WHAT RESPONSIBILITY DOES RADIO STATION HAVE FOR ADVERTISING?

I spend a great deal of time listening to radio in Albuquerque. Some of the advertising may mislead the listener. Do the stations recognize this? Does a station owe its listeners the duty of scrutinizing its advertising content and weeding out ads that may mislead?

During the month of June I have heard the following advertisements (this recitation is not word for word, even when quotes are used). One jeweler advertises that "No other jeweler can meet these prices!" What do they mean? Are they saying that their prices are the lowest in town, or that they will meet anyone's price? They also say that if you want to buy on credit, not to worry, "Zero percent interest for 5 years!" How can that be; how can they sell on credit at zero percent interest? Obviously, they have to increase the price. The question is whether this is so obvious that no one is misled. That sounds like a good defense.

New car advertisement: Anyone can enjoy the employee discount. GM employee discount.
You will recall that this is an ad in which a young ne'er-do-well applies for a job at GM, and later admits he does not want a job with GM, but merely wants to buy a new vehicle and get the employee discount. The GM interviewer solves the problem by telling the young man that he does not have to work for GM in order to get the GM employee discount -- that everyone can now get the employee discount. If everyone can get the discount, it is a price reduction, not an employee discount.

New pickup advertisement. “E pricing plan.” This local new pickup dealer advertises on the radio that now the public can buy at the same price that the company allows its employees to buy. What of the employees, do they go on the general public pricing plan? Or are we all, general public and employees, now on the same pricing plan? If so, so what, are they saying that the prices are being reduced? This ad boggles the mind. If it is true, they could advertise that they have terminated all employee discounts and have reduced all of their prices (as a consequence? in addition?).

New pickup advertisement. Our price is only [quotes price], "and that’s after factory rebate! This dealer gives us the information that there will be no "factory rebate" in this purchase; but phrases it so that the listener hears something else, or is simply dumbfounded and thinks the quoted price must be even more favorable to the purchaser than the listener first thought.

Introductory offer of 1.9% interest on loan; 4.5% APR. This ad speaks of a very low interest rate in an introductory offer. Then at the end, in quick, throw-away language, the speaker says "APR 4.5%." Question, is the introductory offer 4.5% APR? Or is the interest rate after the introduction 4.5%? If the ultimate APR does not exceed 4.5%, I will be surprised. More than likely, the original, introductory rate is 4.5% APR (because some fee is figured in on top of the 1.9%).

Small print now becomes unintelligible jabber, spoken so fast it cannot be considered. The rest of the ad is in large type: almost shouted at us. You have heard these radio ads. Bombastic, emphatic language in the pitch; and unintelligible, rapid jibberish in the disclaimer. How is that for a fair trade practice?

Question: Does a radio station have some obligation to screen the ads, to prevent ads that may mislead the listeners? Buyer, beware.

SUPREME COURT RULING ON EMINENT DOMAIN;

Yesterday, the Supreme Court decided Kelo v. City of New London, #04-108 (6/23/05). Justice Stevens wrote the majority opinion, and with the help of a concurring opinion from Justice Kennedy, got a 5-4 majority. Justice O’Connor dissented, and the Chief Justice and Justices Scalia and Thomas joined. Justice Thomas also wrote a separate dissenting opinion.

The case deals with the power of eminent domain (condemnation), in this case excercised by the municipality of New London, Connecticut. New London was losing population and business, and the city government decided that it should legislate to revive the City. The City decided to take property, including homes, from a number of residents, and to turn the property over to developers to upgrade the area in question, bring in jobs, and increase the tax base. The State did not object, but encouraged the project.

Most of the property owners agreed to sell to the City, as the first step, but some owners balked. The City decided to use its powers of eminent domain to take the property of the objecting owners. The eminent domain clause, a part of the Fifth Amendment, states “. . . nor shall private property be taken for public use, without just compensation.”


This was not a case of blight; there is no claim that the area in question was blighted, for example, by vacant, run-down, dangerous buildings, nor by poverty and dirty and unsanitary conditions. This is not a blight case, and no claim is made that blight justifies the taking here.

This is also not a case of the City taking private property to put the property to public use in the ordinary sense of the word, such as a park, a stadium (public has right to use), or a jail or courthouse. Nor is it a case of public use such as a mother irrigation ditch, or an oil pipeline, which may be owned by a private individual, but which the public has a right to use if need be.

Here we have no question as to whether and why the federal constitutional provision regarding eminent domain places a restriction on the use of the condemnation power by States and their political subdivisions. Apparently all of the justices agree that the eminent domain provision in the United States Constitution, restricts the States (and counties and cities) in two ways. First, no eminent domain (condemnation) unless just compensation is paid. Second, no eminent domain unless the taking of the property is for public use. “

Is a taking for a “public purpose” a taking for “public use?” The majority says Yes. The minority says that they are not satisfied that the taking in this case is for a “public purpose,” but even if it is, the taking must be for a public purpose which is also a “public use.” The minority says that the proposed use in this case, revitalization of the City, production of jobs, and increase of the tax base, may be for a “public purpose,” but the proposed use is not a “public use.” That is the issue in this case.


Justice O’Connor and those who joined her opinion, and Justice Thomas in his separate dissent, argue that the redevelopment plan of the City may be for a public purpose (though that is a question in itself) but even if the plan is for a public purpose, it must also be for a public use, and it is not in this case.

The Supreme Court had previously ruled that blight of an area (even though the objecting land owner’s business was not blighted) justified the taking of the entire area and transferring it to private developers, upon payment of the just compensation, for improvements and elimination of blight, and that such a taking was for a public use. Blight removal is a public use. Berman v. Parker , 348 U.S. 26 (1954).

