Unqualified Win in Qualified Immunity Cases

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The Supreme Court resolves circuit splits (where federal circuit courts of appeals have decided the same issue differently) and isn’t an error correcting Court.  But you would not know that if you looked just at the Court’s two unanimous qualified immunity decided this week.

State and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The errors in these two cases were obvious.  In the first case discussed below the lower court did not so much as discuss the qualified immunity standard when denying qualified immunity.  In the second case discussed below the dissent in the lower court decision warned:  “Our court’s track record in deciding qualified immunity cases is far from exemplary, and with this decision, I am concerned that our storied losing streak will continue.”

The State and Local Legal Center (SLLC) filed amicus briefs in both cases which NLC joined.  Arkansas Municipal League attorney Mike Mosley briefed and argued the first case discussed below.

Deadly Force High Speed Chase

In Plumhoff v. Rickard the Court held 7-2 that police officers didn’t violate the Fourth Amendment when they shot and killed the driver of a fleeing vehicle to end a dangerous car chase.  Alternatively, the Court unanimously concluded the officers were entitled to qualified immunity.

Donald Rickard drove away after being pulled over because his vehicle had only one operating headlight and was pursued by police.  He drove over 100 miles an hour and passed more than two dozen vehicles before exiting the highway where he made contact with three police cars.  Rickard’s tires were spinning and his car was rocking back and forth when Officer Plumhoff fired three shots into his car.  Rickard then reversed his car, nearly hitting an officer on foot, and again fled.  Officers fired 12 shots more killing Rickard and his passenger.

Rickard’s surviving daughter argued that the Fourth Amendment did not allow the police to use deadly force to end the chase and that even if police were permitted to fire their weapons, they fired too many shots. The Court disagreed concluding the use of deadly force was reasonable because “[u]nder the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.”  The number of shots wasn’t unreasonable because “if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”

The Court concluded that even if the use of deadly force in this case violated the Fourth Amendment the officers would be entitled to qualified immunity.  The most on point Supreme Court case at the time of this case granted qualified immunity where the facts were less favorable to the officer than the facts in this case.  So it was not clearly established the force in this case was unreasonable.

The SLLC’s amicus brief argued that the lower court failed to properly apply qualified immunity.  The Court noted that the lower court “said nothing about whether the officers violated clearly established law,” when denying the officers qualified immunity.

Viewpoint Discrimination when Moving Protesters

In Wood v. Moss, the Court unanimously granted qualified immunity to two Secret Service agents who moved anti-Bush protesters a block further from the President than pro-Bush supporters.

Pro- and anti-President Bush demonstrators had assembled on opposite sides of the street on which President Bush’s motorcade was supposed to travel to take him to a cottage in Jacksonville, Oregon, for the evening. The President made a last-minute decision to have dinner at the outdoor patio dining area of the Jacksonville Inn.  Learning of the route change, protesters moved down the street in front of the Inn.  Secret Service agents moved them two blocks down the street, about a block further away from the Inn than the supporters.  The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated.  The agents claimed they were entitled to qualified immunity.

Justice Ginsburg had little trouble concluding the officers in this case were entitled to qualified immunity:  “No decision of this Court so much as hinted that their on-the-spot action was unlawful because they failed to keep the protesters and supporters, throughout the episode, equidistant from the President.”

The SLLC’s amicus brief encouraged the Court to tour downtown Jacksonville using Google Maps Street View.  What the Justices would discover there is a parking lot adjacent to the Jacksonville Inn’s outdoor patio which the anti-Bush protesters would have had direct access to had they not been moved two blocks away.  Pro-Bush demonstrators had no direct access to the Inn where they were gathered because the side of the Inn they were facing was totally blocked by another building.  The Court observed these geographic features when concluding that the agents had a security-based rationale for moving the anti-Bush protesters out of weapons range of the President.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Roadmap for Constitutional Prayer at City Council Meetings

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Justice Kennedy is better known for his rhetorical flair than his practical guidance.  But his majority opinion in Town of Greece v. Galloway provides a roadmap cities can follow to stay out of trouble when beginning city council meetings with a prayer.

