Sneaking Suspicions |
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Sneaking Suspicions |
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This page includes posts from February 16-22, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
archive pages.
February 22, 2003 I can always count on the extremely popular Women’s Day and Family Circle magazines to produce a grin or two nearly every time I shop at a supermarket. Almost all of their covers employ an amusing bit of cognitive dissonance. Adjacent to pictures of fabulous desserts or other treats, they also run announcements of great new ways to lose weight. Take a look at this Family Circle cover, for example:
It’s no secret why the publishers do this. It’s a matter of knowing their target audience, and acting accordingly. This week a group of California women began paying the consequences for acting on a scheme to make other women their own, specially targeted audience, in a far more literal sense:
The Sacramento Bee reported that the scam operated in three Northern California Counties, and that several other women face similar charges. To make matters worse, there is a real Women Helping Women organization. Its mission statement reads as follows:
The real WHW has now been forced to run announcements on their web site, disclaiming any ties to the scam and providing information on how potential victims of the theft ring can seek help. These scammers played directly on the charitable impulses of their victims, while also dangling the prospect of new riches. In other words, they offered the chance to do really well by doing something really good. The problem with these scams is that only the ringleaders do really, really well, and they are up to no good.
February 21, 2003 I usually listen to talk radio while commuting. I have my reasons. First, my drive to work is about 40 miles each way, with the typical drive time between 45-50 minutes. It’s even faster if I draft behind a State Police car, along with several others who have caught on to that technique. In any event, I’m in my car at least 90 minutes per day, so the car radio is a pretty important accessory. Second, no one can make me listen to NPR. I’m still annoyed that their once-daily focus on problems in Africa dropped off considerably once South African apartheid was abolished. The millions of dead Africans killed by war and disease since that time just don’t seem to merit the same coverage on NPR, and I can’t think of a good reason why that’s so. Third, I’m continually amazed at the ability of music stations to limit their playlist to about 12 songs, varying only by format. I liked Sk8trboy when it first came out, but even that rock’n’roll throwback can become pretty tiresome after the first 56 times. This state of affairs pretty much sums up why I listen to talk radio. In the mornings I switch back and forth between Imus and the Curtis and Kuby show. If I’m out and about during lunch hour I’ll listen to Rush Limbaugh’s opening monologue. On the way home, I switch between Sean Hannity, WFAN’s Mike and the Mad Dog, and a local radio show. I’ve read several pieces about the proposal to invest millions of dollars in creating a new talk show format, focusing on appeals to liberal listeners. I’m not often charged with being liberal, but I certainly qualify as a avid radio listener. Therefore, and will all due respect to the parties involved, I’d like to make the following suggestion to those thinking about this intriguing bit of capitalism in action:
Donahue’s ratings are the best proof of his failings. The man appears to be incapable of thought, or at least incapable of a thoughtful, entertaining way of expressing his political views. Savage’s ratings are currently doing okay, it appears, but I have to believe that will prove to be a temporary phenomenon. Savage’s incredibly grating mannerisms create the aural equivalent of driving by a horrific traffic accident—you know you shouldn’t look, out of respect for the dead and injured, but you feel compelled to slow down and take a peek. Listening to a liberal version of Savage’s shtick couldn’t possibly be an improvement. His abrasive attitude reminds me most of Morton Downey, Jr. , whose show was also popular for a while. Then it flamed out. I think it was the attitude that did it. If any of those liberal-oriented radio investors are reading this, thanks for your consideration. I'll be listening, at least at first.
February 20, 2003 Two recent newspaper stories help point out the need to (a) take the time to study state budget priorities; (b) know the difference between wants and needs; and (c) be fully prepared to make practical suggestions for changes in priorities to address one's own preferences. In the coming months many more such stories will run in every major newspaper in every state facing a significant deficit in the next fiscal year. These two pieces simply illustrate this theme. Yesterday's Washington Post discussed the anger felt by children's advocates because of a proposed cut in Maryland's budget for child care subsidies for poor parents:
The advocates announced plans to send a large contingent to Annapolis, the state capital, to press for restoration of the proposed cuts. Today's New York Times ran a piece about state budget proposals that would not simply cut state funding for the arts, but would eliminate the programs entirely:
The story noted that arts supporters are seeking ways to either reinstate the programs or at least reduce the scale of the proposed reductions. The arts people have their work cut out for them. As reported in the NYT piece, some states are planning the elimination of several agencies, well beyond subsidies for theaters, museums, and the occasional infuriating performance artiste.