The Supreme Court had previously ruled that the Hawaii Housing Authority could use the power of eminent domain to take the property of a few large landowners in Hawaii, and transfer the property to a number of persons who had been leasing homes from the big landowners. The purpose was to reduce the concentration of land ownership. That was a “public use.” Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984).

Based primarily on those two cases, the Berman case and the Hawaii case, the majority ruled in this Connecticut case that the development plan was for a “public use,” even though a large portion of the property taken was to be transferred to private individuals for private businesses. The majority assures us that the power of eminent domain cannot be used to take the property of one private individual to transfer it to another private person, even upon payment of just compensation, unless the use is to be for a “public purpose.”

We are justified in being concerned; but not to worry, as it will now become a local issue. What is gone is most of our protection provided by the Public Use Clause of the Fifth Amendment. We can live without this provision of the Fifth Amendment. However, we are now at the mercy of the developers who get the ear of the city councils and county commissions. We will get “just compensation,” but that is defined as fair market value of the property, or what a willing buyer would pay a willing seller, neither being under any compulsion. No compensation for having to leave your home or land when you would rather not sell, that is, no compensation for being forced to sell.

GOVERNOR 'S SPEEDING MORE DANGEROUS THAN SHIRLEY'S SMOKING

Once again in today's paper we read of speeding by the Governor. This in the City of Albuquerque. Never mind that the driver did not stop; we may accept the story that the driver did not recognize the chaser as the police (unmarked car; civilian clothes). That is not the point. Allegedly there was speeding before any attempt at a stop. The bottom line is, officers claim the Governor was speeding. Reportedly they claimed the vehicle was being driven erratically also, but leave that aside.

When Governor Richardson speeds, he is more dangerous than E. Shirley Baca and her glass pipe. She wasn't driving. Many demanded her resignation.

What is really bad about the speeding by the Governor is that it sets a bad example. We have young people getting their license to drive and going to drivers' school and learning that speed kills. Speeding is dangerous driving. Worse yet, the Governor imposes on the State Police officer who is driving; forcing the officer to violate the law he or she is sworn to uphold.

Also, what about John Denko, head of the Department of Public Safety; he is put in the position of having to cover for or apologize for the Governor. What about Bob Schwartz, the Governor's crime adviser? What about the DWI Czar? The Governor is not being fair to them. You say that is far fetched? Not so, when you consider the fact that the traffic laws, the regulations, are designed to promote safety, to protect the public; and the Department of Public Safety, the DWI Czar and the Crime Advisor are out on the front line promoting law enforcement.

If you were working for the Governor and were being put in the position of promoting traffic safety and compliance with the law, would you not be embarrassed by this speeding? If your job, and your retirement, perhaps, were at stake, would you not resent the actions of the Governor, which are an embarrassment to law enforcement?

Violation of the speeding laws, especially in the City, endangers lives. How does the driver, a sworn police officer, justify this conduct? How does John Denko justify this conduct? How does Governor Richardson justify it? We, the people of New Mexico, are entitled to an express, public apology from John Denko and Governor Richardson; and a pledge that this conduct is ended.

EVEN PLAYING FIELD IN CRIME DETECTION AND PUNISHMENT

In the criminal law especially, the playing field should be level. The police should have the same power to investigate the rich, influential and powerful, as the poor, weak and down and out. Then we can feel that justice is being done in that regard and we will have increased confidence in the overall criminal justice system. The result will be better protection of life and property.

Take search and seizure. Which people do we want to the police to search? What vehicles or homes do we want the police to search? Do we want to leave it up to the police as to whom to search and what vehicle or home to search? If so, every man’s privacy is in the hands of every police officer.

If we do not want everyone and every place to be searched, then how do we go about authorizing some people and some places to be searched? Under the Fourth Amendment, and New Mexico’s equivalent, the power of search generally requires probable cause. That is a restriction, placed by the Constitution on the police. A further restriction, is that except in exigent circumstances (no magistrate available, immediate action needed), the police must submit that probable cause to a neutral, independent magistrate, and get permission (a warrant), before the search.

Now let us take the case of the motorist. The vehicle is stopped by the police, lawfully, because of a traffic infraction (speeding, illegal lane change, bald tires, broken tail light, etc.). This type of stop and temporary inconvenience is more likely to occur if the police officer suspects that a search of the driver and vehicle may produce contraband or other evidence of a felony. We want the stop to be made; we want the driver to be arrested if impaired; and we want proper citations to be issued. We want to be assured that the vehicle is registered, that it is insured, and that the driver is licensed. Let us assume that all of that is done. What next?

In the case of this motorist do we want her name to be run through police records so that we can see if she is wanted? That makes sense if we are deciding whether to arrest or cite, because a wanted person is less likely to appear in response to a citation than a person who is not wanted. So far, we have invaded the privacy of the driver and with justifiable cause.

In this motorist case, the police officer has a hunch, an intuition, or a suspicion, that there may be illegal drugs concealed in the car or on the person of the driver. The officer does not have probable cause. What to do? Do we want the officer to ask for permission to make these searches? Remember now that the State Police do it all of the time, and turn up drugs, money, guns, and other contraband.

If the officer does not have an intuition nor suspicion, should he be allowed to ask the driver whether the driver has drugs or firearms in the car, and then perhaps acquire suspicion by reason of the nervous response, and then request permission to search? If we do not want this to happen, we had better speak up, because that is what is happening.