While anyone could give a prayer at a Town of Greece board meeting, from 1999-2007 all pray givers were Christian.  Some referred to Jesus in their prayers.  The town recruited “board chaplains” from a local directory and nearly all congregations were Christian.  Clergy crafted their own messages without any input from the town.

Susan Galloway and Linda Stephens argued that legislative prayer cannot contain sectarian language or themes such as the “death, resurrection, and ascension of the Savior Jesus Christ.”  They also argued that prayers before town board meetings “create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.”  Justice Kennedy’s 5-4 majority opinion rejected both arguments.

In Marsh v. Chambers, in 1983, the Court held the Nebraska Legislature didn’t violate the First Amendment by opening its sessions with a prayer delivered by a chaplain paid from state funds. The proposition that Marsh allows only nonsectarian prayer “is irreconcilable with the facts of Marsh and with its holding and reasoning.”

The confusion that Marsh might allow only nonsectarian prayers was caused by a footnote explaining that the chaplain in Marsh stopped referring to Christ after a Jewish state legislator complained.   But this footnote, the Court explained, merely observed that the minister was trying to appeal to or not offend those he served.

Now for the first piece of practical advice.  The Court warned, sectarian prayers can go too far “[i]f the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion.”

Galloway and Stephens argued that in terms of coercion, prayer in the town board meeting context is fundamentally different than prayer in the state legislative context because citizens can only address state legislatures by invitation, but citizens often attend town board meetings because they have business before the board. But prayers in both contexts aren’t intended for the public but for the lawmakers “who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing.”

Here is the second piece of practical advice: Coercion could be possible though “if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity.”

It is noteworthy that this decision will have the biggest impact in the Second Circuit (Connecticut, New York, and Vermont) and the Fourth Circuit (Maryland, Virginia, West Virginia, North Carolina, and South Carolina).  The Second Circuit had declared Greece’s prayer practice unconstitutional focusing on the Christian nature of most of the prayers.  The Fourth Circuit in 2011 had ruled that only nonsectarian prayer at local board meetings is constitutional.

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About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

A Term of Recurring Themes

Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

If you follow the Supreme Court’s docket, one theme from this term is unmistakable:  patent cases.  The Court has taken at least five patent cases (out of less than 70).  But patents don’t worry the State and Local Legal Center (SLLC).  Qualified immunity and protesters do.  And the Court has been immersed in both of these issues too.

Earlier this month the SLLC filed an amicus brief in a qualified immunity case involving deadly force, which NLC signed onto.  Earlier in the term the SLLC filed an amicus brief in a case involving a 35-foot buffer zone around abortion clinics adopted by the Massachusetts legislature to keep protesters from crowding, which NLC also signed onto.  Now the themes of qualified immunity and protesters collide in Wood v. Moss.  The State and Local Legal Center (SLLC) filed an amicus brief in this case, which again, NLC joined.

In this case, the Court will decide whether Secret Service agents engaged in unconstitutional viewpoint discrimination when they moved anti-Bush protesters about one block further from the President than pro-Bush demonstrators.  The Court also will decide whether the lower court evaluated the viewpoint discrimination claim at too high a level of generality when determining whether the agents should have been granted qualified immunity.

Pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon.  But when the President made an unexpected stop for dinner at the Jacksonville Inn’s outdoor patio, Secret Service agents, assisted by state and local police officers, moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators.

The anti-Bush protesters sued two Secret Service agents claiming their First Amendment right to be free from viewpoint discrimination had been violated.  The Ninth Circuit denied the agents qualified immunity.  Government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”

The Supreme Court will decide whether the lower court evaluated the qualified immunity question in this case too generally.  The Ninth Circuit focused on its conclusion that the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators.  The Court also will decide whether the anti-Bush protesters have adequately claimed viewpoint discrimination when there was an obvious security-based rationale for moving them:  they were closer to the President.

The SLLC’s amicus brief encourages the Court to tour downtown Jacksonville using Google Maps Street View.  What the Justices will discover is that there is a parking lot adjacent to the Jacksonville Inn’s outdoor patio which the anti-Bush protesters would have had direct access to had they not been moved a block away.  Pro-Bush demonstrators had no direct access to the Inn where they were gathered because the side of the Inn they were facing was totally blocked by another building.

