Isaac Laquedem

Isaac offers some legal help to Park Cannon and the Georgia State Patrol

On March 25, the Georgia State Patrol arrested Georgia State Representative Park Cannon inside the Georgia State Capitol building as she knocked on the door of a room where the governor, Brian Kemp, was signing a bill to make it harder for Georgians to vote.  The Atlanta Journal-Constitution, source of the image at left, tells the story here.

It's unusual for the state police to arrest a state legislator in the state capitol, not just in Georgia but in civilized states as well.  As a public service to Representative Cannon and an aid to the Georgia State Patrol, I share the following bits of information.

First is that Article III, Section IV, Paragraph IX of the Georgia Constitution states:

Paragraph IX.   Privilege of members.   The members of both houses shall be free from arrest during sessions of the General Assembly, or committee meetings thereof, and in going thereto or returning therefrom, except for treason, felony, or breach of the peace. No member shall be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house.

Second is since at least September 6, 2002 Policy No. 17.12 of the Policy Manual of the Georgia State Patrol has provided this guidance to its officers, which the manual states is to be distributed to all sworn employees.  The first extract is part of the state's general policy to educate its officers that certain persons are immune from arrest:

17.12.2 Policy

Federal, state and international laws provide that under certain circumstances, individuals may be immune from arrest. With the limited exception of certain diplomatic officials, immunity from arrest does not preclude prosecution of the individual for the offense for which immunity from arrest is claimed. In all cases in which immunity is claimed, a member has the right to detain the person long enough to verify that the person is entitled to the immunity claimed. This can usually be done by examination of official identification cards. The member may also request that the Communications Equipment Officer contact the appropriate government agency to verify the individual's status.
    In all cases in which a person asserts immunity from arrest, the detaining member [of the state patrol] shall immediately notify their supervisor. See the Diplomatic and Consular Immunity Requests for Asylum/Defection Exhibit #17.12-4.
    A member shall not permit a person who is entitled to immunity from arrest to continue to operate a motor vehicle or boat if the member has probable cause to believe that the person is under the influence of alcohol or drugs.

The following section covers state legislators specifically:

17.12.3 Procedures

A.    Troop officers shall be notified, through the chain of command, whenever a member cites or detains one of the groups or officials listed in 17.12.3 B-D.

B.    [United States Senators and Congressmen]

C.    State Legislators

1. The members of both houses shall be free from arrest during sessions of the General Assembly, or committee meetings thereof, and in going thereto or returning therefrom, except for treason, felony, or breach of the peace, e.g. DUI or assault. Legislators shall not be liable to answer in any other place for anything spoken in either house or in any committee meeting of either house. A member can write a UTC or warning for a traffic violation.

It's possible that the training of the patrol members on duty at the Capitol has worn off.  No particular penalty is prescribed for an officer who violates the Georgia Constitution, but it could become embarrassing for the involved officers and their supervisor.

1764: Criminologist Cesare Beccaria tells us how Portland can make downtown safe again

If downtown Portland is going to cease to be a showroom for the plywood industry and the overnight work of Kennedy Restoration, the city needs to change its response to the occasional protests and coincident property damage.  The police force's nonviolent responses to two recent anti-Biden protests that turned into vandalism is encouraging (here are stories about the response on February 28 and March 11), as it resulted in a number of arrests for actual vandalism instead of the weaker charges of "interfering with an officer" that plagued the city's response to last year's anti-Trump riots.  Still, there is room to improve.  Isaac has a few modest suggestions.

Nearly everyone who is arrested at a riot is booked and released the same night.  One person arrested on February 28 was released almost immediately because of Covid-19 restrictions at the jail.  The jail is not in fact empty, despite Covid-19.  If the county is willing to keep a few beds open at the jail, then at least a few of the persons arrested at riots could be held overnight or until the prosecutors can bring or drop charges, usually for constitutional reasons within 72 hours.  The city's and county's current policies allow situations such as the one on March 11 in which a homeless man, newly arrived in Portland, was arrested by Portland police at 3:03 p.m. for causing damage at a bank office, booked into the jail at 4:00, released at 8:30, and then arrested at 10:45 p.m. by federal agents for slamming a scooter into a window of the federal courthouse. 

