Sneaking Suspicions
 Archives-- April 13-19, 2003

April 19, 2003
Golf courses are anti-environment only if the facts are ignored.

Periodically one sees various environmental advocacy groups take off after golf courses. They see these 120-200 acres of mostly open space as more indicative of green in the wallet than green spaces for humans and wildlife. They're usually not at all happy about the distinction, as shown in this statement from a League of Conservation Voters site:

From Arizona to Colorado to Maryland, sprawling suburbs are encroaching on some of the nation's last remaining green spaces. As housing tracts, strip malls, highways and golf courses replace acre after acre of land, cities and states are forced to deal with increased air and water pollution, traffic congestion and the loss of key wildlife habitat.

As often happens with other policy issues, the truth about wildlife and golf courses is, shall we say, a bit more nuanced than what anti-golf types might prefer. 

Here are two local examples:

The bald eagle in the upper left corner of this picture is sitting on a high branch of a pine tree, with its huge nest a few feet away in the lower right corner of this picture.

I took this picture on April 14 while covering a college golf match at Kings Creek Country Club, outside Rehoboth Beach.

The stand of pines in which this nest is found divides the first and fifth fairways on the course. The home sites in the area are on the outer edges of the two golf holes, with about 150-200 yards of space between the homes along the first hole and the homes along the fifth hole.

The human residents at Kings Creek take great pride in the continued local presence of this symbol of American patriotism.

The eagles don't seem to react to the presence of humans in any significant way. The fish in the ponds, creeks, and marshlands within the neighborhood, however, are at much more risk of a bad confrontation with an eagle looking for breakfast for its eaglets.

The blue heron in this picture is flying over the pond adjacent to the 12th fairway at Rehoboth Beach CC. I took this picture in late March. (BTW, stay out of that bunker in the upper left corner of the picture, if you want to make par.)

As with eagles, herons are also great fishers, and for the most part pay no attention to golfers as they pass by. The gangly shorebirds will move off a bit if one approaches too closely, but often return to the same spot at the water's edge in a few minutes.

As opportunities arise, I think I'll continue this series of photographic evidence that wildlife seems to enjoy golf courses, even if their self-appointed human protectors think otherwise.

April 19, 2003
Even Baghdad Bob could have done better than that.

Mohammed Saeed al-Sahaf, the former Iraqi information minister, established a new standard of incompetence among official spokesmen.

Notwithstanding the remarkable level of total unbelievability that Baghdad Bob achieved in a very short period, there are others out there who could nonetheless make him look like a genius at spinning.

Yesterday’s Associated Press reported an odd story about a New York lawyer charged with kidnapping, an offense worth up to 25 years in the Empire State’s correctional system. 

Lawrence Omansky allegedly became embroiled in a real estate dispute with a man named Lawrence Schlosser. 

According to the news story, the argument became a bit heated:

The lawyer bound Schlosser's hands and feet with duct tape, gagged him and, after about two hours, forced him to sign documents turning over unspecified real estate interests, the complaint said. Schlosser told police he signed the documents out of fear he could be killed.

According to the complaint, Omansky then bound Schlosser again, blindfolded him and stuffed him into [a] crawl space, where he left him.

Schlosser said he was trapped in the unlit crawl space from about 1 p.m. Monday until about 5 p.m. Tuesday, when he was able to escape, police said.

Omansky surrendered the next day and was released on $100,000 bail pending the trial.

The accused attorney did not talk to reporters, but his attorney did.

He really shouldn’t have bothered, at least based on this reported statement:

“This case will ultimately be viewed as a business dispute that should be resolved in a civil forum as opposed to the criminal court.”

Somehow I don’t think so.

April 18, 2003
Fighting against a cleaner environment at every opportunity

Will Vehrs tipped me to a story in the Richmond Times-Dispatch about yet another legal chapter in the previously-posted story about trying to improve the environment of Hanover County, Virginia.

In this case, the county is trying to enhance public health, but some local landowners are apparently pulling out all the stops to try to prevent it.

As noted in the prior post, Hanover County is in the middle of a significant project to increase sewer capacity, while also focusing new growth to limited areas in order to preserve most of the county's rural characteristics.

Landowners whose property is next door to the new system's outfall pipe on the bottom of the Pamunkey River are not happy about this smart growth plan. They recently lost in Federal Court on the environmental claims they made there.

The newest part of the saga involves litigation at the state level, in which the same plaintiffs are challenging a critical state permit the county obtained for the same project. The Water Control Board granted the County's application, and the plaintiffs appealed.

The Board challenged the landowners' standing to file the appeal, and raised other technical defenses.

