November 3, 2005
Recommended Reading

The Autumn issue of City Journal is available online, and I highly recommend two pieces appearing there, written by Nicole Gelinas.

The first piece is a clear-eyed examination of the critical problem that may prove to be the most daunting hurdle for New Orleans to recover from its current woes.

I'm not referring to the aftermath of Hurricane Katrina. I'm referring to the murders and other serious crimes that plague the city's efforts to attract and retain its businesses and its population.

The second Gelinas article should be required reading for lawyers and others attempting to assess the remarkable public reaction against the Supreme Court's Kelo eminent domain decision. Gelinas cites example after example of how the promise of economic development that provided the legal support for the use of this extraordinary governmental power has rarely if ever paid off in practice.

November 2, 2005
New Music

One advantage of having older daughter hanging around the house is that she keeps us exposed to new music.

Otherwise, we would probably continue to rely upon our vast collection of stuff from the 1970s and 1980s, supplemented by the occasional movie soundtrack issued since that time.

Here's a link to OK Go, a great new band she's recently recommended (new to us, anyway). Make sure you download and watch their music video, A Million Ways.

Real ROFL stuff.

November 1, 2005
CJR and the Judge

The folks at the Columbia Journalism Review are becoming web-savvy in their marketing efforts.

They sent me an email today, complete with a link, pointing to an interesting profile they're running about Seventh Circuit Judge Richard Posner.

It's hard to believe that they've sent this notice out to every blogger, what with there being a few million of us out here. I assume they did a search at Technorati or some similar service, looking for those who have written about him previously.

I certainly fit that description.

November 1, 2005
Only butchered the story a little bit

Apropos of yesterday's post, today marked the first day in which the Delaware Department of Transportation embarks on its new, expanded enforcement program against illegal signs in the state's rights-of-way.

The 1998 version of the sign law addressed some of the issues raised in the Rappa lawsuit, by among other things establishing a Clear Zone in the rights-of-way, where unofficial signs would be subject to immediate removal.

The new law gives DelDOT the additional authority to remove unofficial signs from utility poles and the rest of the state's rights of way. The legislation also creates a civil penalty of $25 per sign, along with a $15 recovery fee for those who want it returned to them during a 30-day waiting period before DelDOT can and will dispose of it.

The legislation appears at 17 Del.C. Sections 524-527 and 17 Del.C. Section 1111 (c), and was enacted earlier this year as part of the annual bond bill.

The Wilmington News-Journal ran a first-page story about the new law, and managed to mangle the facts a little bit, while attempting to explain one aspect of the new scheme.

The law makes an exception for political signs, permitting them 30 days before and after an election. No signs--political or otherwise--will be removed during those times, and no fines will be imposed....

Well, not exactly.

The facts are that any such signs within the Clear Zones (close to the roadsides and in the median strips) will be removed immediately, regardless of the political season, along with any signs stuck on utility poles.

During the political seasons, however, signs placed elsewhere in the rights-of-way won't be subject to immediate removal. This time-based exception applies to all signs, and not merely political signs. Since the signs won't be removed during this period, there won't be any fines or recovery fees, either.

The News-Journal is usually a bit shy about running corrections, so I thought it might help to correct this particular error. Otherwise, folks might have the mistaken impression that the State is making a content-based distinction in its enforcement policy.

The fact that I wrote this legislation may have also been inspirational in this instance.

October 31, 2005
Judge Samuel Alito and First Amendment Law in Delaware

In 1990, a Delaware Democrat named Danny Rappa decided to run for Congress against fellow Democrat Tom Carper. In addition to other campaign devices, Rappa bought thousands of yard signs, emblazoned with the catchy phrase "Rappa For Congress." His campaign staff stuck them in a wide variety of places all over the state.

My clients at the Delaware Department of Transportation removed a few hundred of these signs from the roadside edges, where they considered the signs to be a sight distance or safety hazard.

Rappa lost the primary by a 90-10 margin. He then sued the State as well as the governments of New Castle County and the City of Wilmington, both of whom had also taken down some of Rappa’s signs.