It is not fair to allow the officers to search a car merely because he asks for permission and is given permission. Mere acquiescence to pretended authority is not consent. People do not consent; they acquiesce to pretended authority. The officers pretend they have authority, when they ask to search. The meek consent. They go to prison, or are subjected to a search of their vehicle and effects. Search us all; search none of us; or search only with probable cause and consent, or probable cause and a warrant. The present practice is beneath us. We should not order our officers to do it, and we should not permit our officers to do it.

The answer is to require the officer to submit her facts, by cell phone or radio, to a recording monitored by a magistrate. If the magistrate gives authority (a warrant), let the officer proceed. We have 20-30 magistrates in Bernalillo County, counting the District Judges. When the officer calls for a warrant (permission), she can explain under oath to the magistrate why she should be allowed to invade the privacy of the citizen. We will catch fewer criminals that way, but we will be protecting the constitutional rights of all of us.

SHOULD ALL U.S. CITIZENS BE PRINTED, MUGGED AND DNA’D?

The customary practice of the police is to fingerprint and take the mug shot of those who are arrested. The justification, among others, is to aid in the prevention of escape and to keep a record of convictions. In any event, regardless of whether there is an escape, and even if there is no conviction, the prints go to Washington. Some law enforcement agencies are seeking to add DNA to the identification material. Printing, mugging and taking of DNA are invasions of privacy, but otherwise they seem to be harmless.

Most people are glad the police follow these policies. It makes it possible to identify the perpetrator of some new crimes. As an example, a child is abducted and found dead in a shallow grave. Murder. DNA bb’s [body bits] are found, and fingerprints are found. Who is going to complain if the national database is consulted, including that part of the database provided by persons who are innocent of all wrongdoing and suspicion? No objections.

We want a database, and we will approve the keeping of such data on innocent people, and the routine (no warrant required) search of that database in unsolved cases. We are even tolerating surveillance cameras in public places for (among other things) the detection and apprehension of the wanted, by computer comparison of the current surveillance pictures with digital picture files. So the question is, do we want the government to take the fingerprints, mug shot and DNA of each of us? As has been repeatedly said, “If you have not done anything wrong, what have you got to hide?”

The fair thing, the right thing to do, is to take the information from all of us or none of us (unless in a specific case with a warrant). This would inevitably lead to a national ID card; but why not a national ID card?

DID JURY ACQUIT OR PARDON JACKSON IN SEX ABUSE TRIAL

Rush Limbaugh said today that the jury was not convinced of guilt in the Jackson sex abuse case. “They didn’t have the case; they didn’t make the case.” He said he did not know Mr. Sneddon, the prosecutor, but that he, Limbaugh, just knew that Sneddon presented a case which did not convince an ordinary group of jurors.

This assumes that the jurors were not convinced. You will never get the truth from post verdict interviews of jurors if they have pardoned an accused. Some of the jurors have said that they did not like the mother witness. That should be enough to furrow the brow. Some criticized the parents of the boys for allowing the boys to sleep with Mr. Jackson. That should cause puzzlement.

Under our jury system, the jurors are judges of the facts, and they take an oath to decide the case according to the law and the evidence. They promise to set aside their biases, and their prejudices, and to not be influenced by what may be the consequences of their verdict.

Contrary to the rules, the prospective jurors are subjected to obfuscation and appeals to bias and ignorance, by some defense lawyers (mouthpieces). The jury selection system has been allowed to become an opportunity for the mouthpieces to argue their cases and condition the jury, under the guise of seeking a fair and impartial jury.

The conditioned jury has been misled and is ready to justify its action in granting the pardon. Maybe they should be allowed to simply grant a pardon; but that is not their right under the law as it is, the rule of law.

The jury system is not perfect; it is not even very good. My suggestion is increase the number of jurors, to 25, say; eliminate the exemptions; eliminate the peremptory (no reason needed) challenges to jurors; and allow a super-majority verdict. In this day of the mobile society, and the broadened jury pools, it is simply unwise to allow one or two jurors to prevent a verdict.

GUANTANAMO IS NOT THE MAIN ISSUE; DO TERRORISTS HAVE RIGHTS?

There is a push on for closure of Guantanamo Bay prison for terrorists, or at least for a commission to study, presumably, what is going on there. As a wise man used to say, "First things first." What is our overall approach to the handling of captured persons suspected of being terrorists? What work are we willing to order our service men and women to do, and what, if any chore, do we farm out to foreign allies, who reputedly are less sensitive than we? More to the point, are we American citizens, in this time of international threat, entitled to know how our military people treat those they take into physical custody on the basis that they are terrorists?

The whole hullaballoo began with the pictures of Pvt. England and her leashed Muslim terrorist. The investigation concentrated on the humiliation pictures and acts which caused humiliation. Little has been said about the physical alleged torture.

First, the pictures show humiliation; but the pictures raise the question of how did our guards get the prisoners to undress and be humiliated. What did our guards do, or threaten to do to get the prisoners to pose with electric wires on their privates?Second, the pictures do not show the alleged physical violence, including assault with a broom stick. Interrogation in a shower (?) of a prisoner who had a sack over his head (supposedly concealing his head and face injuries from his interrogators)? Insertion of a broomstick is not a new technique; it was used by convicts on the guards at the New Mexico State Penitentiary in the 1980 riot; but it is sad to see our armed forces put in the position of having to do such things.

The most important point is that the administration in effect concedes that the conduct in Iraq was wrong (not that it went wrong), yet the administration does not state that such conduct is prohibited in Guantanamo. Apparently, the line is being drawn between prisoners who are acknowledged to be under the Geneva convention protections against torture, and those in Guantanamo, who are not protected by the convention.

