31 October 2005

Theory and Practice in Utah

You can be pretty sure that Utah officials weren't all that serious about enforcing the anti-bigamy laws that have been on the books in that state since its formation when a man with three wives has been a judge in that state for the last twenty-five years.

Honestly, I don't stay up at night worrying about how polygamists are ruining my marriage. But, as practiced in Colorado City, Arizona and Hilsdale, Utah, there is little doubt that girls and young women are entering these marriages under duress. Once they have children, the women face huge barriers to leaving the relationships. This is a problem, and dramatically reduces my sympathy for their case, even if, in theory, polygamy isn't necessarily wrong in and of itself. (In fairness, it does not appear that these issues are necessarily pertinent to this particular judge).

Also, if Utah is going to make bigamy illegal, a felony indeed, it shouldn't look the other way at judges who violate the law. Tolerating a judge's open disregard for the laws on the books, without a judicial determination that those laws are invalid, does not promote the rule of law.

Menacing and Assault Sentence: Death

Frank Ortega was being held on charges of menancing and assault. The charges would have put him in jail for five years at most, probably less, and then, only if he was convicted. It wouldn't have been unusual to plea bargain in a case like that one. The man in his 50s could even have been acquitted when he went to trial.

He wound up dead, killed by a cellmate in Denver's jail. Jail officials say it is the first jail murder in 20-30 years. It wasn't just a coincidence, however. Denver's jail is so overcrowded that they have inmates sleeping in tents. Overcrowding in Denver's unaccredited jail also likely contributed to this murder.

Ortega's cellmate will, no doubt, be promptly convicted of murder. But, the City and County of Denver has a legal responsibility to keep people held while awaiting trial from ending up dead. They failed in their duty.

This should have been a front page story. It wasn't. The Denver Post apparently believes that this event is so insignificant it belong in a brief without a story of its own deep in section B. Have we come to the point where I homicide in which the City and County of Denver of partially responsible is so insignificant? Apparently so.

A Halloween Nightmare

It was before five a.m., thanks to a time change the caused little children to rise earlier than normal. Fog enshrouded the neighborhood. And, National Public Radio brought me a Halloween Nightmare, courtesy of George W. Bush.

Samuel "Scalito" Alito, Jr., a hard core conservative, most famous for holding that the constitution presented no bar to a Pennsylvania law that required wives to inform their husband's of their intent to seek an abortion (a decision later overruled by the U.S. Supreme Court in a 6-3 vote in the Casey decision, which reaffirmed Roe v. Wade) is Bush's nominee.

If he is approved, liberals will regret being lukewarm about Harriet Miers, the U.S. Supreme Court candidate whose withdrawal had led to the Alito nomination.

Of course, Democrats in the Senate could filibuster him, but I'm not hopeful. With men like Ken Salazar representing Colorado, our chances look weak. Democrats have been spineless on nominations in the past, and they will likely be this time. Democrats need to recognize, as Armando at the Daily Kos does in his sig line, that the Supreme Court is extraordinary. Fundamentally, this is right. As a judge on the United States Court of Appeals for the 3rd Circuit, Alito is subject to the binding precedent of a higher court. On the U.S. Supreme Court, the only thing that matters is the ability of Alito to find four more votes for his personal views. Scalia, Thomas and Roberts will be more than happy to oblige in most instances, and Kennedy won't be much of a hard sell.

This is not a time to carefully wait and deliberate. This is a time for bold action to oppose this nomination now. I sincerely hope that this nightmare will end. But, I fear that it won't, for decades.

30 October 2005

Academia's Standard Of Honesty.

Unlike the Bush Administration, academia fires people who make shit up, even when they have otherwise very promising futures. It doesn't wait for indictments to come down.

Cheney Shameless Force For Evil.

The Washington Post aptly describes the disgrace our Vice President, not just his employees, have wrought upon our nation:

Vice President for Torture

Wednesday, October 26, 2005; Page A18

VICE PRESIDENT Cheney is aggressively pursuing an initiative that may be unprecedented for an elected official of the executive branch: He is proposing that Congress legally authorize human rights abuses by Americans. "Cruel, inhuman and degrading" treatment of prisoners is banned by an international treaty negotiated by the Reagan administration and ratified by the United States. The State Department annually issues a report criticizing other governments for violating it. Now Mr. Cheney is asking Congress to approve legal language that would allow the CIA to commit such abuses against foreign prisoners it is holding abroad. In other words, this vice president has become an open advocate of torture.

His position is not just some abstract defense of presidential power. The CIA is holding an unknown number of prisoners in secret detention centers abroad. In violation of the Geneva Conventions, it has refused to register those detainees with the International Red Cross or to allow visits by its inspectors. Its prisoners have "disappeared," like the victims of some dictatorships. The Justice Department and the White House are known to have approved harsh interrogation techniques for some of these people, including "waterboarding," or simulated drowning; mock execution; and the deliberate withholding of pain medication. CIA personnel have been implicated in the deaths during interrogation of at least four Afghan and Iraqi detainees. Official investigations have indicated that some aberrant practices by Army personnel in Iraq originated with the CIA. Yet no CIA personnel have been held accountable for this record, and there has never been a public report on the agency's performance.

It's not surprising that Mr. Cheney would be at the forefront of an attempt to ratify and legalize this shameful record. The vice president has been a prime mover behind the Bush administration's decision to violate the Geneva Conventions and the U.N. Convention Against Torture and to break with decades of past practice by the U.S. military. These decisions at the top have led to hundreds of documented cases of abuse, torture and homicide in Iraq and Afghanistan. Mr. Cheney's counsel, David S. Addington, was reportedly one of the principal authors of a legal memo justifying the torture of suspects. This summer Mr. Cheney told several Republican senators that President Bush would veto the annual defense spending bill if it contained language prohibiting the use of cruel, inhuman and degrading treatment by any U.S. personnel.

The senators ignored Mr. Cheney's threats, and the amendment, sponsored by Sen. John McCain (R-Ariz.), passed this month by a vote of 90 to 9. So now Mr. Cheney is trying to persuade members of a House-Senate conference committee to adopt language that would not just nullify the McCain amendment but would formally adopt cruel, inhuman and degrading treatment as a legal instrument of U.S. policy. The Senate's earlier vote suggests that it will not allow such a betrayal of American values. As for Mr. Cheney: He will be remembered as the vice president who campaigned for torture.

Truth, justice and the American Way just don't cut it for Republicans.

Twenty-Four Hour Coffee

Denver now has a twenty-four hour coffee house downtown called the Lola European Cafe at 820 15th Street. The Denver Coffee House Blog has the details.

Check Your Smoke Alarms.

Fire Departments have a devious scheme of propaganda which I am currently helping to perpetuate. When the time changes (hello folks, we're back on standard time) they want you to check you smoke alarms as well as resetting your clocks. On rare occassions like this, propaganda is a life saving good thing.

Also, in a fire department propaganda update, you all remember stop, drop and roll dick roll -- the procedure to take when you are on fire. We'll, it turns out that there is one more piece of that puzzle. If you are on fire, you should also put your hand over your face. This helps keep smoke and fire out of your lungs and eyes, and it is easier to reconstruct the skin on your hands than it is to reconstruct your face.

Other basic reminders: Feel doors to see if they are hot before you open them in a fire, and stay low as you escape a fire as smoke kills far more people than fire does. Also, you should have a planned meeting place for family members outside the house and you should formulate an escape plan in advance (the hardest part in a 1925 house whose windows and doors do not open easily to young children's hands).

Thanks to the Wash Park Fire Department at their annual pancake breakfast earlier this year for all of these handy fire safety tips.

29 October 2005

Free Fiction.

Kelley Armstrong, author of books about werewolves, witches, vampires and ghosts set in contemporary North America, with a heavy dose of romance, and author of books such as "Bitten", "Stolen", "Dime Store Magic", "Industrial Magic" and "Haunted", has a wonderful website. Particularly notable are about three years worth of free online fiction which is very close to the standards of quality found in her published work. Check it out.

Marriage and Teen Pregnancy.

It is worth noting that teen pregnancies are at record lows, while unwed motherhood is at a record high.

In this case, the good news outweighs the bad news. A woman having children, often while living with her boyfriend, in her late twenties, is far less of a crisis than a teenaged parent, even if that teen is in a shaky marriage (although most teen parents are not married).

While unwed motherhood is often far from ideal, recognizing the new face of American unwed motherhood is important if we are going to devise policies that better serve the public. For instance, domestic partner benefits might, in practice, turn out to be far more important for unwed mothers than they are for gay and lesbian couples.

Words Of Wisdom From Ken Gordon

A good man was at his place of worship, praying to God.

He said, "Lord there is so much trouble in the world. There is injustice, poverty, conflict and violence. Lord, please send someone to help...please."

God spoke. He said, "I did. I sent you."

Rural America.

Kevin Kling's NPR piece entitled "Daddyland" is worth a listen. His impressionistic piece about farm life from the perspective of someone whose parents grew up on a farm, while he grew up in a city, nails a big piece of what is going on in rural America today.

His brief observation that the uncertainty of rural life is a big part of what drives the religious devotion of rural America is particularly apt.

Funny Blog.

The MW Blog is quite amusing, with careful analysis of topics such as a spam e-mail for an escort service and potato chip flavors. If you're bored, it is worth a look.

Downtown Denver Is Changing.

