January 17, 2004
This audit’s for you

Just because an organization is allegedly non-profit doesn’t mean that some folks won’t try to make a nice piece of change from it. That’s why the phrase “doing well by doing good” has such resonance for the more practical (if not cynical) among us.

That little fact of life is also among the reasons why the announcement that the IRS will conduct an intensive audit of The Nature Conservancy is welcome news. 

As one of the largest environmental organizations on the planet, the TNC has done a lot of good. For example, it has a major presence as a landowner/property manager of thousands of acres of pristine land throughout the Delmarva Peninsula, especially among the barrier islands on the Atlantic Coast in Virginia.

Their Delaware Bay Shores initiative has already helped preserve 5,000 acres for critical habitat for creatures such as horseshoe crabs, whose egg-laying each spring is a major event for migratory birds on the Atlantic Flyway.

On the other hand, as the Washington Post showed in its recent series, some of TNC’s activities carry with them the brutal reminder that the charity is still run by humans, with all the frailties that fact implies.

The TNC website publicly proclaims the corporation’s intent to cooperate fully with the IRS on the audit, which shows that its managers are no dummies.

They realize that the IRS review provides them with a good opportunity to clear up past mistakes and mismanagement, to provide assurances to their donor base that the current management is following the rules, and to continue to maintain the organization’s tax-free status. 

From a political perspective, it also makes sense for the Bush Administration to begin to upgrade IRS audit activities relating to public interest non-profit organizations (the so-called NGOs) by starting with a relatively apolitical charity such as TNC.

I can well imagine the howls from certain quarters if the first major audit began with other, more partisan entities.

UPDATE: David Sucher's thoughtful discussion on this subject is accompanied by some equally impressive comments from his site's visitors.

BTW, I'm no fan of politically motivated IRS audits, no matter who's the "beneficiary" of heightened tax return scrutiny. This one seems deserved regardless of one's sentiments about TNC, based on the disclosures in the WaPo series.

January 16, 2004
A flair for understatement

Firefighters have some special features to their work that most of us don’t. 

For example, they usually work a schedule that requires them to cook, eat, and sleep together. The dangers they face also require intense teamwork skills to put out the fires and remain safe.  

The constant close proximity, shared dangers, and shared home-like responsibilities often create a sense of family among the firefighters. 

In Keyes, California, however, a few members of the family are making it a bit hard on their fellow firefighters:

A firefighter moonlighting as a porn star for a little extra cash has caused a stir in this small rural town, officials said.

According to the Associated Press, firefighter Alexa Jones operates a pornographic website, fully supported by her husband, who just happens to be the Assistant Chief. 

Seventeen other firefighters in the 25-member unit have now resigned to protest her entertainment career. The departing group does not include her husband or her father-in-law, who just happens to be the Chief.  

Captain Herb Collier, one of those who quit, reportedly said that the firefighters left the department because the Jones couple kept discussing their pornography business while on the job at the firehouse. 

There were a few other issues relating to the controversy, but in explaining the mass resignations Collier exhibited a remarkable flair for understatement:

"We feel pretty strongly that there needs to be a separation between the pornography and the fire service," Collier said.

It also appears that the seventeen firefighters chose a particularly vivid means to show how strong they feel.

I wonder how long it will take for the programming folks at Jerry Springer to do a special on-location edition of their show in Keyes.

Seems like the perfect ratings-killer for sweeps week, doesn't it?

January 15, 2004
Federalism and deal-making

Yesterday’s Supreme Court decision in Frew v. Hawkins gives two fairly gentle reminders about federalism and deal-making, in the context of consent decrees over federal legislation.

First, when the leadership of a state government decides to settle a lawsuit about its compliance with federal law, the resulting consent decree reflects the court’s continuing authority to enforce its injunctions, and is not subject to veto by a subsequent administration’s incantation of Eleventh Amendment immunity.

