This page includes posts from July 13-26, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
July 26, 2003
Making policy choices in government requires estimating the effects of various legislative alternatives on the money used to run the public’s business.
What some folks may not realize, however, is the extent to which that estimating process involves swagging.
The root word “SWAG” is an acronym, meaning Scientific Wild-Ass Guess.
Jonathan Weisman wrote a good story in today’s WaPo that explains how swagging can have pretty stark results in the current budget debate, especially when the SWAGs are off, and the folks doing the swagging don’t know why:
Weisman reports that there’s been a $269 billion drop in tax revenue since 2000, and no one seems to understand how that happened.
Thanks to the deep complexities of the U.S. economic system, the four best sources for Federal budget revenue forecasts have been corporate tax receipts, personal income taxes that employers withhold, payroll taxes going to Social Security and Medicare, and the estimated personal income taxes filed by individuals not subject to withholding.
Of these, the corporate taxes and personal estimated tax receipts seem to be the two primary sources of the recent faulty estimates.
I wonder to what extent government tax receipts are simply lagging indicators of the general economic health, much like unemployment statistics. It makes sense that they would be, especially since three of the four primary cash sources used for these swags are based on personal income.
In any event, as this story illustrates, the experts in Federal budget forecasting are not much better than the folks at the Weather Channel are at their jobs. It’s not hard to describe current conditions, but anything beyond the next week or so is a total crapshoot.
That’s something to be kept in mind as the next presidential election cycle heats up, and the political parties cite conflicting budget numbers to bolster their side and attack the other.
A little skepticism should go a long way.
July 25, 2003
Sometimes the Claude-worthy candidates appearing in the national news media are just stunning.
Today’s winner certainly was:
This sand-pounder would have earned even more Claude points if the accompanying article was one of those thumb-sucking analytical pieces, looking at the entire panoply of the Bush Administration’s successfully confirmed judicial nominees.
As it is, the report briefly discussed two new nominees, accompanied by the routine statements of outrage from the usual suspects.
Senator Charles Schumer’s comments produced a wry grin almost immediately:
Don’t kid a kidder.
With statements like that one, the good Senator is pushing hard for his own Claude award.
July 24, 2003
So, did I miss anything while I was gone?
The one bit of news I did enjoy reading dealt with the discovery and elimination of at least two particularly nasty weapons of mass destruction.
I hope the coalition of the willing have continued success finding the rest of the WMDs--the ones made with metal as well as the more dangerous ones made of flesh.
July 19, 2003
As always, thank you for your patronage.
I worked as a park ranger the summer between college and law school.
The experience absolutely cured me of any possible interest I might have had in direct law enforcement as a career.
Among the less pleasant activities, I had to approach couples making love just a few feet from a popular nature trail, and tell them to get their clothes on or leave the area.
Suddenly meeting a khaki-clad ranger with a badge and handcuffs while in the throes of passion wasn't all that pleasant for the lovers, either.
There's no denying that sex in public parks and other beautiful outdoor public spaces is frequently tempting for the participants. Nonetheless, it's rarely a treat for those who can't avoid seeing them. To be blunt, it also frequently shows a total disregard for the sensitivities of other park users.
It's also never going to stop. It will continue to be a low-intensity conflict that law enforcement officers will have to manage.
This morning's NYT ran an article about arrests for public lewdness at a beach in the East Hamptons popular with the gay community.
The police chief's comments showed that he is a practical guy with a common sense approach to enforcing the law:
One man was clearly unhappy with what the article described as a "crackdown," which is not a term I would use in reporting on this topic. He also helped prove the point that the heterosexual community does not have a monopoly on making idiotic remarks:
Another man's comments summed up most people's feelings on the matter quite nicely, in my opinion:
A bit more respect for the feelings of others can go a long way. That's not news for most of us, but some folks apparently need a reminder.
July 18, 2003
Today's news included a heartwarming tale involving the quiet acceptance of responsibility.
A passenger on a Walker International charter flight videotaped the pilot during the trip from the Bahamas to the U.S.
Unfortunately, the tape was not too flattering. According to the AP story,
Faced with this evidence, the man simply resigned.
Sometimes it seems rare and noteworthy that a person would quickly and quietly accept responsibility for their own actions.
Those inclined toward cynicism might think the more likely result here would be a claim that the pilot should be absolved of any fault for the incident under the Americans with Disabilities Act, arguing that perhaps he suffered from narcolepsy or some similar sleep disorder.
That kind of argument's been tried before, with decidedly mixed results. For example, an anesthesiologist lost his position at a Kentucky hospital when his co-workers complained about his sleeping during surgery.
After all, when both the gas passer and the patient are completely out of it, something's wrong.
As the Sixth Circuit held, the ADA recognizes a difference between firing someone for their disability and firing someone for their wrongful work behavior.
In this case, however, the unfortunate pilot did the right thing after doing the wrong thing.
That was commendable. I hope it's nothing serious, and that he can find his back to another job soon.
And this time, I hope he stays awake.
July 17, 2003
It’s not often that an appellate court directly refers to common sense in support of its decision.