The downtown Denver skyline saw a rash of new buildings in 1982, just before the oil shale crash hit Colorado. Slowly, but surely, it is changing again in the 21st century.

Along Civic Center, which runs from the City and County of Denver's court house, to the state house, a new office building for the Denver Post and Rocky Mountain News is under construction, a move insiders at the papers are ambivalent about at best, largely as a result of the joint operating agreement that has merged the business operations of the two papers while maintaining a Chinese wall of seperation between the news departments. It was preceeded by the adjacent and nearly identical Webb Building, which consolidated city office space from a variety of leased locations. Both are middle height curved fronted glass and steel monuments facing Civic Center park.

Newspaper and city workers looking out those windows will see the new Art Musuem addition flanked by a new garage and condominiums. As they turn to their right, they will see a new jail and court house where the Rocky Mountain News has its offices now. High profile architects from around the world are putting in their bids now. Down the road is the new Convention Center and the city's newly renovated opera house, the Ellie.

Another $1.2 billion of major new downtown projects are on the drawing boards, and most seek to have more people putting their heads to rest downtown in the evenings.

There are six major hotels in the world for downtown Denver: the 12 story Hilton Garden Inn at 14th and Welton with 220 rooms, the 14 story Residence Inn by Mariott with 228 suites at 18th and Champa, the 22 story Inn at the DAC at 13th and Welton with 138 rooms, the Denver Athletic Club and 14 luxury condos, the Hyatt Regency Denver at 14th and California at 37 stories with 1100 rooms, and the 50 story Four Seasons at 14th and Arapahoe with 230 hotel rooms and 140 condos. This appears to bue driven mostly by "the building that ate downtown", also known as the Convention Center. All of the new hotels will be within three blocks of the Convention Center.

Many of the remaining new projects are condominium projects. The museum residences near the new Denver Art Museum addition will have 56 units in an eight story project. Glass House, in the South Platte part of downtown, is a 23 story project on 18th Street which will have more than 100 new units. The St. Charles Building Town Co. building, at 1420 Stout, across from the Convention Center, will be a 30 story senior citizens condominium or apartment building. One Lincoln Park, at 20th and Broadway, will be a 31 story residential building with 184 condominium units. And, the Spire at 14th and Champa, also across from the convention center, will be a 41 story condominium building.

While prices will vary, it is fair to assume that the hotels will not be competing with the Motel 6s of the world and that people with median Denver incomes need not consider these downtown condominium uniots which collectively, will bring close to a thousand new permanent residents downtown, in addition to the roughly 2,000 new hotel rooms that will be added to downtown's capacity (the new jail will also bring about a thousand additional beds to downtown, but it is fair to anticipate that they won't be doing a lot of downtown shopping). An additional 3,000 people milling around downtown will, inevitably, of course, also drive demand for restaurants and downtown shopping, although hotel guests tend to be more of the T-shirts and souvenir variety when it comes to shopping. It will also help Denver make the leap from being a downtown which is deserted in the evenings, to long sought after twenty-four hour status. This also doesn't include significant residential development the Golden Triangle (bounded by 13th, Speer and Broadway), Uptown (from downtown East to City Park formerly known as North Capital Hill), the "Coors Field Neighborhood" (a remarketed part of the Five Points neighborhood), and Highland (across I-25 from downtown) all of which have gentrified and are themselves boosted as downtown Denver grows.

Two major non-residential developments are also in the works for downtown. A regional headquarters for the Environmental Protection Agency is under construction and will replace the ugly (now largely demolished) old Post Office in LoDo, and a relatively small, Museum of Contemporary Art at 15th and Delgany, a couple of blocks to the South of the new EPA building, will be a new LoDo destination.

One of the best parts of this new development is that impact that it will have on Denver's transportation networks. A very large percentage of the people who buy downtown condominiums do so to reduce their commutes and work downtown, so almost every new unit of downtown housing takes another car or two off the streets at rush hour. And, the two thousand new hotel rooms are expected to be largely filled by convention goers who might otherwise have rented a car, but now, will take a shuttle to their hotel from the airport and then spend the rest of their trip (and their money) in downtown Denver. This influx of carless visitors may also breathe new life into the Cultural Connection trolley and a contemplated Colfax trolley.

The downside of this development is that there is only one meaningful new office project on the drawing board for downtown. While Denver proper is doing an excellent job of landing infill projects for new residential development, it is doing less of a good job of attracting permanent jobs. Losing Children's and University Hospitals (after already weathering the merger of Presybterian and St. Luke's Hospitals) haven't resulted in the real estate holes that most cities would experience. All have been or will be promptly replaced with nice mixed use developments with an urban residential character, but losing hundreds of medical professional jobs to the suburbs still hurts. Likewise, while office space development has stalled a bit in the wake of the tech boom, when many buildings in suburban office parks were see through, office parks like the Denver Tech Center in Greenwood Village, and Inverness, in Broomfield, have absorbed most of the growth in the metropolitian areas demand for office space in the last couple of decades.

But, while downtown isn't generating a lot of new office jobs, the hotels, the restaurants to feed the growing downtown population, the Convention Center, and the larger jail will bring a lot of permanent low to middle income jobs downtown as well. Many of these workers may find housing in troubled neighborhoods like Lincoln Park and Five Points, which are poor (and hence low rent) but close to downtown attractive, which could transform these neighborhoods from ghettos to working class neighborhoods, likely peppered with some of the single occupancy hotels foreseen in Hickenlooper's ten year plan to end homelessness in Denver. Of course, an improving light rail system created by the FasTracks proposal passed by metro area voters, will also make it easier for low income workers to make it to work downtown from many more places in the metropolitan area, and buying an RTD pass is still cheaper than maintaining a car.

The Insanity of Drug Sentencing.

Left Off Colfax alerts us to yet another example of the insanity of drug sentencing in the United States.

28 October 2005

Donald Ray Brewer Censured Illinois Attorney.

Donald Ray Brewer is an attorney in Illinois, who is also the Illinois version of a county commissioner. He intentionally utterly disregarded a wrongful death case involving one of my clients (in a deposition he stated that he made a conscious decision not to respond to me or my client's calls or letters). The case was dismissed through his inaction and he didn't even bother to tell us until it was too late to appeal or take other action to repair the damage done. when the ethics violation attorney in Illinois contacted him, he said that he didn't see what the problem was, as he treated all of his cases this way.

The hearing board that handles these matters in Illinois decided that he should be censured for violating several rules of professional ethics, since he was overall a good guy and had lots of experience (why such factors should even be relevant is beyond my comprehension). This means publicly telling him that he did a bad job with no other collateral effects or punishment. When lawyers who are proved guilty of ethics violations and receive nothing more than what amounts to a warning, I can understand how the public can grow cynical about how seriously the legal profession views its ethical responsibilities. We as a profession earn it by even claiming that actions like censures (and many states even have a milder "private censure", which is a reprimand that is given privately to the unethical attorney).

I am, at least, going to publish the opinion of the Board here, as the Illinois system is not easily searched and does not appear to come up in Google searches either. Apologies if this is long. This blog does come up on Google, MSN, Yahoo and other types of searches, so it will, at least, serve as a warning to anyone who does such a search regarding Donald Ray Brewer that he is an attorney who has been found by an Illinois tribunal to have acted unethically in a personal injury case.

I'll also note, for the record, that despite the fact that I was the complaining witness in this case, that more than three weeks after it was resolved, no one even bothered to tell me the resolution of the case or send me a copy of the apparently final order in the case. Thank you Illinois for the red carpet treatment you provide to people who complain about unethical attorney conduct in your state.


Filed October 6, 2005

In re Donald Ray Brewer
Commission No. 04 CH 55

Synopsis of Hearing Board Report and Recommendation

NATURE OF THE CASE: 1) failing to provide competent representation to a client; 2) failing to act with reasonable diligence and promptness; 3) failing to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information; 4) failing to make reasonable efforts to expedite litigation consistent with the interests of the client; 5) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; 6) engaging in conduct that is prejudicial to the administration of justice; and 7) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute

RULES DISCUSSED: Rules 1.1(a), 1.3, 1.4(a), 3.2, 8.4(a)(4) and 8.4(a)(5) of the Illinois Rules of Professional Conduct and Supreme Court Rule 770


DATE OF OPINION: October 6, 2005

HEARING PANEL: David F. Rolewick, Chair, George M. Shur and Fran McConnell Williams




In the Matter of:


No. 292516.
Commission No. 04 CH 55


The hearing was held on March 2, 2005, at the Chicago, Illinois, offices of the Attorney Registration and Disciplinary Commission ("ARDC") before the Panel of David F. Rolewick, Chair, George M. Shur and Fran McConnell Williams. Robert J. Verrando represented the Administrator of the ARDC. Respondent appeared in person and was represented by Warren Lupel.


On June 22, 2005, the Administrator filed a one-count Complaint against the Respondent pursuant to Supreme Court Rule 753(b). The Complaint charges the Respondent with: a) failing to provide competent representation to a client; b) failing to act with reasonable diligence and promptness; c) failing to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information; d) failing to make reasonable efforts to expedite litigation consistent with the interests of the client; e) engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; f) engaging in conduct that is prejudicial to the administration of justice; and g) engaging in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute. The Respondent filed his


Answer to Complaint on August 27, 2004. The Respondent admits some factual allegations and denies others, but denies all allegations of misconduct.


