November 1, 2003
Houston, you don't have a problem

Based on the 52-page opinion from the Fifth Circuit this week, it looks like Houston doesn't have a problem--at least, not with regard to the Texas ozone attainment demonstration state implementation plan and its control strategy for the Houston/Galveston area.

For those who don't deal with the Clean Air Act on a regular basis, it's certainly understandable if that opening sentence just made your eyes glaze over.

Nonetheless, this is an important decision for government officials who must deal with the difficult, complex, and contentious issues concerning how the states and local governments will comply with one of the larger, mostly unfunded Federal mandates.

It's hard enough to convince the EPA that all the environmental modeling and pollution reduction strategies meet the high standards required by the Clean Air Act and its regulations. The process is made more difficult by the seemingly endless snarky comments from not only the environmental peanut gallery, but also the various industries and other constituents whose behaviors might need to change in order to make these plans work.

Here's just one example of the latter. This plan calls for limiting the hours in which folks can mow their lawns during a critical time of the year.

What this really means is that the relatively low-hanging fruit of improved pollution control technology for cars and factories can only go so far to reduce the bad stuff. Full compliance with the CAA could easily affect other aspects of citizens' lives that aren't a big problem in themselves, but become a big problem in the aggregate.

For those with a professional interest in administrative law, especially as it deals with scientific evidence and predictive models, this opinion is well worth reading a few times.

For those considering the relationship between worthy national goals and the methods adopted to attain them, this case is also a good example of how the regulatory process can eventually affect everyday life.

October 31, 2003
The Ride Home

Indian Summer sunsets around here are often beautiful.

The picture below shows Waples Pond, just west of State Route 1, not far from Prime Hook National Wildlife Refuge:

It's one of the nicer things about the ride home during the fall.

October 31, 2003
Knowledge of local cultural norms is a good thing—and safer, too.

Rudy Susanto is a 25-year-old man who police said had a past history of exposing himself to the girls at St. Maria Goretti High School in south Philadelphia.

According to CNN, he flashed the students again yesterday afternoon.

If Susanto has any brains left, that’ll be the last time:

[A] group of girls in school uniforms angrily confronted Susanto with help from some neighbors, police said.

When Susanto tried to run, more than 20 girls chased him down the block. Two men from the neighborhood caught him and the girls took their revenge.

"The girls came and started kicking him and punching him, so I wasn't going to stop them," neighbor Robert Lemons told The Philadelphia Inquirer.

Susanto was later treated for injuries at a local hospital.

The man now faces a wide variety of criminal charges. On the other hand, he’ll be somewhat safer in prison. 

You’d think he’d have known better.

After all, anyone who knows the girls who have ever attended Catholic high schools in south and west Philadelphia could have told him that was the last group of young women on which he should try anything that stupid.

I can vouch for this critical bit of cultural knowledge.

I’m married to one of these girls--a Philadelphia native, a proud graduate of West Catholic, and someone who’s not afraid to show her tough side. 

Of course, as a deputy attorney general, I can’t support vigilante justice.

On the other hand, there’s nothing particularly wrong with making sure a suspect stays in custody until the police arrive.

Really sure.

And a hat tip to Glenn Reynolds for this one.

October 30, 2003
A Mischief Night Blog Post

Mischief Night has an honored place among my childhood memories.

We never did anything all that criminal (except for the incident with the-nevermind--Ed.), but we managed to have a good time, at only the mild expense of others.

Seems to me that this post could provide the blogging equivalent, and I have Charles Hill to thank.

He recently referred to another blogger's piece on earworms, those snatches of frequently awful music that can't seem to escape the mind, either after hearing it or being reminded of it.

It being Mischief Night here as I write this, here's an earworm for those of a certain age, if you dare to read it:

Brandy, you're a fine girl

Mwaa-ha-haa!

October 30, 2003
Challenging a law for what it doesn’t say

I don’t really hate billboard companies. 

They just make it hard for me to love them, is all I’m saying.

Y’see, sometimes our friends in the outdoor advertising industry tend to push their agenda just a little too hard against those who regulate them.  

It looks like others in a position of influence agree.  

On October 28, the Eleventh Circuit issued a nicely practical decision that told the sign company to back off on challenging a sign ordinance for what it doesn’t say.

St. Petersburg, Florida has a pretty standard sign ordinance. 

Take, for example, the way it handles standard off-premise billboards, intended for companies such as MBNA, as opposed to on-premise signs telling passers-by they’ve just reached Bob's Liquor and Check-Cashing Store.