The SLLC’s brief also argues that when the safety of the President is at stake, police may consider the content of speech.  Finally, the brief argues that the lower court evaluated the qualified immunity question in this case without consideration of the facts, so, too generally.

Oral argument will be March 26.  The Court will issue an opinion by the end of June.

NLC Supports Arkansas League before the Supreme Court

Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

To have a case before the United States Supreme Court is quite an honor for most lawyers, and Michael Mosley is no exception. On March 4th, Arkansas Municipal League Attorney Michael Mosley will argue a case that he has been working on for almost a decade before the nine Justices. In the case, Plumhoff v. Rickard, the Supreme Court will decide whether police officers are entitled to qualified immunity for the use of deadly force in a high speed chase. The State and Local Legal Center (SLLC) filed an amicus brief, which NLC joined.

A quick refresher on qualified immunity: state and local government officials can be sued for financial damages in their individual capacity if they violate a person’s constitutional rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.” Qualified immunity is intended to protect “all but the plainly incompetent or those who knowingly violate the law.”

In July 2004, police officers shot and killed Donald Rickard and his passenger after Rickard led police on a high-speed chase. Their families sought money damages claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.

The Supreme Court will decide whether the Sixth Circuit properly denied qualified immunity by distinguishing this case, which arose in 2004, from a 2007 Supreme Court decision. The Court also will decide whether qualified immunity should be denied based on the facts of this case. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer.

Mosley, who is representing the police officers, expressed hope that “the Supreme Court will rule that my clients’ conduct was reasonable under the Fourth Amendment.”

The SLLC’s brief argues that the Supreme Court should rule as follows: officers retain qualified immunity from Fourth Amendment force claims so long as it is arguable, on the historical facts most favorable to the plaintiff, that the force was reasonable. In evaluating immunity, a court must adopt the inferences that a reasonable officer could arguably draw from the facts, regardless of whether those inferences are factual or legal. It is a legal question whether—based on the historical facts, the inferences an officer could arguably draw from them, and clearly established law—only a plainly incompetent officer could conclude that force was reasonable.

The National Conference of State Legislatures, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors and the International Municipal Lawyers Association also signed onto the SLLC’s brief.

The Supreme Court will issue an opinion in this case by June 30, 2014.

NLC Joins Public Safety Buffer Zone Case

Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

It looks like an abortion case…but it really isn’t.  It just happens to have come up in the abortion clinic context.   It’s actually a speech case; a time, place, and manner case.  And local governments use speech buffer zones all the time in many contexts.  So a lot could be a stake in this case.

The Supreme Court will decide in McCullen v. Coakley whether a Massachusetts statute prohibiting speech within 35-feet of a reproductive health care facility violates the First Amendment.  The State and Local Legal Center (SLLC) filed an amicus brief in this case, which NLC signed onto.

Massachusetts law initially allowed protesters to come within six feet of those entering a clinic, within an 18-foot buffer zone around the clinic.  Protesters would crowd six feet from a clinic door, making entry into the clinic difficult and intimidating.  In 2007, Massachusetts adopted a 35-foot fixed buffer zone around clinics.  The First Circuit held that this statute is a constitutional time, place, and manner regulation of speech because numerous communication channels remain available to protesters.

The SLLC’s brief points out that how the Court rules in this case could affect state and local government’s ability to regulate speech to protect public safety in many contexts.  For example, lower courts have upheld buffer zones to prevent congestion at special events and places that regularly draw crowds (funerals, for instance).  These buffer zones and many others may be in jeopardy if the Court rules against Massachusetts.

The National Association of Counties, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association also joined this brief.

Oral argument has been scheduled for January 15.  The Supreme Court will issue an opinion in this case by June 30, 2014. 

A Focus on What Divides Us

Democracy is messy. Big surprise! There are no philosopher kings with boundless wisdom available to make decisions for us. We are on our own and each citizen must decide for him or herself what is truth and falsehood and what is reasonable or what is unacceptable.

