July 24, 2004
Local lad making good on the world sports stage

Tonight Pete Oakley finds himself in an unusual position.

The Delaware golf professional has a one-shot lead going into tomorrow’s final at the Senior British Open Championship at Royal Portrush Golf Club, in Northern Ireland.

BBC and ABC announcer Peter Alliss suggested during the ABC telecast today that Oakley should be proud of his accomplishment, even if he scores a 4-over par 76 on Sunday.

I have a feeling that Oakley is not yet done surprising Alliss and the others who are stunned to see him ahead of his far better known competition.

Pete was the club pro at Shawnee CC when I joined it 14 years ago, and is now a co-owner and Director of Golf at The Rookery Golf Course near Milton. I wrote a multi-part series about the design and construction of The Rookery in my golf column, and I have spent many hours with Pete over the years.

His sons J.J. and Zac are both good golfers, and the ABC folks mentioned in their Saturday telecast that J.J. plays for the University of Delaware. He’s also caddied for his dad several times this summer, while Pete's been playing on the European Senior Tour.

Pete will probably be a bit nervous tomorrow. If the weather remains dicey, however, I think he’ll remain at or near the top of the leaderboard at the finish.

When next Pete and I chat, I hope I can start off the conversation with “Congratulations on your win!” Later on I'll remind him that he still has one of my golf books.

July 23, 2004
There’s imminent and then there’s imminent

The risk of flooding downstream properties from government projects is no different than any other similar risk from other upstream owners. On the other hand, the options available to downstream owners are a bit different, because of the chance for compensation.

In a Delaware case I handled a long time ago, for example, the Superior Court determined that if a road project carried with it a significant risk of intermittent but predictable flooding, then the State had to compensate the downstream owners for the effect of that risk on their property values.

The next question is, of course, how intermittent.

In an Eighth Circuit decision issued yeterday, we now know that a storm that should only show up every 100 years or so is not intermittent enough to support a takings claim.

The tiny Iowa city of Kinross obtained USDA grant moneys for construction of a sewage treatment plant, which included two treatment lagoons. An Iowa landowner and his tenant sued the Feds to block the funding for the project.

The landowner’s farmland was between 1,000 feet and a half-mile downstream from the lagoons. He and his tenant argued that their properties were at risk of destruction if a 100-year storm event occurred, and that therefore the Federal government should not have given Kinross the money.

The circuit panel agreed with the District Court that the alleged danger was just too ephemeral to support the lawsuit:

[T]he plaintiffs must establish they will suffer the imminent injury…. Indeed, one wonders whether any of the parties (or the court) in this case will be alive the next time a 100-year flood occurs upon the land…. [T]he 100-year label, as a term of art, designates lands most immune from flood damage. If the plaintiffs have alleged a cognizable injury, then as a practical matter, any plaintiff who conceivably could be harmed by a defendant's conduct would possess standing to sue in federal court. For these reasons, we conclude the plaintiffs have failed to allege a cognizable injury, and we hold they lack standing to sue the government in this case.

The everyday practice on this issue looks at whether a flood-producing storm could be predicted to occur every five or ten years. Under those more commonly expected circumstances, an appraiser could factor the risk and determine the potential impact on property values.

When a government takes the necessary steps to reduce the risk of flooding to once every 100 years, however, it’s just not reasonable that the rest of us should chip in to pay for that literally remote possibility.

July 23, 2004
Shameless self-promotion

This morning I posted my latest golf book review. Troon McAllister’s Barranca is a bitingly funny satire involving national security and golf.

The recent Berger screw-up shows that reality can sometimes overtake spoofing, and it came close this time.

July 22, 2004
Notes from the Coastal Empire

We went to Savannah, Georgia for a legal conference. Thankfully, the schedule of events left us several opportunities to see some of the highlights of the Coastal Empire. 

We toured the Mercer-Williams house, which for sheer decorative eclecticism is probably hard to beat. In addition, it is one of the classier murder scenes I have ever visited. The 19^th century mansion now also marks the spot where I heard someone actually use the word “Co-Cola”, a dialect reference to the official Georgia state beverage that I’d only read about previously.