Second, although a deal’s a deal, the Federal courts should be ready to listen if a state can show that there’s a good reason for changing the terms, or even calling it off entirely.

The case originated from a prior suit against state officials for prospective injunctive relief over how Texas complied with an aspect of the Medicaid program. The program was voluntary, but once the state chose to participate in it, Texas had to adhere to its requirements.

The state officials eventually agreed to a highly detailed consent decree over several aspects of the program, which the district court approved. A dispute arose a few years later about whether Texas was keeping its end of the court-approved bargain.

The state officials argued that since the new dispute centered on aspects of the decree and not on a direct violation of the Medicaid program, the Eleventh Amendment barred the claims.

Writing for the unanimous Court, Justice Kennedy disagreed: 

The decree is a federal court order that springs from a federal dispute and furthers the objectives of federal law….The decree states that it creates "a mandatory, enforceable obligation."… Enforcing the agreement does not violate the Eleventh Amendment.

On the other hand, subsequent state administrations are not necessarily stuck with the consent decrees entered into by their predecessors, no matter what. After all, Federal Rule of Civil Procedure 65(b)(5) permits the revision or withdrawal of injunctive relief when "it is no longer equitable that the judgment should have prospective application."

The opinion concludes with this practical advice, which I hope the states and the Federal judiciary keep in mind for future use:

The federal court must exercise its equitable powers to ensure that when the objects of the decree have been attained, responsibility for discharging the State's obligations is returned promptly to the State and its officials. As public servants, the officials of the State must be presumed to have a high degree of competence in deciding how best to discharge their governmental responsibilities. A State, in the ordinary course, depends upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources. The basic obligations of federal law may remain the same, but the precise manner of their discharge may not. If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.

Without directly saying so, the case also reminds state government attorneys to negotiate within the consent decree the terms for its eventual dissolution or amendment.

After all, nothing on this earth lasts forever--not even a federal consent decree.

January 15, 2004
The pause that didn’t refresh

Hell hath no fury like a vacationer prevented from vacationing. 

Darren Lee had an airplane ticket on American Airlines for a trip from New York to London.

Unfortunately, his flight was delayed and eventually canceled, which put a bit of a damper on Lee’s vacation plans.

There were several things Lee didn’t like about the situation. According to the class action suit he filed under the Warsaw Convention, Lee 

Allege[d] American Airlines inconvenienced him by forcing him to spend time in a terminal without adequate food, water, restroom facilities and information regarding the status of his flight, by forcing him to spend the night in a dirty, substandard and unsafe motel room, and caused him to lose a full day of a memorable refreshing vacation.

The only problem is that the Warsaw Convention just doesn’t provide for any monetary compensation for the loss of a "memorable refreshing vacation." Recovery under the Convention is limited to economic losses, and doesn’t reach what the Second Circuit recognized as Lee’s claim for the mental anguish of missing a day’s vacation, no matter how remarkable or restorative to his spirits it could have been. 

And that’s why the appellate panel took less than two pages to affirm the District Court’s decision to toss that part of Lee’s claim.

Nicely creative attempt, though.

Note: This post’s title, of course, is based on the long-running,  stunningly successful ad campaign for Coca-Cola®. Click here for an unforgettable  example from the early days of the slogan’s use.

January 15, 2004
Back to Blogging 

I had a nice trip to the District of Columbia on official business. This time there was a short opening for some sightseeing, and here are two recommendations.

First, I really enjoyed the exhibit of paintings by Christoffer Wilhelm Eckersberg at the National Gallery of Art.

Several pieces by the "father of Danish painting" (1783-1853) take up two rooms in the East Gallery, and will be there until February 29. The marine paintings and city scenes are impressive, and his highly realistic nudes were ahead of his time.

Second, before Monday I had only seen Augustus Saint-Gaudens' Shaw Memorial during the credits sequence in the movie Glory.

The 19th Century masterpiece is now on display in its own dedicated room at the National Gallery, on a ten-year renewable loan from the National Park Service.