The question that should be raised, and debated in the United States now, is whether we condone torture of any captives (general term covering prisoners of “war” and terrorists). But so we do not get sidetracked, we also need to define “torture,” because some are in effect condoning what others call torture, and describing it as “conditioning,” “sleep delay,” or “diet adjustment.”

Maybe it is all right to permit our soldiers and civilian operatives to engage in physical or mental torture to get information under certain circumstances. I cannot conceive it, but I am willing to listen. But let us openly debate it. Also, remember that the Fourth Amendment (which I do not suggest applies here, although why not?) not only requires probable cause; it requires that such probable cause, known to the police, be submitted to a neutral, detached magistrate before action is warranted. Would it not be reasonable and fair to have some such requirement in the handling of terrorists?

Exigent circumstances excuse the submission to the magistrate. But take cases such as these. We have the prisoner under interrogation. He or she declines to talk, except for giving name, rank and serial number (if any). We, the interrogators, believe that the circumstances are such that torture (start with mild torture or with severe torture, depending on whether time is of the essence) is necessary and permitted by law. Why not submit a sworn written statement (email okay; voice mail okay) to a Judge and get a warrant that says okay to use water-boarding (repeated near-drownings), or forced masturbation, or forced pyramid stacking of naked people, or chained naked on concrete floor in own waste, or whatever else the CIA and Army intelligence want to propose.

Remember that Secretary Rumsfeld had a list of more than 20 approved techniques, kept secret so far. He originally approved 23, in writing; and when the pictures became public, the 23 became 20. What were the three which were dropped? What are the 20 which have been retained? Does Sen. John Warner know? We could feel much better if he, at least, were let in on the information.

Let us acknowledge what is happening, what methods we are willing to use under what circumstances, what the procedural requirements will be, what the rights of the prisoners shall be, and then we will have a rule of law. Then we should abide the rule of law. If the rule of law that we adopt does not meet with international approval, we should consider but not be controlled by that (for example, maybe we want to withdraw from Geneva rules; but at least we can say we are a nation which believes in the rule of law).

Finally, why get into a debate with the International Red Cross or Amnesty International about what is going on at Guantanamo or any of our other prisons? Open them to scrutiny by any legitimate international oversight group. Then we can regain our pride in being citizens of a country that is governed by the rule of law. We may have to give up torture as a weapon of self defense in the war on terror. That will be our choice; at least we will be honest about it. Some cringe when they think we may be using torture, or using torture unnecessarily or unwisely, but how is one to know whether we are or not?

GOVERNMENT CANNOT CONTROL GUNS BUT GOVERNMENT CAN BAN LETHAL AMMUNITION

In today's Albuquerque Journal we see a report that the Albuquerque police will restrict their use of the Taser stun guns. Too dangerous to use, except when there is an immediate threat from the citizen who is to be shot. It seems to me that the new rule may turn out to be dangerous for the police. Why doesn't the citizen follow the orders of the police? That would avoid the need for the use of any force.

This week we also saw a report of how the Bernalillo County Sheriff's department received 900 applications, accepted about 30 for the training academy, and is putting the 30 through rigorous physical training as a beginning. The drill instructor is reported to have explained to the recruits, [words to the effect] "You are being put through this because out there somewhere there is a guy who is bigger and stronger than you, and you are going to have to handle him." Assume that Jane Blow makes it through the training, and becomes a Deputy Sheriff. She is in the best physical condition of her life. Will she be tested periodically to see that she remains in such good condition? Are the current Deputies held to such rigorous standards?

Sheriff Darren White should reach out and take his deputies from a broader pool of citizens. It is not necessary that all deputies be willing and able to engage in fisticuffs, or use a baton or blackjack to keep the peace. The uniform, the badge, and a respectful but clear order should do the job. If it goes beyond that, the officer should have a choice of weapons, and the gun should be utilized. Did I say shoot to kill, or place two, not one, but two bullets in the chest to "stop the action," as the police say? No; but a gun with non-lethal bullets should be standard issue. A gun with lethal ammunition, and a gun with non-lethal ammunition.

Non-lethal ammunition should have the force of a Mike Tyson blow. One to the chest and the next to the jaw. The beauty of this NL ammo, is that the government can limit the purchase and use of lethal ammunition -- limit the lethal ammo to police and citizens using other than handguns. Use the interstate commerce clause for the authority.

You say it will not work; that if we outlaw lethal ammo, only outlaws will possess such ammo. Not so, When is the last time you heard of a crime with a gun equipped with a silencer? When is the last time you saw a switchblade knife, or heard of the use of one? Same with submachine guns.

The ammunition can be the key. The NL ammo feels and looks just like lethal ammo, except the cartridge case is machine-stamped, "NL." The report from the explosion is just as loud.

No need to try to pry the gun from its owner's hands; let her feel the heft of it, smell the gun oil and burnt powder, admire the gun's fine steel mechanical parts and action, and enjoy the explosion. It would be like a Camel or Lucky Strike smoker going to a Doral. Almost all the benefits are there. Everything would be the same except what comes out of the barrel. And in the case of the NL ammo, what does come out of the barrel is awesome, literally, and should be sufficient for ordinary citizens who are not hunting big game.