Battles between neighborhood residents and real estate developers are at this moment playing themselves out in cities across the country. Literally in my back yard, the fight in which I am most interested is over the use of a public school site in a mixed residential-commercial neighborhood which also is part of an historic district. Add that the centerpiece of the controversy is the development’s proximity to the recently (2009) renovated farmers market originally completed in 1873 and you get some sense of the scope of the challenge.

At its core, the battle is over the character of my Washington, D.C., neighborhood – an existing mixed-use and transit-connected neighborhood a mere seven blocks from the U. S. Capitol building. In contrast to the orderly street grid laid out by Pierre L’Enfant, the issues in this case are far from simple.

  • How dense is too dense and what is the proper proportion of mass to density?
  • How much parking is required for a development less than 300 yards from a public transit stop?
  • What is the right mix between residential, retail and other commercial space uses?
  • Will a planning process be allowed to reach its own conclusion or will one side push for legislative or judicial intervention?
  • What protections are essential when the historic structure at the center of a thriving neighborhood will be impacted by whatever development is finally decided upon?
  • What should neighbors expect from each other when lines are drawn and sides are chosen over an issue that undoubtedly will shape the future of civilization and all human kind as we know it from now until kingdom come?

The institutions of local government – advisory commissions, planning and zoning boards and city council committees – will have the chance to address these questions over the coming weeks. I am just idealistic enough to believe that a transparent process can harness competing interests and yield an outcome that accepts the will of a majority while protecting the views, interests and rights of a minority.

That hope is boosted by the latest writing from E. J. Dionne. In his new book, Our Divided Political Heart, Dionne suggests that our society has a proven capacity to find balance between the competing needs of the individual and the community. This theory echoes the view of Robert Putnam who also expresses his faith in the role of individuals and neighborhood groups to carry out efforts that achieve civic renewal. Now all that needs to be done is for the competing parties to agree to the size and shape of the bargaining table.

(Re)Imagining the Social Fabric of Our Cities

I staffed my first Congressional City Conference this past weekend.  As always, I knew that I’d blog about some exciting session or speaker, and throughout the weekend I was eagerly awaiting a sign that THIS was it—this was the ‘thing’ I should reflect on.  After the morning general session I was sure I’d write a piece on the highly entertaining tap dance between former RNC chair Ed Gillespie and former DNC chair Terry McAuliffe; then I was convinced that Dan Gilmartin’s (Michigan Municipal League) thoughtful views on place-making and revitalization would be front and center on this post.  Unsure of how to pull together and translate the wealth of information from this conference, I sat at the back of the closing general session and listened as David Brooks, a New York Times Op-Ed columnist, addressed the large ballroom filled mayors and other elected officials.  That’s when I knew to not focus on a program or event, but one simple, yet extraordinarily powerful message that was delivered by Brooks—a message that seems straightforward, and that we’ve heard many variations of in the past, but one that has tremendous implications for how individuals’ behaviors can influence and shape group (think: neighborhood, city, world) dynamics:

“People learn from the people they love.”

If you were at the conference and had a chance to attend this session, you might be wondering why I focus on one of the last, seemingly trivial things he said, especially since much of his talk leading up to this statement – about civility, overconfidence, consumption patterns, lack of trust in government, and polarization of parties – seems directly relevant to elected officials.  And if you weren’t at the conference, you’re probably wondering what love’s got to do with it…

Brooks aptly made his point when he stated that we mimic each other, making our network of communities more important than the single, “rational,” utility- maximizing individual’s decision to do one thing or another.  Essentially, he is referring to social capital, those intricate networks that are built within and amongst people.  And in cities, places with a high density of relationships, these networks have a cyclical effect that is either highly productive or highly disastrous.  If we re-examine the message above, we recognize a simple fact—nurturing these networks of people (people who love and care for each other) contributes directly to how quickly and effectively local elected officials are able to affect change in their communities.