The metric to apply is that the number of persons held overnight or through the weekend will be equal to, but not more than, the number of windows broken in a particular protest.  If no windows are broken, then no one will be held overnight.  (Actually, if no windows are broken, no one should be arrested for breaking windows, but that may be too logical to implement.)  

I've come around to cautiously supporting the Portland police technique of waiting until protesters break windows, and then "kettling" and identifying those that are in the group that includes the culprits.

I came to this conclusion, still rather hesitantly, after reading the essay of Professor Daniel S. Nagin, entitled "Deterrence," that appeared in volume 4 of the report "Reforming Criminal Justice"  in 2017.  Professor Nagin used as his starting point the conclusion of Milanese criminologist Cesare Beccaria in 1764 that "one of the greatest curbs on crime is not the cruelty of punishments, but their infallibility.  The certainty of punishment even if moderate will always make a stronger impression."  Nagin's refinement of Beccaria's theory was to add that it is "the certainty of apprehension, not the severity of the ensuing consequences, that is the more effective deterrent."  Lengthy prison sentences, he said, are an inefficient way to prevent crime; "crime-prevention policy should instead focus on bolstering the certainty of apprehension."  Given the county's reluctance to prosecute crimes of minor vandalism, the most effective way to deter those crimes is to increase the certainty of apprehension, even if the only punishment is a weekend in the lockup.

The Laquedem Plan to measure and index the minimum wage

In real-dollar terms, the minimum wage of $7.25/hour is at its lowest point since shortly after its creation in 1938.  It has been $7.25/hour since 2009.  One of our major political parties, fearful of directing money to people who might actually need to spend it, has obstructed efforts to raise the wage to $15.

Isaac has devised a plan to satisfy the Republicans' philosophical objections and honor the memory of St. Ronald Reagan, all in one package.  Let's begin by directing our thoughts to the Reagan administration, the Laffer curve, and the large tax cuts of that era.  The theory of the Reagan tax cuts, honored in two later Republican administrations, is that by reducing income taxes on large corporations the tax savings would become free cash that would trickle down to the people who were actually doing the work. 

That didn't happen.

I'd like to suggest a new metric for measuring the minimum wage, which is to measure it not in dollars but in how many hours of work at the minimum wage equals one year of a Congressional salary.

The base Congressional salary (leaders get more) is $174,000/year.  The minimum wage is $7.25/hour.  One year in Congress carries remuneration equal to 24,000 hours at the minimum wage.

Now go back to the first year of the Reagan era.  Congresspeople received $60,662.50/year.  The minimum wage was $3.35.  One year in Congress in 1981 equaled 18,108 hours at the minimum wage.

The facile interpretation is that our Congresspeople are 33% more productive than they were in 1981, because they now earn 33% more than their predecessors did in 1981, in terms of the minimum wage.  We have only to look at the Senate of the last few years to reject an explanation based on productivity.  So let's go back to trickle-down economics.

If trickle-down economics had worked as Reagan and Laffer had predicted, then there would be few - maybe no - minimum-wage jobs remaining, because the price of labor would be higher in real-dollar terms than it was in 1981.  The plutocrats would have taken the dollars showered upon them by the appreciative Solons and spent them pursuing labor, driving up wages.  That wages did not keep up is a strong mark against the Reagan-Laffer theory.

But let us assume, as Mitch McConnell and his merry band of naysayers must, that the tax cuts in fact trickled down.  In that case there would be no harm in raising the minimum wage to a level that assumes that the tax cuts did in fact trickle down.  That level, I suggest, is the 1981 ratio, when the minimum wage was 1/18,108 of a Congressional salary.  Today that's $9.61/hour. 

