Sneaking Suspicions
Archives-- January 2-15, 2005

This page includes posts from January 2-15, 2005 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

January 15, 2005
A modest tax proposal

This week Delaware State Treasurer Jack Markell, other state and Wilmington officials, as well as other interested parties renewed their annual campaign to increase participation in the Federal Earned Income Tax Credit program. Just in case some of us missed the newspaper coverage of the campaign, Markell also sent out his own email announcement about it, which I received.

The EITC has a lot going for it as a matter of tax policy. Delaware’s effort to make sure that the First State’s potential beneficiaries take advantage of it is certainly commendable. 

I like the EITC because it rewards initiative and work, and because as a practical matter it shaves a bit off the regressive features of the Social Security tax structure. 

Like most other government programs, however, the EITC is not self-executing—hence the outreach efforts to encourage folks to apply for it.

The General Assembly also began its newest session this month, and we’re already hearing noises about tax cuts and other hardy perennials from Republican House Majority Leader Wayne Smith and others.

As long as they’re thinking about cutting taxes, I respectfully suggest that Representative Smith use the opportunity to do something more about Delaware and the EITC—namely, create a state version of the tax credit, applied against the Delaware personal income tax.

Several other states and the District of Columbia already provide some form of state-based EITC, usually set as a percentage of the Federal credit.

I’m not picky about the details, such as whether the credit is refundable or non-refundable. Regardless of which arrangement is adopted, enacting this particular targeted tax relief measure could help low- to moderate-income workers and their families.

Note: For those interested, the Delaware EITC Help Line at 800-464-HELP can provide the locations and hours of the more than 15 walk-in facilities throughout the state where volunteers will help with tax preparation.

January 15, 2005
We don't publish that kind of stuff here

This note is intended for the three visitors this month who came to this site using the following search terms:

Maureen Dowd nude

Sorry to disappoint, but this is a family-friendly blog. We don't publish that kind of material here.

It can be found elsewhere, of course.

January 14, 2005
Didn’t exactly follow Thoreau or King

I’m not a huge fan of civil disobedience as a strategy for supporting change in the laws. 

That shouldn’t surprise anyone, considering what I do for a living.

On the other hand, I’ve always had a much easier time accepting the sincerity of those who engage in the practice, when they also accept the consequences of their behavior. As with Thoreau’s night in jail, or Reverend King’s stay in Birmingham, those who take direct though illegal action against perceived injustice are nonetheless worthy of respect, if they also willingly agree to pay the penalties anyone would face for similar misconduct without such motivation. 

Perhaps that’s why I reacted so negatively to the defense raised in a Ninth Circuit Court of Appeals decision issued this week, about a modern-day protester who only went half-way. 

Early in the morning on March 19, 2003, Father William Bichsel traveled to the United States Courthouse in Tacoma, Washington, along with 19 others, to engage in a protest against the Iraq war. In order to dramatize the group’s plan to conduct a “citizens’ arrest of the United States government,” Bichsel chained himself to the doors of one of the courthouse’s emergency exits. 

An actual arrest took place shortly thereafter. 

Sometime before 7:00 a.m., a Federal Security officer warned Father Bichsel to move, and that his chains would be cut and he’d be arrested if he persist. The priest didn’t heed the officer’s directives, and soon enough the policeman made good on his promise. 

A U.S. Magistrate found Bichsel guilty of failing to comply with the officer’s lawful order, and sentenced him to a five-day jail term.

If the priest simply pled guilty and served his time, I could have admired his classic use of civil disobedience, even as I disagreed with the merits of his protest and the tactics he employed. In this case, however, Father Bichsel appealed his conviction, losing in the first round before U.S. District Judge Ronald B. Leighton. 

Thankfully, the priest also failed in his appeal to the Ninth Circuit, for reasons that much appeal to me. 

The panel recognized that the Federal regulation on which the charges were based, 41 C.F.R. § 102-74.385, provides that persons on Federal property must obey the lawful directives of Federal police officers. To be enforceable, however, the regulation must be conspicuously posted on the property at each public entrance. 

