The County Clerk of Bernalillo County maintains records of real estate transactions: deeds, mortgages, liens, etc. She has these on a database in her office downtown. If Joe Sixpack wants to look at these records (they are public records), he can go down to the building at 5th and Marquette and go up to the Sixth floor and ask a clerk to look into the computer. Older records are there (prior to 1995?) on microfilm. Parking? It is to work at.
Why is this? These are our records, public records. Why are they not on line? Why cannot Jane Sixpack access these public records from her own computer in her own home, or at the public library?
Same deal with the contracts that the City, County and State enter into with middlemen of all sorts. Why cannot we see these contracts on line? For example, how much is the attorney going to take for his fee of the $100 million bond issue the County authorized? Is it a reasonable amount? Is it based on work done, hourly rate? Or is it a percentage? If it is a percentage, then why? Will the attorney get $125,000? That is more than we pay the Chief Justice for a whole year’s work. How many hours will be put into this work? What rate per hour?
If that gated community in the Northeast Heights hires some off-duty police officers and pays them time and a half to patrol the neighborhood, in government, marked police cars, in uniform with badge and gun, what is this all about? The answer is in the contract, a writing, which could be put on line but is not. Why not? If the Chief wants to let his officers be hired by private individuals to police for those special ones, and call the plan “Chief’s Overtime,” then let him put the contracts on line. Sunshine could cure a lot of our problems, and make right a lot of our wrongs.
Let technology help us become Big Citizens.
Wednesday, September 28, 2005
Friday, September 23, 2005
CHARITABLE GIVING COMMENDABLE BUT RESULTS IN NEGLECT OF RESPONSIBILITY
During this time of devastation and tragedy in the Gulf Coast, due to Katrina, and now Rita, we are all being asked to contribute to the Red Cross, Salvation Army, Habitat for Humanity, and others. That is admirable, that we will do so. However, this giving results in a neglect of responsibility. The responsibility is that of the government [taxpayers] under the social contract. The more that is given by private parties, the less the government has to pay out. The government is not taking full responsibility.
Which government? Historicallly, it should be the taxpayers of the settlement, the place where each in need, was born. Where when you have to go there, they have to take you in. Now, in the 21st century, it should be the taxpayers of the federal government, due to modern means of travel and free access to each community of the nation.
Professor William Bennett apparently does not object to payments of federal taxpayer funds for these purposes; but he says all federal taxpayer assistance should be "funneled" through charities. If you need a meal, go to a faith based institution and beg. If you need a cancer operation for your baby, put a fruit jar out near the cash register of the neighborhood filling station.
As a part of the social contract (my new-born grandson is subject to the draft as cannon fodder for another Vietnam or Irag), the children, at least, ought to be able to rely on the federal government for an entitlement, yes, entitlement: two square meals, a doctor when sick, preventative medicine and dental care, a roof over the head, and first class education.
The Joy Junction mayordomo says he will not open his books, and that he is exempt from any government regulation imposing such a requirement. That is gall, for sure. I heard him say this on KKOB morning show when Larry Ahrens was still there. What does he do that the federal government should not take over, if worthy? Same with the American Red Cross; why should there be an "American Red Cross?" They do some good, but it is the responsibility of the federal taxpayers.
Is there a qualified needy person out there? Like a homeless, penniless quadriplegic? Yes. Who, if anyone, owes that person a life with dignity and the necessaries? Every taxpayer of the federal government of the United States; or else the social contract set forth in and by the Constition is a dead letter due to the greed of modern citizens.
Which government? Historicallly, it should be the taxpayers of the settlement, the place where each in need, was born. Where when you have to go there, they have to take you in. Now, in the 21st century, it should be the taxpayers of the federal government, due to modern means of travel and free access to each community of the nation.
Professor William Bennett apparently does not object to payments of federal taxpayer funds for these purposes; but he says all federal taxpayer assistance should be "funneled" through charities. If you need a meal, go to a faith based institution and beg. If you need a cancer operation for your baby, put a fruit jar out near the cash register of the neighborhood filling station.
As a part of the social contract (my new-born grandson is subject to the draft as cannon fodder for another Vietnam or Irag), the children, at least, ought to be able to rely on the federal government for an entitlement, yes, entitlement: two square meals, a doctor when sick, preventative medicine and dental care, a roof over the head, and first class education.
The Joy Junction mayordomo says he will not open his books, and that he is exempt from any government regulation imposing such a requirement. That is gall, for sure. I heard him say this on KKOB morning show when Larry Ahrens was still there. What does he do that the federal government should not take over, if worthy? Same with the American Red Cross; why should there be an "American Red Cross?" They do some good, but it is the responsibility of the federal taxpayers.
Is there a qualified needy person out there? Like a homeless, penniless quadriplegic? Yes. Who, if anyone, owes that person a life with dignity and the necessaries? Every taxpayer of the federal government of the United States; or else the social contract set forth in and by the Constition is a dead letter due to the greed of modern citizens.
Wednesday, September 21, 2005
PLEDGE OF ALLEGIANCE
The schools ask the children to stand up and pledge allegiance. Sort of a daily loyalty oath. We are not talking about naturalization, and that oath requirement. Children citizens are asked to stand and pledge.
The Supreme Court as early as 1943 ruled that it was unconstitutional, a violation of the First and Fourteenth Amendments, to require a civic pledge of those public school children whose religion forbad all pledges. Board of Education v. Barnette, 319 U.S. 624 (1943).
Thereafter, until 1952, the school authorities would ask the class to stand and pledge, and some would be allowed to remain sitting.
Then in 1952, Congress added the words, “under God,” to the pledge, somewhat modifying the word, "indivisible". Now the question became, is it enough that the child may decline to take the pledge, does that right to dissent by remaining sitting, or silent, avoid the idea that the government [compulsory school] is establishing a religion.
I was old enough to take the pledge when I was seven. I knew, from the knee of my Southern Baptist mother, that I was required to decide on a very big question. Did I want to say that I accept Jesus as a savior, and my savior, and that I believed that if I did so and walked down the aisle of the church in public ceremony and accepted baptism by immersion [none else would do] then I would have eternal life? Or did I want to fail to believe, accept, and be baptized, and risk that if I died before being saved, I would be sent to Hell, to eternal fire and damnation? The way the Baptist preachers described Hell in those days was graphic. I chose the right way.
I did as my mother wanted, and her desires, regardless of whether they were logical, or efficacious for me, were the desires of my mother and my compliance made her feel good and gave her comfort. So I am glad I was converted as a Baptist. Under that religion, no matter whether I sinned, or erred, afterward, I was converted, saved, and would land in heaven, and that has to be a great comfort to a mother.
How about simply returning to the old pledge, the one used during the Great Depression and during World War II. "One nation, indivisible, with liberty and justice for all." We do not have to say that we are rejecting religion, or taking the Lord out of the schools. We can say that we are returning to the basic civics values that the senior citizens were taught in grade school.
The Supreme Court as early as 1943 ruled that it was unconstitutional, a violation of the First and Fourteenth Amendments, to require a civic pledge of those public school children whose religion forbad all pledges. Board of Education v. Barnette, 319 U.S. 624 (1943).
Thereafter, until 1952, the school authorities would ask the class to stand and pledge, and some would be allowed to remain sitting.
Then in 1952, Congress added the words, “under God,” to the pledge, somewhat modifying the word, "indivisible". Now the question became, is it enough that the child may decline to take the pledge, does that right to dissent by remaining sitting, or silent, avoid the idea that the government [compulsory school] is establishing a religion.
I was old enough to take the pledge when I was seven. I knew, from the knee of my Southern Baptist mother, that I was required to decide on a very big question. Did I want to say that I accept Jesus as a savior, and my savior, and that I believed that if I did so and walked down the aisle of the church in public ceremony and accepted baptism by immersion [none else would do] then I would have eternal life? Or did I want to fail to believe, accept, and be baptized, and risk that if I died before being saved, I would be sent to Hell, to eternal fire and damnation? The way the Baptist preachers described Hell in those days was graphic. I chose the right way.
I did as my mother wanted, and her desires, regardless of whether they were logical, or efficacious for me, were the desires of my mother and my compliance made her feel good and gave her comfort. So I am glad I was converted as a Baptist. Under that religion, no matter whether I sinned, or erred, afterward, I was converted, saved, and would land in heaven, and that has to be a great comfort to a mother.
How about simply returning to the old pledge, the one used during the Great Depression and during World War II. "One nation, indivisible, with liberty and justice for all." We do not have to say that we are rejecting religion, or taking the Lord out of the schools. We can say that we are returning to the basic civics values that the senior citizens were taught in grade school.
Saturday, September 10, 2005
LESSON OF TRAGEDY AT NEW ORLEANS
This post is not about blame in connection with the tragedy at New Orleans. Let us look forward and work to prepare for future catastrophes. There are dams all over the country. There are nuclear plants, chemical plants, and other sites that could be turned into a catastrophe if modern technology were applied by terrorists.
Locally, we have Cochiti Dam. We also have something, which most of us are vaguely aware of, but do not know and understand, here at Sandia Base and Kirtland Air Force Base and in the Manzanos. We have an obviously vulnerable Big I.