Mercer-Williams House, Savannah

Fort Pulaski is a major draw for Civil War buffs in the area, and the Park Service is to be congratulated for the quality of the restoration and the exhibit hall.

The large alligators in the moat were also impressive.

Tybee Island reminded me a bit of some of the older downtown portions of Ocean City, Maryland. We were there an hour or so before sunset, and only a few other folks were enjoying the barrier beach at the time. We stopped at The Crab Shack on the way back to Savannah. I heartily recommend the crawfish.

Tybee Lighthouse, Tybee Island

For a tourist destination, Savannah has to be among the quietest I’ve ever visited. Perhaps the humidity and the mid-90s heat of late July provide the best explanation. On the other hand, the squares that are such a distinctive element of the old city’s layout were popular in the late evening, as folks came out to sit and talk with friends as the night cooled.

We also watched some of the second game of a double-header between the Savannah Sand Gnats and the Charleston River Dogs at Grayson Stadium. Savannah is celebrating 100 years of professional baseball in the city this year. The quality of the baseball was about what one would expect in Class A, but sometimes that’s beside the point.

Nice place.

July 22, 2004
Back again

So did anything happen while I was gone?

Anything unusual?

Didn't think so.

Back later with a few notes about the trip.

July 18, 2004
Blog break

No posts here for a few days. I expect to be back with something on the 21st or so.

In the meantime, stroll around the past postings and see if there's something you like.

July 17, 2004
We’ve been discovered

The Travel Section in yesterday’s New York Times featured an article by Alice Ault on how to spend 36 hours in Rehoboth Beach.

I enjoy reading these travelogues about other places, but it’s a bit disconcerting to read how someone chooses to highlight various parts of your own town. You tend to peruse it as closely as a former Kremlinologist might look over a photograph from a Moscow May Day parade, searching for hidden clues and meaning.

That said, Ault does a nice bit of work touching upon some of the highlights of the seaside resort.

Of course, as a local I have a few more suggestions.

In addition to the restaurants Ault mentioned, for example, we enjoy a few others. The Back Porch Café has been around for 30 years, has an extremely loyal group of customers who enjoy fine dining, and just happens to be owned by friends of ours. Arena’s Famous Bar & Deli offers great sandwiches and a large selection of brews to sample. The Big Fish Grill on Route 1 just outside Rehoboth is a ridiculously popular seafood restaurant that deserves the crowds it sees every night. It’s well worth the wait. If you want to stay in town for your fish, however, Stoney Lonen is one of the best options.

For coffee lovers, there are several good places, notably Java Beach on Rehoboth Avenue, with two more locations on Baltimore Avenue and on Route 1 near the Big Fish Restaurant. Java Beach also offers Wi-Fi connections for those who just can’t miss a minute on the Internet.

The Bottle and Cork is a recently remodeled dance hall/bar in Dewey Beach, where groups as varied as Big Bad Voodoo Daddy and Little Feat draw tremendous, enthusiastic crowds. On most Monday nights during the summer the Fabulous Grease Band performs its oldies shtick there, attracting a large group of locals.

There are a few good bookstores here, notably Browseabout Books in Rehoboth and Booksandcoffee in Dewey Beach. They offer far more than just a bunch of “beach reads.”

If you’re coming to Rehoboth and you’re looking for a few more suggestions, just drop me a line. I am nothing if not opinionated.

July 15, 2004
Testing, testing

Today Virginia Postrel pointed to yet another test, this one allegedly designed to indicate how much of a Red or Blue Stater you are.

Here's what my results showed:

It's time to get out of the sun. You're looking a little red.

Okay, I guess. However, many questions seemed more aimed at determining one's factual awareness of various aspects of American life, instead of describing one's political tendencies.

This morning I also re-took the political compass test, with results that weren't nearly as startling:

Economic Left/Right: 2.00
Social Libertarian/Authoritarian: 0.05

I assume this means I am mostly a centrist, with a very slight tilt to the right.

July 15, 2004
Blogroll changes

I've made a few changes to the blogroll on the home page.

Among other updates, there's a new section listing just for Delaware bloggers.