To illustrate this concept, I refer to one of Brooks’ own op-ed pieces titled “The Materialist Fallacy,” which discusses the deterioration of our social fabric since the 1960s, and the necessity for “social repair” based on sociological thinking.  In it, he spends time highlighting the fact that– regardless of how social disorganization starts– it is perpetuated and maintained by those networks that we belong to.  He states, “…while individuals are to be held responsible for their behavior, social context is more powerful than we thought. If any of us grew up in a neighborhood where a third of the men dropped out of school, we’d be much worse off, too.” This statement speaks volumes to how we (re)imagine our cities. If social networks are so powerful in cultivating particular behaviors, one could argue that it is even more important for elected officials to focus on enhancing and cultivating those (positive) relationships in their city as it is to simply provide the physical infrastructure and expect changes in behavior, attitude, and perception.   At its basis, this is conceptually similar to the broken window theory that many of us are quite familiar with—a disordered built environment only perpetuates more disorder.  But how often do we think about the ways that this same idea can be applied to the less visible human environment?

In current times, the myriad issues that local elected officials are expected to manage—including tight fiscal constraints and federal inaction – are only exacerbated by an increasing cynicism of government’s ability to do anything meaningful.  That’s why Brooks’ one-liner is powerful and pertinent.  How can elected officials nurture and strengthen relationships that already exist in neighborhoods and cities, specifically to re-engage and build trust with residents as a means to shape the effectiveness of city services (such as infrastructure and education)?

If, as Brooks posits, the geographic density of people (and relationships) dramatically affects individual and group behaviors, then we live in exciting times indeed.  In a powerful short film titled Thinking Cities, Mathieu Lefevre (Executive Director of the New Cities Foundation) states that for the first time in history, 52% of the world’s population is currently living in cities, with 200,000 new urban dwellers every day. This simple statistic, in combination with the technological advances that we have seen in the last decade (the video has good examples), gives elected officials a unique opportunity to more directly work on strengthening and capitalizing on the positive relationships in their communities.

So… I’d say love’s got everything to do with it.

Innovation and Cities: Reframing the Dialogue

The first installment in a series on “Innovation and Cities”

These are tough times for cities, economically and politically.  Our own research points to a period of managed retrenchment where city leaders are confronted with undesirable choices — cuts in vital services, laying off personnel, delaying needed infrastructure investments, to name a few.  But, times like these often open opportunities for innovation, to rethink the roles and structures of cities.  “Never waste a crisis” as the oft-cited saying goes.

But, what is innovation? An idea? An invention of a new practice?  The word is overused and usually lacks definition.  At the Center for Research and Innovation, our definition is that innovation is a process by which new ideas are generated, implemented in practice, and widely adopted.

Unfortunately, innovation in cities is challenged by a national malaise about the role of government or by advocates that present city leaders with trendy or fad-ish options, rather than guidance for addressing issues most likely to improve the success of cities in the future.

Not wasting the current crisis and fostering innovation in cities requires that we reframe much of the current dialogue about the forces shaping our communities. The paragraphs below briefly suggest reframing conversations and debates about a number of issues in order to provide a platform for the future success of cities.

Education and talent are oft-cited cures for economic development in cities, but too much attention is focused on attracting talent – stealing educated and skilled people from other places, rather than improving systems and growing talent in our own communities.  Too much emphasis is also placed on the notion that everyone needs a college education to be successful, when in fact there is a high demand for skilled workers with different types of advanced or technical training.

-  Nowhere is the disconnect between national dialogue and local reality more stark than around the topic of infrastructure investment. Local leaders across the country know that there is a huge backlog of infrastructure maintenance and investment waiting to be leveraged for economic development and competitiveness. Yet, national action is confounded by experts and politicians refuting the economic benefits of improving the nation’s infrastructure.

-  Some of the recent popular writing about cities offers compelling, but limited formulas for future success, suggesting certain types of cities will win, or succeed more than others.  But, if this country’s population grows anywhere near projections, cities of all types will be better positioned for success by offering a diversity of choices, in local economies, housing, and amenities.

-  An increasing amount of confusion and misinformation surrounds the word “sustainability.” The confusion often comes from efforts to define sustainability as encompassing pretty much everything.  The misinformation is more recent – going so far as to suggest diabolical international conspiracies (a notion pretty laughable to anyone who’s attended an international meeting).  But, at its core, sustainability is about cities and other actors improving stewardship of their resources – hardly an objectionable aspiration.

-  Recent dialogue about improving governance has focused on transparency, but has been too focused on efforts to make government data available on websites.  More openly available data is a small piece of improving governance.  Instead, we need to focus on strengthening local democracy and civic capacity by actually engaging the public in the process of governing.