Whether these devastations occur by act of God, by negligence of our own people, or by intentional acts of suicidal terrorists, we need to be prepared. The people are ready; they are compassionate, generous, and with some few exceptions are honest and willing to help each other. Do we have plans? Is there a plan for what to do if Cochiti Dam lets go? When we say plan, we must mean plan and arrangements to implement the plan. Group I does this; Group II does this; other groups are ready, in reserve, and able to act; and through an ever widening circle of groups, we contain and help.
The first question is, does government have a role in these matters, preventing catastrophes and helping when there are catastrophes? Most would say, of course, obviously, the question is ridiculous. But then why do we praise all of the individual contributions, from unaffected communities, to the American Red Cross, the Salvation Army, and Habitats for Humanity [is this not a token, feel-good, help organization, using and abusing the name of our best living president, Jimmy Carter]?
The next question is, should the people pitch in and contribute money or foodstuffs, or other supplies? Of course, among themselves, the victims. But why should people in New York and Alaska and New Mexico contribute money for the relief of deserving victims of a catastrophe in Louisiana? Is not this a matter that should be handled by the government? This is a government matter, or it is a matter to be handled by individuals, voluntarily, through private charitable work. We could leave this out of the government sector, but we do not recommend that.
We, the people, want to help at these times. That is good, but our help should be to fill in the nooks and crannies. The government [taxpayers, the parties to the social contract] should carry the burden in general.
Next question. If we agree that the government should take this responsibility, which government? City, state, or federal? Historically, the settlement (local village where you were born) had the responsibility. That is the origin of the rule that when you have to go there, they have to take you in. Later, alms houses were the responsibility of the counties. Then the states; and now, why not the United States? The paupers can travel from state to state, and when the pauper [for example, a quadriplegic who is broke] ends up in Santa Fe, who should pony up? The United States is the right answer.
We believe that it is the government, the federal government, with the resources of the federal taxpayers, that should be prepared to prevent, if possible, and to help, rescue, alleviate and work to minimize the effects of the catastrophe.
Locally, we have Cochiti Dam. We also have something, which most of us are vaguely aware of, but do not know and understand, here at Sandia Base and Kirtland Air Force Base and in the Manzanos. We have an obviously vulnerable Big I.
Whether these devastations occur by act of God, by negligence of our own people, or by intentional acts of suicidal terrorists, we need to be prepared. The people are ready; they are compassionate, generous, and with some few exceptions are honest and willing to help each other. Do we have plans? Is there a plan for what to do if Cochiti Dam lets go? When we say plan, we must mean plan and arrangements to implement the plan. Group I does this; Group II does this; other groups are ready, in reserve, and able to act; and through an ever widening circle of groups, we contain and help.
The first question is, does government have a role in these matters, preventing catastrophes and helping when there are catastrophes? Most would say, of course, obviously, the question is ridiculous. But then why do we praise all of the individual contributions, from unaffected communities, to the American Red Cross, the Salvation Army, and Habitats for Humanity [is this not a token, feel-good, help organization, using and abusing the name of our best living president, Jimmy Carter]?
The next question is, should the people pitch in and contribute money or foodstuffs, or other supplies? Of course, among themselves, the victims. But why should people in New York and Alaska and New Mexico contribute money for the relief of deserving victims of a catastrophe in Louisiana? Is not this a matter that should be handled by the government? This is a government matter, or it is a matter to be handled by individuals, voluntarily, through private charitable work. We could leave this out of the government sector, but we do not recommend that.
We, the people, want to help at these times. That is good, but our help should be to fill in the nooks and crannies. The government [taxpayers, the parties to the social contract] should carry the burden in general.
Next question. If we agree that the government should take this responsibility, which government? City, state, or federal? Historically, the settlement (local village where you were born) had the responsibility. That is the origin of the rule that when you have to go there, they have to take you in. Later, alms houses were the responsibility of the counties. Then the states; and now, why not the United States? The paupers can travel from state to state, and when the pauper [for example, a quadriplegic who is broke] ends up in Santa Fe, who should pony up? The United States is the right answer.
We believe that it is the government, the federal government, with the resources of the federal taxpayers, that should be prepared to prevent, if possible, and to help, rescue, alleviate and work to minimize the effects of the catastrophe.
Saturday, August 27, 2005
GOVERNOR'S BLOWS AT CRIME MAKE US UNEASY
In the last few days, Governor Bill Richardson has struck blows at crime on the Mexico border and here in Albuquerque. Some of these blows make us uneasy.
Take the proposal to raze the small town in Northern Mexico, across the border from Columbus. Our Governor, the governor of a province of the United States, has suggested that President Vicente Fox of Mexico bulldoze the little town, because the town is a gathering place for Mexicans who are planning to cross into New Mexico illegally, or for bandits who use the town to gather before coming across to steal or transport illegal drugs to supply the habits of willing buyers North of the border.
This is reminiscent of the Albuquerque Police Department initiative of cutting down trees near a Northeast heights apartment complex. The police thought drug pushers would stand behind the trees and make illegal drug sales; and that cutting the trees down would help. Razing the Mexican town is also like the Albuquerque initiative of closing the business of poor boy bars on East Central, on the basis that the police get a lot of calls for assistance at such bars. Why not provide the police protection and the property need not be destroyed, the bars and the trees could remain.
This is also reminiscent of the APD practice of taking workable, useable firearms and blowing them up or melting them down. Whose idea is that? Someone worked to produce those weapons. Why destroy them, unless we are to say that all firearms are to be considered contraband, and should be destroyed because there is no lawful manner in which they may be possessed.
The other blow against crime that leaves us uneasy, is the action of the Governor in sending his crime czar, Robert Schwartz, to Judge James Blackmer's court for a hearing on the Judge's sua sponte motion for reduction of a felony sentence the Judge had imposed in a vehicular homicide case. Mr. Schwartz carried a letter from the Governor, and read it to the Judge, according to a report in the Albuquerque Journal.
Is the Governor going to write letters to Judges now, advising the Judges of the Governor's opinions as to the appropriate sentence in criminal cases? The Mayor is reported to have done the same thing. Is he going to make this a practice? In order to be qualified to make a recommendation on a felony sentence, one has to investigate the case. Do the Governor and Mayor have this kind of time?
Are we wrong to feel some unease over these developments in the war on crime? The Governor could put a stop to the illegal immigration to New Mexico (not through, but to). Tell the State Police to investigate employers who are suspected of violating federal law by hiring illegals. The illegals come here to work, to try to improve their lives and the lives of their families below the border.
Dry up those jobs in New Mexico by assisting in the federal prosecution. It seems like grandstanding to declare an emergency at the border, criticize the United States government, and call for the President of another country to bulldoze one of his hamlets.
Yes, some of us are uneasy. What is next?
Take the proposal to raze the small town in Northern Mexico, across the border from Columbus. Our Governor, the governor of a province of the United States, has suggested that President Vicente Fox of Mexico bulldoze the little town, because the town is a gathering place for Mexicans who are planning to cross into New Mexico illegally, or for bandits who use the town to gather before coming across to steal or transport illegal drugs to supply the habits of willing buyers North of the border.
This is reminiscent of the Albuquerque Police Department initiative of cutting down trees near a Northeast heights apartment complex. The police thought drug pushers would stand behind the trees and make illegal drug sales; and that cutting the trees down would help. Razing the Mexican town is also like the Albuquerque initiative of closing the business of poor boy bars on East Central, on the basis that the police get a lot of calls for assistance at such bars. Why not provide the police protection and the property need not be destroyed, the bars and the trees could remain.
This is also reminiscent of the APD practice of taking workable, useable firearms and blowing them up or melting them down. Whose idea is that? Someone worked to produce those weapons. Why destroy them, unless we are to say that all firearms are to be considered contraband, and should be destroyed because there is no lawful manner in which they may be possessed.
The other blow against crime that leaves us uneasy, is the action of the Governor in sending his crime czar, Robert Schwartz, to Judge James Blackmer's court for a hearing on the Judge's sua sponte motion for reduction of a felony sentence the Judge had imposed in a vehicular homicide case. Mr. Schwartz carried a letter from the Governor, and read it to the Judge, according to a report in the Albuquerque Journal.
Is the Governor going to write letters to Judges now, advising the Judges of the Governor's opinions as to the appropriate sentence in criminal cases? The Mayor is reported to have done the same thing. Is he going to make this a practice? In order to be qualified to make a recommendation on a felony sentence, one has to investigate the case. Do the Governor and Mayor have this kind of time?
Are we wrong to feel some unease over these developments in the war on crime? The Governor could put a stop to the illegal immigration to New Mexico (not through, but to). Tell the State Police to investigate employers who are suspected of violating federal law by hiring illegals. The illegals come here to work, to try to improve their lives and the lives of their families below the border.
Dry up those jobs in New Mexico by assisting in the federal prosecution. It seems like grandstanding to declare an emergency at the border, criticize the United States government, and call for the President of another country to bulldoze one of his hamlets.
Yes, some of us are uneasy. What is next?
Wednesday, August 24, 2005
FIFTH AMENDMENT GRAND JURY PROVISION NOT APPLICABLE IN HYDE CASE
In the case of John Hyde, suspected of five unlawful homicides, including the killing of two police officers (formal charges of murder have been filed in the deaths of the officers), the District Attorney has announced that the matter will be presented to a grand jury in the next few days. Under the rules of criminal procedure set by our Supreme Court, one who is formally accused, and has made his initial appearance (referred to erroneously, but for lack of a better term, as an “arraignment”) must be released from custody after ten days, unless he has a preliminary hearing, or is indicted by a grand jury, and is held for trial Court (District Court) proceedings.
