DOES NEW MEXICO’S DEPARTMENT OF JUSTICE RUN A PROTECTION RACKET FOR DEMOCRATS?

      In my 29 May blog, I questioned whether Attorney General Raúl Torrez is committed to open government or not.  The answer is probably not.  The New Mexico Department of Justice’s (NMDOJ) has thus far failed to respond to several requests to reopen my complaint about Open Meeting Act (OMA) violations by former members of the Las Cruces City Council, including incumbent Democratic Congressional District 2 candidate Gabe Vasquz and independent candidate for governor Ken Miyagishima.  Vasquez and Miyagishima need NMDOJ protection.

On 28 May, the Foundation for Open Government (FOG) submitted a request to Government Counsel and Accountability Bureau (GCAB) Deputy Director Rebecca M. Guay to reopen my complaint.  The request was based on its thorough, year-long investigation of abundant evidence obtained by my Inspection of Public Records Act (IPRA) request and FOG’s further research.  Its investigation supersedes the brief, perfunctory, skimpy work of GCAB lawyers.  Presumably, Ms. Guay must consult her superiors whether she or they will or will not reopen my complaint.  FOG has received no response to its request over seven weeks later.

 

On 29 May, I made a request to Ms. Guay (copied to Torrez) to reopen my complaint on the basis of FOG’s investigation.  I have received no response to my request over seven weeks later.  On 30 June, I restated my request to Mr. Blaine Moffatt (copied to Torrez and Ms. Guay), Ms. Guay’s immediate superior.  I have received no response to my restated request over three weeks later.

 

Whatever decision Torrez, Moffatt, or Guay make, their individual failures to respond to a reasonable request is inexcusable, shabby treatment of a private citizen by government officials.  That treatment might reflect the usual bureaucratic reluctance to admit a mistake, an incomplete, if not incompetent, investigation of my earlier complaint, as disclosed by FOG’s investigation.

 

Other reasons might also explain their failures, discussed in my blog, which I summarize.  I said that Torrez faces two risks to reopening my complaint.  One, he might offend the political establishment, mainly Democrats, if he directs the NMDOJ to reopen my complaint and thereby investigates current candidates for office.  An investigation of Vasquez, a Democrat, might anger Democrats by jeopardizing his re-election to the District 2 seat in the House of Representatives (Miyagishima’s candidacy is a vanity project of a fading politician).  Two, he might offend officials and employees in the department.  Novice attorney Isabelle Lopez would not appreciate the implicit judgment of her cursory initial investigation; and GCAB Deputy Director Rebecca M. Guay would not appreciate the reversal of her reflexive ratification of Ms. Lopez’s work.

 

I also noted that Torrez runs two risks if he does not reopen my complaint.  One, he might appear to be protecting members of his party.  Two, whatever his professed commitment to open government, a negative decision might suggest political hypocrisy.  I now add that, if he does not reopen my complaint, he makes Government Counsel and Accountability Division Director Blaine Moffatt look like a blowhard; his letter on another matter to the Las Cruces City Council promised that “Future complaints related to your public body will be examined with increased attention.”  Thus far, they have not been so examined.  If Moffatt appointed or approved the appointment of Ms. Lopez to investigate my complaint, then he showed himself a blowhard.

 

My guess: Torrez will try to reduce or avoid some of these risks by slow walking a reopening of the investigation until after the November midterm elections or by refusing to reopen it altogether.  In the expected close race for the District 2 Congressional seat—Cook Partisan Voter Index rates this district “even”—Vasquez, a weak incumbent candidate, needs all the help which he can get.  If Torrez slow walks or does not reopen the investigation, he would seem to agree with my assessment of this Democratic candidate.

 

This complaint to NMDOJ about OMA violations is not my first and only one.  Two others occurred under AG Hector Balderas’s leadership.  One was that an LCPD Internal Affairs (IA) investigation of my complaint about five false allegations of code violations violated my due process rights.  Although IA found that the allegations were false, it neither reported that finding to me nor acted upon to clear my LCPD file.  This complaint went unanswered.  The other was that IA’s violation of my due process rights was motivated by antisemitism.  This complaint also went unanswered.  NMDOJ does a lot of not answering complaints about government agencies.