The Administrator submitted documentary exhibits 1- 24, called the Respondent as an adverse witness and presented the testimony of Tom Rausch and Andrew Oh-Willeke. The Respondent testified on his own behalf and presented the testimony of Thomas Burney, John M. Falasz and James Steigert.

There is no significant factual dispute. The evidence will be reviewed in a single narrative. In November 1999, Melody Wainwright died after receiving psychiatric treatment at Blessing Hospital in Quincy, Illinois. She was survived by her husband, William Wainwright, and her three minor children. At all times relevant, Mr. Wainwright lived in Colorado and was represented by Andrew Oh-Willeke, a Colorado attorney. On October 9, 2001, Mr. Oh-Willeke sent the Respondent a fax regarding the Wainwright matter and seeking local counsel for potential litigation. (Adm. Ex. 2). Mr. Oh-Willeke testified that he had several telephone conversations with the Respondent regarding the Wainwright matter during October and November 2001. (Tr. 34). On November 13, 2001, the Respondent agreed to represent Mr. Wainwright to recover damages relating to his wife's death from the hospital and the physicians and staff who treated her and from her health insurer. (Adm. Ex. 1). Under the terms of the retainer contract, the Respondent agreed to undertake responsibility for the trial work in Illinois. (Adm. Ex. 1; Tr. 87). Further, the Respondent agreed to cooperate and communicate with Mr. Oh-Willeke in prosecuting Mr. Wainwright's claims in Illinois. (Adm. Ex. 1). When the Respondent agreed to represent Mr. Wainwright, he knew that the statute of


limitations for the Wainwright matter would expire November 24, 2001, ten days later. (Tr. 112).

The Respondent prepared a complaint on Mr. Wainwright's behalf against Blessing Hopital, Leroy Johnson, M.D. and Richard Newman, M.D., Humberto Aguilar, M.D., Quincy Physicians and Surgeons Clinic ("Quincy") and Rocky Mountain Healthcare Options, Inc. ("Rocky Mountain") for filing in the United States District Court for the Central District of Illinois. (Adm. Ex. 18). The complaint was filed on November 21, 2001. (Tr. 87). At the time, 735 ILCS 5/2-622(a)(1) required that the plaintiff's attorney in an action based on healing art malpractice filed in Illinois attach to the complaint his affidavit and a physician's report explaining that there is a reasonable and meritorious cause of action based upon the physician's review of the medical record and other relevant material. (hereafter referred to as a "622 report")The failure to file such certificate and report is grounds for dismissal of the complaint. When the Respondent accepted the case, he knew the requirements of Section 2/622 of the Code of Civil Procedure. (Tr. 88). The Respondent knew that an opinion in this case had to come from a degreed medical doctor. (Tr. 88). The complaint that was filed on November 21, 2001, did not contain a 622 report. The Respondent testified that he never received medical records from Mr. Wainwright or Mr. Oh-Willeke, which were necessary for the 622 report. (Tr. 115). The Respondent explained that he waited until each of the named defendants had been served and then subpoenaed each of the medical personnel and the hospital for their medical records. (Tr. 115).

While waiting for the medical records, the Respondent began searching for a medical expert to prepare the 622 report. (Tr. 117). The Respondent determined that he needed a psychiatric M.D. and someone who was a hospital administrator. (Tr. 119). The Respondent


first communicated with Joseph Stevens, who at that time was an officer of Sherman Hospital and administrator in charge of all the doctor medical professionals in the hospital. (Tr. 120). The Respondent also called several doctors from an Elgin mental health facility. (Tr. 122). The Respondent also recalled talking to Michelle Skinner who was an administrator for Good Shepard Hospital. (Tr. 122). All of the people that the Respondent called and spoke with told the Respondent that they would not be able to prepare the 622 report. (Tr. 121-122).

On January 4, 2002, Mr. Oh-Willeke sent the Respondent a letter requesting status information regarding the Wainwright matter. (Adm. Ex. 3). Mr. Oh-Willeke testified that the Respondent answered the letter a month and a half later. (Tr. 36; Adm. Ex. 4).

On February 14, 2002, the Respondent sent Mr. Oh-Willeke a letter telling him that he was having problems getting experts and that he had been turned down by numerous doctors and administrators. (Adm. Ex. 4; Tr. 89). At that time, the Respondent spoke with Tom Rausch, an attorney the Respondent had opposed on prior occasions. (Tr. 122). The Respondent admitted that when he discussed the situation with Mr. Rausch, he did not specify that he needed a M.D. He just requested a recommendation for a doctor. (Tr. 123). Mr. Rausch recommended Dr. Robert Meyer. (Tr. 123).

On July 23, 2002, Mr. Oh-Willeke sent the Respondent an e-mail requesting information regarding the status of the Wainwright matter. The e-mail message made reference to a conversation between the Respondent and Mr. Oh-Willeke in May 2002. (Adm. Ex. 6). Mr. Oh-Willeke testified that the statements made in the e-mail were accurate. Further, Mr. Oh-Willeke stated that he received a partial answer to his July 23, 2002 e-mail from the Respondent in November 2002. (Tr. 38). In July 2002, the Respondent voluntarily dismissed the Quincy clinic and Dr. Aguilar as defendants from the case. (Tr. 39). On August 13, 2002, Mr. Oh-Willeke


learned that Rocky Mountain Healthcare, a defendant, was also dismissed from the case for jurisdictional reasons. (Adm. Ex. 7). At that time, Mr. Oh-Willeke asked the Respondent for information about an expert needed to write the 622 report. (Adm. Ex. 7). The Respondent informed Mr. Oh-Willeke on August 14, 2002 that he was just then able to obtain access to the necessary medical records. (Adm. Ex. 8). The Respondent also informed Mr. Oh-Willeke that he was not in communication with the client, Mr. Wainwright. (Adm. Ex. 8).

In August 2002, the Respondent hired Dr. Robert Meyer as his expert witness in the case. (Tr. 91-92). At the time the Respondent hired Dr. Meyer, he did not review his curriculum vitae but relied on information from Mr. Rausch that Dr. Meyer was a doctor and a lead administrator at Horizons Health. (Tr. 92). On September 16, 2002, the Respondent received a 622 report from Dr. Meyer. (Adm. Ex. 9). The document is signed by Dr. Robert Meyer, Ph.D. The Respondent did not note the doctor's degree at that time. (Tr. 125; Adm. Ex. 9). The Respondent testified that he first learned that Dr. Meyer was not a M.D. in November 2002. (Tr. 93). At that time, the Respondent asked Dr. Meyer to refer him to a medical doctor who could prepare the 622 report. (Tr. 128). Dr. Meyer referred the Respondent to Dr. Dennis Brightwell. (Tr. 128; Adm. Ex. 10).

On November 4, 2002, Mr. Oh-Willeke sent a letter to the Respondent requesting copies of all the pleadings and correspondence in the Wainwright matter. (Adm. Ex. 12). The letter makes note that a request for the documents had been made some months earlier. (Adm. Ex. 12). On November 8, 2002, Mr. Oh-Willeke sent an e-mail to the Respondent requesting information about the status of the Wainwright matter. (Adm. Ex. 13). On November 14, 2002, the Respondent mailed copies of correspondence and pleadings for the Wainwright matter to Mr. Oh-Willeke. (Adm. Ex. 14). Mr. Oh-Willeke testified that the documents the Respondent


sent to him consisted of pleadings and correspondence filed early in the case. (Tr. 45-46). After receiving the documents that the Respondent sent him, Mr. Oh-Willeke sent the Respondent a letter explaining his understanding of the status of the case on November 18, 2002. (Adm. Ex. 15). The letter contained several questions regarding the dismissal of defendants Aquilar and Quincy Physicians, the Respondent's strategy and the 622 report. (Adm. Ex. 15). Mr. Oh-Willeke testified that the Respondent never responded to his November 18, 2002 letter. (Tr. 48).

On January 23, 2003, Dr. Brightwell sent the Respondent a 622 report in support of the Wainwright matter. (Adm.Ex. 11). Dr. Brightwell's report stated that the defendants had done an adequate assessment of the deceased while she was in the hospital and her care was consistent with community standards. (Adm.Ex. 11). The Respondent continued to work with Dr. Brightwell and showed him specifically what he needed in the 622 report. (Tr. 131). There were at least four subsequent reports. (Tr. 131). As of February 5, 2003, the Respondent had not filed an affidavit or a 622 report. On that date, the judge entered an order dismissing the negligence allegations of the complaint on the basis of the Respondent's failure to comply with 735 ILCS 5/2-622(a)(1). (Adm. Ex. 18, p. 192). The Respondent did not inform Mr. Wainwright or Mr. Oh-Willeke of the order. The Respondent did not file a motion asking the court to reconsider or vacate the order. The Respondent received a final 622 report from Dr. Brightwell on August 6, 2003. (Tr. 132). The Respondent stated that the final report was still not sufficient and that he never received a sufficient report. (Tr. 133).

Prior to that, Mr. Oh-Willeke sent a letter to the Respondent dated May 23, 2003. (Adm. Ex. 20). In the letter, Mr. Oh-Willeke expressed concern about the lack of communication regarding the Wainwright matter. (Adm. Ex. 20). The letter mentioned several dates when Mr. Oh-Willeke left messages for the Respondent but he received no answers. (Adm. Ex. 20).