The Fifth Amendment provision for grand jury is not applicable here, as the Fifth Amendment, in this regard, applies only to federal prosecutions. The Fifth Amendment states, in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . “ Other provisions of the Fifth Amendment, including “. . . nor shall he be compelled in any criminal case to be a witness against himself,. . . “ are applicable in State prosecutions.
The Fourteenth Amendment due process clause lifts some provisions of the Bill of Rights and makes them applicable to the States, as restrictions on State action. This lifting is referred to as “incorporation” of the provision of the Bill of Rights into the Due Process clause of the Fourteenth Amendment, which amendment is applicable to the States (post Civil War). Other provisions of the Bill of Rights, including the right to be free from prosecution for felony except upon action of a grand jury, are not lifted out of the Bill of Rights and applied to State prosecutions. So New Mexico is left on its own, as to how it handles the matter of screening cases for prosecution, to prevent overreaching by the prosecuting attorney.
New Mexico required grand jury action from statehood until 1925. In 1925, borrowing from Oklahoma, New Mexico amended its constitution to permit prosecution for capital and other felonies either by grand jury action (presentment by grand jury, or indictment by grand jury) or after a preliminary examination, or hearing, before a magistrate. The test for prosecution is the same before a grand jury, or before a magistrate: probable cause that an offense was committed, and probable cause that the accused committed the offense.
In Bernalillo County, most felony cases are presented to a grand jury. The prosecutor has stated that she will present the Hyde case to a grand jury. It may be that all of the homicides will be covered by one proposed indictment (charging paper), or there may be separate indictments for separate incidents, for example, a separate indictment for the death of the two officers.
The grand jury will return a “true bill,” or a “no-bill (bill ignoramus)”. If a true bill is returned, the charging paper (indictment) is filed in District Court, and the accused is taken before the District Judge for further proceedings. In the usual case, these will ultimately include an “arraignment,” which is a proceeding in which the accused is called upon to plead guilty or not guilty to the charges before a Judge who has the power to sentence on a guilty plea. All plea bargains are concluded at an arraignment.
In a capital case, the accused may be held without bail. That rule comports with the State and federal constitutions, though they prohibit “excessive bail.” No bail is not excessive bail, in a capital case, in which the “proof is evident or the presumption great.”.
The Fifth Amendment provision for grand jury is not applicable here, as the Fifth Amendment, in this regard, applies only to federal prosecutions. The Fifth Amendment states, in part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . . “ Other provisions of the Fifth Amendment, including “. . . nor shall he be compelled in any criminal case to be a witness against himself,. . . “ are applicable in State prosecutions.
The Fourteenth Amendment due process clause lifts some provisions of the Bill of Rights and makes them applicable to the States, as restrictions on State action. This lifting is referred to as “incorporation” of the provision of the Bill of Rights into the Due Process clause of the Fourteenth Amendment, which amendment is applicable to the States (post Civil War). Other provisions of the Bill of Rights, including the right to be free from prosecution for felony except upon action of a grand jury, are not lifted out of the Bill of Rights and applied to State prosecutions. So New Mexico is left on its own, as to how it handles the matter of screening cases for prosecution, to prevent overreaching by the prosecuting attorney.
New Mexico required grand jury action from statehood until 1925. In 1925, borrowing from Oklahoma, New Mexico amended its constitution to permit prosecution for capital and other felonies either by grand jury action (presentment by grand jury, or indictment by grand jury) or after a preliminary examination, or hearing, before a magistrate. The test for prosecution is the same before a grand jury, or before a magistrate: probable cause that an offense was committed, and probable cause that the accused committed the offense.
In Bernalillo County, most felony cases are presented to a grand jury. The prosecutor has stated that she will present the Hyde case to a grand jury. It may be that all of the homicides will be covered by one proposed indictment (charging paper), or there may be separate indictments for separate incidents, for example, a separate indictment for the death of the two officers.
The grand jury will return a “true bill,” or a “no-bill (bill ignoramus)”. If a true bill is returned, the charging paper (indictment) is filed in District Court, and the accused is taken before the District Judge for further proceedings. In the usual case, these will ultimately include an “arraignment,” which is a proceeding in which the accused is called upon to plead guilty or not guilty to the charges before a Judge who has the power to sentence on a guilty plea. All plea bargains are concluded at an arraignment.
In a capital case, the accused may be held without bail. That rule comports with the State and federal constitutions, though they prohibit “excessive bail.” No bail is not excessive bail, in a capital case, in which the “proof is evident or the presumption great.”.
Saturday, August 20, 2005
DOUBLE JEOPARDY DOES NOT PROTECT OFFENDER FROM FURTHER PROSECUTION IN SOME CASES
The New Mexico Supreme Court has reviewed its position on one aspect of double jeopardy. The Court had previously ruled that double jeopardy did not necessarily bar a prosecution in District Court for a felony, after the accused had pleaded guilty to an included petty misdemeanor in a Court of limited jurisdiction (municipal, metropolitan, magistrate). Our Court looked at the issue again, and split three to two, but upheld the previous rulings. Justice Patricio M. Serna wrote the opinion, and Chief Justice Richard C. Bosson and Justice Petra Jimenez Maes concurred. The Court’s rule is referred to as the “jurisdictional exception.” The case is State v. Rodriguez, 2005-NMSC-019 (June 28, 2005). Two Justices disagreed on this point.
A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.
In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.
Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.
When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.
Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).
The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.
Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.
Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.
A different rule, according to Justice Serna, would “ . . . allow defendants to abuse the multi-level judicial system which exists in New Mexico and in other jurisdictions.” The Court pointed out that under a different rule, a defendant could plead guilty to all misdemeanor charges arising from a criminal act in magistrate court and never be in jeopardy of a felony prosecution involving similar evidence in the district court.
In Justice Serna’s words, “[R]eason and logic do not support a rule where one guilty of a crime of homicide by vehicle may escape a possible sentence of three years imprisonment by the expedient of pleading guilty to a charge of DWI or reckless driving where the penalty may be as low as a $25.00 fine and five days in jail.” This Rodriguez case did not involve DWI, nor reckless driving, but the words of the Justice apply too often in New Mexico.
Recently a young man pleaded guilty in Northern New Mexico to traffic offenses, including being on the wrong side of the highway. He was fined $125.00, no jail time. His vehicle, across the line, hit a motorcycle and killed one person and severely injured another. Steve Fox wrote an excellent article about it in a column in the Albuquerque Tribune a few days ago. He states that there were witnesses who claimed the offender was racing with another vehicle at the time of the accident.
When two drivers race on the public highway, and one vehicle is involved in an accident which results in death to another person, both of the drivers of the racing vehicles may be guilty of homicide by vehicle. It is not necessary for both racing vehicles to hit the victim vehicle. Here was a possible case of vehicular homicide against two drivers, though they were juveniles, and the case was handled as a minor traffic offense.
Perhaps this recent homicide case could still be prosecuted as a felony vehicular homicide case (in Children’s Court). This Rodriguez case, with Justice Serna’s opinion, would support such a prosecution, on the basis that the plea to the traffic offenses occurred in a Court of limited jurisdiction, a Court which had no jurisdiction to accept a plea of guilty of the greater offense (vehicular homicide).
The State’s argument would be that because the Judge had no jurisdiction to try the felony charge, nor to accept a plea of guilty to the felony charge, the acceptance of a plea of guilty, and the punishment, of the lesser-included offense of [Steve Fox reports that it was reckless driving], would not bar prosecution of the greater offense, felony vehicular homicide.
Admittedly, this is technical, and it may be that Justice Serna’s ruling would not apply, because the involvement of the District Attorney in this plea in this case was such that he was not surprised at the proceedings. The District Attorney did not simply discover that the offending driver had rushed in and pleaded guilty to a lesser offense in a limited-jurisdiction Court, to avoid felony prosecution. The District Attorney allowed that to happen, after making a decision not to prosecute on the felony charges.
Disclaimer. I am not looking for nor accepting such business. I assume that the family of the deceased motorcyclist, and the crippled victim, have counsel for civil law purposes. They may want to seek a further opinion from the Attorney General on the criminal charges, in view of Justice Serna’s June 28, 2005 opinion. It may be that nothing further can be done; and it may be that the District Attorney (the case was transferred to the District Attorney from Clovis) was right in his assessment that the case was a mere careless driving, at the worst, and thus clearly was not vehicular homicide, which requires reckless driving, or racing on the highway.
Wednesday, August 17, 2005
GOVERNOR PROPOSES ONE STRIKE POLICY IN SOME SEX CASES
Governor Bill Richardson has proposed life without parole as a mandatory first offense penalty in certain sex cases. Brutal cases, cases in which the victim is elderly, and cases in which the victim is a child. Criminal sexual penetration equals one strike, you're out. Mandatory. Many have commended the Governor for getting tough.
This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.
When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.
The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?
If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?
Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.
Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.
We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.
This proposal sounds tough, but it will require a lot of work to draft such legislation so that it is workable. We do not want this to be simply a feel good, flash in the pan gesture.
The fatal flaw we see is the mandatory nature of the penalty.
When we make a penalty mandatory, we take the discretion away from the Judge and give that discretion to the District Attorney (and in some instances, the law enforcement officers).