Companies seeking to put up these billboards must show that it will be placed on a property zoned commercial/industrial, on lots that don’t already have an off-premise sign, and which also meet height, separation, area, and setback requirements. The company submits a plan showing how the new sign will comply with the ordinance. After its review, the city then issues the required permit.  

From the facts, it looks like Granite State Outdoor Advertising, Inc. didn’t do their homework before they signed leases to install billboards on six different parcels. They filed for the sign permits, and seventeen days later the City gave them the bad news—all of the applications were rejected, for several reasons: 

• Other structures were already on the lots.

• Granite’s plans didn’t show compliance with the height, setback, and separation requirements.

• One property was zoned residential multifamily, not commercial/industrial.

• Another property couldn’t meet the minimum frontage requirement.

Granite didn’t take kindly to being told they’d screwed up. They bypassed the city’s administrative appeals process and sued in Federal court, claiming that the entire ordinance was defective, both as applied in their case and on its face. 

The district court ruled against the sign company on their challenge to the sign ordinance’s provisions as they applied to these six signs. On the other hand, the court upheld a facial validity challenge to three parts of the ordinance that had nothing to do with these kinds of billboards and severed these provisions from the remainder of the law. 

In addition, the Court also agreed with Granite that the remainder of the ordinance was fatally flawed by the absence of any provision giving a specific time limit for the City officials to make their permit decisions. The judge refused to grant any damages or attorney’s fees to Granite for this victory of sorts, which naturally annoyed the billboard company even further. It appealed to the Eleventh Circuit, as did the City. 

The appellate panel recognized the applicability of the Supreme Court’s 2002 Thomas v. Chicago Park decision to the current situation, involving as it did the review of a content-neutral permitting scheme under the First Amendment. The circuit judges noted:

[E]ven though the ordinance at issue required all permit applications to be processed in 28 days, the Court never stated time limits were per se required for a permitting scheme to be valid. See id. Rather, the Court simply held all that was required were “adequate standards to guide the official’s decision and render it subject to judicial review.” Id.

The St. Petersburg ordinance limited the permit decision to specific objective criteria, and also provided for administrative appeals. Those facts met the Chicago Park standards. 

In addition, the panel gave short shrift to the facial validity argument, insofar as the absence of the time limit posed only a hypothetical threat:

We realize City officials could potentially delay the processing of certain permit applications and thereby arbitrarily suppress disfavored speech. We will not, however, address hypothetical constitutional violations in the abstract. As the Supreme Court noted in Thomas, we believe “abuse must be dealt with if and when a pattern of unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is found in few legal arrangements.” [citation omitted]. Furthermore, we are reluctant to invalidate an entire legitimately-enacted ordinance absent more of a showing it is as problematic as Granite claims [note omitted].

By upholding the City’s side of the argument on the merits, the panel also affirmed the decision to deny Granite any attorney’s fees or nominal damages. After all,

Granite is no closer to being permitted to erect its billboards than it was when litigation began. [note omitted]. Thus, Granite is not a prevailing party, and an award of attorneys’ fees would be inappropriate.

Good.

As I wrote in discussing the Chicago Park decision when it first came out, “I’m not a fan of facial validity challenges. Most of the time they seem just like advisory opinions, and don’t meet the normal requirements for a real case or controversy.”

I also suggested that the Supreme Court decision might provide a “little reminder to deal with a real case [and] help reduce the impulse to file a First Amendment challenge based ... on what might happen."

It looks like the Eleventh Circuit heard the message, even if the billboard company didn’t.

October 29, 2003
No conflict with his interests

Elected officials sometimes have trouble with the legal and moral issues concerning conflicts of interest. 

These difficulties are by no means limited to politicians at the national level. If anything, the risks are even greater for those who attempt to serve in local capacities. 

A city councilman in Salisbury, Maryland provided a vivid example recently, earning some unwanted negative publicity on the local television news broadcasts. 

Michael Day lives on Isabella Street. This summer he voted with the majority to change the traffic pattern on West Isabella and East William Streets.

It would have been a lot smarter if he hadn’t:

Salisbury's Ethics Committee ruled that city councilman Michael Day did commit an ethics violation when he voted to alter traffic patterns on Isabella Street.

The panel ruled that he ignored a potential conflict of interest when he voted on an issue for the street where he lives- increasing his own property value.

In an October 24 story posted on WMDT's website, the television reporter explained the situation in greater detail:

A real estate expert, speaking on behalf of the complainant, said the measure to close West Isabella, "definitely had a positive effect on his property value."