CONVICTED COURTHOUSE RAIDERS PARDONED BY GOVERNORS KING AND APODACA

On June 7, 1967, Reies Lopez Tijerina led a raid on the Tierra Amarilla (Rio Arriba County) courthouse. Eulogio Salazar, a Deputy Sheriff, tried to go out of the window of the Sheriff's office, located at the front (North end) of the courthouse. As Deputy Salazar was going through the window, Mr. Tijerina shot Salazar through the jaw. Tijerina was convicted by a jury of assault with intent to kill Salazar, and Garnett Burks, Sr., District Judge, sentenced Tijerina to a term of not less than two nor more than ten years. Mr. Tijerina never served his time, because he was pardoned by Governor Jerry Apodaca. [CORRECTED in June 29, 2007 post. jack love].
The first shot that was fired during the courthouse raid, was fired by Juan Valdez, one of the followers of Reis Tijerina. Mr. Valdez shot Nick Saiz, a State policeman, who was on duty in the lobby of the courthouse. Mr. Valdez was convicted by a jury of assault with intent to kill Officer Saiz (Saiz' lung collapsed, and when he recovered, Saiz' left arm was permanently crippled). Judge Burks sentenced Juan Valdez to 2-10 years. Valdez did not serve any of his sentence, because he was pardoned by Governor Bruce King.

Baltazar Apodaca was declared incompetent to stand trial. Baltazar Martinez was found by a jury to be not guilty by reason of insanity. Thus ended the prosecutions of the alleged raiders of the Tierra Amarilla courthouse raid. This post was prompted by articles this week in the Albuquerque Journal and Albuquerque Tribune regarding the dedication of Reis Lopez Tijerina's papers to the archives of the UNM library.

NOT PARANOIA TO BE CONCERNED ABOUT POLICE VIDEO SURVEILLANCE

On KKOB radio this morning the callers and host discussed the new video surveillance cameras at two Albuquerque intersections. One caller asked where the surveillance will stop, and expressed concern that police surveillance by video could go too far, or had gone too far. The host was of the opinion that the caller was overly concerned, that his worries were paranoia. I would say that the caller was right to be worried, and that he was not paranoid; but that video police surveillance is a good thing.

When the electronic bracelet was first introduced, a thoughtful, intelligent young man said, "It depends on who puts it on whom and what for." That statement can be applied here, to traffic video camera surveillance. It depends on who monitors the camera, and what the camera is there to detect. If we were dealing with murders at the intersections, we would probably hear no objections, not even from the ACLU. If we could be sure the images of law abiding motorists were erased immediately, perhaps we would feel better. On the other hand, a record of all the traffic will help to prove to the doubtful, that the guilty are punished, and only the guilty are punished.

It seems that a basic question is whether there is less of an invasion of privacy when a police officer on the scene is personally conducting the surveillance, than when a video camera is used to conduct the surveillance. Assuming that the camera and the policeman see and accurately record, and accurately and faithfully report the same event, which surveillance do you prefer? If you do not want the surveillance at all, that is another matter.

From the standpoint of civil liberties, I much prefer the technology approach. If the government is going to protect me, or place me under surveillance to protect me and others, I prefer that the government do it by the use of technology if possible. For example, if the government wants to see my "papers," or "Let me see some ID," I would prefer that it be done by a machine. Further, I would prefer that the request be truly random or (preferably) be made to everyone.

We need more video camera surveillance for traffic, not less. Yet Mayor Martin Chavez is doing the right thing by taking small steps, and at high danger intersections. He should be commended.

One suggestion, as we watch the fallout and wait for the legal arguments. The citizens should be allowed to see the video as it is shot (sort of like watching the City Council on the public access channel, now to be found on line). We citizens should also be able to see the citations go out, so that we are monitoring the monitors.

Finally, the idea of keeping the citations from the insurance companies and MVD, is ill-advised. You do not need draconian punishments (call them "civil" and turn away the ACLU wrath) as presently set. Certainty of apprehension and prosecution with notice to MVD and the insurance company will do the job.

PENITENTIARY RIOT LAWSUIT SETTLEMENTS KEPT SECRET FIFTEEN YEARS

The penitentiary riot that resulted in the deaths of thirty-three (33) inmates occurred on February 2, 1980. Numerous lawsuits arose from the deaths and injuries suffered by the inmates. Many of the cases were dismissed because the prisoners did not diligently prosecute their cases, or they failed to cooperate in the pretrial discovery process. Many cases were settled, including wrongful death cases. The estates of deceased prisoners were paid from $4,200 to $37,200, with most settlements at about $15,000. The State paid 60% and the insurance companies for the architect, contractor, and glass company paid the remainder.

One case was filed in 1991, but most were settled within a few years of the 1980 riot. The three-year statute of limitations expired in February, 1983. The information as to how much was paid each claimant in the various settlements was kept secret until June, 1995.

On June 28, 1993, after the Risk Management Division of the General Services Department of the State of New Mexico had been sued for withholding the information in the riot case suits and settlements, the attorney for Risk Management explained in a letter:

“Dear Mr. Love: * * *
You asked why the Risk Management Division (“RMD”) believes that the pendency of the Martinez lawsuit renders the settlement papers of all of the other penitentiary riot lawsuits confidential. The answer is found in NMSA 1978, §15-7-9(A)(2)(b). That section provides that RMD records shall be confidential for six months beyond ‘the date all litigation involving the claim and the occurrence giving rise thereto has been brought to final judgment and all appeals and rights to appeal have been exhausted.’ (Emphasis added.)

“RMD’s position is that the penitentiary riot was a single occurrence. Folz v. State, 110 N.M. 457, 797 P.2d 246 (1990). Therefore, all of the files must be kept confidential during the pendency of this lawsuit and for six moths thereafter.

