Civility in Elections? Nah, Why Bother

On April 4, an election was held in Wisconsin for a state Supreme Court seat. While the candidates carry no partisan labels, it was clear that the race was between liberal Janet Protasiewicz and conservative Daniel Kelly.

Protasiewicz won by a margin of 55%-45%. The result was not close.

Mr. Kelly in his post-election remarks was quite bitter. Instead of the normal civil congratulatory statement, regardless of whether the losing candidate really feels that way, Kelly stated:

“I wish…. I would be able to concede to a worthy opponent, but I do not have a worthy opponent to which I can concede.” Kelly went on to label Protasiewicz a “serial liar.”

Wow! In law there is such a thing as judicial temperament, that is the ability to be civil and reserved, regardless of circumstance. Kelly’s statements were not such an example.

On the same date, a runoff election was held for Mayor of Chicago. Brandon Johnson defeated Paul Vallas by a 51%-49% margin. The result was close.

Mr. Vallas in his concession comments was civil and gracious, stating:

“The only pathway forward in our city is together,” “…..It’s time for all Chicagoans to put aside their differences and work together to support the daunting work ahead for Chicago’s next mayor.”

That, Mr. Kelly, is how it should be done.

• Allan Opsitnick

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Putin vs. Ukraine (and the rest of us)

Vladimir Putin’s unprovoked and vicious attack on Ukraine continues. Media accounts refer to Putin as the President of Russia or an authoritarian leader. Nonsense. Putin is a dictator. Pure. Simple.

Yes, recent history is replete with dictators making war against innocent people in innocent lands. Likely my eastern European ancestry comes into play at this time.

Putin’s actions are causing death and destruction to the noble Ukrainian people as well as death and hardship to Russians. Putin cares not.

Much of the rest of the world, the US, Europe and beyond, are doing what can be done to punish Putin without going too far. A delicate and nuanced dance. Reports are that Putin is hiring mercenaries to assist his own forces in killing and destruction, is considering use of tactical nuclear weapons and is sacking some of his military leaders.

Is the situation improving or not? Who knows, but it continues.

Let’s all do what we can to aid the Ukrainian people, financially or otherwise. My son and I bought a pile of Jaromír Jágr’s virtual hockey tickets, proceeds going to Ukraine aid groups. We don’t necessarily have to make a financial contribution. It seems as though if we endure higher gas prices and food prices, caused partially because of the Putin war, without complaining, whining, which sends a signal to Putin and the Ukrainians, that we are about much more than our own existence and comfort.

The phrases war crimes and crimes against humanity are mentioned. It’s time to define what a war crime is and how these crimes are prosecuted.

• Allan Opsitnick

CANADA vs. USA, at least regarding elections

I was recently perusing my internet news feed and found a CBC article about an interesting election result for Parliament in Quebec province.

Patrick O’Hara defeated an incumbent member by 286 votes in recent national elections. O’Hara’s opponent conceded and congratulated him, but soon thereafter, based on a ballot box error giving O’Hara 410 votes, rather than the correct 40, filed a judicial appeal for recount. This recount gave the incumbent, Ms. Shanahan, 18,029 and Mr. O’Hara 18,017, a difference of 12.

O’Hara was informed that he lost the election driving to his home from an introductory program of Parliament, in Ottawa. Mr. O’Hara left me speechless with his comments in response, to wit:

“There’s a feeling of… what just happened? You’re in awe and shock.” Said Mr. O’Hara. He further stated, “Every vote counts and I’m living proof”, “…. And then you’re trying to figure out who are the 13 people that didn’t make it to the voting.”

Finally, the most powerful comment of all: it was a clean contest “before, during and after.”

Note Mr. O’Hara’s words. No claim of the election stolen, systems hacked, voter fraud and the like. It was a clean contest. This from a candidate, first declared the winner, but losing the election.

Would that reaction have occurred in the US? A civil response, respecting the electoral process? I vote no way. That being said, Mr. O’Hara, if I can ever vote for you, you’ll have my vote, with respect and admiration.