It continues to be a moving tribute to those who fought for freedom in the Civil War.

January 12, 2004
Blog Break

Work intrudes on blogging time. Back in a bit. In the meantime, please enjoy snooping around here and in the archives.

January 11, 2004
The cutting edge in musical theater

I blame Leonard Bernstein.

Over forty years ago, West Side Story glorified gang violence, up to and including revenge killing.

After Bernstein’s triumphant exploitation of youthful criminality, complete with ethnic stereotyping of New York’s vibrant Puerto Rican community, other artists apparently concluded that no topic was off-limits to treatment through this uniquely American art form, no matter how upsetting to the sensitivities of polite society.

The most recent example is a new musical theater production of the LaJolla Playhouse in San Diego, which is receiving significant financial support from the National Endowment for the Arts. The Playhouse project is called Disposable, and the central character is “loosely based” on a gay murderer, Andrew Cunanan.

The news about Federal support for this performance is not going over well in South Florida, and the folks doing the protesting have their reasons:

The news has stunned some members of South Florida's gay community who don't think Andrew Cunanan's life should be memorialized. The San Diego native's cross-country killing spree ended in the deaths of two former lovers, a Chicago real estate agent and [Gianni] Versace. The internationally known fashion designer died on July 17, 1997.

Ten days after killing Versace on Ocean Drive, Cunanan -- a reputed gay escort who used drugs -- committed suicide.

LaJolla Playhouse Artistic Director Shirley Fishman’s response to the criticism seems only to have added fuel to the flame:

Fishman said there is a long history of well-regarded plays based on controversial figures, including Shakespeare's Richard III and Macbeth, "both ruthless mass murderers." She hopes the work on Cunanan will be as significant as the Laramie Project, a play about the murder of gay college student Matthew Shepard and how it affected the residents of his Wyoming town.

Some in South Florida flinched at the comparison.

"I don't see how you position Andrew Cunanan with Matthew Shephard," said David Phelps, the executive director of the Gay and Lesbian Foundation of South Florida in Miami. "That's like good vs. evil."

I’m a bit conflicted about this.

The policy decision to provide direct Federal support for specific art projects always seems like a bad idea, and this production might turn out to be a good example of why those misgivings are legitimate.

On the other hand, if this project were entirely privately funded, it strikes me that not much should be said against it, at least not until the first public performance.

The folks doing the protesting seem just a bit too politically correct, attempting to enforce a new orthodoxy about the gay community by suggesting that this play would keep old stereotypes alive.

On the other hand, I really don’t think there’s a common understanding among straight people that any gay man can suddenly break out on a killing spree. Furthermore, the issues raised by Cunanan’s sordid history extend well beyond the limited borders of the killer’s homosexuality.

Let’s just see how the San Diego theater-goers react to the first few performances. The production might just surprise people, much as Bernstein did with his revamping of Romeo and Juliet.

January 10, 2004
Annals of tax crime

Donald L. Donovan did not think he needed to pay Delaware income taxes, and so he didn’t bother to file any tax returns.

The State Division of Revenue learned about Donovan’s disagreement with the state tax code and how it applied to him. They contacted the Attorney General’s Office, which brought criminal charges against him in 1987.

Donovan represented himself before a jury, which allegedly took all of twelve minutes to convict him. 

Donovan recently explained the speedy verdict:

"I wasn't able to express myself very well…. "I don't think the jury was able to understand me."

Donovan served his sentence on the state charges and returned to gainful employment. Eventually, however, Donovan turned his attention to the Federal income tax code. He decided that he didn’t need to pay those taxes either, using arguments familiar to those who follow the antics of the tax protester movement:

• The 16^th Amendment which authorized the creation of the current federal income tax code was itself not properly ratified.
• The income tax code applied “only to corporations and possibly officers of federal corporations.”

The Federal government begged to differ, and brought criminal tax charges against Donovan. They determined that he owed at least $95,000 in taxes covering four years.