Another Deputy Attorney General and I were assigned the task of defending DelDOT’s actions.

As it turned out, however, what DelDOT actually did to Danny Rappa’s signs had little to do with the eventual result. That’s because the District Court focused on the plaintiff’s facial challenge to the state’s sign law, 17 Del. C. Chapter 11, instead of the manner in which DelDOT applied its additional statutory authorities to defend its actions.

My  co-counsel and I wrote the appeal brief, and he handled the oral argument.

On appeal, the U.S. Third Circuit affirmed the lower court’s ruling that a portion of the state’s sign law was facially invalid. 18 F.3d 1043 (1994). However, the panel vacated the District Court’s injunction with respect to the rest of that statute, and also reversed the court’s decision concerning the qualified immunity of certain individual defendants on some issues.

The State then settled the case with Rappa.

Eventually, the Delaware General Assembly enacted several legislative changes to the state's sign laws, in direct reaction to the Third Circuit opinion.

One of the panel members, Circuit Judge Samuel Alito, wrote a concurring opinion. That’s why I mention this case today.

Now that he’s been nominated for the Supreme Court, this important First Amendment case and other constitutional law decisions from his Circuit tenure will be deeply scrutinized by those for and against his confirmation.

October 28, 2005
Start booking now

This week the 100-page program for the 2005 Rehoboth Beach Independent Film Festival was mailed out to the membership, and posted on the Rehoboth Beach Film Society website. (It's a big pdf file, so patience will help while it downloads.)

Opening night at the Festival is November 9 at the Rehoboth Beach Convention Center, and features a showing of Ballets Russes, along with a demonstration of classical ballet by the Ballet Theater of Dover.

The Festival takes off fully the next day, with dozens of feature films, documentaries, and shorts shown on eight screens at the Movies at Midway  from noon Thursday, November 10 through Sunday evening, November 13. To give you some perspective, last year's festival filled about 17,000 seats.

Membership in the Society carries several benefits, but among the best investments of your modest charitable contributions is the advance ticket purchase option. Depending on the membership level, you can block out your movie schedule and buy your tickets well in advance, and avoid the chance of a sellout. The lower levels of membership entitle you to use the Members-Only line to buy tickets on the day of the performance.

Many of the films will have a short introduction by presenting sponsors, including a collection of American shorts being shown on Thursday, November 10, at 1:00 p.m. This may be among the very first occasions in cinema history that a blogger will be a sponsor with this responsibility.

You might want to be there if you can.

October 27, 2005
A graceless attempt at gaining special zoning privileges

This week the Tenth Circuit Court of Appeals affirmed the legal decisions and jury verdict in an interesting Wyoming case involving a church, a city, and a proposed day care center.

It appears to be a good example of the practical limitations of the Religious Land Use and Institutionalized Persons Act (RLUIPA) (42 U.S.C. Section 2000cc et seq.).  When the record is devoid of any hint that the land use decision-making process is infected by illicit considerations of religious doctrine or practices, those pushing for special privileges due to their religious status have a hard time gaining them—which is as it should be.

RLUIPA provides that a government’s land use regulation can’t “substantially burden” a “religious exercise,” unless the government can also show that the regulation "furthers a compelling governmental interest" and is also the least restrictive means of furthering that interest.” In addition, the statute includes a more straightforward non-discrimination provision, outlawing land use regulations that are aimed against religious uses compared to non-religious uses, or otherwise unreasonably exclude religious uses from a particular jurisdiction.

A zoning ordinance that barred any church buildings in a town would easily fit that last requirement, for example.

Grace United Methodist Church owns property in a residential neighborhood in Cheyenne. The church has owned it since 1956, and the deed incorporated the neighborhood covenants. The zoning classification was set for low-density uses. For example, no day care in the LR-1 zone could take on more than twelve kids.

A few years ago, Grace United sought to expand their church property beyond these routine limits. It sought governmental approval for a 100-child daycare center on the property, as part of an expansion plan.

Kids from newborn to age 13 would be watched over on the property, potentially from 6 a.m to midnight seven days a week. There were to be no religious tests or church membership limitations on the daycare center customers. The daycare fees were to be in line with similar providers in the city, and the employees and caregivers were not limited to church members.