If you say that you will require the District Attorney to charge and prosecute cases as first-strike cases, you are being unrealistic. The District Attorney will exercise discretion in charging and prosecuting, and will use the first-strike law for some cases but not all that literally fall within the definition of a first-strike case.
The District Attorney would be derelict and untrue to his or her oath, if he or she used such a straight-jacket, knee jerk approach to the subject; that is, no discretion. Thus, it is a case of discretion is going to be exercised. Do we want a Judge held responsible, or leave it to the District Attorney?
If you take the definition of the proposed first-strike offense, and it included criminal sexual penetration of a female toddler, and there is no doubt that the accused did it, do we disregard all of the other circumstances? Is every such offense deserving of life without parole? Does it matter whether the offender is 18 or 81? Does it matter whether the offender is a grade school dropout, a high school dropout, a PhD, drunk or sober?
Mandatory sentences are by definition arbitrary. That is not necessarily bad, but in some cases it can lead to a gross miscarriage of justice. Consider how long the mandatory sentences for DWI and use of firearm lasted. If they are not a dead letter, they have been plea bargained away or disregarded in many cases, to avoid miscarriages of justice in the eyes of the prosecutor or Judge.
Professor Hayakawa said "Cow one is not cow two." When you define a crime and make the punishment mandatory, you are saying that cows two, three and four, etc., are the same as cow one. Do we not agree that these first-strike cases will be different in some important respects? Even so, you may say, all such offenders deserve life without parole.
We may be able to agree on this: every person who is found to be a pedophile and unlikely to reform should be in prison for life or at least under close supervision for life. The Judge should have the power and be monitored by the voters.
Sunday, August 14, 2005
BIG BROTHER CAMERAS CATCH SCHOOL SPEEDERS
This week Mayor Martin Chavez announced that video cameras would be installed in some school zones in Albuquerque, to catch speeders. The program will be operated like the red light cameras which are now being used at some controlled intersections. This program is commendable, and Mayor Chavez should get full marks.
The ACLU is challenging the ordinance under which the lights are presently operated. The Courts have been by-passed to a great extent, and that is the ACLU complaint. The City is using a nuisance theory, that is, a motor vehicle going above the speed limit in a school zone is a public nuisance and will be abated. The nuisance is abated by a citation to the registered owner of the vehicle (who under the law is presumed to be driving, although the presumption is rebuttable). These are criminal cases in civil garb, is the argument against the program.
The criminal law is preferable, but it appears we have lost confidence in the criminal law process. Takes too long, is too full of technicalities, and the judiciary is broken, say the critics. BIG CITIZEN can take care of that.
Whether the procedure is criminal or civil, the video cameras are very important for the protection of law-abiding residents. We need more, not fewer, cameras on duty. However, Big Citizen should be allowed access to the pictures, and the results of the computer’s determination as to whose motor vehicle is being used to violate the law. Put the pictures on line for us all to see. In the case of a violation, let us all know and see, including the APD officer who is to review the apparent violation reported by the private company doing the filming. This will be a blow at ticket fixing.
Incidently, why have a private company do the filming and notification of apparent violations? Whether it is paid by the violation, or the picture, there is no long term need to farm this police work out to a private contractor. We understand the need, just to get started, and to get the concept accepted. Later this all should be done by law enforcement officers.
Another point. The video camera catches all violators. Why impose severe punishment? The idea of a $100 penalty for one mile over the limit is arbitrary and unreasonable. Speeding at 10 mph over the limit should be punished more than speeding at one mph over. Same with the red light runners. The camera should catch them all.
Certainty of apprehension and conviction should result in lowered punishment. That is the most efficient and the fairest in a criminal justice system. For example, consider what the fine should be for speeding from Santa Fe to Albuquerque; then consider what the fine should be if we had a camera and caught 100% of the speeders.
The ACLU is challenging the ordinance under which the lights are presently operated. The Courts have been by-passed to a great extent, and that is the ACLU complaint. The City is using a nuisance theory, that is, a motor vehicle going above the speed limit in a school zone is a public nuisance and will be abated. The nuisance is abated by a citation to the registered owner of the vehicle (who under the law is presumed to be driving, although the presumption is rebuttable). These are criminal cases in civil garb, is the argument against the program.
The criminal law is preferable, but it appears we have lost confidence in the criminal law process. Takes too long, is too full of technicalities, and the judiciary is broken, say the critics. BIG CITIZEN can take care of that.
Whether the procedure is criminal or civil, the video cameras are very important for the protection of law-abiding residents. We need more, not fewer, cameras on duty. However, Big Citizen should be allowed access to the pictures, and the results of the computer’s determination as to whose motor vehicle is being used to violate the law. Put the pictures on line for us all to see. In the case of a violation, let us all know and see, including the APD officer who is to review the apparent violation reported by the private company doing the filming. This will be a blow at ticket fixing.
Incidently, why have a private company do the filming and notification of apparent violations? Whether it is paid by the violation, or the picture, there is no long term need to farm this police work out to a private contractor. We understand the need, just to get started, and to get the concept accepted. Later this all should be done by law enforcement officers.
Another point. The video camera catches all violators. Why impose severe punishment? The idea of a $100 penalty for one mile over the limit is arbitrary and unreasonable. Speeding at 10 mph over the limit should be punished more than speeding at one mph over. Same with the red light runners. The camera should catch them all.
Certainty of apprehension and conviction should result in lowered punishment. That is the most efficient and the fairest in a criminal justice system. For example, consider what the fine should be for speeding from Santa Fe to Albuquerque; then consider what the fine should be if we had a camera and caught 100% of the speeders.
Thursday, August 11, 2005
JURORS ACQUIT JACKSON THEN COMPLAIN OF JURY PRESSURE
This week it was reported that two of the Michael Jackson jurors have written books about their service. They claim that they were convinced beyond a reasonable doubt that Jackson was guilty, but they finally gave in to the majority and voted “Not Guilty.”
In Allen v. United States (1896), the Supreme Court of the United States approved a trial Judge’s instruction to the jury which was designed to prevent a mistrial by jury disagreement. The “Allen” charge, also referred to as a “dynamite charge,” and as a "shotgun" charge,has been used in some form in the federal and state courts in criminal cases as a last resort to try to avoid a “hung jury.”
The instruction tells the jury members of their right to hold out if they are not convinced, but the instruction reminds the jurors of their duty to listen to and consider the opinions of the other jurors. Paraphrased, the instruction is:
"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusions of his fellows, yet you should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other.
"It is your duty to decide the case if you can conscientiously do so. You should listen, with a disposition to be convinced, to each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.
"If, upon the other hand, the majority is for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Volume 164, United States Reports, page 492.
This type of instruction is truly dynamite when it is given to a criminal case jury which has deliberated for a long period and is divided, say, 10 to two, or 11 to one. The Supreme Court of New Mexico does not allow this instruction to be given, nor any type of “dynamite” charge to be given, during jury deliberations. Our Court requires a modified version of the instruction to be given in every case, but at the beginning of the arguments, following the evidence. Of course a written copy of the instructions goes with the jury for use during deliberations. The New Mexico instruction is as follows:
"Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agrees. Your verdict must be unanimous.
"It is your duty to consult with one another and try to reach an agreement. However, you are not required to give up your individual judgment. Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own view and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the purpose of reaching a verdict.
"You are judges - judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." Uniform Jury Instructions - Criminal, Section 14-6008.
In its Use Note, the Court directs: “This instruction must be given in every case. After the jury has retired for deliberation neither this instruction nor any 'shotgun' instruction shall be given." The commentary of the State Bar committee which proposes instructions, points out that the federal rule and the standards of the American Bar Association are in accord with this approach by our Supreme Court.
In Allen v. United States (1896), the Supreme Court of the United States approved a trial Judge’s instruction to the jury which was designed to prevent a mistrial by jury disagreement. The “Allen” charge, also referred to as a “dynamite charge,” and as a "shotgun" charge,has been used in some form in the federal and state courts in criminal cases as a last resort to try to avoid a “hung jury.”
The instruction tells the jury members of their right to hold out if they are not convinced, but the instruction reminds the jurors of their duty to listen to and consider the opinions of the other jurors. Paraphrased, the instruction is:
"In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusions of his fellows, yet you should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other.
"It is your duty to decide the case if you can conscientiously do so. You should listen, with a disposition to be convinced, to each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself.
"If, upon the other hand, the majority is for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority."
Volume 164, United States Reports, page 492.
This type of instruction is truly dynamite when it is given to a criminal case jury which has deliberated for a long period and is divided, say, 10 to two, or 11 to one. The Supreme Court of New Mexico does not allow this instruction to be given, nor any type of “dynamite” charge to be given, during jury deliberations. Our Court requires a modified version of the instruction to be given in every case, but at the beginning of the arguments, following the evidence. Of course a written copy of the instructions goes with the jury for use during deliberations. The New Mexico instruction is as follows:
"Your verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agrees. Your verdict must be unanimous.
"It is your duty to consult with one another and try to reach an agreement. However, you are not required to give up your individual judgment. Each of you must decide the case for yourself, but you must do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own view and change your opinion if you are convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the purpose of reaching a verdict.
"You are judges - judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." Uniform Jury Instructions - Criminal, Section 14-6008.
