July 11, 2005
Light Blogging Ahead

Blogging will be even lighter than usual here over the next two weeks.

Next week I'm making a presentation on First Amendment issues at the annual legal workshop for transportation attorneys sponsored by the Transportation Research Board, in Portland, Oregon. Between wrestling with Powerpoint and a borrowed laptop, as well as trying to finish up a bunch of other stuff before I go, there's not a lot of time to spend on writing for this site.

In the meantime, if any of you would like to share some good brewpub or restaurant recommendations for Portland with me, I'd be happy to conduct my own personal research and report back here to you all.

July 10, 2005
The terrorism of the criminally incompetent

The London bombings weren't the only example of terrorism in the transportation sector last week.

In another infuriating example of what happens when the criminally incompetent and corrupt run things, nearly 200 people lost their lives in a ferry accident in Indonesia last Thursday.

The AP report in today's Washington Post is almost matter-of-fact in reporting on a death toll that was completely preventable, but for a near-total abdication of responsibility:

The ferry was officially reported to be carrying 50 crew and passengers, but survivors said about 200 people were onboard, Sumpeno [Juono, the head of the local search and rescue agency] told The Associated Press. So far, only 15 _ two crewmen and 13 passengers _ have been found.

Sumpeno said the overloaded ferry _ which was also carrying vehicles, heavy equipment and 40 tons of diesel oil _ did not have any safety equipment and sank quickly in rough waters.***

Boat accidents are common in Indonesia, a vast archipelago where safety rules are poorly enforced and rescue vessels are often unavailable.

These ferry disasters are all-too common in Third World countries, as I've written previously. Unfortunately, these incidents are among the more egregious examples of the kind of official idiocy that typifies so much of the world's troubled provinces.

The regular folks trying to survive under these conditions don't need debt relief as much as they need seriously bad government relief.

One can only hope that criminal charges will eventually be brought against those responsible for this latest multiple homicide by neglect of duty.

It's a faint hope, at that.

July 8, 2005
Nice bit of cooperation

This sign is on State Route 1 just below Dewey Beach:

The road splits Delaware Seashore State Park between the Atlantic Ocean and Rehoboth and Indian River Bays.

Diamondback terrapins try to cross the road during egg-laying season to reach the sand dunes on the ocean side. DNREC set up small fences on the bay side to block this move. The agency also created bayside spots for egg-laying that don't risk the turtles' lives, but some of these critters are pretty tenacious.

Imagine that.

DelDOT uses this message board and another one at the other end of this stretch to remind drivers that what they might think is a dark smudge on the road could be an expectant mother.

The cooperative effort seems to be working.

July 7, 2005
The London Bombings

Today's bomb blasts in London reminded me of the famous sign displayed at every station of the London Underground:

In this case, however, the gap is between those who support the continuation of Western civilization, and those who seek to destroy it.

The initial response of the vast majority of the British people and their government to this outrage has been stirring. I hope it continues.

July 6, 2005
Even old friendships can become shaky, when there’s enough money at stake

I suppose at some level the title of this post is a bit obvious, seeing as how it forms the basic plot line of umpteen movie thrillers. On the other hand, a recent Delaware Chancery Court decision about three women who co-own a beach house a few miles south of here provided a real-life example.

In the mid-1980s three DC-area civil servants found a beach place in North Bethany, in the Tower Shores development. It fit their plans for a vacation spot they could call their own, as long as they pooled their resources.

Here’s a picture of the house, hidden behind several trees, and only a few steps away from the oceanfront.

The unmarried women each chipped in $13,000 toward the $162,500 purchase price, with the remainder handled with a mortgage. They set up their ownership interest as joint tenants with the right of survivorship. In addition, they each signed a separate agreement about how they would deal with the contingency that one or more of them wanted to sell off their interest.

If two of the owners wanted to sell, the remaining housemate had the right to buy them out before being forced to a sale and disposition of the proceeds.

If only one owner wanted out, however, she had to offer her portion for sale to the other two, at an appraised value if they couldn’t otherwise reach an agreeable price. Another option gave the remaining housemates the choice to accept a new purchaser of the one-third interest, or buy the share on the same terms and conditions, or find a purchaser for their shares, or sell off all three shares.