 

I assume that I am not the only citizen of New Mexico who has filed complaints with NMDOJ alleging violations of laws by government agencies, including police departments, and has received no answer.  (If I am the only such citizen, then I must wonder why my complaints do not matter.)  Since the common element of my three complaints is local government officials and agencies, I infer that NMDOJ is reluctant to investigate as many cases as a lack of adverse publicity allows in order to protect state and local officials, ranking employees, and agencies from scrutiny.  For NMDOJ, transparency and accountability appear to be merely ideals “more honored in the breach than in the observance.”  Attorneys General honor them when they choose to avoid them because of political consequences adverse to their aspirations to higher office.  Which is to say that public relations and personal politics deny justice for citizens with complaints about state and local officials and ranking employees.  Officials and employees know that NMDOJ prefers to tolerate and protect rather than to deter or prosecute illegal behavior.  The refusal of NMDOJ officials to investigate complaints encourages misconduct; immunity leads to impunity.

 

I doubt that the New Mexico legislature is scrutinizing the NMDOJ in matters concerning citizen complaints about local governments and state agencies.  Does the legislature know what number of citizen complaints NMDOJ receives?  Or what percentage of citizen complaints it acknowledges?  Or what percentage of citizen complaints it dismisses without investigation?  Or what percentage of citizen complaints it investigates?  Or what percentage of citizens receive a report on the disposition of their complaint?  Or whether it measures citizen satisfaction with its handling of complaints?  I doubt the legislature can answer any of these questions because it has not asked NMDOJ for answers.

 

If I am right that the legislature is ignorant in these matters about local governments and state agencies, the legislature cannot ensure that the NMDOJ is a department acting for good government throughout the state—a fact not suggesting good government.  Perhaps legislators on the House and Senate judiciary committees should conduct investigations of the NMDOJ.  But it is unlikely that Democrats on those committees would approve inquiries or investigations of their political brethren.  NMDOJ under Torres will remain corrupt in its protection of government officials and employees from the rule of law regarding open government.

ACCOUNTABILITY AND REFORM AS AND AFTER THE TRUMP ADMINISTRATION COLLAPSES

     To follow the Democratic, liberal, or Progressive independent media is to know their commentators’ eagerness to hold Trump administration officials, especially higher-ranking ones, and Trump-hired employees accountable for their misdeeds.  They want them investigated, prosecuted, and, if warranted, convicted and sentenced to prison for whatever federal crimes for which Trump has not pardoned them and for whatever state crimes for which he cannot pardon them.  They want DOJ lawyers, pardoned or not, who served Trump as their client, disbarred, disbarment being a state prerogative beyond the reach of a presidential pardon.  They want to replace Trump’s non-criminal political hacks and hires in order to reconstitute departments, agencies, and boards with competent, dedicated people.  These leftist commentators can thank the Supreme Court for presidential authority to clean up the Executive Branch.  Ironically, such practices to render accountability will be in full accord with the theory of the unitary executive which SCOTUS has implemented in many of its worst decisions.  Yet they might be a problem.

Reformers are rightly passionate about effecting reforms, but proposed reforms face difficult obstacles, both legislative and Constitutional, in the near term, before 2028, and hardly less difficult ones in the years thereafter.  These obstacles will likely be accompanied by internal disagreements about what reforms they should undertake, what priorities they should assign them, how incremental or radical they should make them, how they can implement them, and how they can secure support for them.  Until reformers can decide on an agreed-upon an agenda addressing these areas of potential disagreement, they risk discord, diffusion of energies, and defeat.  And, of course, opponents of reforms will exploit these disagreements to hinder them.

 

Reformers want to address many areas corrupted by the Trump administration, but they should give priority to restoring the rule of law in the Supreme Court and the Department of Justice.  Otherwise, a new Democratic administration will face obstacles to holding Trump administration officials and hires accountable under the law and to effecting other reforms.

 

Part of restoring the rule of law is reforming the Supreme Court.  One proposed reform is enlarging the court, which requires no Constitutional amendment, only legislation.  Democrats should avoid or oppose this reform until they win the presidency and win or hold the Senate in 2028.  Although presently most unlikely, this Republican president and Republican Congress could pass such legislation, which would enable Trump to nominate and Senate Republicans to confirm additional reactionary justices to the Court, thereby compounding the problem of a Court already gone rogue.