If Senator McConnell is willing to adopt standard Republican economic theory, then he should be all in favor of raising the minimum wage to $9.61/hour, and to index it to equal at least 1/18,108 of a Congressional salary.  If he continues to oppose raising the wage to keep up with costs, then we should insist that Congress adopt another Republican principle and tie Congressional salaries to productivity.  One refinement would be to provide that if a session of Congress is less productive than the historical average, its leaders should get not more, but less, than the base salary.  It seems unjust to call Senator McConnell a legislator when he's working as hard as he can not to legislate.

Happy anniversary to me

On this day in 1876, the United States issued a patent to Alexander Graham Bell for his invention of the telephone.  My more modest contribution to March 7 is that on this day in 2004 I published my first blog post, a comment about the plan to put parking beneath the historic Pioneer Court House.  In the 17 years since I hope that I've occasionally led you to ponder, to get irritated, to be amused, to learn about our city's history, to consider plans for improving civic life, and sometimes to bellylaugh.  At the rate that our civic leaders are creating new material I'm optimistic that I'll continue to have plenty to talk about for years to come.

No Peloton for Christmas? Those two contentious jobs at the Port of Portland cast a long shadow

Readers with long memories will recall that in 2014 the ILWU and the electricians' union fought over two jobs at Terminal 6, the Port of Portland's container facility on the Columbia River (pictured).  The question was whether the task of plugging power cords into refrigerated containers was properly allocated to the ILWU (because the containers were sitting on docks) or to the electricians (because the task involved wiring).  The fight between the unions turned into a general slowdown that drove container shipping away from Portland in 2017.  One freight line tenuously returned (one ship a week) in early 2020, just before the pandemic struck. 

The idled union workers might ask their leadership to read this story about the Port of Los Angeles, the busiest port on the west coast.  Shipping times from China to Los Angeles have ballooned from 2 weeks to 7 or 8 weeks.  The ships still chug across the Pacific Ocean at the same speed -- until they get to Los Angeles, where they sit and wait offshore for weeks with their cargoes of Pelotons and other Christmas gifts (now Twelfth Night gifts?) before they can dock and unload.  Everyone involved justly blames the Covid-19 pandemic.  The delays in unloading in Los Angeles are so great that many importers paid extra - a lot extra - to have their goods flown to the United States instead of taking their chances on being marooned offshore.

Consider the Port of Portland's nearly idle Terminal 6, its facility for handling shipping containers.  Certainly the warring unions couldn't have predicted in 2014 that a worldwide pandemic would strike in 2020.  But they might have considered that anything that caused a slowdown at a larger west coast port might encourage freight companies to divert their ships to Terminal 6, and keep their members employed.

The most expensive free advertising the Oregon State Bar ever printed

The Oregon State Bar prints a magazine called the Oregon State Bar Bulletin, intended mainly for its members.  The Bulletin includes articles on legal writing, profiles of individual lawyers, articles about recent legal developments, announcements of upcoming educational classes and events, and some advertising.  The advertising is mostly by law firms announcing new associates and partners and by providers of services to law firms.   As a matter of policy the Bulletin does not accept political advertising.

In April 2018 the Bulletin printed two statements on facing pages, inside a single border, in the manner of an advertisement.  The statement on the left was entitled "Statement on White Nationalism and Normalization of Violence."  It was signed by three members of the Bar's Board of Governors, two Bar employees, and the chair of the Bar's Advisory Committee on Diversity & Inclusion.  The Bar's statement condemned acts of violence such as the Charlottesville riots and the Portland MAX train attack in 2017 that left one person dead, and "the proliferation of speech that incites such violence."  It ended with the following high-flown but otherwise innocuous paragraph:

In today's troubling climate, the Oregon State Bar remains committed to equity and justice for all, and to vigorously promoting the law as the foundation of a just democracy.  The courageous work done by specialty bars throughout the state is vital to our efforts and we continue to be both inspired and strengthened by those partnerships.  We not only refuse to become accustomed to this climate, we are intent on standing in support and solidarity with those historically marginalized, underrepresented and vulnerable communities who feel voiceless within the Oregon legal system.