Donovan again represented himself, this time before a Federal jury.

And this time he managed to keep the panel thinking for more than twelve minutes:

The jury deliberated about three hours before convicting him on four counts each of failing to file a tax return and tax evasion. The charges carry a combined maximum penalty of 24 years in prison and a $1.4 million fine.

Perhaps during his upcoming stay in the Federal correctional system, Donovan will pick up a clue or two about his actual obligations.

If not, another jury of his peers should be ready to remind him yet again.

January 9, 2004
New Mississippi mascot--why not a parrot?

Janis Gore is among the very few bloggers who will admit to permitting a pet parrot to sit on her head.

Lucy is a gorgeous bird, whose bright blue and red plumage just happens to match the colors adopted by the University of Mississippi.

Miz Gore noted that Ole Miss is having its problems right now with its current mascot, and thinks that a parrot like Lucy would make a fine substitute.

Since she knows that I am a Blue Hen graduate, she asked for my input.

Imagine my surprise to learn that not only would a parrot be an appropriate Mississippi mascot, but that there's a tiny little Delaware connection to the discussion.

It just so happens that Alexander Wilson, considered the father of American ornithology, sighted the Carolina Parrot along the shores of the Mississippi. Wilson's biography also notes that he emigrated to the United States from Scotland, arriving "safely in Delaware on July 14th, 1794."

Unfortunately, Carolina Parrots are now extinct.

On the other hand, that fact might satisfy those looking for a deeply traditional connection to Mississippi's past in choosing a new mascot.

The fact that the Carolina Parrot's yellow/green colors don't match Lucy's or Ole Miss shouldn't be a problem.

After all, it's not as if the University of Delaware's mascot is ornithologically correct in its colors (or in just about any other respect, for that matter).

So why not adopt the same colorfully inaccurate approach to adopting a new parrot mascot for Ole Miss?

Brrawwk, indeed.

January 9, 2004
Life’s Little Ironies

One of the basic lessons of understanding legislative intent is to remember that that there is no such thing as excess verbiage in any statute. 

Every clause, every comma, every sentence is there for a reason, and may carry a complex history of legislative compromise behind it. 

Some folks seem to want to gloss over that fact when it suits their purposes. 

Fortunately, however, many courts tend not to rise to the bait.

The special D.C. Circuit panel reviewing claims for attorney’s fees arising from the Independent Counsel investigations during the Clinton administration took the occasion today to show that they understand the rules of statutory construction. They also managed to insert a little irony into the explanation for their decision.

Under the Ethics in Government Act, certain individuals who are the subjects of an investigation by an independent counsel can obtain Federal reimbursement of their attorney’s fees and costs. They must apply to the court for the money, which can grant the request under two basic conditions—(a) “if no indictment is brought against such individual pursuant to that investigation, and (b) the reimbursement is limited to “those reasonable attorneys’ fees incurred by that individual during that investigation which would not have been incurred but for the requirements of this chapter.”

Susan McDougal applied for reimbursement of $345,412 in expenses arising from the Madison Guaranty Independent Counsel investigation, led by Kenneth Starr. 

She made this application after her own part in the saga played out completely. This included being indicted on eight counts relating to the investigation; being convicted on four of those charges; being sentenced to two years in prison; and receiving a Presidential pardon on the last day in office of the Clinton Administration. 

McDougal’s long-running conflict with Ken Starr and his merry band racked up her legal bills, but there was just one little problem with her attempt to have the rest of us pick up the tab:

Because the Act provides for reimbursement of attorneys’ fees only to individuals against whom “no indictment is brought,” we hold that McDougal’s application is invalid on its face. 

The fact that the very words of the statute barred her claim failed to deter McDougal. She even went so far as to suggest that the fact that she had been pardoned somehow exempted her from the reimbursement statute’s first basic requirement—don’t be indicted.