Mr. Oh-Willeke testified that the Respondent did not answer this letter. (Tr. 53). On June 2, 2003, Mr. Oh-Willeke again sent a letter to the Respondent expressing extreme concern over the lack of communication with the Respondent. (Adm. Ex. 21). Mr. Oh-Willeke testified that the Respondent did not answer the June 2, 2003 letter. (Tr. 53). Mr. Oh-Willeke sent a similar letter to the Respondent on June 9, 2003. (Adm. Ex. 22). Again, Mr. Oh-Willeke testified that the Respondent did not reply to the June 9, 2003 letter. (Tr. 54).

The Respondent testified that defendants Johnson, Newman and Blessing Hospital were dismissed from the lawsuit as a result of the Respondent's inability to get a 622 report. (Tr. 133). The Respondent learned in September 2003 that the lawsuit had been dismissed on July 16, 2003. (Tr. 139).

On September 29, 2003, Mr. Oh-Willeke sent a letter to the Respondent terminating his services. (Adm. Ex. 23). Mr. Oh-Willeke first learned of the dismissal when the Respondent sent him copies of certain pleadings three months later, in September 2003. (Adm. Ex. 23).


Thomas Burney

Thomas Burney has been a practicing attorney since 1977. Mr. Burney concentrates his practice in land use and zoning municipalities. Mr. Burney has known the Respondent for nine years. Mr. Burney has had the opportunity to work with the Respondent regarding county board issues. Mr. Burney testified that the Respondent's reputation is one of knowledge and the highest integrity. (Tr. 141-143).

John M. Falasz

John M. Falasz has been licensed to practice law in Illinois since 1957. Mr. Falssz is a trial attorney and a member of the plaintiff's bar in Illinois with the Respondent. Mr. Falasz has


known the Respondent for over 25 years. Mr. Falasz testified that the Respondent's reputation for truth, honesty and integrity is excellent. Mr. Falasz did not read the complaint in this matter though upon learning about the matter, Mr. Falasz did not change his opinion of the Respondent. (Tr. 143-147).

James Steigert

James Steigert is an interior designer, space planner and works in residential architecture. Mr. Steigert has known the Respondent for 13 years. Mr. Steigert lives in the Respondent's community. Mr. Steigert is a trustee for the Village of Algonquin while the Respondent is a McHenry County Board Member. Mr. Steigert testified that he is familiar with the Respondent's reputation for truth and integrity and stated that people trust him implicitly. (Tr. 147-150).


The Respondent has been a lawyer for over 30 years. The Respondent has not previously been disciplined. In addition to his license to practice law in Illinois, the Respondent has a patent law license. The Respondent is authorized to practice before the United States Court of Customs and Appeals and the Patent Tribunal. The Respondent has primarily been a sole practitioner from 1975 until present. (Tr. 106-108).

The Respondent stated that he performs a significant amount of pro bono work, specifically for Senior Services. The Respondent is active in the Algonquin, Lake in the Hills Rotary. The Respondent does a lot of legal work for the Rotary Charitable Foundation. The Respondent does pro bono legal work for the Lake in the Hills Noon Club Charitable Organization. The Respondent has done legal work for the Springbrook Community Church and the Cornerstone Community Church. Since the Respondent received his law license, he has


worked for the Illinois State Baptist Association and the Chicago Metropolitan Baptist Association. (Tr. 151?156)

The Respondent testified he has performed significant pro bono work for the Baptist Joint Committee of Public Affairs as well as the YMCA. The Respondent explained he assisted his local park district for the formation of a park district in the greater Algonquin area. The Respondent helped form the Chicago Urban Mission Foundation and continues to provide that foundation with legal services and serves on their board. The Respondent also formed the Uptown Urban Impact Foundation that donates money to displaced persons in the Uptown Area. (Tr. 156- 159).

The Respondent testified he has been a member of the McHenry County Board for ten years. The Respondent explained he is also a member of the Economic Development Commission of the Village of Algonquin. The Respondent testified he is a Mason. (Tr. 159-161).


In attorney disciplinary proceedings, the Administrator must prove the alleged misconduct by clear and convincing evidence. Supreme Court Rule 753(c)(6); In re Ingersoll, 186 Ill. 2d 163, 168, 710 N.E.2d 390 (1999). It is the responsibility of the Hearing Panel to determine the credibility and believability of the witnesses, weigh the conflicting testimony, draw reasonable inferences, and make factual findings based upon all the evidence. In re Timpone, 157 Ill. 2d 178, 196, 623 N.E.2d 300, 308 (1993).

The merits of a case do not negate the Respondent's obligation to provide thorough representation to a client and to keep the client informed about the status of a matter.

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Therefore, we find the Respondent was negligent and failed to provide his client, Mr. Wainwright, competent representation regarding the suit the Respondent. Further, we find that the Respondent failed to reasonably inform Mr. Wainwright or Mr. Oh-Willeke about the status of the case. The Respondent also failed to respond to Mr. Oh-Willeke's letters and messages requesting information about the case in a reasonable manner. The reputation of the legal community is diminished when a lawyer neglects a case to such an extent and fails to comply with Supreme Court Rules. See In re Smith, 168 Ill. 2d 269, 659 N.E.2d 896 (1995); In re Ring, 141 Ill. 2d 128, 565 N.E.2d 983 (1990).

Specifically, we find that the Respondent:

failed to provide competent representation to a client in violation of Rule 1.1(a) of the Illinois Rules of Professional Conduct;

failed to keep a client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information in violation of Rule 1.4(a) of the Illinois Rules of Professional Conduct;

engaged in conduct that is prejudicial to the administration of justice, in violation of Rule 8.4(a)(5) of the Illinois Rules of Professional Conduct; and

engaged in conduct which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute, in violation of Supreme Court Rule 770.

However, we find that the Administrator failed to prove by clear and convincing evidence that the Respondent: 1) failed to act with reasonable diligence and promptness in representing a client; 2) failed to make reasonable efforts to expedite litigation consistent with the interests of his client; and 3) engaged in dishonest or fraudulent conduct.


The purpose of the disciplinary system is to protect the public, maintain the integrity of the legal system and safeguard the administration of justice. In re Howard, 188 Ill. 2d 423, 434,

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721 N.E.2d 1126 (1999). We should not recommend a sanction, which will neither benefit the public or the legal profession. In re Leonard, 64 Ill. 2d 398, 406, 356 N.E.2d 62 (1976). In determining the proper sanction, we consider the proven misconduct along with any aggravating and mitigating factors. In re Witt, 145 Ill. 2d 380, 298, 583 N.E.2d 526 (1991). The Supreme Court has previously recognized that neglect of an attorney's duties to his client is misconduct warranting discipline. In re Fox, 122 Ill. 2d 402, 522 N.E.2d 1229 (1988). The Administrator has recommended that the Respondent be suspended from the practice of law for thirty days. However, in cases involving neglect of three or fewer civil client matters, attorneys have more often been censured where there is no moral turpitude involved and mitigating factors are present. In re Harris, 03 CH 82, M.R. 19632 (September 27, 2004). We consider the Respondent's thirty years of law practice and his significant pro bono involvement in his community and with charitable organizations to be significant mitigation. We also consider the following case law as guidance for making the proper recommendation.

In In re Winn, the respondent was charged with three counts of negligence and making false representations regarding the status of a client matter. There, the respondent conceded that he failed to proceed with a lawsuit he filed causing the suit to be dismissed for want of prosecution. Further, the respondent failed to comply with a discovery order and made several misrepresentations regarding the status of a case to his clients. The Supreme Court determined that given the proven misconduct, significant mitigating evidence and lack of aggravating evidence, that a censure was the appropriate sanction. Further, the Court agreed with the Hearing Board when it stated that there had been no showing of corrupt motive or moral turpitude. In re Winn, 103 Ill.2d 334, 469 N.E.2d 198 (1984).

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In In re Kink, 92 Ill. 2d 293, 442 N.E.2d 2006 (1982), the respondent neglected matters for three clients, he was less than candid with one client and remained inaccessible despite attempts by clients to contact him. The respondent was cooperative and candid during the disciplinary proceedings, had an outstanding record of involvement in civic and religious programs, and a number of witnesses testified as to his excellent reputation in the community. In imposing a censure, the Supreme Court stated that the Hearing Board had determined that it was unlikely that events of that kind would happen again and that neither the purpose of safeguarding the public nor the purpose of maintaining the integrity of the legal profession would be served by suspending the respondent. Kink, 92 Ill. 2d at 302-05, 442 N.E.2d at 209-11.

A one-count complaint was filed against the respondent in In re Johnson, 94 CH 275, M.R. 11754 (December 1, 1995). There, the Hearing Board found that the respondent failed to provide competent representation, failed to act with reasonable diligence, failed to keep his client reasonably inform of the lawsuit progress, failed to promptly refund the unearned portion of fee, failed to take reasonable steps to expedite litigation and engaged in conduct which tends to defeat the administration of justice or bring the courts into disrepute. Considering the proven misconduct, the fact that the misconduct was an isolated incident, the respondent had practiced thirty-five years without prior discipline and the Hearing Board found the respondent candid and cooperative throughout the disciplinary process, the Hearing Board recommended that the respondent be censured. The Supreme Court approved the sanction.