It’s almost always noteworthy when it happens, especially in First Amendment cases, where the triumph of the theoretical over the practical seems to be the norm.
This dispute was about advertising on public property.
Public transit systems often carry ads on buses and bus shelters under their control, typically under contractual arrangements in which the winning bidder pays for the right to operate the ad business using the spaces made available.
In addition, city governments sometimes make their rights-of-way available for bus benches at the scheduled stops. Ads on these benches can supplement a city’s revenue stream, so the municipalities enter into similar advertising agreements as the public transit agencies do with their buses and shelters.
The City of Hollywood, Florida entered into one of these bus bench deals with the Hollywood Jaycees. The agreement initially prohibited certain advertising however, specifically ads relating to
On the other hand, Uptown Pawn & Jewelry was able to buy ad space on these benches, and did so for fourteen years.
As the Jaycee agreement expired, the City sought bids for the next bus bench deal. However, the new Request for Proposals expanded the list of ads Hollywood did not want to see:
The eventual winning bidder followed these new terms, and told Uptown it wouldn’t renew the pawnshop’s advertising contract for the bench spaces. The pawnshop owners then sued Hollywood, alleging that the First Amendment barred this restriction on bus bench ads.
On appeal after losing in the District Court, the pawnshop owners appealed to the Eleventh Circuit.
The first issue centered on whether the benches were a newly created public forum. If so, the City’s decision would be subject to strict scrutiny under First Amendment case law.
The appellate panel upheld the lower court determination that these benches didn’t fit that description.
After all, other than providing places for folks to sit, the main reason for the benches was to raise money for Hollywood, a fact that Uptown conceded. In addition, the ad limitation that was in the original agreement showed that the City intended to maximize its revenue in a business-like manner. Hollywood did not intend to create an open forum for all potential advertisers.
Once the Court determined that the benches were a non-public forum, the next step in the legal analysis required a determination of the reasonableness of the City’s restrictions.
Uptown argued there was no record evidence to support that determination. In response, the Circuit Court recognized that sometimes it’s just intuitively obvious that a government decision is rational, and that no further evidence is required.
In this case, Hollywood was trying to increase its potential revenue stream from the bench ads. The lower court agreed that limiting the advertising space to “more reputable advertisers” was a practical way to achieve that goal.
The Circuit panel agreed:
The court also noted that Uptown had several other advertising options available to reach potential customers. The presence of those other means of building or maintaining their business also supported the reasonableness of the City’s action in this case. Therefore, the panel upheld the lower court’s dismissal of the case.
It might seem a bit odd that a company that ran ads on bus benches for fourteen years would suddenly find itself cut off from that marketing opportunity. On the other hand, Hollywood wanted to spruce up the joint and increase its chances for a better class of advertisers. There was nothing unconstitutional about restricting the kinds of ads that ran on the bus benches, especially when there had always been at least some limits on who could be there. Under the right circumstances, there was also nothing wrong with adding to those restrictions to improve their chances for more money.
It’s just common sense, after all.
July 16, 2003
The Village of Beecher, Illinois prides itself on its atmosphere:
Not everyone feels all warm and fuzzy about the Village government, however.
Roger and Velma Rasche sued Village President Paul Lohmann and the Village, charging that the town retaliated against them for the exercise of their First Amendment rights. The Rasches claimed that just because they spearheaded two successful petition drives to derail two public works proposals favored by the Village, the municipality singled them out for enforcement of Village ordinances.
Nothing like being half-right, I always say.
It’s true that the Rasches took the lead in convincing their fellow villagers to oppose two bond issues—one, to build a village golf course in 1997; the other, to upgrade the village’s water system in 1999.
It’s also true that the Village tried to enforce its sign ordinance against a business sign the Rasches put up in front of their home, headquarters for their vehicle towing operation. These efforts included a series of tickets issued by a code enforcement officer, and an eventual Village Trustees’ vote authorizing the Village Attorney to file a formal state court lawsuit against the Rasches for the alleged sign violations.
The Rasches’ troubles weren’t limited to their signs, either. A Village police officer also issued a separate batch of citations for keeping inoperable vehicles stored in the front yard.
Nonetheless, as it turned out the supporting evidence connecting the enforcement efforts to a concerted retaliatory motive was more than a bit suspect.
By omitting a critical page of pre-trial testimony from their briefs and arguments, for example, the Rasches misstated the facts in claiming Lohmann singled them out for enforcement. As recounted by the District Court and noted by the Seventh Circuit, the deposition transcripts showed the exact opposite:
The police officer’s actions weren’t aimed solely at the Rasches, either. For example, a nearby transmission service company also picked up 29 citations for keeping vehicles in its front yard.
By the time the attorney filed the Village’s Complaint, moreover, the Rasches were the only business owners who failed to comply with the code enforcement officer’s requests to remove illegal signs or bring them into compliance.
About the only connection between the Rasches’ petition drives and their subsequent legal troubles was a simple matter of timing. In 1997 another Village Trustee named Gary LaGesse was also head of a local recreation association. According to one witness LaGesse threatened retaliation against anyone who fought against the golf course bond issue. In addition, the Village sued the Rasches at about the same time the waterworks bond came up for a vote.