On the facing page, inside the same border, appeared the "Joint Statement of the Oregon Specialty Bar Associations Supporting the Oregon State Bar's Statement on White Nationalism and Normalization of Violence," signed by the presidents of seven of the state's specialty bar associations.  (Note to the public: in Oregon "specialty bar association" does not mean groups of lawyers who specialize in particular practice areas; it means associations of lawyers of shared ethnic background, the Oregon Women Lawyers, the Oregon Gay and Lesbian Lawyers Association, and the Oregon Minority Lawyers Association.  The group excludes associations based on religious or geographic affiliation.)  The Bar's statement named no names and pointed no fingers.  The statement of the seven specialty bar associations was more direct:

President Donald Trump, as the leader of our nation, has himself catered to this white nationalist movement, allowing it to make up the base of his support and providing it a false sense of legitimacy.  He has allowed this dangerous movement of racism to gain momentum, and we believe this is allowing these extremist ideas to be held up as part of the mainstream, when they are not.  *** He signed an executive order that halted all refugee admissions and barred people from seven Muslim-majority countries, called Puerto Ricans who criticized his administration's response to Hurricane Maria "politically motivated ingrates, " *** and called into question a federal judge, referring to the Indiana-born judge as "Mexican," when the race of his parents had nothing to do with the judge's decision.

You can read the two statements in full here.  They appear on pages 42 and 43.  The Bulletin apparently printed the advertisements without charge; the current rate for two full pages inside the magazine is $4,040.

Several Oregon lawyers complained to the Bar.  The Bar refunded $1.15 to each of them, its estimate of the portion of their bar dues that went to publishing the April 2018 issue.  In December 2018 they sued the Oregon State Bar and its leadership, alleging that the Bar violated their constitutional rights by publishing the advertisements at state expense.  They alleged two distinct violations: a violation of their right to free speech, because the Bar (a state agency) was compelling them to pay to support political speech with which they disagreed, and a violation of their right to free association, because the state compelled them to join an organization that espoused views with which they disagreed.   In May 2019 a United States district judge adopted the recommendation of a magistrate and dismissed their claims.  The trial judge found that by refunding the $1.15, the state was no longer compelling the lawyers to pay to support political speech with which they disagreed (a similar procedure is used with compelled membership in labor unions).  The judge also found that the Oregon State Bar was immune from suit on their free-association claim because the Bar was a state agency and, as an arm of the state, protected from suit by the Eleventh Amendment to the United States Constitution.

The lawyers appealed.  This week the appellate panel unanimously reversed the trial court and sent the case back.  The appellate panel agreed with the trial court on the free speech issue - $1.15 per complainant was enough to buy out their free-speech rights -- but reversed the trial court on the free-association issue.  Quoting an earlier case, Keller v. State Bar of California, the court of appeals phrased the question this way:  could the lawyers "be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified?"  The court then restated the question a little differently: does the First Amendment tolerate "mandatory membership itself - independent of compelled financial support - in an integrated bar that engages in nongermane political activities"?  The court of appeals found that the precedents on which the trial court relied on did not apply to the facts of this case, and sent the case back for trial.

The kicker for the Oregon State Bar - and why its free advertising turned out to be expensive -- is that the court of appeals went on to say that the Bar, though a state agency for some purposes, is not protected by the Eleventh Amendment from being sued for damages in federal court.  Unlike the typical state agency, the Bar writes its own budget, pays its own bills, owns its own property, and selects its own leaders.  (Its website is not even a dot-gov site.) In the eyes of the court, even though state law establishes the Oregon State Bar as a mandatory association of lawyers, it is not sufficiently under the control of the state to be considered an "arm of the state."  The Bar' s generous donation to the seven specialty bar associations of a page of free advertising has now cost that Bar and its board of governors their constitutional immunity from being sued for damages.  Yes, the Bar could appeal -- to a Supreme Court that now includes conservative Justices Gorsuch, Kavanaugh, and Barrett.  Good luck with that.