By consent, the respondent in In re McConnell was censured after he filed a civil case for a client, which was dismissed due to the respondent's failure to comply with discovery. Further, the respondent falsely told his client that litigation was proceeding on five occasions. There was significant mitigating evidence, including twenty-six years of practice without prior discipline

PAGE 13:

and extensive public service both within and outside the legal profession. The petition was approved by the Supreme Court. In re McConnell, 98 CH 130, M.R. 15909 (September 29, 1999).

Also by consent, the respondent in In re Harris was censured when he neglected two client matters and failed to adequately communicate with the two clients about the status of their matters. There, the respondent fully cooperated with the Commission and had not been previously disciplined. The Supreme Court approved the sanction of censure given the respondent's admitted misconduct. In re Harris, 03 CH 82, M.R. 19632 (September 27, 2004).

Finally, the respondent in In re Rehberg was censured on a petition by consent after admitting that he neglected a civil matter and misrepresented the status of the matter to the client. In addition, the respondent falsely told the client several times that he had filed a lawsuit on the client's behalf and that the suit was still pending. After considering significant mitigating evidence, including no prior discipline as well as pro bono work and community service, the Hearing Board recommended that the respondent be censured. The Supreme Court approved the petition. In re Rehberg, 02 CH 24, M.R. 18696 (May 22, 2003).

Here, the Respondent engaged in similar misconduct. While we find the Respondent's extensive public service commendable and acknowledge that the Respondent has not been previously disciplined during his thirty years of experience, we also find evidence of aggravation. We find that the Respondent lacked use of best practices and thoroughness. The Respondent showed no remorse for his misconduct. Apparently he considers that there is no harm done because the case was not viable. That principal may apply in legal malpractice actions but not in professional responsibility proceedings. However, Mr. Wainwright may never know if no harm was done. His case was dismissed. The Respondent knew what was required

PAGE 14:

of him and the time restraints when he accepted the case. Those challenges do not negate the Respondent's failure to comply with the requirements of Civil Procedure or his failure to communicate with his client. Therefore, we find that discipline is warranted.

Upon consideration of the proven misconduct, the applicable caselaw, evidence in mitigation and aggravation, we find that a censure is the appropriate sanction. Similar to the reasoning in In re Kink, we find that it is unlikely that events of this kind will happen again and that neither the purpose of safeguarding the public nor the purpose of maintaining the integrity of the legal profession would be served by suspending the Respondent.


Upon consideration of the above stated cases and the mitigating and aggravating evidence, the Panel recommends that the Respondent be censured.

Date Entered: October 6, 2005

The Scooter Libby Indictment

I. Lewis "Scooter" Libby, Chief of Staff to Vice President Dick Cheney, has been indicted on five felony counts by Special Prosecutor Patrick Fitzgerald.

There is every indication that Fitzgerald has prepared his case well and that Libby has virtually no chance of being acquitted. His own grand jury testimony provides undeniable proof of the statements where he is alleged to have lied. The Vice President and three different mainstream media reporter all agree that the statements made lack even a vague resemblance to the truth, and there is evidence that he knew information he claimed to get for the first time from reporters on six or seven occassions in advance of the time that he testified that those discussions took place and that he learned the information for the first time.

The press conference has made clear that there is at least one more person under continuing investigation. Some of the people in the indictment are not identified by name. Karl Rove and John Bolton seem likely to be two of those unnamed people. No plea bargains have been discussed. This doesn't mean that there haven't been some that have been reached.

Libby is a political animal. He has a very hard case to make to defend himself, and must care that a political trial involving a senior GOP official for outright lying is not going to be helpful in the run up to the 2006 election. It is hard to believe that he will keep fighting this trial until the bitter end. Maybe he will plea. Maybe he will try to commit suicide -- this is the classic kind of case where something like that happens.

Even Conservatives Hate White Supremacy.

Murdoc, of Murdoc Online, is a conservative military blogger. But even he knows that spewing white supremacist hate is bad news, particularly coming from thirteen year old twins who are probably brain washed by their evil parents. It is nice to discover occassional instances of common ground.

V-22 Technical Troubles.

According to the Pogo Blog, the V-22 is still having some technical troubles, related to getting ice of the wings and flying in clouds (due to lack of weather radar and ice formation in clouds). If this was an otherwise untroubled design, this might be a rather minor issue which one would assume would be quickly fixed, and perhaps it is just that. But, given decades of technical woes, any technical problem with the V-22 which is the Marines' highest procurement priority is worthy of notice.

More on Xcel Rate hikes.

I'd previously expressed doubts about the initially reasonable sounding reasons for Xcel Energy's rate hikes. Soap Blox Colorado notes an additional concern. The rate adjustment shift the revenue stream from big customers to small ones.

Congratulations to Alex Doonesbury.

Click on picture for full sized image.

Congratulations Alex Doonesbury on your perfect score on the SATs. We figured you had it in you, being a Deaniac and all.

O.K., so she's not real. But, I'm a comic freak and while I rag on people who obsess over celebrities and royals, I actually do understand the phenomena. When you learn about a person, real or not, part of your real life or not, to the point that you get to know who they are and what has happened in their life, you have a natural instinct to care. I have a passing interest in the life of Alex Doonesbury (the high school aged daughter of Mike Doonesbury, the title character), for the same reason that I have an interest in the lives of my inlaws, my wife's friends, and my distant cousins (such as the one's whose home town in Finland I put a push pin in at the Scandinavian bakery this morning). Overall, the instict does more good than harm. At it's worst, it is usually just harmless fun, at its best, it encourages caring and support for people with whom you have even weak relationships. This planet could definitely use a little more love.

More on Motorcycles.

Motorcycles may not be safe, but they most certainly look cool.

Also, MSN is being grossly irresponsible in discouraging motorcycle riders from obtaining "no fault" insurance. No fault insurance for motorcycle riders is expensive for a very good reason, motorcycle riders are often at fault and have a lot to lose. The article also misrepresents what no fault insurance covers. While a 40 year old may have much more to lose than a 20 year old, no fault insurance generally has significant dollar limitations on non-medical costs, so differences in earning power are not an important source of the difference in the costs of no fault insurance between older and younger riders. Casualty insurance is not life insurance.

Props To Daily Kos.

Hurray for Daily Kos. It got first billing in a story on blogging's influence on the Miers nomination, including an interview with Armando, on NPR.

Fitzmas Morning.

Bloggers has christened the day upon which Patrick Fitzgerald announces indictments against senior White House officials in connection with the leak of Valerie Plame's identity as a covert CIA agent "Fitzmas". Today is supposed to be the day.

Two observations.

First, Vestal Vespa wants you to know that Patrick Fitzgerald is hot (she said it twice).

While this may seem like the vapid musings of a sex crazed twenty-something blogger, it may actually matter. You see, the indictees will be tried before a jury, and in real life, juries are influenced by things like whether the prosecutor is hot.

This led me to make another observation. While the grand jury composition probably doesn't matter in this case (grand juries go along with prosecutors 99.9% of the time), the composition of the trial jury does, and this jury will be drawn from the District of Columbia. Normally, this would be a bad thing for a prosecutor, as District of Columbia juries tend to be much more defense friendly than, for example, suburban Virginia juries. But, in a trial against defendants who are senior Republican political operatives, the trial could hardly have a less favorable venue for these defendants, and trial publicity, a common ground for a change in venue, will be hard to make a basis for a change of venue in this case because the case has been widely reported nationwide. Indeed, this very venue may turn out to have been an important cudgel for Fitzgerald to win concessions in the plea negotiation process.

So, Merry Fitzmas! I look forward to the surprises that today will bring.

27 October 2005

Named Storm Record.

We have already exhausted the list of names for Atlantic Hurricanes and Tropical Storms for the year and are now on Tropical Storm Beta, which is likely to become a Hurricane within 24 hours. No hurricane season on record has had some many storms. Another month remains in the Hurricane Season, so we could go on beyond beta this year.

Lawyer Jokes.

Lawyers feel that everything requires commentary and analysis to be understood properly. This includes lawyer jokes. The commentaries are found in a book reviewed here. Naturally, being a lawyer myself, I find the commentaries quite valuable.

The Caribbean Community

The Caribbean version of the European Union, called the Caribbean Community, will enter into full force (with a la carte membership on some issues, just as in Europe) in January of 2006.


Fairy-princess-zombie-butterfly (from Silly Pixels).

I'd heard of this a couple of times before, but then it was in my peripheral vision. Now, the "dolling" hobby has caught my front and center attention. Salon.com's teaser (with sample illustrations) does a good job of introducing it:

Playing with dollz
This isn't your mother's Barbie: Welcome to a Web subculture where pixelated gothic Lolitas, preps and weirdos are good wholesome fun.

By Mitch Borgeson

Oct. 7, 2003 | Petite but curvy, Lolita is a knock-out in a matching black leather corset and knee-length skirt. Her wide, oval face and saucer-sized eyes are accentuated by rings of light brown hair infused with delicate blonde highlights. This mass of curls is held back with frilly, girlish red ribbons that reveal a choker and an attached chain that drops between her small breasts. Under the skeletal remains of a Victorian hoop skirt, fishnet stockings end in mammoth Japanese-style platform boots. Lolita is nothing if not a study in contrasts.