In its Use Note, the Court directs: “This instruction must be given in every case. After the jury has retired for deliberation neither this instruction nor any 'shotgun' instruction shall be given." The commentary of the State Bar committee which proposes instructions, points out that the federal rule and the standards of the American Bar Association are in accord with this approach by our Supreme Court.
Sunday, August 07, 2005
DWI CAN BE PREVENTED; BEST ON A NATIONAL LEVEL
Two sessions ago in the New Mexico legislature, W. Ken Martinez, legislator from Grants, proposed an Interlock on all motor vehicles registered in New Mexico. The proposal was rejected. This last session, Mr. Martinez proposed an Interlock on all motor vehicles used by first-time DWI convicts. That measure passed. To his credit, Mr. Martinez made sure that the "Interlock" could include any technology which would accomplish the purpose (preventing an impaired driver from operating the vehicle).
Sandia Base scientists were working on a device that required the proposed driver to lay her wrist on a plate, in order to use the ignition key and start the vehicle. The plate would record the blood-alcohol content in the brain (by calculation) and the key would not work for a person with a certain BA level. Good idea, and there must be many more devices out there which would accomplish the purpose. Expand the idea to preventing operation of the motor vehicle by any impaired (by drugs; fatigue; alcohol; etc.) driver.
Next step, and better on a national level. No new motor vehicle to be registered in the United States unless it has an "Interlock." Is not such a device as important as air bags, if not as important as seat belts? Why should a manufacturer be allowed to sell a huge truck or truck and trailer for tens of thousands of dollars, without including an "Interlock," which would add perhaps a few hundred dollars to the price? Why should an owner be allowed to operate such a huge vehicle on our highways with an impaired driver?
Same issue with those who want to go 75 miles per hour in an SUV or pickup truck. Why should they be allowed to put the vehicle on the highway without this safeguard: cannot be operated by an impaired driver? We go to great lengths to keep unqualified drivers off the road, with drivers' licenses. Then we purport to revoke the license (punish a convict for DWI) as a law enforcement measure. Perhaps we are on the wrong track. If it is within our ability and means, why not a safety feature such as this?
The device could check the driver periodically, and disable (carefully) the vehicle until it could be operated by an unimpaired driver. A true "field" sobriety test. Except that it also stops operation by drivers who are fatigued, impaired by drugs, too sleepy for safety, or otherwise unable to operate heavy machinery at high speeds with safety for others (think semi on your tail on the freeway).
New Mexico was not ready two years ago when W. Ken Martinez came forward with the proposal. He was right, but only a little ahead of his time. With his expanded definition of "Interlock," which invites and promotes innovations by the best minds and vehicle engineers, he is now right on time.
Mr. Martinez should try again, with the aid of Governor Bill Richardson, in this special session. The requirement could be limited in New Mexico to new vehicles registered in New Mexico. If you can buy a new car, can you not afford this safeguard? That will encourage innovations and new technologies for the purpose. Part of the expense when the device is used as a punishment, is the monitoring. That would not be necessary with some technology, or at least would not need to be as intensive as necessary with punishment.
Getting the national government into the act may be the best answer now, as we would expand the options from a modification of the ignition system on all motor vehicles registered in New Mexico, to factory installed "Interlocks" which would go into the new vehicles along with air bags, seat belts, and turn signals, mechanisms that prevent the starting of the engine while the vehicle is in gear, devices that tell us when a door is open, etc. If the federals will not do it now, New Mexico can lead the way. Grants from the federal government could be expected.
At first blush one would think that an operator who wanted more freedom would simply disable the device. That would be an unpopular crime, looked on with disfavor by most of the jurors, sort of like hitting a toddler in the face with the fist. Not like buying a radar detector (looked on with disfavor by many).
Sandia Base scientists were working on a device that required the proposed driver to lay her wrist on a plate, in order to use the ignition key and start the vehicle. The plate would record the blood-alcohol content in the brain (by calculation) and the key would not work for a person with a certain BA level. Good idea, and there must be many more devices out there which would accomplish the purpose. Expand the idea to preventing operation of the motor vehicle by any impaired (by drugs; fatigue; alcohol; etc.) driver.
Next step, and better on a national level. No new motor vehicle to be registered in the United States unless it has an "Interlock." Is not such a device as important as air bags, if not as important as seat belts? Why should a manufacturer be allowed to sell a huge truck or truck and trailer for tens of thousands of dollars, without including an "Interlock," which would add perhaps a few hundred dollars to the price? Why should an owner be allowed to operate such a huge vehicle on our highways with an impaired driver?
Same issue with those who want to go 75 miles per hour in an SUV or pickup truck. Why should they be allowed to put the vehicle on the highway without this safeguard: cannot be operated by an impaired driver? We go to great lengths to keep unqualified drivers off the road, with drivers' licenses. Then we purport to revoke the license (punish a convict for DWI) as a law enforcement measure. Perhaps we are on the wrong track. If it is within our ability and means, why not a safety feature such as this?
The device could check the driver periodically, and disable (carefully) the vehicle until it could be operated by an unimpaired driver. A true "field" sobriety test. Except that it also stops operation by drivers who are fatigued, impaired by drugs, too sleepy for safety, or otherwise unable to operate heavy machinery at high speeds with safety for others (think semi on your tail on the freeway).
New Mexico was not ready two years ago when W. Ken Martinez came forward with the proposal. He was right, but only a little ahead of his time. With his expanded definition of "Interlock," which invites and promotes innovations by the best minds and vehicle engineers, he is now right on time.
Mr. Martinez should try again, with the aid of Governor Bill Richardson, in this special session. The requirement could be limited in New Mexico to new vehicles registered in New Mexico. If you can buy a new car, can you not afford this safeguard? That will encourage innovations and new technologies for the purpose. Part of the expense when the device is used as a punishment, is the monitoring. That would not be necessary with some technology, or at least would not need to be as intensive as necessary with punishment.
Getting the national government into the act may be the best answer now, as we would expand the options from a modification of the ignition system on all motor vehicles registered in New Mexico, to factory installed "Interlocks" which would go into the new vehicles along with air bags, seat belts, and turn signals, mechanisms that prevent the starting of the engine while the vehicle is in gear, devices that tell us when a door is open, etc. If the federals will not do it now, New Mexico can lead the way. Grants from the federal government could be expected.
At first blush one would think that an operator who wanted more freedom would simply disable the device. That would be an unpopular crime, looked on with disfavor by most of the jurors, sort of like hitting a toddler in the face with the fist. Not like buying a radar detector (looked on with disfavor by many).
Saturday, August 06, 2005
REVENUE BONDS FOR SUBSIDY TO NEW MATTRESS FACTORY
In the Albuquerque Journal today there is a story about a proposed Bernalillo County ordinance which would authorize the issuance of $100 million in industrial revenue bonds for a new factory on the West side. If the bonds are approved and issued and sold, the County will be obligated to pay $125,000 to an attorney for services in handling the bond issue. See post of May 16, 2005, which sets out the contract the Commissioners made with the attorney, agreeing to pay $1.25 per thousand for IRB bonds. The lawyer fee contacted for is substantial, when you consider that it is $125,000 for ?? hours of work, and you consider that we taxpayers pay the Chief Justice of the Supreme Court of the State of New Mexico, $106,000 per year.
This $100 million IRB is said to be the largest in Bernalillo County history. It is relatively picayune, considering the $16 billion IRB issue recently approved in Sandoval County (voted for unanimously by the Sandoval County commissioners).
This raises the question of whether the Legislature has done a wise thing in delegating to County Commissions, and City Commissions, the power to enter into these attorney contracts and approve IRB's (in effect subsidize new or existing companies for the purpose of encouraging business).
Are these commissions qualified? Are they in danger of special interest influence? When they allow IRB's to be issued, a tax exemption results which affects the tax base for school districts, and the State. The Intel deal, now $26 billion, means $26 billion off the tax rolls, meaning the tax base is reduced $8 billion plus. In Bernalillo County, the deal is the equivalent of taking 100 houses worth $330,000 each off the tax roll.
This $100 million IRB is said to be the largest in Bernalillo County history. It is relatively picayune, considering the $16 billion IRB issue recently approved in Sandoval County (voted for unanimously by the Sandoval County commissioners).
This raises the question of whether the Legislature has done a wise thing in delegating to County Commissions, and City Commissions, the power to enter into these attorney contracts and approve IRB's (in effect subsidize new or existing companies for the purpose of encouraging business).
Are these commissions qualified? Are they in danger of special interest influence? When they allow IRB's to be issued, a tax exemption results which affects the tax base for school districts, and the State. The Intel deal, now $26 billion, means $26 billion off the tax rolls, meaning the tax base is reduced $8 billion plus. In Bernalillo County, the deal is the equivalent of taking 100 houses worth $330,000 each off the tax roll.
Thursday, August 04, 2005
PRISON ASSAULT CAN BE REDUCED
In the news this week we hear of the study done of sexual assault in prisons in the United States. The Congress passed the Prison Rape Elimination Act of 2003, and asked for studies and reports. This week a report was issued, and can be seen at the website ncic.org, or by searching Prison Rape Report on Google.
No details there about the numbers or places where these acts occur. The report seems to countenance the killing of the attacker; or the prevention of an attack by creating a reputation for toughness. One suggestion as to how to appear tough, is to just go to the yard and pick a big guy and do him serious bodily harm, sending him to the hospital.