The lawyer for the complainant, Mark Cropper, said …Day knew of this potential economic impact and voted anyway.

Cropper showed a video clip of an interview Day gave in which he said the measure "most definitely will raise property values in East Newtown."

…But according to Day, the property value issue was, at the most, a secondary factor in his decision to vote. Instead, he said he voted out of a desire to improve public safety and the quality of life for his neighbors in East Newtown.

The TV report continued with this response to Day’s defense:

Cropper argued that whether or not the impact was secondary or not, because of the conflict of interest, Day did violate the city's ethics code.

"The ethics code does not distinguish between what is primarily or secondarily the reason for voting on an action. It's very clear that if you are to receive, if you know or reasonably should have known that you'd receive a direct financial benefit as a result of the act, you should not have participated," he said.

If the television reportage of Day’s comments is complete, then the Councilman needs a ride on the clue train. This was a fairly blatant example of a conflict, no matter how public-spirited he might claim his motives were.

On the other hand, there was nothing inherently wrong with Day’s arguing to his fellow council members about public safety issues in his neighborhood during the debate on the proposal. After saying his piece, he should have publicly announced that he wasn’t voting, and why.

Paybacks are hell, however, especially in small cities and towns like Salisbury.

For his sake, therefore, I hope that Mark Cropper doesn’t need Councilman Day’s vote on any other matter any time soon.

October 28, 2003
Whose bloc will count?

The First Circuit issued a 2-1 Voting Rights Act decision today concerning the newly redistricted Rhode Island State Senate. 

Rick Hasen posted a short note about the case on his very good Election Law Blog, in which he observed the sharp difference of opinion between the majority and Judge Selya, as expressed in his dissent: 

… I do not believe that section 2 of the VRA authorizes vote dilution claims that are wholly dependent upon massive crossover voting. There is a critical distinction between minority-preferred candidates who lose because redistricting excludes too much of the minority electorate from a particular district (illegal vote dilution) and minority-preferred candidates who lose because they do not attract enough votes from other folks within the district (legal majoritarian rule). The amended complaint, even when taken at face value, blurs this distinction.

Unlike some Voting Rights Act cases, this one delves deeply into what-if territory based on some hard demographic facts, including the issue of multiple minority blocs. 

For example, Rhode Island’s African-Americans are only 4.5% of the total 2000 Census count of just below 1,050,000—a total of about 48,000. The population identified as Hispanic or Latino is nearly twice that size, at 8.7% (91,350).

In addition, the minority population in the Ocean State is not evenly dispersed over its 1,000 square miles, but is concentrated in Providence and a few other areas. 

Even then, however, it’s difficult at best to create a majority-black Senate district, and that’s due in part to another unusual wrinkle. The voters in Rhode Island approved a constitutional amendment in 1994 that reduced the number of Senate seats from 50 to 38, and the redistricting was intended to accomplish that task as well. 

This one change had a huge effect, thanks to the small relative numbers involved. 

Assuming an equal spread of Rhode Island’s population among the 50 Senate districts before redistricting, there were roughly 21,000 residents in each district. The mandated reduction in Senate seats caused an increase of nearly 6,630 additional residents per district. 

As a simple matter of demographics, therefore, African-American political prospects in Rhode Island were not improved by the reduction in Senate seats, regardless of the new district configuration. 

For example, a single African-American Senator, Charles D. Walton, served an area before redistricting that was 25.69% African-American. As noted in the First Circuit opinion,

Much of Providence’s African-American population is now within the new Senate District 2. The population of this new district is 21.42% African-American and 46.74% Hispanic, and the voting age population is 21.43% African-American and 43.12% Hispanic.

It wouldn’t surprise me at all to learn that a large part of the reason for the slightly diminished African-American percentage is due to the increased population base per district. 

In the Democratic primary after redistricting (the real election as a practical matter) a man named Juan M. Pichardo won the contest against the incumbent, Walton. Pichardo went on to trounce his modest competition in the later election. 

The local media also noted that Hispanic community activists also weren’t happy with the new district boundaries, claiming in their own Voting Rights Act lawsuit that one heavily Hispanic area had been unfairly split up. 

The one thing that’s clear from reading today's panel majority opinion is that the two judges felt the lower court’s analysis was a bit simplistic, focused as it was on the near-impossibility that a district could be legally devised with a majority of African-Americans of voting age within it. They decided that the legal and factual analyses had to go much farther than that, while also being careful to note that the plaintiffs had a long way to go before they could prove a violation of the Act.