In addition, any new purchaser buying into the arrangement was also bound by these terms, to prevent a forced partition sale.

Apparently the shared ownership worked well for over fifteen years. In the meantime, however, property values in this part of Delaware began to soar.

One owner met a real estate agent in July 2002, who told her the property could be sold for between $850,000 and $950,000. The three women talked it over, but the other two balked at selling the house. Instead, they referred their housemate to the terms of their old agreement, hoping they could hold onto their beach property.

Eventually the housemate sued her friends instead, trying to force a partition sale. In response, one of the other housemates found a potential purchaser, who offered $230,000 for the one-third share. According to the court testimony, his idea was to build a duplex on the property that the two remaining housemates would keep, and he would sell the other unit to recover his profit.

This idea didn’t satisfy the other housemate, which at one level makes sense. The discounted offering price for her share left about $100,000 on the table, on a property now appraised at $950,000 total. On the other hand, expert witnesses for both sides agreed that the first refusal clauses had a legitimate discounting effect on the total value, compared to a sale that wasn’t subject to these special terms.

Nonetheless, Vice-Chancellor Strine decided that under these circumstances the reluctant housemate could not force a partition.

First, he ruled that she had knowingly volunteered to give up her right to a statutory partition of her ownership interests when she signed the original agreement.

Second, he decided that the parties’ limits on disposition of their property did not violate Delaware’s public policy, and cited recent legislative enactments to prove his point:

[A]t this stage, it is not tenable for a judge evolving our common law to consider a restraint on the alienation of land unreasonable simply because that restraint might have the effect of diminishing a party’s ability to get the same price that she might obtain if she was subject to no restraint at all. If there was a legitimate, non-invidious reason for the restraint in the first instance, the selling party’s desire to avoid the restraint is of no moment. Right now, for example, our State pays farmers to acquire their development rights, thereby disabling them from selling their land for non-agricultural use [note omitted]. The farmers’ upfront decision to accept the benefits of the deal compensates them for the restriction on their ability to alienate the land to commercial developers. Put simply, that a party who availed herself of the benefits of a property ownership bargain now wishes to shun the accompanying restrictions on her right to sell is not a circumstance that presents any obvious conflict with a larger Delaware public policy. Something much more substantial has to be shown.

The Vice-Chancellor also made this cogent point in describing why the parties’ intended use for their beach property helped persuade him that their original deal should be upheld:

[T]he goal of obtaining access to a vacation home for personal, not commercial, use is a common one that is encouraged by our state economic development policies, which seek to attract both visitors and residents to our beach communities. Thus, the essence of the Housemates’ original deal was wholly benign and posed no threat to any Delawarean or to our polity as a whole. That the Housemates sought to buy the Beach House to actually enjoy it, rather than as an economic investment, might offend some in the Chicago school, but not anyone who appreciates an Atlantic sunrise, a night out at the Starboard, or the serenity of a wintertime walk along the ocean strand. By its very nature, the Agreement among the Housemates was designed to enable them, at low upfront cost, to maximize their enjoyment of life, not their future bank accounts. There is nothing wrong with that goal.

The judge also noted that while the 1986 agreement certainly had a discounting effect on the property’s current value, the reluctant housemate would still see a substantial return on her original investment. Under these circumstances, therefore, Strine had little difficulty holding the housemate to her original bargain.

The result seems perfectly fair to me.

For many Delaware lawyers, however, the idea that Vice-Chancellor Strine might know what it’s like to enjoy a night out at The Starboard in Dewey Beach should also produce a broad grin or two.

July 5, 2005
The fun is finally over for PETA

Our friends at PETA are a remarkably dim group, at least when it comes to the generally accepted meaning of the word “fun”.

A few years ago, for example, the DC Commission on the Arts and Humanities sponsored an outdoor art exhibit called The Party Animals.

In similar fashion as the painted dolphin statues gracing our town this summer, this series featured highly decorated donkeys and elephants (of course--it's DC).

