Sneaking Suspicions
 
Archives-- October 27-November 2, 2002

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This page includes posts from October 27-November 2, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

November 2, 2002
Scones

One of the benefits of a long marriage is that it doesn't take much for a husband to take a hint from his wife.

A few weeks ago, my bride returned from shopping and showed me a bag of dried cherries she bought at the local Harry & David store.

She simply said, "These are for your next batch of scones."

I made them the next weekend, and they turned out great.

The basic recipe is taken from a Fanny Farmer cookbook (the link is to a later edition):

  • 2 cups flour

  • 2 tsp baking powder

  • 1 tbs sugar

  • 1/2 tsp salt

  • 4 tbs softened butter

  • 2 eggs, well beaten

  • 1/2 cup cream

  • 1/2 cup dried cherries

Set the oven to 425 degrees, and lightly butter a cookie sheet (even if it's a non-stick type).

In a large bowl, mix together the flour, baking powder, sugar, and salt. Add in the butter, and work it into the mixture with your fingers or a pastry blender until the combination looks like coarse meal. Blend in the eggs, cream, and cherries.

Turn the mixture out onto a lightly floured board and knead for a minute or so. (I like to flatten and fold over the dough at least twice during this part. It seems to help make the scones easily splittable when they're done.)

Roll or form the dough until it's about 3/4 inch thick. Use a sharp knife to create 12 or so triangles, and place on the cookie sheet.

Bake for about 14-15 minutes, depending on your oven.

This recipe also works well with a 1/2 cup of raisins or a 1/2 cup of chocolate mini-morsels.

November 1, 2002
Unhappy Trails*

Thousands of people throughout the country are big fans of the rails-to-trails movement. 

As the railroad industry diminished in favor of trucking, and no-longer-needed rail lines began to be abandoned, government officials and others determined that the old land grants for the rail corridors could still provide a valuable transportation opportunity that should not disappear along with the rusting steel rails. 

Using a mix of federal, state, and local legislation, governments and non-profit organizations took over many miles of old railroad properties. They converted the rights-of-way into bike trails, hiking paths, or similar recreational amenities. 

One such trail is now under active development not far from where I live. It uses part of an old rail line between Lewes and Rehoboth Beach. 

Not everyone is pleased at this adaptive re-use of valuable right-of-way corridors, however, as discussed in a Seventh Circuit Court of Appeals decision issued this week.

Douglas and Judith Mauler own property in Bayfield County, Wisconsin. The County obtained a 100-foot-wide strip of land along the parcel, once owned by the Union Pacific Railroad Company.  The Tourism and Recreation Department now maintains the strip as part of a public recreational and snowmobile trail.

The Maulers challenged this local improvement, by building a five foot high wooden barrier across the trail.

Others chose to take the same self-help approach going the other way, and removed the barrier.  

The Maulers then put the barrier back up. 

At that point, the county then sued in state court, and won an injunction against the homeowners.  

The ping-ponging continued, when the Maulers then sued the county in federal court. 

Instead of seeking dismissal of the case, on the grounds that the matter had already been answered in the state courts, the county chose to seek an additional definitive ruling from the federal courts on the same issue. 

The lower court ruled for the county, and the Maulers then appealed.  

Writing for a unanimous panel, Chief Judge Flaum disagreed with the Maulers’ suggestion that once the railroad ceased operating a line on the property, the real estate automatically reverted to them: 

·    In the mid-nineteenth century, the federal government transferred the original entire parcel by a land grant to Wisconsin, which then conveyed it to Union Pacific’s predecessor railroad company. The company then sold the property in 1884 to the Maulers’ predecessor in title, expressly reserving the railroad right-of-way at issue in this case.

·        When the Maulers bought the property in 1994, their deed included the usual “subject to” clauses referring to any easements, and also excluded from the property description “any rights of way of record.”

·    The applicable federal laws, including the Abandoned Railroad Right-of-Way Act (43 USC Section 912 and 913, and the National Trails System Improvement Act of 1988 (16 USC Section 1248(c)), authorized Union Pacific’s transfer of this strip to Bayfield County.

·    As the Court concluded:

We find that 43 U.S.C. § 912, as modified by 16 U.S.C. § 1248(c), vests a reversionary interest in the strip of land in the United States and not the Maulers, that § 913 authorizes the Railroad’s transfer of the land to Bayfield County and validates the county’s use of the land as a public recreational trail, and that the Maulers’ takings claim must fail because they hold no valid legal interest in the strip of land.  