The unanimous panel’s response invoked a nicely ironic bit of precedent, called In re North (George Fee Application), 62 F.3d 1434 (D.C. Cir., Spec. Div. 1994) (per curiam). A former Deputy Director of the CIA found himself indicted for his role in the Iran-Contra matter. He was pardoned by President George H.W. Bush shortly before President Clinton took office. His subsequent application for attorneys’ fees was also refused, because the statute made no exception for those who were indicted but pardoned. 

McDougal’s similar situation, arising out of another investigation whose opponents charged was more political than criminal, produced the same result: 

Pardoned or not, McDougal cannot truthfully assert that no indictment has been brought against her. Like the petitioner in George Fee Application, she can take nothing under the statute.

The concluding passages in the court’s opinion seemed to be an attempt to warn off others who might have thought that the clear expression of legislative intent could be somehow ignored: 

Congress did not say that fee awards are available to an individual who is indicted but acquitted. Congress did not say that the court may award attorneys’ fees to an individual whose indictment was drawn in a "carnival-like atmosphere" or in an investigation which the fee petitioner or anyone else deems "political." Congress explicitly said that the court may award fees only "if no indictment is brought against such individual pursuant to that investigation." 28 U.S.C.  § 593(f)(1). The Act "constitutes a waiver of sovereign immunity" and therefore "it is to be strictly construed." In re Nofziger, 925 F.2d at 438. We have no statutory authority to award McDougal any fees on this petition, and the petition is therefore denied. 

At one level, that being the $324 thousand and change, I can understand why McDougal would want to try to have the rest of us taxpayers reimburse her. On the other hand, the law just didn’t go as far as she needed it to go to accomplish that goal. 

And at another level, therefore, I’m perfectly fine with that.

January 8, 2004
By now it probably tastes just like a blue suede shoe

A hat tip to Terry Oglesby, who reminds us that today is Elvis Presley's birthday.

Oglesby's fine post commemorating this American icon's entry into this world also reminded me that we keep a single Elvis souvenir in our house.

It's a 1978 Frontenac Blanc D'Oro bottle of Always Elvis Italian white wine, Collector Series One, shown below.

We found it in a bargain bin at a liquor store in Wilmington over 20 years ago. [Actually, my bride reminded me that it was a gift from some friends of ours.]

We never thought it was worth drinking, though.

I assume that the taste would not have improved since then, although I would defer to wine experts such as Steven Bainbridge on that point.

Two of these collectors' edition bottles are currently on sale at E-Bay, at prices ranging from $3 to $15. 

Our bottle is not for sale, however.

Some pieces of history are beyond price.

January 7, 2004
Second Anniversary and Traffic Report

January 6 marked the second anniversary of this site's existence.

As of that date, 178,225 visitors have viewed 228,143  pages.

Thanks very much for your patronage. This is still a lot of fun to do.

Stop by again soon.

January 6, 2004
What is it with these Senators?

Thirteen months ago some of us who write blogs were all over Senator Trent Lott's case, with good reason.

With everything that happened after Lott's screw-up, you'd think that all of the other Senators would have heard the message loud and clear.

Apparently not:

Sen. Hillary Rodham Clinton apologized for joking that Mahatma Gandhi used to run a gas station in St. Louis, saying it was "a lame attempt at humor."

Hat tip to Drudge.

January 5, 2004
Deconstruction taken to an extreme

Some folks just hate standardized tests.

Some of these folks are teachers.

And one of these teachers decided to do something about it.

George N. Schmidt obtained copies and published six standardized tests used for the Chicago Academic Standards Exams in a newspaper he edited. 

Schmidt’s stated objective was perfectly understandable, from his perspective: 

He did this because he thought them bad tests and that he could best demonstrate this by publishing them in full.

Considering that these exam questions are expensive to create, are potentially useful for a series of tests if kept in a secure environment, and lose their utility upon open dissemination, one could say that this was a case of critical deconstruction taken to an extreme. 