We have modern technology; why not use it? We could put a live video camera, with pictures on-line accessible by persons designated by the individual inmates (for example, my brother could access the site). Perhaps the site should also be available to a reputable prisoner rights group. The camera could be so situated in the institution that once a day each inmate would appear before the camera and state his number. He would have the opportunity to claim abuse, and in any event his folks would know he is still alive and what his face looks like.
Also, video cameras could be placed throughout the institution, to make it impossible for an assault to occur in secret. The video feed should go on the internet, accessible at least to reputable prisoner rights advocates or monitors, on a regular basis, and available in segments to the public in case of an alleged crime.
Electronic bracelets as small as a wrist watch would enable the Warden to monitor where each inmate is, and how close he is to another, etc. This could be recorded for future reference, in case of an assault. And the information could be used to keep predators by themselves.
Pupillometry could be used to keep the inmates off dope. The inmate takes 30 seconds to look into the eyepieces and the machine spits out a report as to whether the inmate is under the influence of a variety of drugs.
This technology is available. The need is there. We owe it to our inmates to provide a safe place for their rehabilitation, or simple detention for purposes of punishment or deterrence. Robert Schwartz, former District Attorney and now the Governor's criminal law adviser, once said, "It is my job to get them into the penitentiary, not to fluff up their pillows!" Mr. Schwartz was right. But it is our job, as citizens, to insist that prisoners are kept in a safe, clean environment.
No details there about the numbers or places where these acts occur. The report seems to countenance the killing of the attacker; or the prevention of an attack by creating a reputation for toughness. One suggestion as to how to appear tough, is to just go to the yard and pick a big guy and do him serious bodily harm, sending him to the hospital.
We have modern technology; why not use it? We could put a live video camera, with pictures on-line accessible by persons designated by the individual inmates (for example, my brother could access the site). Perhaps the site should also be available to a reputable prisoner rights group. The camera could be so situated in the institution that once a day each inmate would appear before the camera and state his number. He would have the opportunity to claim abuse, and in any event his folks would know he is still alive and what his face looks like.
Also, video cameras could be placed throughout the institution, to make it impossible for an assault to occur in secret. The video feed should go on the internet, accessible at least to reputable prisoner rights advocates or monitors, on a regular basis, and available in segments to the public in case of an alleged crime.
Electronic bracelets as small as a wrist watch would enable the Warden to monitor where each inmate is, and how close he is to another, etc. This could be recorded for future reference, in case of an assault. And the information could be used to keep predators by themselves.
Pupillometry could be used to keep the inmates off dope. The inmate takes 30 seconds to look into the eyepieces and the machine spits out a report as to whether the inmate is under the influence of a variety of drugs.
This technology is available. The need is there. We owe it to our inmates to provide a safe place for their rehabilitation, or simple detention for purposes of punishment or deterrence. Robert Schwartz, former District Attorney and now the Governor's criminal law adviser, once said, "It is my job to get them into the penitentiary, not to fluff up their pillows!" Mr. Schwartz was right. But it is our job, as citizens, to insist that prisoners are kept in a safe, clean environment.
Thursday, July 21, 2005
PRIVATE PATROL CARS LOOK LIKE POLICE CARS; CHIEF DEPLORES POSSIBLE CONFUSION
The banner headline of the Albuquerque Journal Monday the 18th reads “THINK YOU SEE A POLICE CAR? CHECK AGAIN.” There on the front page are pictures of a “Police” car, and a “Patrol” car. They definitely look alike, so Chief Ray Schultz is justified in ordering the private security company to change the looks of its cars.
Chief Schultz is quoted as saying that the vehicles “. . . can easily confuse the public.” He said that “The public needs to be assured that they are actually dealing with the Albuquerque Police Department when they see one of our officers. There shouldn’t be any confusion if they are dealing with a security guard or a police officer.”
This story raises the question of whether the Albuquerque Police Department officers should be allowed to hire out to private citizens, or neighborhood associations, to provide security service in Albuquerque, in the officers’ regular uniforms, with the regular badges, guns, equipment, and in APD cars. That is the time and a half program called “Chief’s Overtime.” See post in archives for March 7 2005.
No doubt it is a different matter. It is one thing to confuse a private security guard with the police. It is another to deal with a policeman off duty, appearing to be a policeman on duty. However, the latter situation leaves one feeling somewhat uncomfortable.
Assume that a neighborhood has been troubled by criminals driving around, stealing, writing graffiti, selling marijuana and cocaine, and the like. Community policing just does not seem to be getting the job done. The neighborhood association, or a few neighbors (all private citizens) then hire police officers, through Chief’s Overtime, to spend off-duty time patroling the area; and now the neighborhood is safe because officers who are dressed as usual, carry the guns as usual, and drive the police vehicles as usual, are patrolling the streets. Does that make you uncomfortable, as a resident or taxpayer?
Are the police underpaid? Probably so, although one has to consider all of the benefits, including the type of retirement and health care plan, in order to make that determination. In any event, the police should be paid very well, as they are essential to our safety. Most are honest, hard-working, fair-minded, compassionate people, proud to serve. Pay them a decent salary. However, the Chief should reconsider this matter of Chief’s Overtime (which was here long before he became Chief). Maybe this should be taken up with the candidates for City office.
Chief Schultz is quoted as saying that the vehicles “. . . can easily confuse the public.” He said that “The public needs to be assured that they are actually dealing with the Albuquerque Police Department when they see one of our officers. There shouldn’t be any confusion if they are dealing with a security guard or a police officer.”
This story raises the question of whether the Albuquerque Police Department officers should be allowed to hire out to private citizens, or neighborhood associations, to provide security service in Albuquerque, in the officers’ regular uniforms, with the regular badges, guns, equipment, and in APD cars. That is the time and a half program called “Chief’s Overtime.” See post in archives for March 7 2005.
No doubt it is a different matter. It is one thing to confuse a private security guard with the police. It is another to deal with a policeman off duty, appearing to be a policeman on duty. However, the latter situation leaves one feeling somewhat uncomfortable.
Assume that a neighborhood has been troubled by criminals driving around, stealing, writing graffiti, selling marijuana and cocaine, and the like. Community policing just does not seem to be getting the job done. The neighborhood association, or a few neighbors (all private citizens) then hire police officers, through Chief’s Overtime, to spend off-duty time patroling the area; and now the neighborhood is safe because officers who are dressed as usual, carry the guns as usual, and drive the police vehicles as usual, are patrolling the streets. Does that make you uncomfortable, as a resident or taxpayer?
Are the police underpaid? Probably so, although one has to consider all of the benefits, including the type of retirement and health care plan, in order to make that determination. In any event, the police should be paid very well, as they are essential to our safety. Most are honest, hard-working, fair-minded, compassionate people, proud to serve. Pay them a decent salary. However, the Chief should reconsider this matter of Chief’s Overtime (which was here long before he became Chief). Maybe this should be taken up with the candidates for City office.
Wednesday, July 20, 2005
SHERIFF SHOULD EXPLAIN NON-ACTION; JUDGE HAD TO DRIVE TO JAIL TO GET ORDER HONORED
The story is in the Albuquerque Journal, July 16, 2005. Regarding Magistrate Judge in Rio Arriba County. He accepted a case in which an acquaintance of his was arrested for DWI and put in jail at 8:40 p.m. on a Saturday in July.
That evening, at the request of persons who called the Judge, he set bail at $500, with 10% deposit ($50.00) to be posted, and directed that the accused be released to the accused’s wife. Breath tests indicated that the accused was still under the influence for driving at the time of his release to the wife.
The jailer, who was in charge in the absence of the Sheriff (out on assignment), apparently contacted the Sheriff, who was reluctant to release the accused while the accused was still under the influence (until his blood alcohol went down). In any event, the accused was not released, and it was explained by the Sheriff that no one is released except by the Sheriff or a deputy, and that he was tied up at a function, on duty.
Upon receiving this information, the Judge signed an order of release and drove to the jail (1 ½ hour round trip), and hand-delivered the order of release and got the job done. The Governor is looking into the matter.
Some questions should be answered here, but not by the Judge. The Sheriff should state by what authority his jail took the accused into custody and detained him. The accused should have been presented to a magistrate and the jailer should have an order from the Judge authorizing the detention. Apparently the jailer accepted the prisoner, solely on the authority of the arresting officer. That is the way it is handled in Albuquerque and Bernalillo County, also. Thus every man’s liberty is in the hands of every police officer.
A simple procedure would protect the rights of all. The arresting officer may take the accused to the jail, and then contact a magistrate, by telephone or cell phone, or email, or fax. The Judge could place the officer under oath, listen to the recitation of probable cause, ask questions if necessary, and make a neutral, independent determination of whether there is probable cause. The magistrate Judge could then decide the issue of conditions of release (bail) and issue an order for that purpose.
No need to drive an hour and a half. A permanent record can be made at the time. No one is jailed without the approval of a Judge. Then, if jail is necessary, and later the accused is able to meet his conditions of release (bail, for example), the jailer who is detaining the accused should have the power to release. This should not be the type of facility, that if you go in, you do not come out. And it should not be the kind of facility where the person with the keys to put a person in, does not have the authority to let that person out upon an order of the Court.