Delaware's budget proposal for the arts was already pretty tiny, at just over $1.6 million. Nonetheless, Governor Minner proposes a small cut from the current fiscal year's allotment. State legislative budget committees know they'll be facing a horde of supplicants seeking to keep all sorts of favorite programs in place, with few if any cuts. It is the nature of the beast, and from past experience with economic downturns it won't be pretty. Nonetheless, that past experience is also a handy guide for those inclined to learn from it. When revenues are this tight, the governors and the legislators know they'll have to be mature enough to figure out the states' real priorities, and secure the programs that meet those real needs. Public safety, public health, education, and other fundamental services will likely be cut, but not on the order of other programs that most people will recognize as "nice to have, buts--". Considering how little money is available, it will be interesting to see how soon the legislators and the governors ask the following three questions of those trying to save their preferred programs:
The advocates who can answer either or both of the first two questions with practical responses will have the most chance for success. The advocates who are asked the last question simply won't.
February 19, 2003 Please don't drink anything while reading this headline from Matt Drudge: I'm still giggling. Not about the poor woman, of course. I read the complaint filed by her attorneys, claiming that she was injured by becoming the unwitting dupe of others for an upcoming Sci-Fi channel show. I have no reason to disbelieve her allegations (although I respectfully suggest that "Court" is spelled with a "t" in it, a small point that her lawyers somehow missed). It's about Drudge's choice of phrasing. After all, what is it about using a fake alien that makes this a "reality show"? Shouldn't it have to be a real alien, instead?
February 19, 2003 Someone at the D.C. Circuit Court of Appeals has either a vicious sense of humor, or absolutely no sense of romance. On Valentine’s Day, the court issued an opinion denying Patricia Kearney’s claim for over $61,000 in attorney’s fees. These hefty charges came about because of the Clinton-era Independent Counsel investigation of Agriculture Secretary Michael Espy. Kearney was a former USDA employee. She also just happened to be the girlfriend of Richard Douglas, a lobbyist for Sun-Diamond Growers of California, at the time of the incidents that piqued the curiosity of the investigators. The independent counsel eventually focused on these activities involving Douglas and Espy, including several incidents at which Kearney happened to be present. Douglas was convicted for giving Espy illegal gratuities, but the conviction was overturned on venue grounds. Kearney’s man later pled guilty to false statements relating to the gratuities. The investigators learned about Kearney’s choice of lovers, and she became a subject of the investigation. Eventually the independent counsel gave Kearney use immunity, and she turned into a witness instead of a defendant under indictment. Kearney argued that she met the difficult standards set by Congress in permitting reimbursement of attorney’s fees for people like her—caught up in the case, but clearly not the primary target. On the other hand, the independent counsel in the Espy-USDA matter managed to pick up a large batch of convictions relating to fairly run-of-the-mill corruption. And given Kearney’s special relationship, she really didn’t have much chance to meet the exception to the general rule that those who become the subject of a Federal criminal investigation usually have to pay their own attorneys to defend them. The Circuit Court was pretty blunt about it, in fact:
Just a short, sharp jab, in other words. Given the result, I tend to doubt that the boyfriend was worth it.
February 18, 2003 The State lifted the emergency order that kept us indoors the last few days. I drove down to the Boardwalk, and here are two pictures that summer beach-goers may find hard to believe.
February 18, 2003 Today's News-Journal included a bit of local sports news that counts as a real first. The Cape Henlopen High School girls' swimming team placed ninth in this week's statewide rankings. It's the first time either the boys' or girls' teams have ever been ranked, which is pretty remarkable considering that the teams have only been in existence for about six years. One might think that a school district that hugs the Atlantic Ocean and the Delaware Bay would have a long tradition of varsity swimming. Not really, it turns out. There is a strong tradition of surfer dudes and dudettes, as a quick glance at the bumper stickers on the Jeeps and pickup trucks in the school parking lot will confirm. Nonetheless, as the swim team coach once told me, "I've worked as a summer lifeguard for years. A lot of these surfers can barely swim. I know, because I've saved them." Several years ago, the Sussex Family YMCA built a major new addition to their facilities, including a six-lane swimming pool. The School District entered into an agreement with the Y, and began its swim teams shortly thereafter. Both teams are undefeated in dual meets, and will see how they really stack up against some powerful upstate teams later this month in the state finals. The fact that younger daughter is a member of this year's swim team played absolutely no role in the decision to post this essay. Of course. *In the first few years of the Tank McNamara comic strip, the main character's ability to mangle English pronunciation frequently lead to this timeless combination.