“As I have indicated to you already, RMD is willing to provide you with the opportunity to inspect and copy riot lawsuit materials once the materials becomes [sic] public. Therefore, I sincerely hope that you can be persuaded to dismiss your lawsuit at this time.”

The Martinez case was filed in 1991. That was eleven years after the riot and the case was clearly barred by limitations, as the Courts ultimately ruled. Then in 1993, another prisoner wrote a letter claim to Risk Management, seeking damages for injuries suffered in the riot. Risk Management delayed disclosure further on the basis of that letter, although it would seem clear that the Legislature never intended such result. That is, the Legislature surely did not intend that the amount of the settlements in the few years following the riot, would remain secret from the public for 15 years, based on frivolous claims dribbling in in the 1990's.

The secrecy allowed the State and the insurance companies for the other defendants to buy up the claims of all the prisoners, dead and surviving, for $433,039.26 from the State, at a cost of $1.5 million in attorney fees for law firms hired by the State to defend the litigation.

The State and the inmates had a claim against the architect, contractor and glass company, based on the allegation that the wrong kind of glass was installed at the control room. Instead of a few prisoners being at liberty but confined in a small area, the whole penitentiary was opened to the most hardened of the inmates after one broke the glass to the control room with three blows with a fire extinguisher.

The report of these matters is dated June 19, 1995. It is styled REPORT ON THE DEFENSE OF THE CIVIL LITIGATION RESULTING FROM THE 1980 RIOT AT THE NEW MEXICO PENITENTIARY. It was released by Governor Gary Johnson, and thereafter the information as to the amounts paid out in settlement was public record.

TAXPAYERS PAY TORT CLAIMS BUT SETTLEMENTS KEPT SECRET

We frequently read about settlements in which claimants are paid for violations of their rights by police and other employees of the public. Hundreds of thousands of dollars are paid out to settle these cases. The wrongdoers, or alleged wrongdoers, are not liable to indemnify, reimburse, the taxpayers, except an unused law permits the government to recover from the wrongdoer if the wrong, the tort, is with "actual intentional malice". New Mexico Statutes Annotated 1978, Section 41-4-17. Have you heard of any law enforcement officer or other government employee being asked to reimburse the taxpayers after one of these large settlements?

Back to the real issue. These settlements are done in relative secrecy. What is meant by relative secrecy? It is like the United States Supreme Court, which meets in relative secrecy (because they will not allow live audio of the proceedings; and they will not allow video, live or delayed). In the case of the tort claim settlements, the fact that a settlement has been reached, before a lawsuit is filed, or during the pendency of a lawsuit, or after trial, that fact is public record. The amount is not. This works to shield wrongdoing on the part of the law enforcement officers or other alleged wrongdoers, tortfeasors. We read that a citizen claims to have been mistreated; then we read that the case is settled.

Under the statute, the government, which pays out the taxpayers' money, will say publicly that the case is settled; but they will not say how much. That takes the heat off the tortfeasor and the agency, and the heat stays off for six months. After the six months, if someone inquires and persists, the facts will come out as to how much was paid to settle the claim. By then the incident has been largely forgotten by most citizens.

Another twist, which works to shield the wrongdoing of the public employee and agency, is the rule that if an alleged wrong (tort) has more than one victim, then the six months does not expire (amount of settlement remains unknown for any and all claimants) until six months after the last claim is settled. If a police officer violates the rights of three, by physical abuse let us say, we cannot learn how much the taxpayers paid Joe Sixpack to settle, until six months after Joe Jones and Bill Smith have settled. Sometimes that takes years.

For example, in the penitentiary riot cases, in which the inmates or their families sued, and the State was a party defendant, the defendants, including the State and a company which provided the glass which was broken by inmates to gain access to the control room, got together and defended the case. They settled with the claimants one by one, some for a small amount for a death, some for much more. Because the amounts of the settlements were not disclosed, the individual claimants settled their claims without knowledge of what the taxpayers were paying the others. The law worked as intended, to help the taxpayers keep down the cost of settlement of the group of cases, but the taxpayers were not allowed to know how much, as each case settled.

The public did not learn of the amounts of the settlements of claims against the State arising out of the February 2, 1980 penitentiary riot until 1995. This writer made claim to the information for over five years before it was finally released in 1995. That was the Risk Management Division at work; trustees of the taxpayers' dollars. Question: has any newspaper ever printed the information as to how much was paid to whom by the taxpayers, as a result of alleged wrongdoing by the penitentiary administration and employees? Not to the knowledge of the writer.

In the penitentiary riot case, the claims were all settled within a few years; so why was the administration able to keep the amounts secret from the taxpayers, for 15 years? Risk Management set the disclosure date as the expiration of two years (statute of limitations in tort claim cases) from the date of the last claim presented by any claimant.

If a prisoner, or ex-prisoner even wrote a letter claiming to have been injured in the riot, and even if the statute of limitations had long run, Risk Management treated the letter as an outstanding claim. No problem there, as they had to at least look at the claim; but they then held back the settlement disclosures for all of the settlements for another few years. This continued for a total of 15 years. Who cared by then?

More later on this subject, including what Risk Management said to excuse holding up this information for 15 years.

EXTEND MEDICARE TO CHILDREN 0 - 6 YEARS

In today's Albuquerque Journal, Jim Belshaw wrote an article about the pediatric oncology unit at UNM Hospital, and some of the people who work there. A wonderful story, and study, of a tragic aspect of some people's lives, and the calling of health care providers. The Belshaw article was apolitical. This post is not.