In this day of modern communications, and the technology to record proceedings on audio, video, and otherwise, there is no reason for anyone to have to deliver a “wet signature” order from a Judge to any officer. The Sheriff in this case has some explaining to do. If he suspected that the Judge was playing favorites, he should have done his duty as Sheriff and required his deputies and jailer (is not the jailer also a deputy?) to do their respective duties; and later he could complain to the Judicial Standards Commission, the District Attorney, the County Commissioners, and the media.
That evening, at the request of persons who called the Judge, he set bail at $500, with 10% deposit ($50.00) to be posted, and directed that the accused be released to the accused’s wife. Breath tests indicated that the accused was still under the influence for driving at the time of his release to the wife.
The jailer, who was in charge in the absence of the Sheriff (out on assignment), apparently contacted the Sheriff, who was reluctant to release the accused while the accused was still under the influence (until his blood alcohol went down). In any event, the accused was not released, and it was explained by the Sheriff that no one is released except by the Sheriff or a deputy, and that he was tied up at a function, on duty.
Upon receiving this information, the Judge signed an order of release and drove to the jail (1 ½ hour round trip), and hand-delivered the order of release and got the job done. The Governor is looking into the matter.
Some questions should be answered here, but not by the Judge. The Sheriff should state by what authority his jail took the accused into custody and detained him. The accused should have been presented to a magistrate and the jailer should have an order from the Judge authorizing the detention. Apparently the jailer accepted the prisoner, solely on the authority of the arresting officer. That is the way it is handled in Albuquerque and Bernalillo County, also. Thus every man’s liberty is in the hands of every police officer.
A simple procedure would protect the rights of all. The arresting officer may take the accused to the jail, and then contact a magistrate, by telephone or cell phone, or email, or fax. The Judge could place the officer under oath, listen to the recitation of probable cause, ask questions if necessary, and make a neutral, independent determination of whether there is probable cause. The magistrate Judge could then decide the issue of conditions of release (bail) and issue an order for that purpose.
No need to drive an hour and a half. A permanent record can be made at the time. No one is jailed without the approval of a Judge. Then, if jail is necessary, and later the accused is able to meet his conditions of release (bail, for example), the jailer who is detaining the accused should have the power to release. This should not be the type of facility, that if you go in, you do not come out. And it should not be the kind of facility where the person with the keys to put a person in, does not have the authority to let that person out upon an order of the Court.
In this day of modern communications, and the technology to record proceedings on audio, video, and otherwise, there is no reason for anyone to have to deliver a “wet signature” order from a Judge to any officer. The Sheriff in this case has some explaining to do. If he suspected that the Judge was playing favorites, he should have done his duty as Sheriff and required his deputies and jailer (is not the jailer also a deputy?) to do their respective duties; and later he could complain to the Judicial Standards Commission, the District Attorney, the County Commissioners, and the media.
Tuesday, July 19, 2005
OFFICERS CLEARED IN SHOOTINGS; PROCEEDINGS TOOK 18 MONTHS
An Albuquerque Journal story, July 15, 2005, reported that Albuquerque Police Department officers were cleared in two shootings. The shootings occurred in November, 2003.
The APD Oversight Commission ruled that APD officers were justified in the two fatal shootings. The Commission upheld findings of the Independent Review Officer and the Chief of Police.
One case was a domestic dispute. Two officers went to assist a woman to remove her things from an apartment. They found 20-year old Aaron Dominguez, with whom the woman had been feuding. Dominguez brandished a shotgun at the officers and shouted, “Shoot me, shoot me! You’re going to have to shoot me!” Officers shot him six times. This was found to be a justifiable homicide.
In another incident, two officers stopped a man from beating another with a bat in circumstances in which the victim was in danger of death and the offender was clearly the aggressor. The officers shouted, “Stop! Police!” The offender hit the victim again. One of the officers shot the offender twice in the back, killing him. The other officer did not fire. This case was ruled a justifiable homicide.
We are not quarreling with the findings of the Chief and I.R.O., with which the Commission concurred. But why not an inquest in such cases? Why not start the inquest testimony forthwith, that is, without unnecessary delay? At least before the funeral. Why 20 months?
The final chapter was in a public meeting of the Oversight Commission. An inquest, broadcast by video on line, would have been more open. Are there witnesses who may want or need privacy? That can be arranged if reasonably necessary, and the testimony still be had.
It is said that this “verdict” by the Oversight Commission (an approval of a determination by the Chief of Police and the Independent Review Officer) inspires confidence of the police in the Commission. What about the confidence of the public? Why not open up the proceedings, call the witnesses, and get the matter over with (except perhaps for forensic tests) within 36 hours? The New Mexico statutes already provide that the Medical Examiner may conduct an inquest, and take testimony. New Mexico Statutes Annotated, Section 24-11-7.
The APD Oversight Commission ruled that APD officers were justified in the two fatal shootings. The Commission upheld findings of the Independent Review Officer and the Chief of Police.
One case was a domestic dispute. Two officers went to assist a woman to remove her things from an apartment. They found 20-year old Aaron Dominguez, with whom the woman had been feuding. Dominguez brandished a shotgun at the officers and shouted, “Shoot me, shoot me! You’re going to have to shoot me!” Officers shot him six times. This was found to be a justifiable homicide.
In another incident, two officers stopped a man from beating another with a bat in circumstances in which the victim was in danger of death and the offender was clearly the aggressor. The officers shouted, “Stop! Police!” The offender hit the victim again. One of the officers shot the offender twice in the back, killing him. The other officer did not fire. This case was ruled a justifiable homicide.
We are not quarreling with the findings of the Chief and I.R.O., with which the Commission concurred. But why not an inquest in such cases? Why not start the inquest testimony forthwith, that is, without unnecessary delay? At least before the funeral. Why 20 months?
The final chapter was in a public meeting of the Oversight Commission. An inquest, broadcast by video on line, would have been more open. Are there witnesses who may want or need privacy? That can be arranged if reasonably necessary, and the testimony still be had.
It is said that this “verdict” by the Oversight Commission (an approval of a determination by the Chief of Police and the Independent Review Officer) inspires confidence of the police in the Commission. What about the confidence of the public? Why not open up the proceedings, call the witnesses, and get the matter over with (except perhaps for forensic tests) within 36 hours? The New Mexico statutes already provide that the Medical Examiner may conduct an inquest, and take testimony. New Mexico Statutes Annotated, Section 24-11-7.
Thursday, July 14, 2005
MINIMUM WAGE -- INCREASE OR REPEAL
In the Albuquerque Journal, in an op-ed July 13, 2005, Professor Alan Reed opposes the proposed minimum wage which may be considered in Albuquerque. He criticizes (Democrat Party Chairman) John Wertheim’s op-ed supporting a referendum on a minimum wage increase. He says that Wertheim's article ". . . trots out images of suffering people without the slightest evidence that such suffering occurs. . . ." He refers to Wertheim's support of an increase in minimum wage (even if it has to be by the City) as ". . . Wertheim's old socialist gambit...," and says it appeals to ". . . the lowest human instincts."
In the nuclear family, we follow the rule, from each according to her ability, to each according to her needs, to paraphrase the socialist. Those are not low human instincts. They are unwise beyond the nuclear family, as unworkable, just as advice to the rich man to sell is property and give the proceeds to the poor, is unworkable and discourages production of goods and services. But, Professor Reed, with due respect, they are not low instincts. The minimum wage law is government interference with the right to contract, and with the free market; but so is the forty-hour week, and workers' compensation legislation. So are the sugar tariff, farm subsidies, and the oil and gas depletion allowance (27% is okay until you reach 100%, but it keeps on going).
Professor Reed says the market sets wages. Maybe the market should be allowed to set wages, but the law can also set (a floor) under wages. He states that the original reason for such laws was not to [merely] share the wealth, but "... They are a statement that exploitation of workers, often new immigrants, would not be allowed...." Is such legislation (to increase the minimum) wrong? Or is it right, as just raising the minimum to keep up with inflation? Of course, if the principle of a minimum wage itself is wrong, then there should be no new legislation, by the City or otherwise, raising that minimum.
Reed says there is only so much money in a business. If minimum wage earners under today’s minimum get more under a new minimum, then some higher paid wage earner must take a cut. Does that necessarily follow? How about management (read that CEO) taking a cut? How about the owner (promoter, or stockholders) taking a cut? If Reed means that every additional dollar paid to the present minimum wage earner, must come from somewhere in the business, then he is correct. But it is not accurate to say that it necessarily comes from higher wage earners.
Is it all right for people to hire others to work and pay them any wage the worker is willing to work for? Even if the wage is below what is necessary to live in decency and health? Maybe so. A good argument can be made against minimum wage laws. But Professor Reed does not forthrightly come out and say he is against all such laws. He speaks of part-time immigrants without much education or language skill, being minimum wage earners. Is he speaking of part-time in the sense of seasonal, or does he think the immigrant only wants to work a few hours a day? That immigrant would probably be willing to work with a short hoe, cultivating the chile in Southern New Mexico; but should our government allow an employer to work a person that way?
Reed seems to be against the principle of minimum wage laws. However, he does not say so. He says not many people are forced to work for the minimum wage we presently have, and that those are probably not breadwinners. That does not answer the question as to whether such a statutory minimum, a mandatory floor, a government interference with the right to contract, is justified in any case. Why does he not address that issue?
With due respect, Professor Reed, it would seem to me that we should have no minimum wage, or we should increase the minimum to keep up with inflation.