As noted in a prior post about this little dustup, here’s what a Washington Post article by Neely Tucker said about the purpose of the exhibit:

[T]he arts commission wrote that its display was to showcase "the whimsical and imaginative side of the nation's capital . . . to have FUN."

So how did PETA’s “Ella PhantzPeril” statue meet that goal?

It showed

a teary-eyed elephant with his right front leg chained.

He wears a blanket reading, "The CIRCUS is Coming, See SHACKLES – BULL HOOKS – LONELINESS All Under The 'Big Top.'"

Here is the official photograph:

Can't you just feel the whimsy?

PETA filed suit when the Commission turned down their submission.

However, a U.S. District Court judge ordered that the statue had to be accepted by the Commission, because at least two other accepted entrants also conveyed messages deemed inconsistent with the Commission’s stated preferences. 

At the time, I took a dim view of PETA’s artistic sense, as well as their basic sense of fun.

The grim statue ended up at Connecticut Avenue and Q Street, N.W., not far from DuPont Circle. It later fetched a none-too-fabulous $2,950 in the auction held that fall, a result I was pleased to comment upon at the time.

Eventually, the District Judge also ordered the Commission to pay back $4,000 of the original $5,000 fee paid by PETA. The government then appealed to the DC Circuit.

Today the Circuit Court reversed the lower court’s order against the Commission, and perhaps brought an end to this sorry episode in public relations and public art. In addition, the opinion reminds us that the First Amendment doesn’t block every government effort to control a particular means of expression:

Much of PETA’s argument revolves around what degree of control the Commission retained over the designs sponsors submitted. The literature sent to potential sponsors included the statement that the Commission “reserves the right of design approval.” PETA believes this statement means nothing more than that the Commission “reserved the right to enforce its established criteria, and not a right to act with utter arbitrariness.” …. But PETA offered no evidence that this is what the Commission had in mind when it reserved the right to reject designs. The declaration from the Commission’s Executive Director, on which PETA relied, stated something quite different. According to the declaration, the Commission retained discretion to reject designs that in the Commission’s view “conveyed controversial messages,” which is consistent with the Commission’s written announcement that it would impose restrictions against what it considered to be “inappropriate images.” The Commission rejected PETA’s designs on that ground (and on the ground that they were not art). Apart from the evidentiary point, PETA’s contention founders on the legal principle that the Commission, in deciding which designs to accept or reject -- that is, in using its “editorial discretion in the selection and presentation of” the various designs -- “engage[d] in speech activity.”  [citation omitted]. As we noted before, “compilation of the speech of third parties” is a communicative act. [citation omitted]. As a speaker, and as a patron of the arts, the government is free to communicate some viewpoints while disfavoring others, even if it is engaging – to use PETA’s words -- in “utter arbitrariness” in choosing which side to defend and which side to renounce. The First Amendment’s Free Speech Clause does not apply to the government as communicator, and it did not restrict the Commission in its decisions about PETA’s elephants.

Makes sense to me.

Perhaps the next time PETA decides to try its hand at popular artwork, it might also consider that figuratively speaking, one usually catches more flies with honey than with, um, other stuff--even if it’s a circus elephant’s.

Hat tip—Howard Bashman.

July 4, 2005
Happy Fourth!

Last night we joined an estimated 80,000 close personal friends crowded onto the boardwalk and the beach in Rehoboth, and watched one of the largest off-shore fireworks displays the town has ever had.

You can watch a short video clip by clicking here.

Have a great Independence Day!

July 3, 2005
Two Claudes, with a few pralines for dessert

A recent AP story carried a Claude-worthy headline about diet maintenance while on vacation, in the one truly significant tourist destination where good living clearly takes precedence over good health:

New Orleans Can Be Tough on Dieters

No kidding. Have another praline.

On the other hand, I'm glad to learn that a sense of humor continues to thrive among American tourists:

Hearing the words "travel" and "diet" in the same sentence makes five out of seven tourists in this city of sumptuous restaurants burst out laughing, an utterly unscientific survey finds.

Those responses reaffirm my faith in mankind.

Even so, the headline earns two Claudes.