• Allan Opsitnick

VETERANS DAY THOUGHTS

According to the Department of Veterans Affairs, of the 16 million World War II Veterans, about 240,000 survive today and, on average, 234 die each day.

I am lucky. My father, Joe Opsitnick, a WWII Navy vet, is alive and vital at 97. I was privileged to drive dad in the Pittsburgh Veterans Day parade on November 11 and then spend the weekend with him, my son and my cousins on an annual guys cards and more weekend.

My childrens’ other grandfather, John LoAlbo, deceased, was a WWII Navy vet as well, being born about six weeks after dad. My wife’s father, Joseph Kmetz, deceased, was a WWII Army combat vet.

It was said of the World War II generation that these were ordinary people performing extraordinary things. One cannot disagree with that statement.

There have been numerous armed conflicts after WW II and the service of all personnel must be recognized and honored.

– Allan Opsitnick

YER OUT!!!! of $500,000

As baseball season draws to a close, a brief discussion is in order regarding the intersection of law and our national pastime.

Early in the season, a defamation suit brought by veteran umpire Joe West against former major leaguer Paul LoDuca, a catcher with the New York Mets, concluded with a $500,000 award in favor of West and against LoDuca in the New York Supreme Court. Here’s what happened.

On a 2019 podcast, LoDuca said that West gave a larger strike zone to Mets’ pitcher Billy Wagner, in exchange for West using Wagner’s 1957 Chevy, when West was in town. According to LoDuca, when Wagner was on the mound and West and LoDuca were behind the plate, numerous pitches, well outside of the strike zone we called strikes.

West learned of this statement and sued. West met the elements of a successful defamation claim. The statement was untrue, the statement was “published”, i.e., made on a podcast and therefore broadcast along the internet, and harm occurred. West established that he was behind the plate on only 2 occasions in 2006 and 2007, the only seasons where LoDuca and Wager were Mets teammates and Wagner did not pitch on either occasion.

West claimed that the defamatory statement would hurt his changes of enshrinement into the Baseball Hall of Fame. West has been an MLB Umpire since 1976. The Court agreed, awarding West $250,000 for past mental anguish and $250,000 to “compensate for expenses he will need to incur in retaining a public relations firm to formulate and operationalize a sufficient reputation remediation plan.”

One should watch one’s words on a podcast.

PS – Another defamation note. Eric Coomer, an executive with Dominion Voting Systems, a major supplier of voting systems throughout the US, sued the Newsmax company for defamation. Newsmax claimed that Coomer took part in an “Antifa conference call” to fix last year’s presidential election. Coomer and Newsmax settled this case.

Newsmax issued a retraction and apology on its website, confirming that there was no evidence to its claim regarding Coomer. The full terms of the settlement between Coomer and Newsmax were not revealed, common in such cases.

Allan Opsitnick

WHOOPS!

“To err is human, to forgive is divine.” – Alexander Pope.

Let us consider the first part of Pope’s phrase. We all make mistakes; some bigger than others. Does a day pass when we make a mistake, error, boo boo, screw up or faux pas? Ok, you understand. For me, my first goof up of the day is often before I finish my morning coffee.

But we can all take solace from this monumental error. Citibank erroneously wired $500 million, by accident. And cannot recover it. Yes, that’s right. Half a billion dollars!

Citibank personnel accidentally wired almost $500 million to lenders of cosmetic maker Revlon. Citibank was Revlon’s loan agent. The actual error was around $900 million, but some firms returned the erroneous deposits. As to the $500 million payment, it was to be “only” an $8 million interest payment. Instead, the huge improper overpayment was applied to Revlon’s loans, being treated as a monstrous pre-payment. This, despite a “six eyes” security safeguard, where three people were required to review and approve the wire transfer. Despite the security measures, a contractor checked the wrong box on a digital payment form. Whoops!

Citibank sued in Federal Court in New York and lost, based on a New York rule of law known as the “discharge for value defense”. As the money was due the lenders, the mistaken overpayment did not have to be returned but was applied to the underlying debt. The Court’s ruling is on appeal and the money is frozen, but nonetheless, likely some Citibank folks are looking for employment elsewhere.