A Cheyenne official turned down the license application, and the church appealed the decision to the Board of Adjustment. After a full hearing, complete with attorneys, witnesses, and evidentiary presentations, the Board upheld the license denial. It held that the proposal couldn’t fit the requirements for a variance, because the zoning ordinance did not permit more than the dozen-kid limit in LR-1 zones. In addition, the Board ruled that the day care center was not a church, school, or other permitted use on the property. Finally, the Board determined that the proposal was a bad fit with the neighborhood.

Grace United then sued in Federal Court, alleging a wide variety of constitutional rights violations, as well as a count under RLUIPA. The District Judge ruled against the Church on most grounds, and sent the RLUIPA charge to the jury for its decision. The jury also found in favor of Cheyenne, and the church then appealed the case to the Circuit Court.

The unanimous panel didn’t think highly of Grace’s claims, and expressed that determination in remarkably common-sense terms:

As we made clear in [another case involving a church], while Grace United has a right to operate a daycare in Cheyenne, it has no right to build its daycare exactly where it pleases. [citation omitted]. "[T]he record contains no evidence that building a [daycare center] or building a [daycare center] on the particular site is intimately related to the religious tenets of" Grace United. [citation omitted].  In fact, as the district court correctly observed,

Grace United could operate its religious education program in another area of Cheyenne that is properly zoned for such an operation.  Or, Grace United could operate its religious education program in its present building, where it has Sunday school facilities, but not upon such a grandiose scale as the day care center it now wishes to construct.  If from its present Sunday school of twelve to twenty there had been such great growth and expansion that it was necessary to expand the school to one hundred, then one might not doubt the bona fides of Grace United's church . . . .

[citation omitted].

The panel returned to this approach when it discussed the church’s First Amendment claims:

[T]]here was no evidence that the Board ever interpreted the exempt categories [in the zoning ordinance] to include certain daycare operations and not others, or that the ordinance was enacted based on religious animus.  The fact that the Board consistently concluded it was without discretion to grant variances for daycare facilities in LR-1 zones defeats the argument that it deployed a system of subjective considerations running afoul of the free exercise clause.  The First Amendment simply does not entitle the Church to special treatment so that it may operate a daycare exactly where it pleases while no one else can do the same…. We hold that Cheyenne's zoning ordinance constitutes a neutral policy of general applicability which does not offend free exercise principles.

When the church argued that its free speech and associational rights were harmed by the zoning decision, the Circuit Court reminded Grace United that there were other options available that it hadn’t taken:

Not only may Grace United freely disseminate its religious message in the LR-1 zone, but it may disseminate religious speech in any zone in the City.  The Church is entitled to operate its daycare center in any one of Cheyenne's 28 zones that is properly zoned for such a facility…. By invoking the special permit process, Grace United could even attempt to alter the Church property's zone designation to one that permits the operation of daycare facilities.  The Church made no attempt to take advantage of the established procedures available to special permit applicants.  In sum, because the City has an important governmental interest in regulating land use, and its zoning regulations are unrelated to the suppression of speech and do not burden any more speech than necessary, the challenged ordinance survives intermediate scrutiny.

The panel was equally blunt in turning back the church’s equal protection argument:

The City has allowed Grace United to operate a Methodist church in a residential zone without interference since 1956.  The Church is not seeking similar treatment in its request to operate a large commercial daycare center at that location; rather, it is seeking preferential treatment at the expense of the other landowners in the LR-1 zone.

We therefore easily agree with the district court that Grace United failed to state a cognizable equal protection claim.

The panel dealt with several other legal issues in this lengthy opinion, which is well worth reading in its entirety for attorneys and others involved with land use matters.  

The case should be useful for government officials attempting to understand how to apply their zoning laws to religious institutions with fairness to all concerned. For churches, it serves as a cautionary parable about the limits of RLUIPA. The Federal law may provide a shield for them in appropriate circumstances, but it should not be used as a conquering sword against the legitimate laws and expectations of others.

