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Posts published in August 2024

Stop scaring people

August 6, 2024

For many years, I've opposed term limits for members of Congress for what I believe to be good and substantial reasons.  But, I've about changed my mind.  I'm beginning to think they should be elected to one six year term - rotated so there's continuity - then maybe a second.  But, all prohibited from a third term of six years.

One significant reason for my change of heart about term limits is because of the continual worry, aggravation and near-constant fear Congress has been causing senior citizens recently.  Far more than usual.

People in Washington D.C., in their 40's-50's seem to have no idea of the actual fear felt by an 88-year-old when politicians start talking about making changes - cuts - in Social Security, reducing Medicare benefits or slashing Medicare reimbursement.

Case in point.  Maybe "cases" in point.  Some senior friends, who've had long relationships with their current doctors, have recently received notice those relationships are over.  Because of constant political uncertainties, threatened reimbursement cuts and even having to write off direct costs in their practices, some doctors have had enough.  They're ending care for people in their 60's and up.  Some are even quitting their practices.

I won't judge the decisions on the medical side.  Each physician has a right to limit his/her practice for whatever reason works for them.   But - if you're over 60 - or 70 or 80 - finding another doctor taking Medicare - and accepting new patients - is nearly impossible and can be a very fearful situation for the now-abandoned patients.  Many seniors can't - or shouldn't - drive long miles to find another provider.  But, that's what they face.

Whether it was the Ryan plan that would have hung seniors out to dry with nearly impossible-to-convert "vouchers" for care or the unthinking, loose-lipped, slow-witted officeholders babbling about cuts to seniors in this-that-and-the-other thing.  All that unfounded chatter already has had a direct affect on older Americans who count on Medicare and/or Social Security.

I'm a proponent for change in both programs.  Many seniors are.  The age of eligibility for both - now based on 60-year-old mortality tables - should be raised to 67 or 68.  Some "means-testing" must be done so those who don't need as much financial help don't get the same amount as those who do.  Some may need more assistance.  These are simple steps that even most seniors know need to be done.

But, talk of wholesale cuts, sweeping changes and arbitrary limits mouthed by ignorant politicians trying to appeal to some limited, moneyed constituency, cause worry and even panic.  Especially if you're an 80-something with health problems facing what could be that long drive to each appointment.  Or worse - for a hospital stay.

As for those on the Potomac now, too young or too mentally-challenged to realize a lot of innocent, older people are living in fear because of their political posturing, it would be well to remember this.  No matter what little group you're trying to court with your blabbering about making cuts in programs for seniors, those worried seniors in your district probably represent more voters than your little moneyed group.

And we do vote!

 

Targeting open primaries

August 5, 2024

Idaho’s Don Quixote has found another windmill to tilt. Attorney General Raul Labrador has just hauled off and, once again, sued one of his own clients. This time, Labrador is suing Secretary of State Phil McGrane, trying to force McGrane to do something that he can’t do under Idaho law–kill the Open Primaries Initiative (OPI). To make matters even worse, Labrador is also trying to defend McGrane in the lawsuit. That appears to be a serious conflict of interest.

The Idaho Supreme Court was likely surprised when it saw the papers Labrador filed on behalf of McGrane. The Court issued an order on July 28, demanding that Labrador show why he should not be disqualified from representing McGrane. It gave him one day to make the showing. Such an order is almost without precedent.

Labrador has a glaring conflict of interest under ethical rules that all Idaho lawyers are required to follow. Simply put, a lawyer cannot represent both sides of a lawsuit, especially where the lawyer is personally interested in the outcome. Labrador’s political future hinges on defeating the OPI. He wants to keep the closed Republican primary because it strongly favors him and the Party’s other extreme candidates.

Ever since the Republicans closed their primary in 2011, extremists have routinely eliminated reasonable, traditional Republicans in the low-turnout primary election. Labrador, Idaho GOP chair Dorothy Moon and other extremists know that allowing all Idahoans to choose their elected officials will end the extremists’ grip on power.