In the nuclear family, we follow the rule, from each according to her ability, to each according to her needs, to paraphrase the socialist. Those are not low human instincts. They are unwise beyond the nuclear family, as unworkable, just as advice to the rich man to sell is property and give the proceeds to the poor, is unworkable and discourages production of goods and services. But, Professor Reed, with due respect, they are not low instincts. The minimum wage law is government interference with the right to contract, and with the free market; but so is the forty-hour week, and workers' compensation legislation. So are the sugar tariff, farm subsidies, and the oil and gas depletion allowance (27% is okay until you reach 100%, but it keeps on going).
Professor Reed says the market sets wages. Maybe the market should be allowed to set wages, but the law can also set (a floor) under wages. He states that the original reason for such laws was not to [merely] share the wealth, but "... They are a statement that exploitation of workers, often new immigrants, would not be allowed...." Is such legislation (to increase the minimum) wrong? Or is it right, as just raising the minimum to keep up with inflation? Of course, if the principle of a minimum wage itself is wrong, then there should be no new legislation, by the City or otherwise, raising that minimum.
Reed says there is only so much money in a business. If minimum wage earners under today’s minimum get more under a new minimum, then some higher paid wage earner must take a cut. Does that necessarily follow? How about management (read that CEO) taking a cut? How about the owner (promoter, or stockholders) taking a cut? If Reed means that every additional dollar paid to the present minimum wage earner, must come from somewhere in the business, then he is correct. But it is not accurate to say that it necessarily comes from higher wage earners.
Is it all right for people to hire others to work and pay them any wage the worker is willing to work for? Even if the wage is below what is necessary to live in decency and health? Maybe so. A good argument can be made against minimum wage laws. But Professor Reed does not forthrightly come out and say he is against all such laws. He speaks of part-time immigrants without much education or language skill, being minimum wage earners. Is he speaking of part-time in the sense of seasonal, or does he think the immigrant only wants to work a few hours a day? That immigrant would probably be willing to work with a short hoe, cultivating the chile in Southern New Mexico; but should our government allow an employer to work a person that way?
Reed seems to be against the principle of minimum wage laws. However, he does not say so. He says not many people are forced to work for the minimum wage we presently have, and that those are probably not breadwinners. That does not answer the question as to whether such a statutory minimum, a mandatory floor, a government interference with the right to contract, is justified in any case. Why does he not address that issue?
With due respect, Professor Reed, it would seem to me that we should have no minimum wage, or we should increase the minimum to keep up with inflation.
Tuesday, July 12, 2005
LAWYER HAS DUTY TO REPORT UNREASONABLE LAWYER FEES
We lawyers in New Mexico have been reminded of our obligation to report lawyers who charge unreasonable lawyer fees. In an Ethics Advisory Opinion issued May 30, 2005 (State Bar Bulletin, Vol. 44, No. 21), the State Bar of New Mexico Ethics Advisory Committee referred to a case that was reported to it by an attorney representing an insurance company. The facts of the case were recited by the Committee:
“Two minor members of a family are injured in a motor vehicle accident. The lawyer representing the two injured parties requests from the insurance carrier immediate payment of one million dollars ($1,000,000.00) based on the lawyer’s understanding of the insurance policy limits. The insurance carrier, through no work of the lawyer representing the injured parties, informs the lawyer that the policy is actually three million dollars ($3,000,000.00), which the carrier immediately agrees to pay.”
The lawyer representing the insurance carrier questioned the reasonableness of a potential $1,000,000.00 contingent fee for work believed mostly involving phone calls, which was in an uncontested matter, and was not novel, difficult nor time-consuming.
The Committee gave the reported case as an example of the type of case that should be reported if a lawyer believes a fee that she charges, or the fee that another lawyer charges, is unreasonable because excessive. In other words, a lawyer should report herself if she charges an excessive fee; and she should report any other lawyer who charges an excessive fee. To fail to do so is a breach of a mandatory duty of a lawyer, and such failure also violates the public trust.
The question was posed as follows: "QUESTION PRESENTED: Does a lawyer have an obligation to report what the lawyer believes to be an unreasonable fee charged by another lawyer?" The answer was stated as follows: "SHORT ANSWER: Yes. A lawyer has a mandatory duty . . . to report professional misconduct. Charging an unreasonable fee is misconduct . . . ."
I understand and of course will be governed accordingly. Report yourself if you charge an excessive fee; report the other attorney if she charges an excessive fee.
I do have a question, however. It has to do with cases in which the lawyer represents the State of New Mexico or its political subdivisions in litigation (say suing the tobacco companies) or legal work (say handling bond issues), and purportedly gets her fees from a party other than the State or political subdivision.
For example, two firms are hired to assist the State in suing the tobacco companies. They negotiate a settlement as part of a national settlement. They get a fee of $24 million dollars for 18 months’ representation. They recover for the taxpayers, the sum of $1.5 billion. My question is not whether the $24 million fee is excessive, but whether it is a fee paid by the taxpayers. Some say it does not cost the taxpayers anything, because the tobacco companies pay it.
Another example. The lawyer is hired by the County Commissioners to handle a bond issue. The agreement is that the lawyer will get her fee from the company which seeks the backing of the Commission so the bonds can be issued to help the company with a project. Say it is an industrial revenue bond. Say it is a huge issue, and the company wants it so badly that the company is willing to pay millions to the County if the bond issue is approved by the Commission. The Commission, with the services of the lawyer, negotiates a deal. The deal is that the taxpayers get $86 million; and the lawyer gets $400,000. My question is not whether the lawyer did $400,000 worth of work, or whether the fee is excessive, but whether the fee is actually paid by the taxpayers. Some say it does not cost the taxpayers any money, that the developer (the company) pays it.
Before we attorneys can know whether to report what we consider to be excessive fees, it would help us to know whether the taxpayers are in essence being charged the fee in these cases. Does Big Tobacco care whether they pay the private counsel hired by New Mexico to assist the Attorney General in joining the national lawsuits, or whether they pay the taxpayers? Does Intel, for example, care whether it pays $400,000 to the attorney hired by Sandoval County Commissioners, or whether Intel pays the money to the taxpayers?
“Two minor members of a family are injured in a motor vehicle accident. The lawyer representing the two injured parties requests from the insurance carrier immediate payment of one million dollars ($1,000,000.00) based on the lawyer’s understanding of the insurance policy limits. The insurance carrier, through no work of the lawyer representing the injured parties, informs the lawyer that the policy is actually three million dollars ($3,000,000.00), which the carrier immediately agrees to pay.”
The lawyer representing the insurance carrier questioned the reasonableness of a potential $1,000,000.00 contingent fee for work believed mostly involving phone calls, which was in an uncontested matter, and was not novel, difficult nor time-consuming.
The Committee gave the reported case as an example of the type of case that should be reported if a lawyer believes a fee that she charges, or the fee that another lawyer charges, is unreasonable because excessive. In other words, a lawyer should report herself if she charges an excessive fee; and she should report any other lawyer who charges an excessive fee. To fail to do so is a breach of a mandatory duty of a lawyer, and such failure also violates the public trust.
The question was posed as follows: "QUESTION PRESENTED: Does a lawyer have an obligation to report what the lawyer believes to be an unreasonable fee charged by another lawyer?" The answer was stated as follows: "SHORT ANSWER: Yes. A lawyer has a mandatory duty . . . to report professional misconduct. Charging an unreasonable fee is misconduct . . . ."
I understand and of course will be governed accordingly. Report yourself if you charge an excessive fee; report the other attorney if she charges an excessive fee.
I do have a question, however. It has to do with cases in which the lawyer represents the State of New Mexico or its political subdivisions in litigation (say suing the tobacco companies) or legal work (say handling bond issues), and purportedly gets her fees from a party other than the State or political subdivision.
For example, two firms are hired to assist the State in suing the tobacco companies. They negotiate a settlement as part of a national settlement. They get a fee of $24 million dollars for 18 months’ representation. They recover for the taxpayers, the sum of $1.5 billion. My question is not whether the $24 million fee is excessive, but whether it is a fee paid by the taxpayers. Some say it does not cost the taxpayers anything, because the tobacco companies pay it.
Another example. The lawyer is hired by the County Commissioners to handle a bond issue. The agreement is that the lawyer will get her fee from the company which seeks the backing of the Commission so the bonds can be issued to help the company with a project. Say it is an industrial revenue bond. Say it is a huge issue, and the company wants it so badly that the company is willing to pay millions to the County if the bond issue is approved by the Commission. The Commission, with the services of the lawyer, negotiates a deal. The deal is that the taxpayers get $86 million; and the lawyer gets $400,000. My question is not whether the lawyer did $400,000 worth of work, or whether the fee is excessive, but whether the fee is actually paid by the taxpayers. Some say it does not cost the taxpayers any money, that the developer (the company) pays it.
Before we attorneys can know whether to report what we consider to be excessive fees, it would help us to know whether the taxpayers are in essence being charged the fee in these cases. Does Big Tobacco care whether they pay the private counsel hired by New Mexico to assist the Attorney General in joining the national lawsuits, or whether they pay the taxpayers? Does Intel, for example, care whether it pays $400,000 to the attorney hired by Sandoval County Commissioners, or whether Intel pays the money to the taxpayers?
Wednesday, June 29, 2005
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.
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.
Friday, June 24, 2005
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