did.
                                            -30-

[The above column appeared in the Las Cruces Sun-News this morning, Sunday, March 1, 2015.  Since writing it, I've already had one lively discussion with a City Councilor who liked some of the above ideas more than he liked others.  At some point soon, I'll make these suggestions in a more specific form, as a way to get the discussion going.]

[I mention the recall campaign.  Since my post the other night, I've been asked a lot of questions on that.  It now appears the City Clerk's Office will take until their deadline, which I think is next Friday, the 6th of March, to report to the City Council.  If, as I expect, the valid, in-district signatures on each petition aren't sufficient to trigger a recall election, the would-be recallers get another 15 days to increase the signatures sufficiently to reach their target numbers.  (I should note that my opinions on this do not come from the City Clerk's Office.  Those folks haven't said anything, or even winked -- and I haven't asked.)  Alternatively, they could just give up gracefully (which ain't too likely) or start some legal process that wouldn't have a chance but might buy them more time and would provide them a platform from which to keep slinging imaginary mud-balls at three good councilors.  I think we should still assume that they'll manage to force a wasteful special election, but the three councilors seem to be quite popular in their districts.]

Thursday, February 26, 2015

Municipal Recall Effort Doomed?

    One hears that City Clerk Esther Martinez may tell the Las Cruces City Council as early as tomorrow morning [Friday] that the would-be recallers have failed to collect sufficient signatures to trigger a special recall election in any of the three districts in which they sought to boot progressive councilors out of office.
     Certainly our own calculations have indicated the recallers have fallen sufficiently short that it's unlikely they can make up the difference in the 15 additional days they get, under the City Charter, to amend the petitions.  Further, I've been amazed by how many people who signed the petitions want to withdraw their names because they were misled into signing in the first place.  I won't get into detail, but talking to some of those people was troubling, because so many everyday, non-political good citizens got gulled so cynically by the recallers.  That's not how elections -- or petition drives -- are meant to be conducted.   The recallers' conduct didn't comport with ethical constraints, state laws, or basic Christian religious principles.   The latter seem relevant because several of the recall leaders claim to be serious Christians. (Isbell says he's some kind of Christian minister, while Coppedge and others who backed the thing financially purport to be strongly Christian.)  I don't think Jesus would have approved using flat-out lies to fool people into punishing city councilors for supporting a minimum-wage hike.
    What part of that conduct do they suppose Jesus would have approved of?  We know he was pretty sympathetic to the poor and oppressed.  We know he told us it was tough for a rich man to make it to heaven.  He at least hinted that humility and compassion were better ways to get there than greed and arrogance.  We know he was a truth-teller, who gave hypocrites a rude awakening.  Certainly neither history nor the gospels  contain incidents in which he was lying, defaming people, or acting out of pure greed.  Or hatred.  He did make clear that folks who made a big show of their piety but had no time for the needy weren't likely to  meet his Father in heaven.

    So I hope some of those who call themselves Christians but lied to help this vicious recall effort along will take a moment to explain, at least to themselves, how they harmonized their conduct with their beliefs.
    I don't mean to sound preachy.  I don't mean to judge, because I agree with Jesus that judging other people isn't my right, although I also readily concede my conduct isn't always up to the mark on that one.  But I do mean to suggest, respectfully, that some folks meditate a little on some things.

    In the more political realm, what's this development mean?
    It means that the sooner the charter-authorized procedures drive a stake into the heart of the recall effort, the quicker the city can make some progress on healing the divisions that recent controversies deepened.
    It does not mean that the folks behind the recall are through, though.  As some of them have announced, they'll be running candidates for city council and county commission, trying to seize control of our local government.  They'll spend plenty of money on it.   I've heard that one failed city council candidate has reportedly threatened to seek to recall some county commissioners.
     But for the moment, people in three city council districts have rejected lies and hatred because they happen to like and respect three hard-working and honest councilors, Olga Pedroza, Gill Sorg, and Nathan Small.  Kudos to the three -- and the citizens of their districts.
                                                             -30-

Saturday, February 21, 2015

Reflections on the State of the City


I attended Mayor Miyagashima's State of the City address Wednesday for the first time.