In Tacoma, this simple requirement was usually met by use of a sandwich board posting placed outside the entrances each morning. However, Father Bechsel managed to chain himself to the doors about 30 minutes before the sandwich board went up that day. 

Even so, there was no disputing that the priest knew he was on Federal property, that a uniformed Federal police officer told him take the chains off the emergency exit doors, and that he’d been warned about what would happen to him if he didn’t comply.

Under these circumstances, the appellate panel agreed that the actual notice Father Bechsel received was more than sufficient warning to support his conviction. 

The circuit judges also applauded the district judge’s practical approach:

As Judge Leighton stated, “Father Bichsel could not have reasonably believed it was lawful to chain himself to the courthouse doors;” “[a]t some point, common sense must prevail.” An actual notice exception to the conspicuous posting requirement is in lock step with fair notice and common sense.

Works for me. 

Perhaps during his upcoming short stay in the Federal correctional system, Father Bichsel will have a chance to re-read Thoreau and/or King. Their attitude toward peaceful noncompliance remains far preferable to those who seek to engage in cost-free protest.

January 9, 2005
Back in a bit

No blogging here for the next few days, due to work demands.

While you're here, of course, feel free to take a look at some prior posts.

January 8, 2005
Picking Your Plaintiff, Maybe

For the last few months I’ve enjoyed listening to radio talk show host/author/law professor/blogger Hugh Hewitt through an Internet connection to KRLA 870 AM. The discussions on his show are pleasantly civil, frequently funny, and cover politics and law in ways that appeal to policy wonks like me.

Last night Hewitt began a segment with a complaint about the quality of public lawyers, especially those hired to represent school boards. He was careful to sing the praises of the lawyers for the Federal government, for whom he also practiced for several years. But if I recall correctly, he ragged on some government lawyers for being excessively timid and, in this case, not sufficiently up to speed on First Amendment issues:

When I read stories like this one and this follow-up, I wonder if the lawyers giving the advice to the district officials have ever taken a course involving the Establishment Clause.  Memo to Insipidity, Powerline, [Beldar] (where has Beldar gone?), The Volokh Conspiracy or any other law-blogger out there: Does anyone believe that allowing a self-described Christian band to play at an anti-drug rally put on by a public high school violates the Establishment Clause [?]

According to the Toledo Blade stories to which Hewitt referred, the school superintendent had her reasons:

Superintendent Luci Gernot initially rejected the request to allow Pawn to perform - prompting a flood of national attention - because of concerns over having Christian music played at a public school event. Students would have had the option whether to attend the band's show.

Ms. Gernot said the band, which includes two Rossford High students and two former students, may be able to play after school at an event sponsored by local businesses but not during school hours because board members said they feared a lawsuit contending the performance inappropriately would bring religion into a public school.

I can understand why the school superintendent would make this decision, but I don’t agree with it.

Establishment Clause cases such as Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (June 19, 2000) aren’t always easy to apply to other situations. In the Santa Fe case, for example, the court majority ruled that student-led prayer at football games ran afoul of the Constitution. The court stressed the context of the situation, in which the combination of social pressure to conform and the school’s sponsorship of the event combined to cause the First Amendment problem, even though attendance was largely voluntary (the band members and football players didn’t have a choice, but no one in the audience really had to be there).

In this Ohio case, attendance remained optional, and the school was obviously sponsoring the anti-drug rally. Nonetheless, I think the only relevant potential social pressure that might occur when a rock band is playing is whether to sing or clap along. (I really doubt the crowd would be waving butane lighters in time to the music in a school assembly.)

Clapping carries a pretty light First Amendment burden, if at all, it seems to me; and singing along with the band just doesn’t have the same coercive element to it that an invocation does, whether it takes place at a football game, graduation party, or other school-sponsored event.

That said, I can see why the superintendent chose to say no, and offered instead a non-school-sponsored alternative to permit the band to play. 