But there is more to Lolita than a hyper-stylized, post-modern fashion sense, as the bloody stump of her right arm and her broken wings attest. Lolita is a fallen teen angel -- the very picture of innocence lost. With her smudged cupid's mouth and wide eyes bleeding tears, Lolita is both haunting and, somehow, impossibly cute. This, perhaps, can be attributed to the fact that even on her mighty platform boots, Lolita is 2.5 inches tall and occupies only two dimensions.

Scarred, broken-hearted, and gothic, Lolita wants only one thing. "She's sad that her wings are broken and she wishes she had new ones to fly back to heaven," says Jenny, Lolita's 17-year-old creator. Lolita is a doll, but not in the traditional sense. She is, according to Chris, a 15-year-old California sophomore, a "badass Bo Peep." Lolita wants to go home -- to that great dollhouse in the sky.

Lolita is an example of a new type of doll found in the almost entirely female Web-based community of "dolling." Dolling is a hobby in which tiny characters are, at their most time-consuming, created pixel-by-pixel in graphics programs such as Photoshop, MS Paint, and Paint Shop Pro. These dolls are roughly 1/2" to 4" tall -- about the size of a Nintendo character.

My dear wife has done hand drawn doodles in this genre since she was a teenager, so I guess the online version was inevitable. One fan of this craze, who tipped me off to it, posts at the Silly Pixels blog, which also has links to a couple of online dolling bulletin boards. The author appears to be the better half of Kyle over at Pit Of Babel.

Brain Drain.

For some reason, many Americans fear immigration, even by peole whose skills make them a clear asset for our economy. Most of the rest of the world fears brain drain. Whatever one's view, in the medical profession, at least, brain drain clearly happens.

Griego Gets It.

Tina Griego's column today in the Rocky does an excellent job of reminding us of a serious problem with Denver's schools that doesn't take rocket science to fix, the fact that students often simply do not show up.

Of all the stories I did last school year out of North High School, the piece on how many students were skipping class probably caused the most jaws to drop. A single student missed 106 classes? Five hundred of 1,400 students missing at least one class a day?! . . . .It's a no-brainer. Ask any teacher looking at an attendance log full of missing students and she'll say: "I can't teach them if they're not here." If students are not in class, they are falling further behind. If they fall far enough behind, they don't go back. It's off to the land of the low-skills worker, minimum wages and long bus rides and blank-faced employers who say, "what do you mean exactly by 'benefits?' " That's a typical scenario. Worst-case involves a jail cell. . . . the "typical" cost to taxpayers of a single dropout in Denver County is roughly $215,000. . . . Truancy is a predictor to all kinds of social ills, beginning with dropping out of school. . . . Consider, for example, the number of students who enter high school below grade level. They can't do the work. What do we do? Stick them in a crowded room with other lagging students and assign the class of 35 to an inexperienced teacher for a two-hour period. Gee, I don't know why anyone would skip class.

Go outside the school into the homes, to the root. Here you are likely to find problems related to transportation, substance abuse, family stability, mental health. Here you may find an environment that not only does not support the child who wants an education, but denigrates him, calls him a sell-out, a schoolboy.

Studies - you could pave I-25 from Cheyenne to Raton with all the studies - show that truancy is more prevalent among boys, minorities, urban youth, low-income families, children living with one parent, children from large families and children whose parents never finished high school.

One of the baffling things about truancy is that after all the research, after demonstrable results in some schools and cities, it remains low on most community priority lists. It's puzzling in the same way that cutting funding for juvenile diversion programs and mental health treatment and prenatal care is puzzling. We know the long-term payoff will cover the short-term costs and yet, little changes.

School truant officers and social workers have fallen beneath the budget ax. Every year Denver courts devote fewer days to truancy hearings because their budgets have shrunk. We do what we have long done - import college grads from other states and boast about how well-educated we are.

While not every social problem can be solved, we have an obligation as a community, to deal with the disasters that are highly predictable and waiting to happen. Hurricane Katrina was a tragedy not just because of the loss of life in this disaster, but because we knew for years that this was going to happen some day and failed to take proper efforts to prepare. Truant kids are another disaster waiting to happen. Kids who miss school on a regular basis without a good reason are a disaster waiting to happen. Yet, we don't intervene until after the damage has actually been done.

For every BTK serial killer who is a prominent middle class leader in his community, there are thousands of murderers, rapists, robbers and burglars who have been on the yearbook's "most likely to screw up in life" list for years or even decades before somebody actually got seriously hurt by their actions. How many people who reach the penalty phase of a capital murder case haven't been abused, dropped out of school and lived lives with long rap sheets and mental impairment?

This doesn't mean that we have to give people who have had a rough time in life the scarlet letter treatment or criminalize having parents who don't always manage to confirm that their kids are in school. Parents are often as frustrated as anyone else. But, it does mean that when a kid is screwing up or has a history of abuse, that society needs to intervene and try to break the cycle. The phrase "at risk" kids has become a cliche and, at times, a code word, but the concept can be meaningful. We can know with more accuracy than we would like to admit who is at risk of getting into trouble down the road, and we ought to intervene early to prevent it.


My family celebrates Halloween. The construction paper bats go up, the ghoulish "porch people" appear, the spiders descend from the ceilings and fill the mantle place, the skulls dangle from the living room arch and delights such as snaketti, graveyard pie and blood-lemonaid appear in our kitchen.

Like all holidays with religious roots (the issue is discussed at They Get Letters here and here, which has a charming detail about Santa Claus), I'm ambivalent about it, mostly due to its linkages to the Christian All Saint's Day, and the older pagan Samhain. Holidays can be fun to celebrate, but I'm wary of being sucked into supporting parts of our culture which I reject myself.

I don't like Christmas celebrations, and in our home, they are understated, with a non-religiously decorated tree inside the house, but far less hoopla than in many homes. Our children get presents from us, rather than from Santa Claus. I have even less room for Easter. A neighbor sometimes offers our children a small Easter basket, but we don't provide one and have not perpetuated the Easter Bunny mth with them. While my wife and the children sometimes attend a Unitarian Church, we generally have not gone on Easter. They will hear the Nativity and Passion stories when they are older, but as fictional stories which many people believe, not as elements of our own heritage.

As Jehovah's Witnesses recognize clearly, although run of the mill, mild mannered Christians do not, almost all of these holidays have pagan roots, as well as Christian ones. I put no more stock in pagan mythology than I do in Christian mythology, although I acknowledge that both need to be studied to some extent to understand a Western culture that is steeped with references to both. But, generally speaking, the closer the association with Christian, as opposed to pagan, elements a holiday has, the less inclined I am to celebrate it, and Halloween is so stripped of its Christian elements that I'm more comfortable about celebrating it than most other observances with Christian linkages.

My theory is, basically, that I am more worried about Christian myths being taking seriously, despite the fact that they are bunk, than I am about pagan myths being taken seriously. Despite the efforts of some valiant pagans (and as a religious minority I often relate to them), very few people in our society take pagan mythology seriously, so this inflence is less likely to "stick".

There are secular people who simply don't worry about concerns like mine, which it takes a theoretical and indeed, almost theological mindset to care about. It isn't as if I will suffer some divine retribution if I celebrate the rituals of some non-existent god or gods. But, if you aren't public in your beliefs at times like the present, when it is relatively safe to do so, how can you expect to be safe later when the mutual silence of your in the closet community has caused that thin venire of safety to evaporate.

It was a pre-condition to the gay rights movement that people came out and publicly told the public that they existed and where gay. There will never be support for the rights of people who don't exist. The same principles apply to non-theists. If we aren't willing to proudly acknowledge our existence, we will be treated like doormats. And so, while I pick my battles, I do insist on not simply going only with the Christian trapping of an ordinary American life.

Good Pharmacies.

Some pharmacies don't feel that it is their place to make moral decisions for their customers. The list, via Planned Parenthood, via They Get Letters, includes (and there are others I don't recognize as having Denver area locations):

Kmart, Costco, Supervalue Pharmacies and CVS Pharmacies.

I currently get prescription drugs at Safeway and Walgreens. But, given their policies, I have decided to cease giving them my business in the future. And, in addition to losing my prescription business, they will also lose my business for services like photo developing and incidental purchases that I often make on runs to pick up prescription drugs. I encourage you to do the same.

Blog Roll Addition.

Please join me in welcoming Diary of a Black Mathematician to the blog roll. It has exceptional posts on math itself (e.g. deriving the formula by which cricket chirps can be used to determine the temperature), and occassional social commentary, plus, of course, I have a soft spot in my heart as a former mathematician, for all things mathematical.

Hat tip to Pit of Babel.

Jose Padilla Update.

How Appealling has links related to Jose Padilla's latest legal move, a petition to the United States Supreme Court.

He is a U.S. citizen. He was arrested unarmed in the United States by civilian authorities in the Chicago O'Hare airport. He was in civilian custody before a civilian court represented by an attorney when he was seized by military authorities and place in a military brig. The administration admits that the writ of habeas corpus has not been suspended. You don't need to no anything more to know that his detention in military custody for more than three years, solely on the President's say so, without any trial or judicial review finding that he has done anything wrong, is a threat to everyone in this country. If Padilla did something wrong, charge him with a crime (if the time he has already served is not longer than that), if the government can't prove those charges in court, it needs to let him go.

If the Supreme Court fails to take this case it will be a dark day for the United States.

More at SCOTUS Blog.