 

The primary motive for this reform is to overcome the disastrous reign of six conservative judges, all Republican appointees.  They have embraced the unitary executive theory and thereby enhanced the power of the presidency, to include immunity from misconduct in office, and have undermined both the ability of citizens to seek judicial redress of grievances and, more generally, democracy itself, as its rulings on gerrymandering and the Civil Rights Act, among others, prove.

 

There would be little need to expand the Court only to counter the baleful influence of the six conservative Republican justices if they were impeached.  Every one of them merit impeachment because each one of them has committed “high crimes and misdemeanors.”  They have perjured themselves by lying to the Senate during their confirmation hearings about their allegiance to precedent or settled law; all testified that they believed in stare decisis, the judicial principle which honors precedent.  The evidence is their many votes overturning previous court decisions.  They have been corrupt; several have accepted benefits from outsiders and, contrary to the law, failed to report these benefits.  Evidence for these charges is already part of the public record.  If any of them resigns to forestall or avoid impeachment proceedings, proceedings should continue to ensure their public disgrace by official repudiation and their permanent disqualification from any public office in the future.  Impeachment would have the benefit not only of punishing them, but also of setting a standard for future nominees and confirmed justices.  However, Republican opposition in Congress would preclude impeachment before 2028 and would make it only remotely possible thereafter.

 

The secondary motive for this proposal is that the workload of the Court has increased so much in the past several decades.  The need for this proposal can be reduced by Congressional legislation restricting the scope of the Court’s jurisdiction to only those items specifically mentioned in the Constitution—again, a difficult task in the face of Republican opposition.

 

Other proposed reforms are term limits—18 years is often suggested—and staggered tenures.  Since the Constitution stipulates lifetime appointments to the Supreme Court, this reform would require a Constitutional amendment, the Congressional passage of which would have little or no chance of success.  Some have suggested that legislation could reassign Supreme Court justices to appellate courts after 18 years.  But the Court would likely rule that the lifetime guarantee is to positions on the Supreme Court only, not also to alternative federal court positions.  However, a legislative work-around exists: an age requirement.  Congress could pass a law requiring that justices be at least 65 years old to sit on the court.  Mortality rates for those of that age is about 18 years.  However, the irregularity of deaths would deny the possibility of staggered tenures.  Still, there are advantages.  One is that nominees would have extensive records as judges or would appear unprepared for the position.  Another is that the regular rotation of justices might avoid entrenchment of judicial doctrines and outdated precedents.  Republicans occupying the presidency or controlling Congress would not likely support such a bill.

 

Other reforms of the Supreme Court might define precise limits on the use of the “shadow docket” and require published rationales for all Court decisions; and establish criteria for Senate confirmation, which the President would have to consider in making nominations, like years of experience and percentage of votes for decisions reversed by higher courts.  Reforms by judicial decisions are necessary to reverse the many perverse decisions rendered both in open court and in the “shadow docket,” but these reforms might be beyond the capability of Congress.

 

Restoring the Department of Justice, including the FBI, requires reforming their relationships with the Executive and Legislative Branches, best by making it an independent agency.  More, Congressional legislation should attempt to re-establish previously independent agencies and establish new ones deemed necessary by legislating that their independence alone is beyond the reach of Court jurisprudence—a proposal which might have enough support from Republicans to pass in Congress but would have no support in the Trump administration.  Simultaneously, all Trump officials and hires should be dismissed with prejudice from government service, and replacements hired from those previously employed by DOJ or the FBI and others whose objectivity in matters of legal practice can be established.  The same firing and hiring procedures should be applied to all Executive Branch departments and agencies.  In addition, all Inspectors General should be employees, not of their departments or agencies, but of DOJ, so that their work is independent of department secretaries or agency heads.

 

Two other reforms should target anti-democratic institutions or procedures.  One is eliminating or neutralizing the Electoral College.  Again, a Constitutional amendment is now out of the question.  But it might be possible for a Democratic administration to persuade enough additional states to subscribe to the National Popular Vote Interstate Compact, “an agreement among U.S. states and territories to award all their electoral votes to the presidential candidate who wins the overall national popular vote, regardless of individual state results” (Wikipedia).  Current signatories represent 232 electoral votes; with only 48 more required, a combination of a few large states like Arizona (11), Michigan (15), Ohio (17), Pennsylvania (19), and Wisconsin (10), and perhaps a few small states like Nevada (6) and New Hampshire (4) would be sufficient to make the compact effective.  In 2028, a Democratic administration and Congress might, with the consent of signatories, enact legislation making this compact virtually irreversible until a Constitutional Amendment becomes feasible.