July 14, 2004
Two types of Dads

Contrary to what some of the more ardent Democrats in my family might think, I do not agree with every one of President Bush’s positions on the important issues of the day. 

On the other hand, I have to admit that in at least one significant aspect of our respective lives, he and I are on the same wavelength.

I came across this revealing quote in a Reuters story today about the President’s twin daughters, Jenna and Barbara:

Jenna … described how the president interacted with the girls' boyfriends.

"He's not the shotgun-dad type, he's the joking-around-to-the-point-where-he-scares-the-heck-out-of-them type."

I am reliably informed that President Bush and I have at least this much in common.

July 14, 2004
If you’re going to have a Green Mile, you can at least make it a clean one.

Many years ago I handled some litigation concerning prison conditions on behalf of the state, and continue to follow the case decisions about this issue.

Most of the time, prisoners’ complaints about their housing and hosts are found to be either overblown or baseless, which is the result one should frankly expect. After all, governments are supposed to respect the fundamental rights of those they institutionalize.

Unfortunately, however, sometimes the prisoners prove that they have a real case.

Last week the Fifth Circuit issued an opinion upholding most of a lower court’s injunctive relief ordered against the Mississippi Department of Corrections, concerning the awful state of affairs in Unit 32-C, better known as Death Row, at the State Penitentiary in Parchman. The appellate panel’s ruling is long and written in fairly dry prose, which makes its determinations all the more damning.

Willie Russell and several other Death Row inmates sued the MDOC, alleging that several aspects of their treatment violated the Eighth Amendment’s prohibitions against cruel and unusual punishment.

Here’s a brief synopsis of the problems the Fifth Circuit agreed existed at the facility, and which rose to a constitutional level of concern.

[T]estimony adduced at the trial court indicat[ed] that the cells were “extremely filthy” with crusted fecal matter, urine, dried ejaculate, peeling and chipping paint, and old food particles on the walls. Living in such conditions would present a substantial risk of serious harm to the inmates, and we cannot say that trial court’s decision to credit this testimony was clearly erroneous. Also, in light of substantial testimony indicating that such conditions were not atypical and were easily observed, we cannot say that the trial court’s conclusion that MDOC officials showed a deliberate indifference to this risk is clearly erroneous. Further, the testimony was conflicting as to the frequency and quality of the provision of cleaning supplies, and we cannot say that the trial court’s conclusion to credit testimony supporting the inadequacy of cleaning supplies was clearly erroneous. As living in such filthy conditions would present the inmates with a risk of serious harm to which MDOC officials have displayed a deliberate indifference, [the first two] injunctions … were justified by an Eighth Amendment violation. They are, therefore, affirmed.

The prisoners’ health risks increase during the Mississippi Delta summers:

Russell presented the court with expert testimony … that it was “very likely” that, under current conditions on Death Row, an inmate will die of heat stroke or some other heat-related illness. In fact, [the doctor’s] testimony indicated that Death Row prisoners had made many complaints of symptoms commonly recognized to be related to heat-related illness and that those conditions had simply gone undiagnosed. …Based on the evidence presented, we cannot say that the trial court’s finding that the probability of heat-related illness is extreme at Unit 32-C was clearly erroneous. Thus, this condition presents a substantial risk of serious harm to the inmates. Again, based on the open and obvious nature of these conditions and the evidence that inmates had complained of symptoms of heat-related illness, the trial court’s finding regarding MDOC’s deliberate indifference is not clearly erroneous.

Decrepit window screens in the Death Row cells also increased the risk of West Nile disease from mosquitoes:

[T]he trial court was presented with testimony that insects swarm in the inmates’ food and beds and that the inmates often must choose between opening the window for relief from the heat or closing the window for protection from mosquitoes, as the gauge on the screens is too large to keep out the mosquitoes. It is important to recognize that this injunction is supported by the trial court’s findings on heat, as the court noted that the mosquito infestation accompanied by the insufficient screen gauge exacerbated the heat problems by deterring the inmates from opening their windows to increase circulation.

Based on these problems, the panel upheld the lower court’s order to repair all cell windows and use 18-gauge window screen or better.