Given their prior efforts at dubious self-help measures, one hopes that the Maulers simply and finally acquiesce in this decision, and take no further steps to bar the public use of this trail. 

On the other hand, I wouldn’t be too surprised if a thick hedgerow of firethorns or similar vegetative screening shows up along the Bayfield trail, in the immediate vicinity of their property.  

After all, as Robert Frost wrote, “Good fences make good neighbours.”

*A little wordplay from the song Roy Rogers made famous

October 31, 2002
Why we fight, and why we need to keep on fighting

Just in case you forgot why the Taliban needed to be removed from power, some of our remaining friends in Afghanistan seized an opportunity to remind you.

As noted in this NYT piece today:

Recent attacks on girls' schools in Afghanistan, as well as an anonymous letter, appear to confirm that Islamic militants have begun a campaign against the education of girls.

Great bit of timing just before Election Day here, eh?

October 30, 2002
Parkinson's Law Corollary applied to school attendance zones

Since early summer I've served on a Cape Henlopen School District committee, asked to make recommendations about where the kids should go to school. The dozen or so in the group included the school superintendent and a school board member, but otherwise included a broad cross-section of folks from throughout the district.

We find out tonight how representative our committee really is.

It's the first of three public meetings for parents, students, teachers, and other interested people to hear what we've recommended and tell the school board what they think of the proposals.

The Cape District is an interesting study in demographics. with about 4,200 students overall. It includes the three towns of Rehoboth Beach, Lewes, and Milton, along with the surrounding countryside and exurbs, making it the second largest district in the county. There are three elementary schools with widely varying grade combinations, three middle schools (one is actually the 6th grade in one of the elementary schools) and a single high school (9-12).

Many of the school buildings date back to the 1920's and '30's. The district was created in the late 1960's by consolidating three small town districts. The high school opened around 1971 as the primary tangible sign of unification.

All that beachfront property means that it's a rich district for property tax revenues, the primary source of cash for local schools (about 70% of school funding comes from the state).

On the other hand, a significant percentage of the elementary school kids qualify for free or reduced-cost lunches. Depending on the current attendance patterns, the numbers run from 35% to 50%.

As with most districts in the state, Cape never had a long-term building replacement plan. Some of us on the current committee helped create such a plan several years ago, and the first part of that program is now underway. Two middle schools (6-8) are nearing completion to open next fall.

This new construction affects where the kids will go. One guiding principle we adopted was that the new schools should be the same design and size, to help equalize the education opportunity.

Previously, the kids were assigned to schools in part under a corollary to Parkinson's Law: where you went depended on the space available.

The current proposal is to use the existing buildings to create four elementary schools, each K-5. Two would serve the northern middle school, and two would be the source of kids for the southern middle school. Each would be set up with nearly equal numbers of students, which is not how it works currently. To alleviate crowding in the high school, the ninth grade would use a separate building in Lewes, with a shuttle bus system back to Cape for programs such as band, choir, and athletics.

Attendance zones are going to be the tricky issue with this new arrangement, and I expect that will be the primary topic discussed at these meetings.

Folks make decisions about where to live around here based in part on which schools their kids will attend. This major change will obviously upset some of those expectations. Even so, the district's been pretty good about trying to make sure people knew some kind of change was inevitable.

Issues like this make one wonder why anybody agrees to serve on a school board for no pay, long hours, and a lot of potential grief.

October 29, 2002
Reefer Madness--Not

Today the Ninth Circuit Court of Appeals issued an important public health regulatory decision that gave appropriate deference to Federal drug policy considerations, while still remaining true to First Amendment and states' rights concerns.

The case involved a Clinton Administration determination that doctors who recommended or prescribed Schedule I controlled substances, in this case marijuana or its derivatives, should risk the revocation of their DEA authorization to prescribe medicines. The 1996 policy was aimed against voter-adopted initiatives in Arizona and California that both decriminalized limited use of marijuana for medicinal purposes, and shielded doctors from state prosecutions for recommending or approving of marijuana for medical reasons, such as AIDS-induced anorexia, metastatic cancers, and victims of multiple sclerosis (MS).

In response, a wide collection of doctors and health care advocates sued to block the implementation of the federal policy, and won in the District Court.

The plaintiffs agreed with the Federal government that the act of prescribing or dispensing marijuana violated federal law, and did not seek to change that fact. Instead, the doctors sought to be empowered to recommend the use of marijuana in those cases where its use was medically indicated, in furtherance of the normal doctor-patient relationship.