October 26, 2005
A Mazda Protégé must not give off much of a signal

Ann Althouse posted a fun note this morning about a NYT piece discussing one of the great gender debates of all time (or maybe not)—what does your car tell the opposite sex about you?

As often happens with her posts, the commenters at Althouse had a field day with this topic, especially on the subsidiary issue of the best chick cars and the best guy cars, based on this passage from the NYT piece:

The idea that there are "chick cars" and "guy cars" is real to many people, said Joe Wiesenfelder, 37, the senior editor of Cars.com, a Web site that reviews automobiles and is affiliated with the NPR program "Car Talk." The radio show did an unscientific survey of favorite chick and guy cars, based on thousands of e-mail submissions from listeners. The survey found that the Top 5 Ultimate Chick Cars of All Time are the VW Beetle, VW Cabriolet, Mazda Miata, VW Jetta and Dodge Neon; the Top 5 Ultimate Guy Cars are the Ford Mustang, Chevy Corvette, Chevy Camaro, Ford F-150 pickup and Dodge Viper.

Hmmn.

Let’s go through the list of cars I’ve owned, compared to this ranking. This includes the cars on which I was the primary driver, but not the ones my wife drove more frequently.

• 1974 Mustang II

• 1983 Ford Escort

• 1982 Toyota Corolla, used

• 1994 Geo Prizm

• 1999 Pontiac Grand Am

• 2003 Mazda Protégé

Not exactly a collection of babe magnets, is it?

Then again, I’m not actually in the market, as it were.

October 25, 2005
Flood watch

We've had a classic nor'easter here the last two days or so, with a lot of rain, howling wind, and ever-increasing high tides in Rehoboth and Indian River Bays.

The wind pushes the water into the bays from the ocean as high tide rolls in, and is strong enough to keep the water from leaving during low tide.

So when I went down to check out our pontoon boat, I can't say I was terribly surprised to see that the street leading to the dock area was flooded over.

Fortunately, our boat is tied to a floating dock. Shortly after the morning high tide it was sitting about a half-foot above the nearby street, but at least it wasn't going anywhere.

October 24, 2005
A nicely honest response

I keep up with a subscription to a golf press association newsletter, thanks to the weekly golf column I write.

Usually the daily web-mail is limited to product announcements, personnel moves among head golf professionals at various clubs, travel/hotel/golf package deals, and so forth.

Today’s newsletter, however, also included a transcript from the post-tournament press conference with Lucas Glover, who won yesterday’s PGA Tour event at Walt Disney World. 

Glover hit a remarkable bunker shot on the final hole that ran in for a highly improbable birdie that put him in the lead. The young professional then had to wait nervously for the rest of the field to finish up.

Tom Pernice, Jr. was the last golfer to have a chance to tie Glover and force a playoff. When Pernice’s birdie try from 15 feet or so came up short, Glover had his first-ever win on the Tour.

During the short television interview immediately after the win, Glover was alternatively funny, perceptive, and visibly relieved. From the transcript of the media interview later that day, he also showed himself to be refreshingly honest about his emotional state while hitting shots on the practice range just before Pernice made his birdie attempt:

LUCAS GLOVER: I did a couple of interviews and signed autographs and then I was herky-jerky, kind of shaky. I thought the best way to get rid of this energy is to go over there and hit a bunch of balls and be with my caddie.

So I went over there and hit some wedges and hit some drivers and just waited for Tom to putt. But that was just a way for me to release some of the nervous energy and tension I did have. Just like exercising or anything, it's just a release.

Q.: You stopped right before Tom went to putt. Was the suspense killing you in a way?

LUCAS GLOVER: Yes. Cliche, cliche, you dream about, something you always talk about, think about, blah-blah-blah. Standing there it was killing me, absolutely. If anybody says otherwise they're lying, I'll just tell you. Steve, the Tour official was watching, and you can tell by the crowd, too. And they came back and said about 15 feet. And I said, it's in. Let's get warmed up here. Let's hit some draws like we would on the 18th tee. It didn't go in for him.

That kind of answer tells me this kid has a promising career ahead of him.