Letters to the Editor

VOTE OF NO CONFIDENCE
      I found your article by Chris Thompson ["This Democracy Is Experiencing Technical Difficulties—Please Stand By," August] to be nothing short of propaganda, intended to convince us that all's well, when instead the facts indicate our electoral system is probably producing fraudulent results.
      First, in the 2004 presidential election the exit polls in several states, including Ohio, showed that John Kerry had won. When the final results were released, George Bush miraculously won those states. Yet the article included no facts like these or studies of claims of election fraud. Instead, the word conspiracy was used to discredit people who logically don't believe in such unlikely coincidences, and even have good evidence on which to ground their claims.
      Second, there is no discussion of why we even need electronic voting machines. As someone who grew up under the original Mayor Daley in Chicago, I can attest to the vulnerability of even the old mechanical machines to tampering in order to obtain desired results, which was recently found to have been the case in Chicago. Paper ballots are the only ones that are virtually impossible to tamper with, and there is no good reason not to return to them. Vote tampering always favors those already in power and disadvantages anyone seen as a threat to those in power.
      Finally, why does no one question the fact that only Republicans are defending electronic voting machines? California Secretary of State Bruce McPherson, who defends Diebold in the article, is an appointed Republican who will likely be replaced in the upcoming election. 
      Jeff Hoffman
      San Francisco
     
      I am a lifelong Republican. I am also one of the millions of people who are very concerned about electronic voting.
      Election officials need to realize that those with concerns must be reassured, even if it means returning to paper ballots. The integrity—and the perceived integrity—of our elections is more important that the money already spent on new machines, and far more important than corporations' or election officials' egos.
      Susan E. Amerson
      Big Bear Lake
     
      Author Chris Thompson and attorney Lowell Finley deserve kudos for an excellent article and crucial legal attack on the unreliability and vulnerability of electronic voting machines. My only question is why this story is only in California Lawyer and not on the front page of every major newspaper in the country.
      Rick Barron
      Deputy public defender
      Santa Barbara
     
      SPECIAL ED ESPECIALLY EXPENSIVE
      When I first read the article "Special Needs, Special Practice" [ESQ., August], my reaction was probably similar to most readers'—"Ah good, another high-minded law firm dedicating itself to social needs." In this case the "cause" is providing education for learning-disabled children. Even the closing paragraph resonates with virtue: "We are committed not only to winning cases, but to shaping the law."
      Honorable, but very expensive. As the article notes, the federal government passed the Individuals with Disabilities Education Act in 1975; a bit further on it observes: "But without adequate federal funding, not all districts have cooperated." Why not—can't they just go into debt like the feds?
      Attorneys Wyner and Tiffany lay claim to 35 "successful settlements," and their most recent victory, cited as Porter v. Bd. of Trustees of Manhattan Beach Unified School District, secured a settlement of $6.7 million for a single child! I do not know how many children are enrolled in that school district, so I am unable to determine how much of that $6.7 million must be reduced from each student's annual education allotment. But it is not hard to imagine that certain programs are going to be impacted by reduced funding.
      Ronald Westphal
      Campbell
     
      SUPREME CLARIFICATION
      In the August edition of California Lawyer an article entitled "Unanimously Pretty Good" [The Supremes] by Douglas W. Kmiec includes the following statement: "The Court also found 911 calls to be admissible, nontestimonial evidence. (Davis v. Washington, 2006 U.S. LEXIS 4886.)" This statement is half true, but also half wrong.
      In Davis v. Washington (126 S. Ct. 2266 (2006)) the Court distinguishes between calls that describe events as they are actually occurring and those that describe events that happened in the past, for the purpose of determining when the protection of the Sixth Amendment's Confrontation Clause is triggered. The Court emphasized the importance of the fact that the victim in Davis was describing an ongoing and imminent threat, and was speaking not to aid in an investigation but to seek help.
      The Court concluded that because the victim's call was in the aid of the police response to an existing emergency, as opposed to in the aid of the investigation of a past event, it was not testimonial because "[n]o 'witness' goes into court to proclaim an emergency and seek help." (126 S. Ct. at 2277.) The test that has emerged is whether the person making the phone call is acting as a witness to a past event, or whether the person is seeking aid in a current event.
      Thus, the statement that "911 calls [are] admissible, nontestimonial evidence" is so great an oversimplification of the Court's holdings that it cannot be realistically said to be a fair summary of the opinion.
      Michael P. Judge
      Public defender
      Los Angeles County
     