The speech, available on the City's website, was thoughtful, forward-looking, and – at least in intent – healing. He dealt straightforwardly with the minimum wage brouhaha, praised both CAFé and certain business owners, and said the City was better off for the experience.

Above all he characterized city government as something we're building together.

We can differ on whether some projects are wise or well-planned; but no one could reasonably suggest the City shouldn't be providing amenities such as the Munson Center, with its incredible impact on the lives of many seniors and their families; youth sports and recreation programs; or parks and pools.

I don't agree with the City Council about everything. Will the Spaceport be a complete bust? Will the Downtown Plaza be worth the cost? How well did the City handle development plans for the old country club, both substantively and procedurally? How many of the complaints about city officials' attitudes were reasonably avoidable? The City's legal department – like the County's – deserves a column of its own. (One interesting question is exactly who is the client of a city or county attorney.)
Miyagashima stressed his hope to make the City as responsive and service-oriented as a five-star hotel. I hope he can. He claimed progress had been made during the past year. Maybe so; but we've a ways to go.

What I do see and much appreciate is a group of reasonably intelligent people working consistently toward the public good. I see Councilors and the Mayor listening to their constituents and persevering in their duty as they see it despite some internal sabotage and now a divisive and dishonest recall effort. Mostly, I see Councilors with open minds, not vested interests.

Miyagashima was more forgiving than I'd have been in his place; but that's why he's Mayor. He didn't even mention the municipal recall effort.

By the way, the recallers have turned in petitions. The circulators made false and fraudulent statements to citizens, though we can't know how many signatures resulted from fraud. The circulators signed under oath statements that don't appear completely true. If you experienced fraud, or have evidence that they were gathering signatures prior to December 10, please contact me.

People who wish to withdraw their names, for any reason, have an absolute right to do so prior to final action on the petitions' validity. The City Clerk says she needs a signed writing that includes your name, address, and telephone number; and she'd like you to include your best guess on the date you signed, to help locate your signature. Stating your reason for withdrawing your signature is optional, though I'd urge you to include it if you were misled.

Despite the recall blemish, and other problems, our City seems in good shape.
What resonated most in Miyagashima's speech was the sentence, “We're all in this together.” Randy Harris said that to me Saturday, and I've suggested the same in columns; but I heard it in a new way Wednesday.

We are all in this together. I agree, and wish more of us recognized that truth.

Recognizing that we're all in this together doesn't mean I don't fight against the vicious recall effort, or don't work to help the County fire the Treasurer for his sexually harassing conduct. It doesn't mean we don't all criticize and encourage our public officials, to help make our community as grand as our mountain view. Being in this together doesn't mean we don't disagree vigorously, just as neighbors, friends, and family-members do.

We are all in this together, and should keep that in mind.
                                         -30-
[This column appeared in the Las Cruces Sun-News this morning, Sunday, 22 February, and has appeared or will soon appear in other area newspapers and on KRWG's website.   For a different take on the Mayor's State of the City speech, read Walt Rubel's column in this morning's Sun-News.  We independently chose the same subject for our columns today.]
[With regard to the Recall, let me stress this: the recall effort will  likely fail, but it's still important for anyone who was misled into signing petitions withdraw his or her signatures.  A voter has the absolute right to do so, at least until the City Council takes final action. One needs to write the City Clerk, Esther Martinez-Carrillo, requesting his or her name be expunged.  The signed letter must include your name, address, your request, and the date; it should also include your phone number and, if you recall, roughly when you signed; and giving the reason for your withdrawal is optional.
The address is:
City Clerk Esther Martinez-Carrillo
700 North Main St.
Las Cruces, NM 88001
If you have questions, please feel free to call me at 575-five-two-one-0424 regarding this.]
[I should also mention that the more time I spend talking to folks who were fed lies by $12/hr. petition-circulators  as part of the recall effort, the less patience I have with the signature-gatherers' conduct.] 

Sunday, February 15, 2015

Sometimes Good Things Happen


Lawyers and politicians aren't always popular figures, but sometimes things work out fairly, without wrangling and rancor. Here are three recent examples.