 

Another is the end of the Senate filibuster.  This procedure is anti-democratic.  Ending it has the advantage of restoring majority rule.  Moreover, by assigning clear responsibility for party-line majority votes on legislation and confirmations, it might encourage cross-party collaboration as the majority party might want minority-party input on legislation to reduce, if not eliminate, adverse effects.  Its demise would not be dangerous; other democracies have done just fine without a nefarious device which enables minority rule.

 

However, there is a danger of going too far in seeking accountability.  The eagerness to hold administration personnel accountable must not replicate, thus perpetuate, the abuses of the Trump administration.  The methods of dealing with Trump officials and hires must adhere to the highest standards of justice to disarm charges of weaponization of the legal system.  Moreover, reformers must be aware of and work to avoid the danger not only of perpetuating presidential powers enlarged by Trump, but also of expanding them, as presidents have often done with the powers of their predecessors.  The next, presumably Democratic, president must not only eschew such enlarged powers, but also work with Congress to legislate their removal from the Executive Branch, with prompt, severe penalties for violations.  Otherwise, the threat to democracy which these enlarged powers pose will remain.  In short, accountability and reform, whatever the good intentions and intensity of these efforts, must be equally ethical and restrained.  Which means that the character of those seeking accountability and reform must be above reproach and demonstrate integrity, humility, and a commitment of public service which overrides personal ambition.

THE OLDER I GET, THE BETTER I WAS

     This July 4^th, as it commemorates the 250^th anniversary of the signing of the Declaration of Independence, calls for retrospection and reassessment, for a comparison of past and present conditions of our country.  In some, it prompts either a naïve nostalgia assuming the superiority of the former to the latter or a political yearning for a return to yesteryear.  For them, this bon mot is apt; for me, it is amusing, for I do not think it true of me as I compare the times of my earlier and later years.  I have been pleased to age; I think that I have learned more, even acquired a modicum of wisdom (a word not much in use today), and changed for the better.

Until a dozen years ago, I had thought that America was steadily becoming a more perfect union.  Until then, I had witnessed the end of Jim Crow laws and KKK lynchings (Emmett Till, 1955) or other murders (James Chaney, Andrew Goodman, and Michael Schwerner, 1964); the liberation of women to have choices in bodily autonomy—to abort or not to abort, that is the question—and in professional careers beyond those of schoolteachers, nurses, and librarians, occupations still generally regarded as women’s work; and the termination of residential covenants against Blacks and Jews in many places, including my hometown, Shaker Heights.  But Martin Luther King’s leadership in the 1955-1956 Montgomery bus boycott was a sign of changes to come; no one had to be a weatherman to know which way the winds were blowing.  Obviously, the presidency of Donald Trump and the ascendency of MAGA and other even more extreme fascist organizations have done much to make the union less perfect than it had become.

 

As I review my life and times, not the political and social development of the past 86 years, I view the experiences of my youth as better, healthier, and happier than I believe the experiences of today’s youth are.

 

One notable change from my times to later times is the rise and spread of Little League.  In my day—I am talking 1945 to 1958—, football, basketball, and baseball games (nobody played soccer) were pick-up games even if they were regular occurrences.  In elementary school, we played mostly baseball.  The biggest or the best athletes were captains who chose the teams and assigned positions.  If they chose themselves to key positions too often, other players would grumble and demand fairness in assignments.  We resolved disputes by arguing, not fighting except for a little shoving once in a while.  In the end, everyone got to play the position which he preferred once in a while, but some proved themselves so good at certain positions that everyone wanted them there.  We never suffered from coaches picking their sons for key positions, resolving disputes, and managing the game, or from parents screaming at us to try harder.