      Douglas Kmiec's offhand dismissal of the landmark decision in Hamdan v. Rumsfeld, without any analysis of its reasoning and impact, ill suits a serious constitutional thinker and ill serves your readers.
      As Harold Hongju Koh, dean of Yale Law School, told the U.S. Senate in July, Hamdan is "perhaps the most significant decision regarding executive power since the Court's landmark 1952 decision in the Steel Seizure case."
      Yet aside from not explaining why the Court held that President Bush acted illegally in creating military commissions, Kmiec's commentary is confined to calling the decision a "doozy" and a "dark moment" for the Court and claiming, without any elaboration, that the Court "told Congress that the Constitution doesn't really mean what it says ..."
      In fact, the Court held that when, without any congressional authorization, Bush created military commissions that did not afford the legal protections of the U.S. Military Code of Justice, he not only exceeded his presidential authority but also violated Common Article 3 of the Geneva Conventions.
      Stephen F. Rohde
      Los Angeles
     
      WATER BOARD DELUGE
      The August Expert Advice column ["What to Expect from the Water Board"] provided a misleading overview of practice before California's Regional Water Quality Control Boards and the State Water Resources Control Board. The water boards have a long history of protecting and enhancing the quality of California's groundwater, streams, rivers, lakes, and oceans.
      Perhaps the most sweeping and groundless assertion in the column is that persons appearing before the water boards "must be prepared to fight aggressively for fair hearings." This statement is simply wrong. The water boards' processes have withstood numerous challenges and have consistently been found to be fair and to conform with constitutional and statutory due process.
      The State Water Board's regulations specify a model adjudicative hearing process. (See Cal. Code Regs. tit. 23, §§ 648648.8.) These are formal hearings under Chapter 4.5 of the Administrative Procedure Act (APA) that regularly involve multiple parties putting on significant amounts of evidence and making complex legal arguments.
      Experienced water board practitioners know how to recognize the nature of the proceeding and then focus on the nature of any disputes. If there is an adjudicative proceeding with disputed facts and the proposed hearing process affords less process than the model adjudicative process, experienced practitioners simply ask for additional process. Such requests are routine and typically noncontroversial. The water boards are accustomed to holding lengthy evidentiary hearings when circumstances warrant.
      The authors compound the article's errors by implying that non-APA agencies such as the water boards are supposed to rely on administrative law judges. First, this is legally wrong-the Legislature has placed the state's administrative water quality and water right adjudicative functions in plural bodies. (See Cal. Water Code §§ 174, 13263, 13301, 13323.) The Legislature anticipates that water board members will be the neutral fact-finders.
      Furthermore, the article adopts an elitist premise that somehow administrative law judges are uniquely positioned to fairly resolve important environmental disputes. Attorneys do not hold a monopoly on fairness and independence. And the authors' premise is an insult to the dozens of water board members around the state who volunteer countless hours to reviewing legal, scientific, and policy materials while preparing for lengthy monthly board meetings.
      Finally, the authors tell the uninitiated to "[e]xpect potential conflicts of interest among staff." This sweeping statement is nothing more than innuendo, not even supported by the accompanying text. Consistent with the APA, the adjudicative and advocacy functions of the water boards' staff are scrupulously separated from one another in prosecutorial hearings. This involves establishing firewalls within offices and creating separate supervisory chains of command.
      The process of screening functions within a public agency's law office does not raise the type of imputed disqualification asserted by the authors. Instead, the screening of the adjudicative and advocacy functions is the process used by city attorneys' offices, county counsels' offices, and public agencies throughout the state and consistently approved by the courts. (See Quintero v. City of Santa Ana, 114 Cal. App. 4th 810, 813 (2003); Howitt v. Superior Court, 3 Cal. App. 4th 1575, 157980 (1992); Nightlife Partners, Ltd. v. City of Beverly Hills, 108 Cal. App. 4th 81, 93, 98 (2003).)
      Counsel throughout the state can benefit from the insight into the water boards' hearing processes provided by experienced water law practitioners. Unfortunately, the August column is a poor starting point, given its mischaracterizations of law and fact.
      Michael A. M. Lauffer
      Chief counsel
      California Environmental
      Protection Agency
     
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