There are limits to using coincidence to prove causation, however:
In addition, there was no evidence of any connection between the Village lawsuit and any exercise of First Amendment rights:
In light of these non-facts, therefore, it was a short step to conclude that the Rasches failed to prove their claims, and that their suit should be dismissed.
From an ethical standpoint, I also think misstating the evidence didn’t help.
July 15, 2003
I read the entire interview of Howell Raines, conducted last week by his self-described friend Charlie Rose.
In some respects, the transcript reflects the usual problems in achieving understanding that are familiar to lawyers in trial practice, which can be summarized as follows:
Even under these circumstances, however, this was a revealing document, in which a formerly successful American management professional displays some of the traits that led to his departure from his dream job.
As one reads the entire interview, it is obvious that Raines was admittedly untroubled by humility during his tenure. He continues to give the impression that he remains unaware of the potential benefits of that virtue.
Raines continues to deflect acceptance of personal responsibility, while seeming to accept it. He gives every impression that he doesn’t think he’s fully liable, other than in the formal organization sense of being in the head position while others below him not only screwed up, but didn’t tell him about the others who also screwed up.
Here’s are two examples, from the discussion about Jayson Blair.
In the first one, Raines uses an old stand-by:
When pressed for more details, Raines traveled a different path:
Among the points that are interesting about this segment is Raines’ choice of words. He doesn’t refer to Blair’s plagiarism, but only to Blair’s “mistakes” or problems with "accuracy". In addition, in none of this discussion does he address the additional problem of favoritism. That common organizational predicament could easily explain why some within NYT would hesitate to bring the Blair "problems" directly to Raines’ attention. Telling the boss that one of his star reporters was a fraud could have its own unpleasant consequences, after all.
Raines gave no indication he could even conceive that this might be why he didn't learn about Blair until the situation blew up in spectacular fashion.
If Arthur Sulzberger wanted to feel better about the decision to terminate Raines, then Charlie Rose did him a favor. Rose’s interview seems to have given Raines just enough comfort level to allow him to speak in unguarded tones, and provides a more realistic portrayal of his own self-image than if he were interviewed by, say, Tim Russert.
Sometimes that’s not a good thing.
This transcript could be a useful tool for management classes, both in colleges and in continuing education seminars. Combined with a collection of the relevant documents from the NYT and elsewhere, it can warn others of the dangers of insufficient self-awareness, how ego can cloud one’s judgment, and how the best of intentions can be derailed by the wrong management style.
July 14, 2003
One of my favorite movie scenes is from The Producers. It depicts the initial theater audience reaction during the big "Springtime for Hitler" production number.
It's just a still shot of the totally shocked crowd, but it always makes me laugh whenever I see it.
Last night we went to see Legally Blonde 2.
It produced much the same reaction in our theater as depicted in Springtime for Hitler.
"I'm stunned," said one. "I'm speechless," said another.
I like Reese Witherspoon. I especially enjoyed her role in Election, for example.
This, on the other hand, was simply an awful film.
I didn't think it was possible to be excessively cartoonish yet thunderously earnest about Washington politics at the same time.
I was wrong.
LB2 proves that some stories should stop with the first film, because a sequel is not really possible. The basic concept will only support the initial plot, but those closest to it might not understand that fact, leading to bombs like this one.
What were they thinking?
Were they thinking?
July 13, 2003
Last night was a lot of fun, and all for some fine charitable causes to boot.
The Rehoboth Convention Center filled up with hundreds of bingo players for a sometimes raucous, sometimes catty, but universally good-spirited session of Bingo American Style.
The event was part of a series of fund-raisers held throughout the year for the sake of Aids Delaware, Delaware Pride, The Rainbow Chorale of Delaware, and the Metropolitan Community Church of Delaware.
Delaware law permits limited charitable gambling, and this series has been remarkably successful. Several sessions are held each year in Rehoboth and at a fire hall near Wilmington.
The basic admission fee entitled players to a set of 10 sheets of three bingo cards. The more ambitious participants could buy extra sets. Category cards for five special games, such as Fill in the Kite, rounded out the 15 games for the evening.
We bought the daubers and the special game cards, and came close but didn't win any of the many prizes.
The audience was a terrific mix of all kinds of folks, but the event staffers were particularly special.
A group of drag queens hawked 50-50 tickets, double-checked the winners at the tables, and sold special game cards, all while they were decked out in full Red White & Blue costumes.
One queen stood at least 6 foot 4 inches tall before he laced on his skates. His already towering height was then augmented by a bee-hive blond hairdo that rose at least 18 more inches above his head, and which was liberally sprinkled with small American flags.
I don’t know where he found the skimpy blue sequined skating outfit with the tiny flounced skirt, but it fit him perfectly.
And geez, he could skate.
The aisles between the long rows of tables were pretty narrow, but he managed to flow through them with nary a spill or even a close call.
The next bingo session is scheduled for August 23, and the theme is Hurray for Hollywood.
I’ll bet it sells out.
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