Medicaid Reforms

Medicaid is a means tested health program. One of the common forms of middle class estate planning it to find ways within the rules to qualify older family members of nursing home care provided by Medicaid while preserving as many family assets for the family as possible. Section 6011 of a Senate proposal would tighten the rules to prohibit a number of more obscure methods of conducting this kind of planning.

While this bill seems almost entirely focused on trying to find ways to generate revenues or reduce costs in the Medicaid program, once might hope that this could further strengthen the argument of those like myself who say that once people have been determined to been in need of Medicaid care, that the government should simply provide the care as a grant, rather than making it a loan collected through the United State's death tax for the middle class, which is called the Medicaid estate recovery system, a system that impacts far more families than the estate tax every did, but collects far less revenue.

Base Closings To Go Forward.

The latest round of military base closings, as modified by a commission that reviewed the Defense Department's recommendations, is almost certain to go forward, as Congress is disinclined to veto the recommendations.

The nine-member commission reviewing Defense Secretary Donald Rumsfeld's plan to restructure the U.S. domestic base network sent President Bush the report in September. It called for closing 22 major military bases and reconfiguring 33. Hundreds of smaller facilities from coast to coast also will close, shrink or grow.

There have been four previous rounds of base closings including rounds in 1991 and 1993. Denver's Lowry neighborhood is a result of the base closing process.

Colorado will fare better in this round of base closings than almost any other state as many personnel from closed bases will be relocated to facilities here.

Prophet Wrong on Miers

When Harriet Miers was nominated I said:

I have a hard time imagining that she will not be confirmed, absent a remarkable new development. Liberals can hope that her experience breaking gender boundaries, and the reality based existence that private private attorneys have to live, will give her at least some balance in her experience. She has less of a hard core conservative public record than almost any conceivable Bush nominee, and is rumored to have the advanced O.K. of leading Democrats and Republicans in the Senate. She could very well be a Thomas/Scalia conservative deep down. Republican lawyers for big corporations in Texas are not known for their liberalism, and her elevation a couple of years ago to be a deputy advisor for policy in the White House suggest that her views must closely align with those of the President. But, the Senate will never prove it and will likely not even get any meaningful examples of her White House work product in the confirmation process. If the Senate can claim ignorance of Roberts' strong political biases, they won't find her's. The only way her biases could easily come out is if attorneys who practiced with her reveal them. Those who have worked with her, like David Frum, believe that there are no such skeltons in her closet.

The group of fourteen who signed the deal stating that they would only filibuster in "extraordinary circumstances" are unlike to oppose her. And, absent a filibuster, a party line Republican vote, with some Democratic support as well, is virtually assured. In all likelihood she will receive even more votes in the Senate than the 78 that Chief Justice Roberts received.

Well, egg on my face. Miers has withdrawn her candidacy for the post of Associate Justice to the United States Supreme Court in the face, primarily, of opposition from conservative Republicans. Democrats largely took what is called the "popcorn strategy" in regard to the nomination, sitting back and watching Republicans fight over it.

I don't think that I pegged the liberal side of the reaction wrong, but I did grossly underestimate how willing conservative Republicans were to buck the President in order to obtain their long sought after prize of a proven hard core conservative to replace moderate Justice O'Connor.

Honestly, for that reason, I'm not optimistic that the Miers debacle will ultimately help Democrats. Yes, Justice O'Connor will likely stay on the court six months or more longer than had been originally anticipated, which will likely help progressives on a handful of cases, some of them important ones. Yes, this nomination is yet another defeat for the Bush Administration, and that is also generally a good thing, as each defeat reduces the administration's clout in all things. But, the next nominee is likely to be far more reliably conservative than Miers and that will be a very high price to pay indeed, unless that nominee can be successfully filibustered. On that count, I am not optimistic.

A second defeat for the President in a Supreme Court nomination would be a coup for Democrats, but honestly, I just don't see how the Democrats are going to be able to pull together to make it happen unless the President nominates someone who is such a firebreather that moderate Republicans won't hold their noses and support that candidate. We will know soon enough.

26 October 2005

Fox News.

This afternoon delight gives Fox News the respect that it deserves.

PBGC Update.

Dilbert's answer to the pension solvency crisis.

The Pension Benefit Guarantee Corporation is a government owned entity that insures the benefits of some 44 million people in 31,000 pension plans (an average of 1,419 each) will pay their promised pension obligations (sort of) for a fee of $19 per participant per year, which is now rising to $30 per participant per year in the wake of airline and automotive industry woes. The last big shock the the PBGC came when the steel industry collapsed.

The maximum annual PBGC benefit for plans taken over in 2005 is $45,614 for workers who wait until 65 to retire. Workers who retire before 65 get smaller benefits.

Thus, many employees with generous pensions, such as those of airline pilots, can take a huge hit of the company goes under.

The PBGC may also charge companies that have gone through bankruptcy and terminated their pension plans $3,750 for each participant in the plan and make additional rate increases under proposed legislation.

The fundamental problem facing the PBGC is that defined benefit plan funding requirements are not always sufficient to fully fund a pension's obligations in the event that the plan is terminated, because the formulas don't accurate reflect those obligations, especially during periods of extreme interest rate behavior and large stock market fluctuations. Also, any plan termination results in significant opportunity costs for many employees, because defined benefit pension plans are designed in a manner that always penalizes employees who either work fewer than a target range of years with the company, or work beyond that target range of years.

Target Pharmacies Continued.

Another Target Letter:

Dear Target Guest,

Target is extremely disappointed that Planned Parenthood is spreading misleading information about an alleged incident at a Target pharmacy in Missouri and our policies on emergency contraception. The accounts being reported are inaccurate and exaggerated. Our policy is comparable to that of many other national retailers and the recommendations of the American Pharmacists Association.

Target consistently ensures that prescriptions for emergency contraception are filled. As an Equal Opportunity Employer, we also are legally required to accommodate our team members' sincerely held religious beliefs as required by Title VII of the Civil Rights Act of 1964. In the unusual event that a Target pharmacist's sincerely held religious beliefs conflict with filling a guest's prescription for emergency contraception, Target policy requires our pharmacists to take responsibility for ensuring that the guest's prescription is filled in a timely and respectful manner. If it is not done in this manner, disciplinary action will be taken.

Target abides by all state and local laws and, in the event that other laws conflict with our policy, we will follow the law.

We appreciate the opportunity to clarify our position and correct misinformation.


Jennifer Hanson
Target Executive Offices

Let's look at what Planned Parenthood said:

A 26-year-old Missouri woman was refused EC when she handed her prescription to a pharmacist at a Target store in Fenton, MO, on September 30. The woman was told by the pharmacist, “I won’t fill it. It’s my right not to fill it.” Target does not support a policy to have valid prescriptions for birth control, including emergency contraception, filled in-store without discrimination or delay!

Does the letter from Target above definitively say this incident didn't happen? No. Indeed, it seems to contradict itself by both saying that the incident is "alleged" while also claiming in a way that it could not unless it knew that the incident did happen, that it was "exaggerated". You can't know the some exaggerated unless you know that a less extreme incident happened.

Does Target in its statement above say that it supports a policy to have valid prescriptions for birth control, including emergency contraception, filled in-store without discrimination or delay"? No. Its policy is "ensuring that the guest's prescription is filled in a timely and respectful manner" which means that they could very well tell you to go elsewhere. The press release also deliberately confuses what Planned Parenthood is saying about Target policies, which is that what Target pharmacies actually do is the real Target policy, while what a piece of paper in Target's corporate offices says Target will do is merely a pretend policy.

And what does Title VII really require of Target:

(j) The term ``religion'' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is
unable to reasonably accommodate to an employee's or prospective
employee's religious observance or practice without undue hardship on the
conduct of the employer's business

Furthermore, Target also has a duty under the civil rights laws not to discriminate against women in public accomodations.

Target does not have to tolerate pharmacists in a manner that prevents customer prescriptions from being filled due to their religious beliefs. But, apparently, it does.

Any other standard the requiring every store to carry out its duties is an express route to disaster. Scientologists who won't dispense psychiatric drugs, vegans who don't want to sell milk, Hindus who don't want to sell beef jerky, Jews who won't check out pork, Mormons who won't sell coffee or alcohol, Catholic who don't want to sell condoms, God hates homosexuals so no AZT for you, blood transfusions are wrong so no clot busting and immune suppressing drugs for you, the parade of horribles goes on and on and on. If your beliefs prevent you from doing your job, you need to find another job.

The pharmacists are getting delusions of grandeur here. Their job is to carry out a doctor's orders in a way sufficiently alert to catch problems like potentially problematic drug combinations. Period. End of story. No questions asked. Refusal to follow a doctor's orders is always a grounds for dismissal of a pharmacist, and always has been. It is not the job of a pharmacist to practice medicine, it is the job of a pharmacist to dispense drugs in a safe manner consistent with a doctor's orders.

Until Target is willing to establish a policy that no prescription will be refused by a store because of a pharmacists moral objections and that any pharmacist who does so will be dismissed, it deserves the full ration of shit it has received.

There was a correct press release to issue in response to this incident. It would have read:

The pharmacist who is alleged to have refused to fill a prescription of a 26-year-old Missouri woman for emergency contraception on September 30,2005 at a Target store in Fenton, MO, has been suspended pending an investigation of the incident by the company. If the allegation recited in an October 25, 2005 statement by Planned Parenthood regarding this incident prove to be true, Target will terminate the employment of this pharmacist for violating Target policy and abusing the trust of its pharmacy customers.