-  Local governments are increasingly turning to interlocal and regional approaches to service delivery as a means of gaining efficiencies and cutting costs. But, as with previous movements in “regionalism,” we need to heed the words of NLC’s Bill Barnes, “regionalism is the question, not the answer” – city leaders should ask when and how regional approaches will help them solve problems.

-  Much of the attention to public sector is negative – unfavorable comparisons with private sector benefits, reports of golden retirement packages, and collective bargaining battles.  We need to reframe this debate around creating a vital public sector.  The demographics of the public sector point to a coming brain drain and many government systems are structured to chase away talent rather than attract the best and the brightest to public service.

-  Not surprisingly, fiscal difficulties facing local governments are generating increasing attention to tax and spending issues, including sky-is-falling predictions of widespread municipal bankruptcies and defaults . We need to reframe this debate, in the words of University of Illinois at Chicago Professor Mike Pagano, around creating “a new social compact” that marries realistic expectations about government capacities with citizen preferences. Long-held notions of “core services” might, when challenged, reveal new or different preferences.

Much more could, and will be, written or said about any of the debates outlined in brief here.  My colleagues and I at the Center for Research and Innovation will expand upon the thoughts above in the week to come.  We’ll also publish a related blog series analyzing 2012 mayoral State of the City speeches.  As always, we welcome your input, suggestions, and opinions.

Broken Politics Does Not Diminish the Value of Government

A startling NBC/Wall Street Journal poll (January 22-24, 2012) indicates that 80 percent of Americans disapprove the job performance of Congress. Indeed, attitudes about government generally, whether Congress, the President, cabinet departments or agencies, are generally unfavorable. Research work conducted by Public Works Partners www.publicworkspartners.net illuminates a bit more of the truth behind these figures.

The first observation is that attitudes about government tend to reflect a distant institution dimly understood. More importantly, government is immediately equated with contentious partisan politics, with taxation and with services delivered to customers much like candy bars are dispensed from a vending machine.

The good news is that at a deeper level government and citizenship are valued. Government is viewed favorably as a vehicle for collective action such as national defense. It also provides systems and structures that benefit society as a whole such as courts and a unified currency.

The paradox is that we value government but despise the political process.  A survey by the Pew Center for People and the Press finds that when it comes to Congress the problem with the institution is the members themselves, not the political system. In assessing Congress, 55% of the public says they think the system can work fine; it’s the members that are the problem (http://bit.ly/uEax4S).

This is nothing new of course. The citizenry have been supporting their government but hating their public decision making process since the founding of the Republic.  The ink on the U.S. Constitution was not yet dry when Alexander Hamilton, James Madison and John Jay began papering citizens in the State of New York with the essays that we know collectively today as The Federalist Papers. (http://thomas.loc.gov/home/histdox/fedpapers.html)

At the founding, the need for government was an accepted principle. “Nothing is more certain than the indispensable necessity of government, and it is equally undeniable, that whenever and however it is instituted, the people must cede to it some of their natural rights in order to vest it with requisite powers,” wrote Jay in Federalist #2.

But once past that basic hurdle, things get messy; the passions of individuals play upon the system. Madison in Federalist #10 reminds us, “Complaints are everywhere heard from our most considerate and virtuous citizens . . . that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

The political process is all about “faction;” the interests of one group of persons as compared to another group of persons. Madison gives full voice to matters about factions in Federalist #10. “A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.” This is to say, disharmony is unavoidable in a free society.

Politics is the art of the possible; of compromise. As such, some will always be disaffected. But the words of John Jay in Federalist #2 can help today’s elected policy makers focus on the values citizens place on the basic institutions of government. “A strong sense of the value and blessings of union induced the people, at a very early period, to institute a federal government to preserve and perpetuate it. They formed it almost as soon as they had a political existence; nay, at a time when their habitations were in flames, [and] when many of their citizens were bleeding.”

Local government leaders are political creatures. But to the extent that they can articulate the value and significance of governmental systems and structures, their efforts to instill strong attachments of citizenship and participation in decision making will be rewarded.