The County didn't, which showed a certain classiness on its part, if not a keen sense of the likelihood that these defenses would work.

After losing in the lower courts, the plaintiffs succeeded in keeping their appeal alive with the newest opinion from the Virginia Supreme Court. It knocked down the Board's technical arguments and remanded the case back to the lower court.

It's a very limited victory, however, that gives no hint of the eventual result. The courts usually apply a relatively deferential standard of review in such cases. That standard typically presents a very high hurdle for those challenging permits issued on the kind of extensive record on which these decisions are normally made.

The County Attorney continues to be optimistic about the chances that this permit will be upheld on appeal:

For the sake of this multi-million dollar smart growth project, let's hope so.

April 17, 2003
The courage to act on one’s convictions

I think John Fund might be suffering from a slight case of the flutters.

His essay in today’s WSJ Opinion Journal argued that the nation is facing a crisis of democracy because of an increasing (though incomplete) logjam of federal judicial appointments. 

Fund correctly notes the increasing and corrosive influence of various interest groups on the current confirmation impasse:

Earlier this year Ralph Neas, head of the liberal group People for the American Way, promised a "judicial Armageddon" to block President Bush's appointment to federal courts.

In addition, there are equally questionable motives for some of the Democratic opposition:

Michigan's two Democratic senators, Carl Levin and Debbie Stabenow, have decided to escalate the problem. Last month, they filed "blue slips" to block every Bush nominee from the state of Michigan, including four circuit-court appointees.

The two senators demand that Mr. Bush renominate two Clinton appeals court nominees from Michigan, including one who is married to a cousin of Sen. Levin.

Nice to see family ties so strong, combined with the novel suggestion that the Clinton Administration apparently remains in power in at least one respect.

Notwithstanding these examples of Democratic over-reaching, I usually give Fund credit for being more realistic than this piece seems to indicate.

I'm also not a huge fan of how senators from both two parties have acted on this issue, both with the current and the prior Administration’s nominees. Even so, to me this confirmation blockage is really not a constitutional crisis.

It's a fundamental political problem, for which political solutions remain for Republicans with the courage to act on their convictions.

It's not as if every judicial vacancy has been unfilled since Inauguration Day 2001. Several nominees have been confirmed for both the District and Circuit Courts, as Howard Bashman carefully noted in his blog as they happened. One of these nominees filled a vacancy in Delaware’s U.S. District Court a few months ago. I had the distinct honor of being among those interviewed about the nominee before his confirmation, based on our prior work together years ago on a major case.

If the Democrats had thus far blocked all of Bush's nominees, then perhaps Fund would have a point.

As for the impasse on the remaining nominations, both sides can wrap themselves up in as many flags or high-sounding arguments as much as they want, but it’s still a matter of mostly pure politics.

That fact is not lost on any thinking voters. 

Equally obvious, the Bush Administration remains in a potentially powerful position to do something about it if they really want to, as Fund noted:

President Bush will have to use more of its political capital to preserve his appointment power. The president may have to visit states whose senators are participating in the Estrada filibuster and appeal directly to the public for support.

Besides appealing to the public, there are other options more directly aimed at the balking Senators.

After all, there will always be something a Senator wants from the Administration.

In addition, there will always be something the Administration wants from a Senator.

The trick is to figure out who needs who more, for what, and for those involved to decide on whether to act on that information.

If the Democrats keep up their obstruction, then any remaining access to the quiet little side deals they seek can dry up in a big hurry.

On the other hand, if the Republican Senate leadership continues to permit filibuster-light tactics, instead of holding the Democrats to the full requirements of a classic filibuster, then to that extent the Republicans have only themselves to blame.

If the Administration and its Republican allies in the Senate continue to have trouble obtaining the necessary confirmation votes for these judicial vacancies, it won’t really be a crisis of democracy.

It will be more like a critical shortage of the courage and commitment to use all the tools available to meet their goal.

April 16, 2003
More fun with Rule 68

The Sixth Circuit Court of Appeals issued a new opinion today that reaffirmed the potential benefits of Rule 68, and also reminded litigants of the risks associated with not being sufficiently attuned to the benefits of settling one's lawsuits.

As discussed in a prior post, Rule 68 allows defendants to make a pre-trial settlement offer that has some teeth in it if the plaintiff turns them down.

If the eventual verdict is less than what was offered before trial under this Rule, the plaintiff can be forced to pay the other side's post-offer costs of litigation. In civil rights litigation, there is the additional risk of losing the chance to have the defendants pay the plaintiff's legal fees.