February 18, 2003 Last week the Eighth Circuit Court of Appeals dealt with yet another attempt to avoid going to state court to deal with an inverse condemnation claim. I wish I understood why this was such a problem for so many folks, although I think I have an idea. I also have a suggestion. Franklin Kottschade is a long-time player in the Minnesota real estate business. He obtained a 16.4 acre parcel of land in the City of Rochester, and sought land use approvals for a project that would have fit 104 townhouses on the acreage. The city’s review process led to a recommendation to approve development of the land, subject to nine conditions. According to Kottschade, the combination of these nine provisions forced the project down to only 26 houses, and made the project unfeasible from a rational economic standpoint. He argued that the city’s decision acted as a taking of his property interests without paying just compensation. Supported by several developer-oriented groups, he sued in Federal Court under 42 U.S.C. Section 1983 without first completing the state legal appeals that could have handled his claim. Kottschade and his companions argued that he should not have to follow the jurisdictional limitations on bringing a federal inverse condemnation lawsuit that were described in a Supreme Court decision called Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). As the appellate court noted in upholding the dismissal of Kottschade’s case, however, the holding in this case is pretty dispositive:
The real estate developers argued that a later Supreme Court case, City of Chicago v. International College of Surgeons, 522 U.S. 156 (1997), implicitly overruled the holding in Williamson. In addition, they suggested that it was somehow unfair that a state court could make factual or legal determinations in an inverse case that would be binding on later Federal courts, even though that's what happens in many other kinds of cases, such as criminal prosecutions. The Circuit Court expressed obvious reluctance to adopt these arguments:
Given my professional responsibilities, one might think I would have a point or two to make about this case. One would be right. First, I’m glad to see a Federal court state that it won’t handle “abstract” cases. It’s not a factual statement, but it’s nice to see. The fact is that Federal courts frequently decide theoretical First Amendment cases, in what are called “facial validity” challenges to state laws and city ordinances. To support this practice, the Courts usually make some reference to the important constitutional interests involved. I find that practice objectionable, because it runs counter to the normal requirement that there be an actual case or controversy in order for the courts to accept jurisdiction. Therefore, I think the more accurate statement should have been “We refuse to expand the universe of theoretical controversies we will agree to decide.” Second, I believe that one reason for the continuing deep desire to run to federal court first, instead of filing an inverse case in state court, is the presence of 42 U.S.C. Section 1988. That’s the law that permits prevailing plaintiffs in Section 1983 civil rights cases to awards of attorney’s fees. (The irony is that these fees can also be awarded in state court proceedings, where a Section 1983 violation is alleged. From what I've seen it’s just not that common, at least when compared to the Federal court caseload.) The prospect of paying the other sides’ counsel fees has an admitted tendency to concentrate a state or local government’s mind wonderfully. As noted in a recent prior post, a large fee award can often accompany a modest civil rights damage award, and it has its own political costs as well. In some cases, notably those involving transportation agencies, an equivalent fee-shifting requirement is already in place. Its presence provides some support for my assumption. It also points the way to a possible resolution of this continuing argument over where, when, and how to bring these claims. A long time ago Congress faced a variety of interesting practices relating to how state and local governments met their obligations to pay just compensation to property owners for transportation purposes. It enacted legislation requiring any recipient of Federal transportation money to also enact laws that provided certain minimum uniform legal protections for the property owners. This included the requirement to pay legal fees in inverse condemnation cases. For example, the Delaware version (29 Del.C. Section 9504) includes the following:
This law is well-known among experienced land use lawyers in Delaware. It’s also rarely invoked, since my clients try to make sure they don’t risk this additional liability. I would suggest one amendment to this law—place the risk of attorney’s fees on both sides. The obligation to treat property interests fairly is basic to our way of life, and most governments respect that fact. Some developers should also bear the obligation to reimburse the rest of the taxpayers for defending legitimate, democratically-obtained land use decisions against their attacks, especially when it involves smaller governments with limited resources. I would also suggest serious consideration to adopting a version of this law to apply to any land use approving activity where an inverse claim could result. In some cases, there could be a sufficient tie-in to commerce between the states to support the Federal adoption of this principle, perhaps tied to Federal financial support for local government land use planning efforts. Regardless of whether such a Federal law is enacted, state governments could adopt such fee-shifting legislation. That would help both sides understand and meet their respective legal obligations to each other, especially if it included the prospect that the developers would reimburse governments for the costs of successfully defending these land use decisions. I believe both sides would act more responsibly on property rights claims if they also risked paying the other side the actual costs of being deeply wrong.