I can’t speak for you, but the fact that I didn’t shovel some snow from the walk is not such a big thing, is it?

• Allan Opsitnick

HAPPY 2021!

THE MOST WONDERFUL TIME OF THE YEAR!

We all agree that 2020 has been… trying (there are more descriptive words and phrases, but let’s leave at that). But, I just experienced an event that puts our holiday season in perfect perspective.

We just completed an adoption hearing. The adoptee is a young lady, of Pre-K age, who has been with a loving and nuturing family (mom, dad and big sister) for quite some time. Our hearing was, of course virtual, but nonetheless was attended by 20 or so family and friends. Over the course of half an hour, heart-shaped hand signs abounded, as did signs, balloons and a few tears. Our Judge indicated that it was his great pleasure to enter the Decree approving adoption.

So, for however brief a period of the hearing, kindness, love and peace prevailed. Nothing more be said.

Allan Opsitnick

MY LAST ELECTIONS BLOG POST… until the next one…

Many of you know that I’ve spent most of my legal career involved with elections administration and law. So, after resolving some 700 Provisional Ballot challenges at a Saturday hearing, on November 14th, I have some thoughts:

1. AIN’T NO ELECTION FRAUD!!! Not in Allegheny County, PA, the other 66 PA Counties or anywhere else in the US where we voted on November 3. Baseless allegations and reports to the contrary, there might be inadvertent errors, which will be corrected upon final tabulation, but no fraud, scheme, conspiracy, skullduggery and/or chicanery. None
2. Anyone who assets that there was fraud in last week’s elections is a lying fool, to assert these things or believe these things
3. It might be good for business, for media or others but these fraud allegations, insult and defame tens of thousands of people, who have taken sworn oaths, to process voters and votes properly, according to law. I count myself as one of the people who have been defamed and whose integrity has been questioned
4. One may not like the results of an election, but just because “your” candidate lost, does not indicate fraud. Consider the simple proposition that the candidate that receives the most votes wins the election. Basic functioning of the American electoral system
5. Attacks on the validity of our elections system over the years has and continues to undermine confidence in our system of elections and vote tallying
6. Elections are like buses. Another one is coming along, with a new set of candidates and issues

With Thanksgiving fast approaching, do your best to appreciate and protect our system of selecting our representatives, locally and nationally. Please.

– Allan Opsitnick

Q: THE POLLS HAVE CLOSED. NOW WHAT? A: YOUR PANTS… KEEP THEM ON!!!!

Media reports and statements of public officials are creating an avalanche of perception that whatever vote totals exist on Tuesday night are somehow dispositive of the November 3 Election. NOT EVEN CLOSE TO TRUE.

Every state and each of Pennsylvania’s 67 Counties has a formal vote tabulation process. Pennsylvania requires that the Friday after the Election a “Return Board” be sworn and seated to commence the formal and official vote count. In Allegheny County, the Return Board is comprised of Elections Division employees for the most part.
Does that mean that everything that we see and hear on Tuesday night, into Wednesday, is unofficial? YES!

Taking Allegheny County, PA for example, Tuesday begins a scanning and count of approximately 350,000 mail-in ballots, that are securely stored, in addition to a like number of in person votes on Election Day, with polls remaining open until 8:00 PM. While this is a monumental task and will take some time, it is likely that by end of day Wednesday these votes will be tabulated and posted on the Elections web page. BUT WAIT,THERE’S MORE!

Certain military ballots need not be returned for an additional week to be counted. Thousands of Provisional Ballots that will be cast on Election Day will be examined by the Return Board to see if they are counted and, if so, to what extent. And, at least for Tuesday’s Presidential Election, the PA Supreme Court has ruled that mail-in ballots received after the 8:00 PM close of polls, but postmarked on or before November 3, and received by November 6, at 5:00 PM shall be counted. That count, of course, cannot begin before Friday at 5:00.

You get the picture, I certainly hope. There is much to do after the whistle blows at 8:00 PM on Tuesday. So, as always, patience is a virtue.

Allan Opsitnick