Perhaps most disgusting, the evidence at trial showed a persistent problem with plumbing:

Russell points to expert testimony stating that the situation presented when the feces of one inmate bubbles up in the neighboring cell, exacerbated when the toilets overflow, does constitute a serious health hazard. Russell also presented evidence to the trial court that the Mississippi State Department of Health warned MDOC every year for the past eleven years that the malfunctioning toilets in Unit 32-C are a critical public health problem requiring immediate attention….Frequent exposure to the waste of other persons can certainly present health hazards that constitute a serious risk of substantial harm. Given the evidence presented to the trial court, we cannot say that the court’s factual findings regarding the … toilets or the MDOC officials’ deliberate indifference were clearly erroneous.

The panel also upheld an injunction forcing the MDOC to increase the lighting in Death Row, based on expert testimony that the low light levels now in use exacerbated the mental health deterioration of the prisoners, in addition to causing problems with sanitation, personal hygiene, and the reading. An additional order to improve the mental health care given to the inmates was also upheld, with good reason:

…Russell produced evidence that the isolation and idleness of Death Row combined with the squalor, poor hygiene, temperature, and noise of extremely psychotic prisoners create an environment toxic” to the prisoners’ mental health. There was also evidence that the severely psychotic prisoners smear garbage and excrement in their cells, scream all night, and flood the tiers. This contributes to the problems of uncleanliness and sleep deprivation, and by extension mental health problems, for the other inmates.

I support the use of the death penalty. I accept that the appeals process from such sentences should be appropriately careful and time-consuming, considering the risk of erroneous application of this drastic but necessary punishment. Even so, there’s simply no good excuse for keeping Death Row inmates under the conditions discussed in this opinion.

A Green Mile should be clean, too.

July 12, 2004
Resist the urge to make a Federal case out of every problem.

Some folks seem to have an insufficient appreciation for state courts.

Their misgivings might actually be warranted in a few instances, but really, more people should resist the urge to try to make a Federal case out of every issue.

As the Ninth Circuit ruled today, this warning should be heeded, even by those who can foresee that the other side will probably point to a Federal law or regulation in defense. 

A California couple named Tuan Hoang and Betty S. Lee-Hoang lived in the Opera Plaza condominium complex. They apparently decided to skip all the fuss and bother involved with cable television, and make the jump to satellite TV instead. They bought and installed a satellite dish outside their unit.

There was just one problem. The Homeowners Association rules prohibited any such dishes from being placed in the complex’s common areas, such as the exterior of their home.

At that point, the Opera Plaza Residential Parcel Homeowners Association (HOA) could have sued the Hoangs in the California courts for specific performance, under the contractual arrangements they agreed to when they bought their condo. The HOA could have sued the Hoangs in the California courts for an injunction to remove the offending dish. The HOA could have also sued the Hoangs in the California courts for a declaratory judgment to uphold their anti-dish policy.

But no.

Instead, the HOA sued the Hoangs in Federal Court.

U.S. District Judge William Alsup didn’t think much of the prospect of his courthouse being the host for this particular battle. He dismissed the lawsuit for lack of subject matter jurisdiction, a fundamental requirement for tapping the limited resources of the Federal court system.

Apparently the HOA didn’t pick up the hint, and appealed the dismissal to the Circuit Court, where it fared no better.

The HOA focused its appeal on an interesting little part of the Federal Telecommunications Act of 1996, in which Congress engaged in a relatively rare bit of interference in local land use policy.

Section 207 of the Act told the FCC to adopt regulations that would carry out Congressional intent to prohibit any restrictions on a person’s ability to receive broadcast satellite services. The FCC’s subsequent regulation did just that, barring states, local governments, and even HOAs from enacting or enforcing these kinds of prohibitions. On the other hand, the rule also recognized that either the FCC or a “court of competent jurisdiction” could decide whether a deed restriction or similar local law actually conflicted with this new expression of Federal telecommunications policy.

From the HOA’s perspective, surely the Hoangs would point to this Federal regulation in defense of their satellite dish installation. Therefore, this lawsuit was perfectly suited for the Federal courts.