Medicare is in place. It is available to those 65 years of age -- why should it not be available to those from conception to six years of age? When the little girl gets cancer, why should her parents have to get a fruit jar and put her picture on it and place it in the 7-11, right beside the State lottery ticket display? When the little girl gets cancer, why isn't she entitled to medical care just like the 66 year old man? It is not only the medical care that is important, as those who have Medicare will tell you; it is knowing that the care is going to be there, and that you, the patient, have paid for it, so that you may retain some dignity as you apply for the treatment. Little kids, even, know about what we used to call "relief." Why burden these children with the knowledge that their illnesses may drive their parents into bankruptcy or to the relief rolls? Give these children some medical care and take their promissory note. In this, as in war, it should not be every person for himself.

If we need support in the law, and justification for making the taxpayers take on this additional burden, we make look to the war making powers. Disease is the enemy, and the war on disease is as important to our national well-being, and is as justified, as the wars we fight against aggression (aggression by terrorism or conventional means). We need our children to grow up healthy and able to fight if necessary.

It is true that the wealthy pay more in to Social Security than the poor, and that they get less out. That is a fault of the present system, and could be reformed. That is another issue, progressive taxation in Social Security.

BERNALILLO COUNTY TAXPAYERS HIRE SOLE BIDDER FOR COUNTY BOND WORK

On Tuesday, May 10, 2005, the Bernalillo County Commission approved a contract between the County and the only law firm which had submitted a response to the request for proposals. The contract is for legal services in connection with bonds that may be issued by the County. A principal of the winning firm was quoted as saying, "We're normally the low bidder, the small firm. Our fees are less than other people's." Other lawyers said they didn't see the request for proposals. Albuquerque Journal, May 10-11, 2005.

The fees set forth in the bid were made public record when the contract became the subject of the vote by the Commissioners. It was not on the internet, but the fee schedule was available from the Purchasing Department upon request. This is the fee schedule that was approved:

. . . for all legal services rendered in connection with the issuance of
bonds or other obligations, in accordance with the following fee
schedule:

A. General Obligation Bonds, new issue, $1.00 per $1,000 face
amount of the bonds, . . . minimum fee of $10,000 per issue . . . .

B. Revenue Bonds, new issue, $1.25 per $1,000 face amount of
the bonds, with a minimum fee of $10,000 per issue . . . .

E. Conduit Financings, $3.00 per $1,000 face amount of Bonds up to $15,000,000 of bonds with a minimum fee of $25,000 plus $1.00 per $1,000 face amount of bonds over $15,000,000 up to $50,000,000, thereafter, $.50 per $1,000 face amount. All fees and expenses to be paid by the developer; and . . . .

No fees will be charged to the County for bond transactions that are not completed; . . . .

If the County proposed to issue general obligation bonds for $500 million, the lawyer fee would be $500 thousand. If the County proposed to issue such bonds for $5 million, the lawyer fee would be $5 thousand, upped to the $10 thousand minimum. If the issue is to be $100 million, the fee will be $100 thousand, for legal services in connection with a bond issue.

We pay the Chief Justice of our Supreme Court $106,960 per year, plus benefits.

ELIMINATE DEATH TAX NOW

Every Saturday morning on Albuquerque's KKOB, Stuart Stein, an estate planning and probate attorney, has an hour-long program on that subject. The show is very interesting and the host is pleasant and has a good sense of humor. Today he referred to the estate tax and the uncertainty of how long the exemptions will continue (apparently Congress is doing this by the decade and watching the results). That reminded me of the death tax (which is out of our reach, for sure).

The headline here assumes the question, but let us state the proposal this way: "ELIMINATE THE ESTATE TAX NOW." We contend that the estate tax is not fair, if the deceased has paid taxes on the money and property she wants to leave to some survivor (church people, nephews, family members). Has the capital gains tax been paid on the property; and if not, then it can be paid at death without an estate tax. Has the income tax been paid on the money in the bank; and if not, then it can be paid at death without an estate tax. Beyond that, why tax the wealth again, that is, make death a taxable event?

The eighty year old multimillionaire who earns $10 million a year should be encouraged to continue earning (producing), if that is what she wants to do with her life. The more production, the more goods for the world to share; and if the production is of useful things that make life better, so much the better. The fifty year old multimillionaire who earns millions a year should be encouraged to continue producing. Why should she be discouraged by the thought that she can work all her life and build up wealth, but then she cannot leave it to people or animals of her choice? Why should she be forced to pay for planning (no disrespect meant to any attorney) to avoid this tax which will be imposed upon her death? This tax is counterproductive, as well as unfair.

Many today say we should eliminate the death tax, but they do not go further and say that the tax should be eliminated only on that part of the estate which has already been taxed. This distinction is important. Many of those who oppose the elimination of the tax point out that the deceased's estate has been sheltered from income taxes. Advocates of elimination of the death tax should insist that they are for the elimination of the tax on only that portion of the estate which has already been taxed.

We are not talking here about taxes on real and personal property based on value. If the rich woman leaves a large ranch and mansion to her nephews or widower, it will continue to be subject to ad valorem taxes.

There is nothing new or novel in this post; it is elementary. However, as President Nixon said, "Let us stop shouting so that we can hear each other." Let us drop the labels and discuss the issues.

DWI ARREST TRIGGERS OUTRAGE

The report of the arrest this week of a Los Lunas man for DWI (20 arrests; 7 convictions) has triggered outrage. KKOB radio Tuesday devoted over an hour to a discussion of a proposal by the host that the penalty for fourth offense DWI be mandatory life imprisonment. He suggested a mandatory sentence, so we do not have to worry about the Judge, ". . . it takes the idiot Judge out of the equation."