February 17, 2003 Sometimes governments are more lucky than good. The City of Cleveland, Ohio just illustrated the point, in a civil rights case brought under 42 U.S.C. Section 1983. The City had trouble. Oh, it had trouble. As the City Council that passed the ordinance might have put it:
The City of Magic therefore enacted a criminal statute outlawing any minor under the age of eighteen to remain on the premises of a billiard room. Penalties were to be assessed against any "owner, operator, agent or keeper" of said rooms from allowing this despoliation of Cleveland’s youth to occur. There was only one problem. The new ordinance only applied to private pool hall owners. The city government operated several such parlors itself at its recreation centers. The new law didn’t apply to the Cleveland’s own billiard rooms. Perhaps the Council wasn’t acting from the finest of motives. In any event, in 1995 the city attempted to prosecute a private pool hall owner under the statute, despite the public/private disparity. After winning a dismissal of the criminal charges against him, Stanley Trzebuckowski, owner of the aptly named LeCue establishment, found himself facing an appeal by Cleveland. After losing the first round of appeals, Trzebuckowski won the final appeal before the Ohio Supreme Court in mid-1999. Trzebuckowski then waited until May 2000 to file the inevitable civil rights suit in U.S. District Court, which dismissed the case on statute of limitations grounds. The pool hall owner argued that he was subject to a continuing civil rights violation while under a theoretical threat of prosecution after the first appeal, and therefore his case was still alive. The Sixth Circuit begged to differ:
And that is why the City of Cleveland was more lucky than good. With the benefit of 20/20 hindsight, LeCue’s owner should have sued a lot sooner than he did. Note: Thanks to Charles Kuffner for proofing this, and pointing out a goof in the title!
February 16, 2003 My wife and I enjoy watching NBC’s Law & Order: Criminal Intent. For some reason we often miss it when the episodes first appear, and only later see the shows on cable. Tonight was an exception, and we saw the newest installment, “Probability” [spoiler alert-Ed.]. Mark Linn-Baker was the guest star, playing an extremely quirky insurance fraud expert brought in to help the detectives with a complex series of homicides. Homeless men and women were murdered under conditions made to look like accidents, but not until large insurance policies had been obtained, also under false pretenses. Linn-Baker’s character suffered from Asberger’s Syndrome, as it turned out. As described at a website devoted to the topic, this is a form of later-onset autism:
Without giving away the entire plot, suffice it to say that pattern-finding and pattern-making play a large role in the eventual solution to the crime. The story was certainly and appropriately serious, but it was also clear that the script writers had at least a little fun in putting the story together. Consider the following:
Do you see a pattern here? Can you also tell I’ve been stuck at home during this snowstorm?
February 16, 2003 Last night’s weather radar showed a huge winter storm headed our way, on top of what we’d already experienced this weekend. The predicted radar track looked like a large arrow pointed at our little state. The Weather Channel gurus were right. As of this writing (4 pm), at least a foot of new stuff has already come down, and the current fall rate seems to running at 1-2 inches per hour. The northeast winds are at gale strength, there’s a coastal flood warning, and the drifts are piling up to impressive heights, at least for this part of the country. I thought about trekking out to the Rehoboth Boardwalk for a picture or two. The Governor changed my mind when she declared a state of emergency. There will be no unofficial sightseeing trips until tomorrow at the earliest. We even heard a long sustained boom of thunder a short while ago. Thundersnows usually occur in the Great Lakes regions, as part of the Lake Effect phenomenon. I assume that our proximity to the Atlantic Ocean (current water temp 33 degrees) and the size and staying power of this storm caused that rare winter sound to show up here.
February 16, 2003 The national media and many bloggers have done a great job describing the many different kinds and actions of anti-war demonstrators, especially over the last few days. With revelations from several sources, we’ve also learned that when some of these folks shout “It’s all about Oillll!”, they’re probably correct, but with the wrong perspective. It's far more likely that their friends the French and Russians are primarily acting to further their interests in Iraqi petroleum. The anti-war demonstrators are being used for the sake of not-so-public-spirited enterprises such as TotalFinaElf. Motivation is a funny thing, however. For every anti-war protester out there acting like a useful idiot on behalf of French oil companies and other, shall we say, cynical types with other agendas, there are plenty of other demonstrators who are oriented in a vastly different direction. These activists don’t demonstrate on stilts, carry around paper mache puppets, or otherwise increase the volume without adding to understanding and resolve. They’re simply out there quietly doing the jobs they swore they’d do when asked. Personally, I’m far more impressed by these American demonstrators. They serve in the various National Guard and Reserve units called up to assist in the current military actions. According to the Associated Press, these militants-for-real are now more than 12 percent of the total active force:
The local television stations usually carry a piece or two when the units are called up, so it’s not as if the media ignore the Americans who are taking direct action to support the war effort. On the other hand, these activists don’t seek the limelight. They’re leaving families and jobs, and stepping up to fulfill the other role they’ve trained for years to do—protect the rest of us from our foreign enemies. The resolve that these folks demonstrate every day in their new assignments is far more stirring to me than the antics of many in the anti-war crowd. |
Contact Information: Fritz Schranck fschranck-at-
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Official small print disclaimer: This is, after all, a personal web site. Any opinions or comments I express here are my own, and don't necessarily reflect the official position of my work as a government attorney or any of my clients. That fact may become obvious later on, but it needs to be said here anyway. © Frederick H. Schranck 2002-2003 |