In his court filings, Labrador tries to justify the use of his own lawyers to defend McGrane by claiming he has implemented “ethical screening procedures.” Pardon me, but Labrador is personally suing McGrane and he is deeply invested in the outcome of the case. His lawyers on both sides of the suit are smart enough to know who pays them. And they know the boss desperately needs to win the case. Apparently, none of them had the courage to tell Labrador there was no legal basis for his lawsuit.

Turning to the legal grounds that Labrador asserts in support of his personal side of the case, let’s just say they are non-existent. The Secretary of State has no legal authority to keep an initiative off of the ballot if it meets all of the requirements for certification. The OPI does and, as a matter of fact, it has already been certified.

Labrador falsely claims that OPI supporters deceived petition signers by concealing the fact that it calls for a general election where the winning candidate will be selected in a ranked-choice process. Every petition contained a detailed explanation of the OPI and how it works. OPI proponents have taken pains to describe how simple it is for voters to rank up to 4 candidates in their order of preference and how that will produce the most highly-regarded winner.

But, speaking of deception, Labrador’s allies in the Legislature are masters at deceptive promotion of legislation. His extremist friends have introduced a profusion of culture war bills and promoted them with the most outlandish claims—libraries are cesspools of filth, teachers are groomers and any number of other deceitful and disgusting accusations. Even though it would be wonderful to bring those tactics to a halt, the courts won’t become involved until any such bill is enacted into law.

Labrador contends that the OPI violates a statute saying that an initiative can “embrace only one (1) subject and matters properly connected with it.” The OPI deals with just one subject–the election process. It is silly to claim that an initiative focused solely upon the election process deals with more than one subject.

Despite all of the deficiencies in Labrador’s lawsuit, the greatest obstacle is the Idaho Supreme Court’s routine denial of challenges to initiatives before they are voted into law. When I was on the Court, we ruled that an initiative can’t be challenged in court until it is approved by voters. If the voters turn it down, that takes care of the matter. If it passes, a challenge might then be made. Idaho’s own Don Quixote should have studied the law before tilting at the OPI windmill. He may end up paying everyone's legal fees.

 

More than money

August 4, 2024

Oregon’s public defender problems have been getting much better and much worse at the same time.

Finding a solution that makes sense doesn’t involve doing what most people have long argued: spending more money on legal services. The answer lies in how the money is managed and spent, and how the workload is organized.

In all, it resembles any of several serious Oregon problems – drug abuse and homelessness among them – where the willingness to do the right thing, and the ability to pay for it, are not the bottleneck. The problem lies in smartly managing the problem-solving.

The problems with the public defense of people charged with a crime who cannot afford an attorney but have the right to one is not new, and legislators and the state executive branch actively have been working on it for years.

The Oregon Legislature has responded. The Oregon Public Defense Commission, which is assigned to manage and deliver public attorneys for at-need defendants, has been given a massive infusion of new money, its budget more than doubling in the past seven years.

The larger picture in defense caseloads looks better than even a couple of years ago. In January 2022, the American Bar Association produced a report called The Oregon Project: An Analysis of the Oregon Public Defense System and Attorney Workloads Standards, which found that Oregon had fewer than a third of the attorneys, or more exactly attorney work-hours, needed to meet the the demand and  and ought to have the full-time equivalent of about 1,300 more attorneys.

Since then, other states have studied exactly how much attorney time is needed in public defense, and when variations in the types of cases are factored in – a simple misdemeanor versus a knot of complex felonies, for example – it turns out Oregon’s need is far smaller than estimated by the bar association. Those studies indicate it needs about 600 attorneys.

But the problem is more complicated than that.

There’s been more focus on providing counsel for in-custody defendants, but the problem seems to have worsened among the larger group of out-of-custody defendants, with the lack of counsel problem worsening overall.

Their ranks have swelled after a federal judge last October ordered that any inmate not assigned an attorney within a week had to be released from county jails. (The legal debate about the judge’s action is ongoing.)

On top of that, the average time an out-of-custody felony defendant now is without counsel is running upward of 100 days.

This has been happening even at a time when the numbers of Oregon crimes, notably property crime, have been trending downward.