James Pouillon is a long-time anti-abortion protester in Michigan. Shortly before Christmas 1994, he moved his usual protest location to a spot on the steps of the Owosso city hall. Two city police officers eventually arrested him for refusing their orders to return to the regular spot on a nearby sidewalk.

This incident led to the inevitable civil rights lawsuit, based on the First and Fourth Amendments.

That's also when things became interesting.

Twice before trial, the city defendants served Pouillon with offers of judgment under Rule 68. The first offer was for $2,500 including costs and attorney's fee. The second offer was sweetened a bit, to $10,001. He didn't accept either offer.

After a trial, the jury ruled for the defendants. Undaunted, Pouillon then appealed to the Sixth Circuit. The appellate panel affirmed most of the verdict, but ruled there had been legal errors with respect to jury instructions on a damages issue. They remanded the case back for a second trial.

This time, Pouillon decided to try to accept the $10,001 offer. In response, the defendants said "no dice."

This time, the second jury ruled in Pouillon's favor, but only awarded him $2.00 in nominal damages.

In post-trial motions, Pouillon moved for fees and costs, as did the defendants. The district court sided with Pouillon, and awarded him $35,690 in attorney's fees.

The defendants then appealed the case back to the Sixth Circuit, which reversed the post-trial decisions.

First, the usual rule in civil rights litigation is that one has to actually "prevail" before being entitled to the payment of attorney's fees. In this case, Pouillon expressly sought compensatory and punitive damages, but did not seek any injunctive relief. In this context, the Court had little difficulty concluding that the award of nominal damages was insufficient to support the additional award of over $35,000 in attorney's fees:

Significantly, Pouillon's counsel suggested that the second jury award Pouillon $10,000. Pouillon received 1/5,000 of this amount.

Second, there was also the matter of Rule 68. As the Court noted, there's nothing in the Rule that made the defendants' two offers expire after the first trial:

There is no requirement that a Rule 68 offer must be renewed after an appeal and remand to continue its effectiveness.... The Advisory Committee Notes to the 1946 Amendment to Rule 68 address this precise issue and state that "as long as the case continues - whether there be a first, second or third trial - and the defendant makes no further offer, his first and only offer will operate to save him the costs from the time of that offer if the plaintiff ultimately obtains a judgment less than the sum offered."

Since the $2.50 jury award was far below the initial Rule 68 offer of $2,500, the District Court should have awarded the defendants their post-offer litigation costs.

Sometimes one can lose while winning. The plaintiff here appears to have made an unrealistic assessment of his chances, and he won't be able to slough off the costs of his mistake onto the other side.

Under these circumstances, it looks like justice (and Rule 68's purposes) were well-served.

April 16, 2003
Say it ain't so

Former Iraqi Information Minister Mohammed Saeed al-Sahaf managed to make his way into the news again.

Depending on the actual facts, however, he might be past caring:

Two Iranian newspapers reported that Saddam's notorious spinmeister, whose outlandish briefings on the state of the Iraq war earned him the nickname "Comical Ali," hanged himself shortly after the fall of Baghdad last week…. The reports said al-Sahaf was ordered to stay at his post and continue to give the impression that Saddam was in control even while other regime leaders and military commanders were fleeing.

Al-Sahaf was said to have hanged himself last Wednesday, hours after U.S.forces took control of Baghdad.

(I hadn’t heard of Comical Ali—I thought everyone was calling him “Baghdad Bob.”)

Either way, for his sake I hope the reports of his suicide turn out to be just as much B.S. as the hapless minister himself tried to shovel off onto the rest of the world.

After all, a man with his peculiar talent could have gone far, once released from his Iraqi assignments--lobbying for the tobacco industry, for example.

That’s assuming, of course, that he wasn’t facing any war crime charges for his own conduct during Hussein’s brutal reign.

On the other hand, if al-Sahaf is really dead, it’s also entirely possible that it was no “suicide” that did him in.

I can readily imagine some of the former regime members were less than pleased at the minister’s increasingly ridiculous briefings, and decided to do something about their displeasure, with extreme prejudice.

Perhaps at some point he became just too embarrassing to be kept alive, even for them.

We’ll find out eventually.

April 15, 2003
Showing a not-so-keen sense of timing

A few weeks ago the Fieldsboro, New Jersey borough council truly distinguished itself when it banned the placement of yellow ribbons on its welcome signs facing travelers entering the town.

This ham-fisted approach to sign control earned the Fieldsboro officials a stunning number of highly incensed townsfolk, a huge national outcry, and the ridicule of talk radio hosts, bloggers, and many others.