Who would be in the equation under such a proposal? First, the police officer who makes a traffic stop of a suspect. Does he make the arrest, knowing that Joe Sixpack will get life in prison? Next, the District Attorney. Does he prosecute Joe Sixpack for DWI, knowing that the punishment is mandatory life in prison? Next is the jury. Do twelve citizens unanimously agree to send Joe Sixpack to the New Mexico State Penitentiary for the remainder of his life?

One caller said do it on the third offense, do not wait for the fourth. The host said words to the effect, "I can go with that." One caller said take him (not clear whether he meant Rodarte, the accused, or anyone convicted of four DWI's) — take him out to the West mesa and shoot him. The host considered that proposal frivolous.

Rachel Conner, the State DWI Czar, on KKOB earlier, put her finger on the problem. She said, "It is very difficult to change their behavior." She was calm and rational, and right. The public is frustrated, and demanding "tougher laws."

A partial, but substantial solution, would be to provide the resources to the Courts for technology options in sentencing for DWI. Give the Judges the power (eliminate the mandatory provisions from all sentencing), and the resources, and we may expect that the Judges will do the right thing.

In the case of punishment for simple DWI, start with conditions of release (bail). One arrested for DWI and released on bail could be required to wear an ankle bracelet that would detect the blood alcohol content and report it to the computer. If the Judge sets a condition that the accused abstain pending trial, that could be enforced by the bracelet and computer monitoring. $5.00 to $10.00 per day should do the job. No need to place an ignition interlock, nor a "boot" on the automobile — put a bracelet on the alleged offender.

If the accused is convicted, she may be placed on a bracelet and home "tag" and allowed to have booze at home, but not be permitted outside the home with a prohibited blood alcohol content. We are looking at less than $10.00 per day, and ultimately less as use is expanded. The Judge may decide to prohibit some offenders from consuming alcohol. That is practical, with the alcohol bracelet. This technology is now in use and available. Give the Judges the resources, and the discretion, and we may expect a great improvement in the administration of this part of the criminal justice system.

FIGHT DWI WITH HIGH SCHOOL DRIVERS

FIGHT DWI WITH HIGH SCHOOL DRIVERS

We should consider allowing high school students to hire out as designated drivers. They could apply for a designated driver's license, and liability insurance for their conduct could be provided through the risk management division of the State. These drivers would be called by a customer, go to the home of the customer, and be a designated driver for the evening. An opportunity to catch up on school work while the customer parties. Home by midnight. It is easy to say, "Take a cab." That is not so easy to do; as our present system does not provide the fast, dependable, low-cost transportation that is needed to get people out of their own cars and out of the bars and into a taxi.

Another way to reduce DWI would be to expand taxi service during quitting time and evenings. This could be done by allowing independent vehicle owners to hire their vehicles out as taxis or limousines for partying purposes. Soon there would be such transportation available in the neighborhood, fast, and hopefully low-cost.

This sounds a lot like enabling. However, we must face the reality that people are allowed to buy alochol beverages by the drink, in bars and restaurants, and they have to get home somehow, sometime. We allow the bars and nightclubs to be open to serve alcoholic beverages by the drink, and to promote various types of social hours or happy hours. We know that people are sitting there getting intoxicated, or at least impaired, and we know that many will then get up to drive home. We should at least try to make the situation less dangerous. See previous posts on fighting DWI.

FIGHT DWI WITH HOME DELIVERY

New Mexico prohibits home delivery of alcoholic beverages. There is a safety factor; fear of robbery of the driver. There is concern that the driver will leave the beverage with underage persons. And we may suspect that economics has something to do with it, as the bars and saloons would do less business if Joe Sixpack could call for a home delivery when he runs out of beer. We should re-examine this rule, and see if we can have safe home delivery of alcoholic beverages. We should ask ourselves whether home delivery of alocholic beverages would be a good thing if it could be done with safety to the driver, and with security that the alcohol would go to those allowed by law to have it.

At first blush, this also sounds like a bad idea, a proliferation or expansion of the problem of drunkenness and DWI. However, we must consider the real world here. Joe Sixpack is allowed to drink, and to get drunk under certain circumstances (home alone, for example). Joe is also allowed to sit at a bar stool and drink, but he is not supposed to get drunk there, nor is he supposed to imbibe there to the extent that (if he is driving) he becomes impaired for driving.

Assume that Joe Sixpack is home alone and has been drinking, to the extent that he is impaired for driving. He is able to function well around the house, and wants more beer. What is he supposed to do? He should perhaps be able to call the neighborhood Walgreens store and ask that they drop by with a case of cold beer, giving his credit card number, or merely his name and account number if credit has been established [at present we cannot buy alcoholic beverages on credit]; and within 30 minutes, the delivery is here. Why not? Do you want Joe to get in his pickup and drive to Walgreen's?

Jane Sixpack is a secret vodka drinker, and her husband is at work. She is at home, but has run out of vodka. She is impaired, but not drunk, so that she could walk into the liquor department of Walgreens and buy a half gallon. How does she get there? Best way is to drive her own vehicle. Do you want your family to be on the road between her house and the liquor store? If we change the law, she can call Walgreens for a home delivery of the beverage, and pay the driver with credit card, or cash, or even check. Why not?

Aside from the economics of the matter, that is, the interests of the liquor dealers and bar owners, there is no good reason to prohibit home delivery. There is danger of persons not entitled to have the alcohol getting it by the home delivery method, but that danger is offset by the overall benefits of home delivery.