Twice recently I've represented plaintiffs in potential First Amendment litigation.

First, two students who peacefully criticized the National Security Agency at an NMSU job fair were arrested and charged with crimes – unconstitutionally, we thought.

We made NMSU aware of the problem. NMSU did not admit we had a valid claim; but both sides agreed to solve the problem without a trial. NMSU President Garry Carruthers announced the creation of a task force, with members appointed by both sides, to review and amend NMSU's freedom of expression policy and procedures, subject to review by NMSU's Faculty Senate and Administrative Council and, ultimately, Board of Regents approval.

NMSU didn't get its back up or feel compelled to show its power. Our clients wanted right done, and weren't trying to profit from an NMSU employee's mistake. No legal fees or rancor.

The task force has been far more collegial and non-partisan than one might have imagined. You would have a hard time guessing who'd been appointed by which side.

A favorite moment was watching Police Chief Stephen Lopez showing our student-client, Alan Dicker, a huge military-style vehicle outfitted mostly to help the injured in a riot. Alan was taking pictures for a Ground Up story. I recalled campus in the '60's – when such pleasant cooperation would have been unlikely.

The task force has met many times, and our draft revised policy is being reviewed by faculty and administrators.

The second example involved Hidalgo County and the Hidalgo County Farmers' Market. The Market agreed the Southwest Environmental Center could have a booth there on a certain Saturday. But when the SWEC representative appeared, a Hidalgo County Commissioner ordered her to leave. (No talking about wolves in Hidalgo County.)

That seemed an obvious free-speech violation. We brought it to the attention of the County and others involved. The County said that legally it didn't control the Market.

Again, with no admission by either side of anything, we reached a fair settlement. Hidalgo County has stated that grey wolves are an issue wroth discussion. At the County Commission meeting on April 8, SWEC and its opponents will present their views. The Commission may not agree with SWEC, but it'll provide SWEC (and its critics and supporters) a forum.

The County didn't waste public monies making us prove our case at trial. Rather, potential adversaries turned lemons into lemonade.

I've fought extended legal battles, with no quarter asked or given; but there's a special pleasure in seeing folks cooperate to do the right thing. For everyone.

A third neat moment arose in an adoption case.

Two very nice men, long a couple, had adopted a Guatemalan boy decades ago. That boy's a man now. A few years ago, his sister died, leaving a young son. She had asked her bother to bring the child back to Cruces, and the child's father (back in Guatemala) agreed.

The young man and his two fathers tried to start a legal adoption process, and called me after running into problems with another lawyer.

Eventually Judge Fernando Macias heard testimony and approved the adoption. It turned out that his Honor's practice after successful adoption hearings is to let pictures be taken, including shots of the adopted child up on the bench banging the gavel and calling “Order in the Court!” It's a very thoughtful practice. The photos will be meaningful to the families for years, maybe generations. (The Judge has a set of photos on one wall in his office.)

Sometimes people do the right thing.
                                                    -30-

[The column above appeared in the Las Cruces Sun-News this morning, Sunday, 15 February.]
[I'd add one thought here: that although people blame lawyers for litigation -- and there certainly are lawyers and law firms that are litigation mills, bringing often meaningless lawsuits purely for the fees, or defending often frivolous legal positions purely for the fees -- in my experience it's more often the client, or both clients, demanding a trial when the lawyers on both sides are pointing out that settlement is likely the better business decision.  
Two underrated lawyering skills are the ability to recognize the true value of a lawsuit and the ability to educate both your own client and your opposing counsel on the subject.  Two lawyers on opposite sides should be able, without giving away their hole cards or projecting weakness, to share material that helps moderate the other side's highest hopes -- and mute the personal outrage of one client or both that often precludes settlement.  
Trials are fun.   Arduous, like a marathon, but mentally invigorating, like some sort of 7-dimensional chess-game.  Intense.  But a very high percentage of the time, the clients' best interest is a reasonable settlement, if only because legal fees can threaten to match the amount in dispute.
So kudos to the people and institutions mentioned in the column for avoiding litigation.]