A statement like that would have won Target millions of loyal supporters.

Are Corporate Executives Overpaid?

A judge from the Delaware Chancery Court, widely seen as the most important and pro-management corporate law court in the country, thinks that they are and that some form of regulations is nearly inevitable if directors remain asleep at the switch. So do former U.S. Securities and Exchange Commission Chairman William Donaldson and Public Company Accounting Oversight Board Chairman William McDonough.

"Top U.S. company managers continue to receive huge pay packets -- $9.8 million for the average chief executive of a major company in 2004."

E.M. Rosa Revealed.

This is what a Young Angry Liberal in Colorado looks like (it is a self-portrait).

Do We Need Electricity Rate Increases?

I'm generally inclined to give public utitilies the benefit of the doubt on their rates. So, when they asked for a 20% increase in electricity rates based on rising electricity costs, I believe them. Now, I have doubts:

Xcel Energy Inc. on Wednesday said warm summer weather and higher profit margins for electricity sparked a more than fourfold jump in its third-quarter earnings, but warned that fourth-quarter profit will likely fall short of forecasts.

Net income came to $196 million, or 47 cents a share, in the latest period, compared with $46.7 million, or 12 cents a share, a year ago, the Minneapolis-based utility company said.

The results beat a Thomson Financial average of analysts' estimates at 44 cents a share.

Earnings were helped by a lower effective tax rate and sales growth.

Revenue climbed 16 percent to $2.29 billion from $1.97 billion.

Xcel serves 3.3 million electricity and 1.8 million natural gas customers across 10 Western and Midwestern states.

Regulators and shareholders shouldn't be getting different stories on electricity costs.

Congress Considers Death Penalty Retrials.

Congress is considering in connection with the Patriot Act, a bill that would allow prosecutors a chance to convince a new death qualified jury that the death penalty should be imposed if the initial jury is not unanimously in favor of the death penalty. Now, unless the initial jury agrees unanimously, the sentence is life in prison. It is a bad law which should be defeated.

New Nuclear Power Plants

The Nuclear Regulatory Commission is evaluating its first applications to open new nuclear power plants in the past thirty years. The plants would be located on the Gulf Coast in Mississippi and Alabama.

According to the Matthew Wald of the New York Times in a story titled "Energy Group Plans to Build Nuclear Plants in Gulf States" (I missed it when it came out last month):

WASHINGTON, Sept. 22 - A consortium of eight companies said on Thursday that it would spend about $100 million to prepare applications to build two nuclear reactors, in Mississippi and Alabama, a step that seems to move the industry closer to its first new reactor order since the 1970's.

The announcement was made by NuStart Energy, a consortium of companies that has substantial government financing. The consortium selected a site in Claiborne County, Miss., adjacent to Entergy Nuclear's Grand Gulf reactor, and another in northern Alabama, next to the Tennessee Valley Authority's long-abandoned Bellefonte nuclear construction project.

The Energy Department is committed to sharing costs to develop the two applications, and has agreed to pay the application fee, about $30 million, for one of them; the consortium is asking the department for money for the other. At the same time, Entergy announced that it would act on its own to develop an application for a reactor at a site next to its Waterford plant, in Louisiana.

The government, the reactor manufacturers and companies that own and operate existing reactors are testing a reformed licensing procedure, established by the Nuclear Regulatory Commission in the 1990's to avoid the pitfalls of the 1970's and 80's, when several reactors were ordered and construction begun before design was completed or regulatory approval obtained.

Under the program, designs for the Grand Gulf reactor, to be made by General Electric, and the Bellefonte reactor, to be made by Westinghouse, will be mostly completed and also approved by the Nuclear Regulatory Commission before substantial work is done at the sites.

According to a press release from the applicant, two different designs will be used:

Grand Gulf [Alabama] was designated for the General Electric Economic Simplified Boiling Water reactor design. Bellefonte [Mississippi] will be used for the Westinghouse Advanced Passive 1000 [Ed. and here and here] reactor design.

The way these designs fit into the larger picture of different types of reactor designs is discussed here. The key design elements of each of the two designs are as follows (emphasis added):

The Westinghouse AP1000 would have one-third fewer pumps, half as many valves, and more than 80 percent fewer pipes than current reactors. It can be built using modular units manufactured in a factory and transported to the reactor site, cutting construction time to three years.

It relies on a largely passive safety system. The cooling water for use in event of a build-up of excess heat is above the reactor core and uses gravity and natural circulation for emergency cooling if needed. In current reactors, cooling water must be pumped into the core.

General Electric's ESBWR has a 1,500 megawatt (MW) boiling water design, meaning the cooling water is not under pressure and is allowed to boil, with steam passing over the top of the reactor into the turbines.

ESBWR stands for economic simplified boiling water reactor, reflecting that its design removes many of the complexities of current reactors. It has 25 percent fewer pumps, valves, motors, piping and cabling and is designed to respond more quickly to a loss of coolant. Modular construction and a smaller plant size allow for faster construction.

The target start date is 2014.

The NuStart work is being funded under the Department of Energy’s Nuclear Power 2010 program to kickstart new nuclear energy construction. The federal government is sharing 50-50 the cost of the detailed engineering with NuStart.

The other four sites studied by NuStart were River Bend Station at St. Francisville, La., Savannah River Site owned by the Department of Energy near Aiken, S.C., Nine Mile Point Nuclear Plant in Scriba, N.Y., and Calvert Cliffs Nuclear Power Plant in southern Maryland.

Also today, Entergy announced it will prepare its own Construction and Operating License for its River Bend Station in St. Francisville, La.

Constellation Energy of Baltimore withdrew its Calvert Cliffs Nuclear Power Plant site in southern Maryland and its Nine Mile Point nuclear plant in Oswego, N.Y., from the NuStart finalist list after recently announcing a new joint venture with AREVA.

Ms. Kray stressed that all six finalist sites are excellent locations for an advanced nuclear unit from a financial and technical standpoint and likely will eventually be chosen for a new nuclear plant.

Members of NuStart Energy consortium are:

Constellation Energy, Baltimore, Md.
Duke Energy, Charlotte, N.C.
EDF International North America, Washington, D.C., the U.S. subsidiary of the large French electric utility
Entergy Nuclear, Jackson, Miss.
Exelon Generation, Philadelphia, Pa.
Florida Power & Light Company, Juno Beach, Fla.
Progress Energy, Raleigh, N.C.
Southern Company, Atlanta, Ga.
Tennessee Valley Authority, Knoxville, Tenn.
GE Energy, Atlanta, Ga.
Westinghouse Electric Co., Pittsburgh, Pa.

It is too early to tell how the regulatory process will unfold for these applications. The idea appears to be to offer some sacrificial lambs, understanding that the process for these plants will be difficult, in order to establish a roadmap for future nuclear power plants to be built starting in the twenty-teens.

Hat tip to Astronuc at the Physics Forums.

How SCOTUS Really Works.

In a court which receives about 5,000 requests to hear cases each year, and rules with full opinions on only about 80, the single most important issue in the United States Supreme Court is getting a case noticed. This decision is made primarily by the "cert pool" a collective group of law clerks from the eight participating judges, who are bright recent law school graduates, who have never practiced law themselves.

[I]nstead of each Justice's chambers examining every new petition to decide whether to vote to grant or deny, petitions are handed first to the "cert pool," leading to a single memo, written by a single clerk, recommending for or against a grant of cert. That single memo goes to every chambers represented in the pool. The Justices still exercise the voting power, of course, but the memoes have constituted their first, and most comprehensive, look at a case's worthiness for review. . . . Former law clerks have said there is another characteristic that the pool has developed. A culture has grown up around it, they say, in which a grant of review is recommended only if it is practically an obvious grant. Recommending a grant, and then having the Court deny review, has become an embarrassing thing for the clerk involved. As a result, the tendency is to put the emphasis on the negative. As everyone who reads more than a few cert petitions knows well, almost any petition could contain within it good reasons to deny review. Generally speaking, there are few, if any, sure grants. Thus, it is easy to suggest, plausibly, that cert be denied, and that is what has happened.

U.S. Supreme Court law clerks, because of their role in this processs, are arguably the most powerful people of their age in the entire legal profession, and quite possibly, the entire nation.

Life Insurance Trusts Ruled Void.

A federal trial court in Maryland ruled earlier this year in the Chawla case that life insurance trusts were void, because the trust is better off if the insured dies than it is if the insured lives. If this ruling is allowed to stand, it would invalidate one of the most common estate planning methods of high net worth individuals in existence, which has been used as part of standard estate planning practice for, at least, four decades. One also has to wonder why an insurance company, which relies on life insurance trust business for a large share of lurcrative whole life product market (most whole life by value is bought by people over the age of sixty-five for estate planning purposes), would even raise an issue so widely believed to have been a settled point of law. Indeed, the mere fact that a single trial court has ruled in this way leaves open the question of whether the same issue could be raised successfully in other jurisidctions, casting a pall of uncertainty over life insurance and estate planning nationwide.

In other estate planning news, both Connecticut and Vermont are discussing abandoning their outdated and costly probate systems for the inexpensive and efficient system that addresses the modern realities of multiple marriages and non-probate transfers used in Colorado (the Uniform Probate Code).