Apparently the mayor and council weren’t content to set themselves on fire just this one time.

This past Monday, just as the significant battles for control of Iraq were essentially completed, the council unanimously decided to place two yellow ribbons on each of the signs.

While their decision was probably intended to help defuse the situation, for many folks this is a classic example of too little, too late.

In addition, the council managed to continue to be a bit graceless about it:

[T]he council will not allow more than two [ribbons], and ribbons put up earlier in defiance of the ban most likely will be removed.

The sign where the dispute began three weeks ago now is plastered with ribbons, flags and signs supporting U.S. troops.

“We're probably going to take all the ribbons off the signs and put on the two ribbons that we passed,”' Mayor Edward “Buddy”' Tyler said.

Some folks are still really annoyed about the original decision:

Some residents are so angry with Tyler that they are meeting with a political consultant about ways to have the mayor recalled from office.

Considering that I represent a transportation agency that also has to deal with stuff being attached to its signs, one might think I’m sympathetic to the Fieldsboro council.

I actually am, but perhaps not in the way they might like.

Folks who do stupid things frequently deserve at least a smidgen of compassion.

Even so, there was no reason to go into a mad rush to assert the town’s right to control what was attached to its signs. The council could have easily waited a week or so before reminding the townspeople that the ribbons and other displays might eventually become a problem if not removed. It’s doubtful that a short delay in enforcement in this instance would have put the town in legal jeopardy the next time that someone attached a sign or ribbon to their property.

Sometimes one just has to marvel at the capacity of some local governments to infuriate the people they allegedly represent.

April 14, 2003
Don’t push it

Here’s an experiment you can try in the comfort and safety of your own home or office.

Stand in front of a large clock that has a sweep second hand.

Fully extend your right arm in front of you, level with your shoulder.

Point your right hand’s index finger straight out away from you, with the other three fingers curled underneath and your thumb pointed up.

Bring your left hand up to your right, and grasp the hand as if you were holding a gun.

Maintain that position for a full 15 seconds.

Did you notice how long 15 seconds really is under these conditions?

Now think about being among a group of Rockford, Illinois police officers executing a search warrant of the apartment of a convicted felon.

In December 2001, these officers forced entry into a building pursuant to a warrant, wearing identifying uniforms and announcing that they were police. They entered the apartment of Larry Purifoy.

Purifoy ran from the officers into his bedroom, where he retrieved a gun loaded with six live rounds, one in the chamber. He pointed his gun at one of the officers. The police then pointed their weapons at Purifoy, and ordered him to drop his weapon.

The ensuing standoff lasted for 15 seconds.

Purifoy then gave up, and he was arrested without further incident.

Last week the Seventh Circuit Court of Appeals upheld the District Court’s enhanced sentence of Purifoy for his conviction for illegal possession of a firearm. The judge tacked on more time for the additional felony offense Purifoy committed when he pointed his gun at the police.

In addition to its legal discussion about the sentence, the appellate panel also made this extremely practical point:

Purifoy should consider himself lucky. When someone levels a loaded gun at police officers during a tense search warrant/arrest situation, that person usually suffers far greater consequences than an upward adjustment to his guideline range. Getting shot, and often killed, are the usual consequences that flow from that kind of conduct.

Or as folks where I live might say, “Simple sumbitch should be glad he’s still alive.”

April 13, 2003
When a small state mourns its fallen

A typical joke about living in Delaware is that there’s no such thing as six degrees of separation—it’s a lot more like two.

For some, that kind of social interconnection might feel a bit unnerving, or even stifling.

For most of those who live here, however, I believe it’s a feature, not a bug.

Yesterday was a good example, as hundreds of mourners attended funeral services for a soldier and a Marine killed in the Hussein was.

Marine Sgt. Brian McGinnis, 23, was from the St. Georges area, along the Chesapeake & Delaware Canal upstate. He died in a UH-1 Huey helicopter accident March 30. His memorial service was held at a church in Glasgow.

Army Spc. Ryan Long, 21, was from Seaford, in the southwest corner of the state. He died from a terrorist car bomb explosion on April 3. His memorial service was held at a Seaford church.

In addition to all the family and friends at the services, the state’s Congressional delegation also attended, along with the Lieutenant Governor.

Around here, that sort of gesture from the political community, in recognition of the public service provided by others in the state, is not considered a blatant media ploy.

It’s just what’s expected, and done.

And from the perspective of a Delawarean who benefited from this kind act in the past, I know it’s appreciated.

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
USA

fschranck-at-
sneakingsuspicions.com

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© Frederick H. Schranck 2002-2003