The Board of Education certainly thought so, and sued the teacher for copyright violations.

From a taxpayer’s perspective, the Board’s lawsuit was also perfectly understandable. It cost a lot of money to develop these test questions, and the unauthorized publication ruined many of them for any potential future use. As Judge Posner noted:

The teachers who administered the exams were instructed not to make copies of them and to collect the test papers at the end of each exam so that the tests could be reused. Reuse of questions in standardized testing is not a sign of laziness but a way of validating a test, since if performance on the same questions is inconsistent from year to year this may indicate that the questions are not well designed and are therefore eliciting random answers. [citations omitted]. Such validation is of particular importance for a new battery of standardized tests, such as CASE, the subject of a three-year pilot program. And publication of standardized tests would not only prevent validation … but also require the school board to create many new questions, at additional expense; and they might not be as good as the original questions, in which event there would be diminished quality as well as added cost.

A magistrate judge issued an injunction and also ordered Schmidt to pay $500 in damages. The teacher appealed the lower court orders to the Seventh Circuit.

Schmidt defended his actions based on the fair use doctrine, recognized in copyright law and in this context:

[Schmidt] was entitled to criticize the tests and to do that effectively he had to be able to quote from them, just as a parodist has to be able to quote, sometimes very extensively, from the parodied work in order to make the criticism of it that is implicit in parodying it comprehensible.

On the other hand, Schmidt abused the fair use doctrine by publishing so much of the copyrighted material than he could rationally defend. He didn’t explain why he needed to publish the six tests in their entirety. He didn’t detail which questions were bad and therefore worthy of criticism. 

In essence, Schmidt’s own conception of fair use went too far:

There is more than a suspicion that Schmidt simply does not like standardized tests. That is his right. But he does not have the right … to destroy the tests by publishing them indiscriminately, any more than a person who dislikes Michelangelo‘s statue of David has a right to take a sledgehammer to it. From the amicus curiae briefs filed in this case, moreover, it is apparent that many other teachers share Schmidt‘s unfavorable opinion of standardized tests. (A cynic might say that this is because such tests can make teachers look bad if their students don‘t do well on them.) So if Schmidt can publish six tests, other dissenters can each publish six other tests, and in no time all 44 will be published. The board will never be able to use the same question twice, and after a few years of Schmidtian tactics there will be such difficulty in inventing new questions without restructuring the curriculum that the board will have to abandon standardized testing. Which is Schmidt‘s goal.

If ever a “floodgates” argument had persuasive force, therefore, it is in this case.

On the other hand, the panel also ruled that the lower court’s injunction was itself badly drafted and overbroad. It ordered a modification of the injunction’s terms to prohibit unauthorized copying or publishing of the tests.

I have a sneaking suspicion (but of course!--Ed.) that the required authorization won't be issued to Schmidt and his allies any time soon.

January 4, 2004
The Beach in Winter

Yesterday was not winter.

It was some kind of early spring day that showed up way ahead of schedule.

We took advantage of the sunny, mid-60s conditions and went for a nice walk at Cape Henlopen State Park in the late afternoon.

Here's a picture taken shortly after sunset:

January 4, 2004
Nicely done turns of phrase

Some blogs make for enjoyable reading because the writing is usually far more sprightly than what's available elsewhere.

Here's a good recent example from Dr. Frank, a consistently reliable source for grins:

If you haven't checked out Jonathon "I Hate Bush" Chait's Dean-o-phobe blog, you probably should. I appreciate the unusual combination of apoplexy and articulateness, which continues to develop as time goes on.

Similarly, one of the things I like about my older brother is that in the middle of a routine conversation he also  produces enjoyable turns of phrase.

We had most of the family at our house yesterday, and I prepared a batch of shrimp and sausage creole as one of the two main course options.

When told about the upcoming luncheon menu, my brother quietly said, "What's not to like? It's just dead shrimp, dead pig, and marsh grass."

He was right, of course.