The appellate panel disagreed, first pointing out that the Telecommunications Act’s provisions did not create a private cause of action in Federal court: 

… Section § 207 merely tells the FCC to promulgate regulations, and does not speak to whether a federal cause of action is created. For example, it is entirely possible that Congress merely intended that disgruntled viewers could file a complaint with the FCC.

***

Section[] 207 [is] silent as to whether a private cause of action exists….

Notably, no portion of Title II of the Telecommunications Act of 1996 [including Section 207] contemplates or in any way addresses litigation, and this suggests that no private cause of action exists under … [Section] 207.

… [A] regulation promulgated by an administrative agency such as the FCC cannot by itself, in the absence of congressional authorization, confer subject matter jurisdiction on federal courts.

The panel also noted that the manner in which the Federal law was invoked also made a difference, in this case fatal to the plaintiff’s jurisdictional claims:

[T]his is a case where federal preemption is relevant not to whether Opera Plaza’s claims as set forth in the well-pleaded complaint will prevail, but rather only as a possible defense that the Hoangs might raise. Federal jurisdiction is not properly invoked “on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” [citation omitted].

***

There is simply no support for the argument that Congress intended to create federal jurisdiction over a suit by a homeowners association to enforce covenants and restrictions in cases involving television antennas.

The panel then affirmed the District Court’s decision. If there is any further litigation between the Hoangs and their HOA over the satellite dish, it must be heard in the California courts.

From what I know about these kinds of cases, however, I respectfully suggest that the HOA could find a better way to occupy their counsel’s time.

July 12, 2004
Not a blogger, but still

Recently I had some work-related correspondence with Wayne A. Smith, the Republican House Majority Leader in the Delaware House of Representatives.

As often happens, the resulting conversation didn't stick with the original topic. Somehow the subject of blogging entered into the discussion.

He's read and said some nice things about this site, for instance.

Smith also told me that while he's not yet writing his own blog, he's scratching his own writing itch by posting book reviews at Amazon.com.

In fact, at this point Smith is No. 202 on the list of Amazon's Top 500 reviewers.

When it comes to many political issues, Smith and I are far more likely to disagree than to agree.

When it comes to the love of reading books, however, we're there.

July 12, 2004
Priorities

The blog posting rate here has been a little lighter than normal. Here's one reason why:

Yesterday's fishing in Indian River Bay yielded two flounder, two skates, a dogfish shark, and a great afternoon with both daughters and my mother-in-law.

July 11, 2004
The perils of drawing attention

A long time ago a state trooper admitted to me that if it weren’t for the fact that much of the criminal element in society also suffered from diminished mental capacity, their law enforcement duties would be exponentially harder.

I’ve significantly cleaned up the language used by the trooper to make this point, but his comment remains true, as shown in a story in today’s News-Journal.

Last week Dwayne Binkley allegedly decided to serenade the neighborhood near South Governors Avenue and West North Street in Dover with a variety of musical selections from his car stereo. This is a common activity among some young (and not so young) men, who labor under the delusion that the throaty thump of deep bass woofers is a proven aphrodisiac.

This time, however, Binkley received some special attention, and not from those he sought. The Dover police pulled him over for violating the city’s noise ordinance, and after the stop things went quickly downhill for the would-be Romeo:

Brinkley … was charged with second-degree assault on a police officer, resisting arrest, criminal impersonation, carrying a concealed deadly weapon, driving while suspended, driving without insurance and a loud-music violation. … He allegedly gave officers a fictitious name. They learned his identity and found he was wanted on an outstanding assault warrant. One officer suffered a minor cut on the hand during a scuffle with Brinkley as he tried to arrest the suspect. A search of Brinkley's car produced two large knives. He was jailed in default of $15,000 cash bond.

Sometimes the best option in life is to make yourself as unobtrusive as possible, making it hard for anyone to really notice you. Binkley might learn this little life lesson after this episode, but if the state trooper’s general character assessment is correct, there are no guarantees.

July 11, 2004
Shameless self-promotion

Earlier today I posted my latest golf book review—The Better By Saturday Series, edited by the folks at Golf Magazine. Each of the four slim volumes is filled with illustrated playing tips designed to provide quick fixes for what ails the struggling golfer.