On appeal, Chief Judge Mary Schroeder noted the important difference between the injunction's terms and what the federal government desired:

[T]he government may not initiate an investigation of a physician solely on the basis of a recommendation of marijuana within a bona fide doctor-patient relationship, unless the government in good faith believes that it has substantial evidence of criminal conduct. Because a doctor’s recommendation does not itself constitute illegal conduct, the portion of the injunction barring investigations solely on that basis does not interfere with the federal government’s ability to enforce its laws.

In essence, the Federal government's attempt to further its drug enforcement goals, by dictating what doctors and patients could discuss as part of the treatment protocols, ran afoul of the First Amendment.

Judge Alex Kozinski's concurring opinion is characteristically well-written. He makes the important point that the real beneficiaries of the medicinal marijuana experiments are the patients for whom other options have failed. In addition, the injunction furthers an appropriate interest in preserving states' rights, where the intent of the voter-approved initiatives would otherwise be blocked by the Federal policy. As he put it:

In my view, it is the vindication of these latter interests—those of the patients and of the state—that primarily justifies the district court’s highly unusual exercise of discretion in enjoining the federal defendants from even investigating possible violations of the federal criminal laws.

Kozinski stressed the scientific data relating to medicinal marijuana, ranging from the National Academy of Sciences to the British House of Lords (the judge notes that the House is "a body not known for its wild and crazy views").

For some patients, the potential benefits are well worth respecting:

For the great majority of us who do not suffer from debilitating pain, or who have not watched a loved one waste away as a result of AIDS-induced anorexia ... it doesn’t much matter who has the better of this debate. But for patients suffering from MS, cancer, AIDS or one of the other afflictions listed in the ... report, and their loved ones, obtaining candid and reliable information about a possible avenue of relief is of vital importance.

As for states' rights considerations, the issue was a bit more straightforward:

Here,...doctors are performing their normal function as doctors and, in so doing, are determining who is exempt from punishment under state law. If a doctor abuses this privilege by recommending marijuana without examining the patient, without conducting tests, without considering the patient’s medical history or without otherwise following standard medical procedures, he will run afoul of state as well as federal law. But doctors who recommend medical marijuana to patients after complying with accepted medical procedures are not acting as drug dealers; they are acting in their professional role in conformity with the standards of the state where they are licensed to practice medicine. The doctor-patient relationship is an area that falls squarely within the states’ traditional police powers. The federal government may not force the states to regulate that relationship to advance federal policy.

The court opinion also includes an Appendix that sets out the personal histories of some of the participants in the Federal government's own medicinal marijuana program. It's impossible to read these case studies and argue forcefully for total prohibition.

Perhaps the Justice Department will respect the unified and reasonable approach taken by this Ninth Circuit panel, by not seeking review en banc or before the Supreme Court.


Not

October 29, 2002
No Claudes for this one

Long time readers of this site know that I enjoy finding newspaper headlines that are unintentionally ironic and therefore amusing. I award these journalistic entries a few Claudes or two, depending on how utterly banal or clueless they strike me when I first read them.

This morning’s NYT, on the other hand, included a headline that produced the exact opposite effect:

Roman Catholic Bishop Knew Boston Priest Had Praised Man-Boy Sex

As reported by Pam Belluck, the current Bishop of Brooklyn, Thomas V. Daily, knew about complaints that the Rev. Paul Shanley advocated sex between men and boys well before Shanley was assigned to a suburban parish.

Shanley is accused of molesting several persons who were children at that parish when he was there.

Belluck’s report even managed to make a connection with a notorious outfit:

The bishop also acknowledged that he did little in response to a string of complaints that Father Shanley was giving speeches outside of Boston that endorsed sex between men and boys and was attending the formative meetings of the North American Man-Boy Love Association.

In addition, Daily allegedly intervened in a separate incident in 1977 when police caught another priest having sex with a teenage boy. One officer testified that Daily came to the scene:

The chief and the bishop agreed the bishop would handle this.”

There’s not a trace of irony or humor to be found in this awful news. Instead, this story immediately produced three alternating reactions upon first reading it: shock, sadness, and anger. 

I didn’t think it would be possible to experience those emotions by reading more revelations in this developing scandal, after so many months of coverage.  

My mistake.

October 28, 2002
Getting caught stings. Getting caught by a sting can hurt even more. 

One fine afternoon on October 3, 2000, Mack Flynn and Connie Ketcher were bombing along in Flynn’s car on Interstate 40 in Muskogee County, Oklahoma.  

As often happens on high speed expressways, Flynn was driving in the left inside lane of the divided highway. (Folks just don't stay in the right lane anymore, do they?) 

