Tuesday, April 10, 2012

Protecting Process (Tuesday LINKS)

Whether it be in response to critiques of the fire tax, Superintendent Search, or HCEA Endorsement process, I've heard an eerily consistent response: questioning process is the retreat of those who can't dispute the result.  That's a fancy way of saying "The ends justify the means."

For a while I didn't understand why that response bothered me so much.  Then I realized that my entire profession is built around process.  The ends are brief and unpredictable.  The means fill our workday.  I am a protector and enforcer of process...in its most mundane and pain-staking forms.

In light of this, I thought I may share some observations about process that may not be considered when basking in the light of the wonderful results:

1.  Protect the process, protect the result -- Your typical civil litigation has three components: discovery (investigation), strategy, and protecting appellate issues.  Those three often overlap, but the last is often most important.  If there is a bad process (i.e., mistaken application of law to fact, discovery violation), the result is vulnerable, even if that result is the "right" result.  In some circumstances, especially in the criminal context, the process overrides the result, setting the guilty free.  This leads me to my second point...

2.  Process is lasting, results are fleeting -- Whatever ends you reach, the means are the only thing you leave behind.  While this is obvious in the legal context, the consequences of the political context are much more concerning.  Lawyers and non-lawyers are familiar with the idea of "precedent" and its binding force on the future, regardless of whether it makes sense.  The only way to escape precedent is to present such a unique set of facts that the rules previously found applicable no longer fit.  The presumption is that precedent rules.  Fudging process does not just reach an end that we all can be satisfied with.  It also sets precedent, which is an ends of itself.

3.  Process is an end product -- At some point in time, the process itself was a topic of deliberation.  I would proffer that whenever process is questioned, there be renewed deliberation about whether an exception or shortcut is appropriate.  Most concerning of all is when process is curtailed and there is no discussion.  It leaves no road-map for later deliberators to know why the process was changed or whether there was a particular exception found applicable.  Above all things, the process must be preserved for future comers.

Just to be clear, I'm not necessarily saying that process was curtailed or avoided in any of the above circumstances.  I do know that the process was questioned, which in and of itself merits response, because all jargon aside, process in the political context is made to protect those without power.  It is the lasting counter-weight to those on the dais.  The more irrelevant, ignored, or overlooked the process is considered, the more important it can become.


Lawmakers in Annapolis failed to pass new taxes and, as a result, the so-called "Doomsday Budget" with "hundreds of millions of dollars in cuts" will go into effect this July.  House and Senate leaders have asked the Governor to call a special session to allow additional discussion of tax increases to mitigate such cuts.  Now I am scared.  Unlike Regular Session, there is no ban on fund-raising during a Special Session.  With expanded gambling and a sales tax on the table, I am very concerned that this Special Session could be another "if you're not at the table, you're on the menu" edition of Maryland Politics.

A lot of sausage was made yesterday, and I'm sure we'll all found out more about that today, but one bit that did not make it through the grinder was Baltimore County's local bill to add elected members to their school board.  This is an item that seemed to have popular support, but was opposed by County Executive Kevin Kamenetz.  Makes you wonder if Howard County's reverse bill would have ever made it to a vote.

The General Assembly also passed a measure limiting new septic systems in rural Maryland, which was advocated for by Governor O'Malley.  Proponents of the bill note that Senate changes essentially put the power in the hands of the County governments with little power at the State level to overturn it.  This one will be something to watch in application.

After some chatter over at WB's place about confidence level in the Board of Education amongst teachers, Sara Toth has a piece noting that confidence has dropped from 77% to 60%.  I would be interested to know how a majority vote showing confidence in the Board resulted in the slate of non-incumbents endorsed by the HCEA.

Featured Blog Post of the Day: TJ expresses significant concern over the candidacy of Ann DeLacy and what can be expected if she is elected to the Board.  It seems odd that the HCEA has rejected the slate of incumbents under the banner of "dysfunctional" while endorsing someone who is acknowledged to be confrontational, aggressive, and sometimes controversial (i.e., "throwing stones").  If the endorsement is based entirely on her past experience with the union, that is fine, but you can expect to be called out on the inconsistent messaging.

That's all for today.  Have a great Tuesday doing what you love.