Under terms of the state-attorney contracts awarded in June 2022, the defense attorneys are limited in the number of cases they can accept. By April of 2023, however, many attorneys already had hit those ceilings and could not take on new clients as new defendants entered the system. In Multnomah County, private lawyers overall reported hitting 122% of the maximum caseload in recent months. So in the spring of 2023, the state throttled back the number of cases defense attorneys could take.

There have also been serious problems with billing by the commission. The amount of time elapsed for payment to attorneys has grown from just over a week in 2016 to more than 45 days this year – a situation bound to become unacceptable to many attorneys and other contractors, such as private investigators.

More flexible rules for attorney contracting could help, along with a sharper focus on problem-solving and less on rule-making. But there’s a larger systemic block getting in the way of solving many state problems that both agency directors and the governor, and the Legislature, should start to consider more broadly.

This column originally appeared in the Oregon Capital Chronicle.

Protesting the gov

Protesting the gov

August 2, 2024

Here’s something a little different:

Eastern Idaho farmers on July 30 were rolling their tractors down the streets of Idaho Falls to protest … Republican Governor Brad Little.

On they rolled down Lindsay Avenue, toward the middle of town, an expression of dissatisfaction with what the governor and his administration has done about the toughest local issue in eastern Idaho this year: The water supply.

The depth of the seriousness may be indicated by the fact that 2024 isn’t even shaping up as an especially bad water year; it could have been much worse. It has been rough and difficult enough, though, for people who have junior - that is, low-priority - rights to use water. Loosely, that means users of groundwater. For the most part, surface water users have older rights and top priority. So when the supply of water, which is limited, falls short of the demand, as has happened this year, farmers reliant on groundwater have a big problem with few options to help them avoid disaster.

At one point this year a massive curtailment - shutting off water use - was ordered by the state Department of Water Resources across hundreds of thousands of acres. That led to loud protests from groundwater pumpers who said they might be ruined as a result (and for many that might have been no exaggeration).

The state tried to work out something mutually agreeable, with the aim of still avoiding too large a water draw from the Snake River Plain Aquifer while giving the various irrigators what they need. A deal announced some weeks ago and codified in a governor’s executive order returned allowable water use to groundwater pumpers, to a point - and it conditioned the ongoing use on the two sides reaching an agreement (to be overseen by the state) by October.

Little and Lieutenant Governor Scott Bedke, who was key in the negotiations, praised the deal and seemed to breathe a big sigh of relief. The more the groundwater users seemed to think about it, though, the less agreeable it seemed.

Frank Vander Sloot, probably the Idaho Falls area’s top businessman, offered this succinct take to the East Idaho News: “The truth is, one side has a gun to the head, and the other the side holding the gun. … The same groups are back to the table, and I think they needed some help from the Legislature and the Governor, and it doesn’t feel like they’re going to get it.”

He’s not wrong. The surface water holders hold the high cards.

But considering Idaho’s prior appropriations principle of water use - “first in time, first in right” - and its limited water supply (most of southern Idaho really is desert, remember), the alternatives may be limited. What exactly are the groundwater users suggesting that would make them whole, would also satisfy the water uses of the surface water users (ground and surface water is connected), and also avoid disastrous aquifer drawdowns?

Maybe someone has a better answer (and that might be good if they do), but from here, it seems that some key element of the existing water regime in Idaho would have to be thrown overboard to achieve satisfaction for the groundwater farmers.

Most simply, that would seem to mean revising the prior appropriation doctrine, changing the way water users stand in line to get their previous liquid.

That of course sounds simpler than it would be in practice. Since there’s no way to simply manufacture more water, someone would be getting less water. The question is, who?

Little remarked in Idaho Falls, “My executive order earlier this summer created a framework for farmers and water users to get their work done as productively and expeditiously as possible. I can tell you that waiting until the last minute is unacceptable to me. We must give certainty to all water users in future years.”

A good aspiration. How to make it happen in practice is another matter. Do it wrong, and in years to come more than a few dozen tractors may be rolling down Idaho city streets in protest.

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