I believe on remand the case will quickly focus upon a different, equally touchy subject—determining the likely impact of voting blocs among Hispanics as well as African-Americans.

October 27, 2003
The wrong side of being zealous, and on tape no less

I have a healthy respect for the harsh conditions under which most police officers operate. As a former prosecutor, I’ve seen more than a few examples of great cops doing great work, despite significant provocation and an occasionally sullen citizenry.

Maybe that’s why I become so annoyed when I also see stories about police officers whose apparent zealotry overcomes their good judgment.

Their screw-ups make it that much harder for those who don’t.

Today’s Washington Post ran a piece by Staff Writer Ruben Castaneda about Prince George’s County, Maryland, where evidence provided by videotaped interrogations in several instances led to reduced charges, plea bargaining from a court-imposed position of weakness, or convictions for lesser offenses than might otherwise have been warranted.

While interrogating murder suspect Richard B. Gater last year, a Prince George's County police detective went beyond the bounds of lawful questioning and engaged in coercion, according to a judge's opinion….

After reviewing the video, Circuit Court Judge Thomas P. Smith ruled this month that any and all incriminating statements made by Gater could not be used against him at his trial on a murder charge. Smith said that because police had no documentation showing when Gater made which statement, he was throwing all of them out.

Last week, with the statements barred from evidence, a jury acquitted Gater of first-degree murder and convicted him of the lesser offense of second-degree murder, punishable by up to 30 years in prison. He also was convicted of first-degree assault.

The WaPo story gives other examples.  

In one, a man faced car-jacking and other charges carrying up to 70 years in prison. He plea-bargained his way down to a single charge, with all but 3 ½ years suspended on his sentence, after a judge agreed with the public defender that the videotaped interrogation showed that the criminal’s rights had been violated. The statements were tossed, and the prosecutors were forced to make the best deal they could with what was left of their case. 

The use of videotape during the interrogation process is relatively new to PG County police. It’s been in use elsewhere, however, and can be very helpful in reducing false claims of police misconduct.

As these cases show, however, the tapes can also establish the occasional instance where citizens’ rights are not respected. 

The judge in the first example reported in today's WaPo story took an additional smart step. He made sure that the officers involved heard directly from him why their actions fell short of the law:

The judge asked that [the] detectives in the case be in his courtroom when he issued his ruling on the statement. "I just don't want the message to get lost in translation," Smith said. "And I am not unmindful of the stress and difficulties faced in this county in this time with handguns and violence. But it has been the law in this state for almost 130 years that a statement must be voluntary under all of the circumstances. . . . Maryland took the lead. It hasn't changed."

Let’s hope the message eventually sinks in, before more prosecutions are hobbled by those more eager to close a case than to follow the fundamental rules of criminal justice. 

October 26, 2003
Peanut Butter Brownies

Last Friday morning was our first frost of the season.

For some reason, the increasingly chilly weather has an inspirational effect on our family's interest in baking.

I think it's genetic. It may have something to do with storing up "fuel" for the winter. At least, that's my excuse.

In any event, I readily accepted my wife's invitation to make a batch of her college roommate's peanut butter brownies.

As they say, these are fun to make and even more fun to eat.

Ingredients:

• 1/2 cup crunchy style peanut butter, warmed

• 1/3 cup softened butter

• 3/4 cup light brown sugar, firmly packed

• 3/4 cup sugar

• 2 eggs

• 2 teaspoons vanilla extract

• 1 cup flour

• 1 tsp baking powder

• 1/4 tsp salt

• 12 ounce package chocolate morsels

Method:

Preheat oven to 350 degrees.

In large bowl combine peanut butter, butter, both sugars, and beat until creamy. (It helps if the peanut butter's been micro-waved for half a minute or so first.)

Beat in eggs one at a time into the mix, then add the vanilla.

In a separate bowl, combine the flour, baking powder, and salt. Stir this mix into the wet ingredients into the peanut butter mixture.

Add one-half of the chocolate morsels into the mixture, and spread into a 13 x 9 x 2 glass pan, lightly greased on the bottom and sides.

Sprinkle the remaining morsels on top.

Bake in the oven for 3 minutes, and then remove from heat. Using a knife, swirl the melting morsels through the mixture to marble the chocolate, and then place back into the oven.

Continue baking for about 30 minutes, or until firm in the middle and edges are pulled from the pan.

Serves one to two persons.