Suddenly Flynn saw an unusual sign ahead, whose message was both startling and alarming:

Drug Checkpoint 1/3 mile Ahead

Shortly afterward, Flynn took notice of a second sign:

Drug Dogs in Use.  

Near the second sign a police car with its lights on sat parked by the road. 

Flynn apparently decided not to subject himself to the tender sniffing of a trained German Shepherd. He abruptly shifted to the right lane, and then took the first exit.  

Just as he reached the top of the exit ramp, Ms. Ketcher opened the passenger side door and dropped a large bag from the car onto the pavement. 

In their haste, Flynn and Ketcher seemingly failed to notice two police officers in the center median of I-40, positioned to watch the action along the ramp. As soon as they saw the bag drop from Flynn’s car, they radioed ahead to two other officers, hidden in the nearby underbrush at the top of the ramp. The police recovered the bag, took a look inside, and radioed back that there was “a lot of dope” there. Another set of officers then met Flynn at a nearby stop sign and arrested the pair. 

The stuff in the bag tested positive for methamphetamine (sometimes called “speed”, fittingly enough). 

During the eventual criminal court proceedings, Flynn argued that the evidence found in the bag should have been suppressed. After all, drug checkpoints are now generally considered illegal police conduct, and therefore his abandonment of the speed bag should have been ruled involuntary. 

There was only one little problem with this argument--there was no Drug Checkpoint.  

In fact, the whole arrangement was a scam. The police car Flynn saw was unoccupied. There were no drug-sniffing dogs prowling the Interstate.  

The police simply set up the bogus signs, and then watched carefully to see how many folks would quickly change their driving intentions as they noticed the warnings. 

This little trick is perfectly legal. 

After the police saw Ketcher throw away the bag, they could search it as abandoned property. Once they saw the speed in the bag, they had legal grounds to make the stop that led to the arrest of the traveling duo. 

Therefore, the Tenth Circuit Court of Appeals had no real difficulty in upholding the eventual convictions. 

I wonder if there is a videotape of the police telling Flynn and Ketcher that there was no drug checkpoint ahead, and that they’d been completely snookered. If there was, it might be fun to watch.

October 28, 2002
Today’s Crime Tip

If you’re in the Crown Heights section of New York City, and plan to move the dead body of a woman you’ve killed, try to make sure no one can see you putting it into the trunk of your car.

Somebody might become suspicious and call the police.

To make matters worse, you might be caught, even if you drive to Philadelphia.

October 27, 2002
A nice piece of corrective editing

The Associated Press ran two stories about the Michael Bellesiles matter this weekend.

The first one ran in the NYT Education section on the Internet today. It contained a few odd features.

First, the headline seemed to attempt to diminish the actual controversy, by using this curious phrasing:

Author of Gun History Quits After Panel Faults Research

I don't think I'm alone in concluding that the panel did quite a bit more than just "fault" the research.

Second, the story's second paragraph included a quote from Bellesiles, which is a bit remarkable under the circumstances:

The professor ... said in a statement that he "cannot continue to teach in what I feel is a hostile environment."

Considering the panel's findings, Bellesiles is expressing the academic equivalent of the tone used by Richard Nixon when he resigned his presidency.

Third, the article noted the unfortunate circumstances involving three other historians: Doris Kearns Goodwin, the late Stephen Ambrose, and SUNY professor Louis Roberts.

As for this last point, it looks like somebody took appropriate umbrage.

Today the second AP story ran, under a headline noting that the news agency was "clarifyi[ng]" the prior piece.

After noting the three other professors mentioned in the October 26 piece, the writer carefully noted the critical difference between Bellesiles and the other three:

The story misleadingly suggested that the three had been accused of academic fraud of a kind similar to that alleged against Bellesiles, who was found by an academic panel to be "guilty of unprofessional and misleading work'' in his research. Bellesiles has denied the allegations.

In fact, the three others are not accused of fraudulent research, but of actions ranging from inadequate attribution of source material to plagiarism.

The AP did the right thing in making the agency's reporting of this important story more objective.

One hopes the NYT and the other newspapers that ran the first AP story will also make as much of an effort to run this clarification in their print editions.

To the extent these publications previously relied upon Bellesiles' book to support their own political arguments about gun control, however, hoping for that level of intellectual honesty may be a bit too optimistic.


    Beach Blogger Weekend!
November 16-17, 2002
Rehoboth Beach

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
USA

fschranck-at-
sneakingsuspicions.com


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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.

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© Frederick H. Schranck 2002