 

We just had fun.  At the 11:45 elementary school lunch break, I would race the three blocks home, wolf down a sandwich and a glass of milk, and race back to school to get in an hour of baseball before classes resumed.  I usually played second base, though I sometimes pitched, and I had a special role as well.  The playground had two fields; one had its right field, the other had its left field, defined by a chain link fence behind which a large, male German Shepherd patrolled.  Most of the kids teased the dog by running along the fence and strumming a stick against the fence.  The dog barked angrily in defense of the property.  But I always talked to the dog and became friends with it.  So, whenever someone hit a home run, I was the retriever who jumped the fence to get the ball.  It gave me a chance to play with the dog a bit.  Some days, the lady of the house—I remember her name: Mrs. Vernon—invited me in for cookies and milk or lemonade to thank me for being kind to her dog.  Pick-up games, friendly neighbors—a far cry from sports organized by adults who regulate or respond to them for their purposes.

 

But one decision I regret.  I loved basketball and was good at it on either end of the court.  My elementary school and junior-high-school friend Dale Huge and I were about as evenly matched a pair of ballers as anyone had ever seen.  He was slightly better than I, say, 51-49.  Kids watched our one-on-one, hour-long games.  In our first semester in senior-high school, Dale asked me what sport I was going out for; I said cross-country.  He objected and asked me why; he said that we should go out for basketball and be the starting guards by the end of the season.  I declined without telling him the real reason: I was too shy to want to play in front of a crowd.  He started by season’s end while I jogged along just enough to stay in shape for spring track. So I remember not being better then, only missing a chance to be as good as I was.

 

Another notable change was the disappearance of Friday-night canteens hosted by Plymouth Church (UCC) for junior-high students in its basement.  The kitchen served hot dogs, potato chips, candy, ice cream, and other junk food.  Several knock-hockey games filled an open space; it served those, mostly boys, who were shy and those who wanted a break from dancing.  The important space was a dimly lit dance floor separated from the food and game areas by ceiling-to-floor curtains.  The only adult present was a parent playing 45s for dancing; well-behaved, we needed no chaperones.  Close dancing and an occasional, quick, covert kiss were about as randy as we got.  When canteen ended at about 10:30, our parents, who had dropped us off, picked us up and took us home.  As I look back on the canteens, I am grateful that we did not have malls to make us grow up faster than our years allowed.

 

What was good in my early years was shared close personal relationships and social interactions in relaxed settings.  Today, I regret that minors experience fewer similar experiences.

 

The villain in the piece is electronic technologies.  Before televisions became commonplace, the kids in my neighborhood played street games: hopscotch, hide-and-seek, and capture the flag.  There was not much television to watch, and I grew up not watching it much, only a few selected shows, and skipping the rest.  In 2015, I gave my TVs to Goodwill and have not missed them.  I go to Chicago to watch the Michigan-Ohio State football game with my son and ex-wife on Thanksgiving weekend, and find a way to watch WNBA games or, more often, players (Sonia Citron, Caitlin Clark, Angel Reese) of special interest.  I was slow to get a computer—my first was an Epson, in 1983—and, of course, have had one ever since.  I cannot imagine how I wrote my dissertation just 10 years earlier.  I use it for writing blogs, reading the news, and getting sports scores, not playing games or watching movies.  I finally got an iPhone, which I use mostly for a few calls and messages, and, when waiting for doctors, the latest news or sports scores.

 

I do not use Facetime and any other apps which are so popular for “staying touch with family and friends.”  I intuited early what experts have come to recognize as the baleful influence of smartphones on infants, children, and teenagers.  They are addictive, and their overuse often leads to personal isolation, anxiety, and depression, and away from healthy activities with others.  I recognize their equally baleful influence on adults in the empty time spent staying in touch and political trash-mongering.  AI will be even worse because it will make it more difficult to stay in touch with reality; it will disorient us, make us distrustful, and corrupt human interactions.

 

I might sound like a dyspeptic old man, but I am not dyspeptic.  How could I be?  I have returned to where I started, with good friends as neighbors.  I have four dogs, my best pack ever, and a cat—a happy family.  In retirement, I look back on a long, gratifying life as a consultant, civic activist, and scholar.  I have not regretted aging because I have enjoyed maturing, which one, like me, must aspire to and attempt to achieve.  In defiance of my title, I think that I am better now, in my golden years, than I was then.

 

Enjoy this Fourth, but take a moment to reflect not only on who we were and are as a country, but also on who we were and are as persons.  Can the country be better, a more perfect union?  Can we be better, more perfect persons?