Governments sometimes play “Pick Your Plaintiff.” Whichever choice they make in some situations is seemingly bound to lead to litigation. The process of making these decisions includes figuring out who will sue, on what grounds, and how the voters will react to the government’s position when the suit is filed. I wouldn’t be surprised to learn that the Ohio superintendent and/or the board members who chose to support her went through just that kind of analysis. 

Nonetheless, I think this decision was a misstep. In part that’s because I think current First Amendment law favors the folks who wanted the band to play in the anti-drug rally. In addition, my analysis is colored by my approach to my role as a public lawyer. As I wrote in an email to Hewitt,

The easiest thing for a public lawyer to do is to tell his clients to say no, or to advise them not to do something.

That's not what I do, and not what a lot of my fellow Deputy Attorneys General do.

The real fun and challenge of public law is to find ways to say yes.

My work as a government lawyer is to understand the implications of my clients’ preferred options, and to find legally appropriate means to help them achieve their goals. My clients and/or their boss ran for election, after all, not me.

Under most conditions, I can help my clients go from Point A to Point B, although sometimes not along their preferred path. On the rare occasions that this isn’t possible, the clients are so advised.

When it comes to First Amendment matters, the analysis is more complex, but the goal remains the same. In addition, however, the government should try to make sure that its decisions are aimed at enhancing free speech, not restricting it.

In this case, saying yes to a Christian rock band’s presence at an optional attendance school rally would have respected the First Amendment rights of those seeking the permission, without unduly affecting the rights of others.

What we don't know is whether this school district's attorney gave his clients that same advice, and if the clients simply decided to pick a different set of potential plaintiffs.

It's their choice.

January 7, 2005
Third Anniversary

Yesterday was the third anniversary for this site.

Thus far, there have been 300,834 visits, with page views totaling 385,576.

Writing here remains one of the most fun, rewarding things I've done outside of family life. Thanks very much for your part in making it so enjoyable.

January 6, 2005
The last city housing authority?

Today United States District Court Judge Marvin J. Garbis issued a 322-page decision about racial discrimination in public housing in the City of Baltimore, Maryland. The defendants included the Housing Authority of Baltimore City and the Federal Department of Housing and Urban Development (HUD). 

The fundamental holding by Judge Garbis is noteworthy for its wide scope:

The Court holds that, as discussed above, the Federal Defendants violated Section 3608(e)(5) of the Fair Housing Act by failing adequately to consider regional approaches to ameliorate racial segregation in public housing in the Baltimore Region. 

Some of the judge’s comments in the introductory passages of his opinion also hint that during the upcoming remedial stage of the litigation, the traditional political notion of public housing authorities tied to local boundaries may have to convert to something far different:

In light of HUD's statutory duties and the fact that its jurisdiction and ability to exert practical leverage extend throughout the Baltimore Region, it was, and continues to be unreasonable for the agency not to consider housing programs that include the placement of a more than insubstantial portion of the Plaintiff class in non-impacted areas outside the Baltimore City limits.

The Court finds an approach of regionalization to be integral to desegregation in the Baltimore Region and that regionalization was an important alternative course of action available to Federal Defendants. By the term "regionalization" the Court refers to policies whereby the effects of past segregation in Baltimore City public housing may be ameliorated by providing housing opportunities to the Plaintiff class beyond the boundaries of Baltimore City. It remains to be seen, in further proceedings, whether HUD's failure adequately to consider regionalization policies was motivated by an intent to discriminate based upon race, a willingness to bow to political pressure, oversight, neglect and/or other causes.

There’s an awful lot to digest in this opinion, including some complex legal analysis and over fifty years of history to wade through. At this point, however, it certainly appears that if this decision is upheld on appeal, the days of city-based housing authorities are surely numbered--at least when those cities and its public housing tenants are racially distinct from the surrounding areas.

January 5, 2005
Get 'em while they're hot

Delaware is a small state, which spends a larger than average amount each year on long-term debt service per capita ($361 Del., $248 U.S.).

Under these circumstances, you'd think it would be pretty easy for a regular guy or gal to buy one of the Diamond State's general obligation bonds.

You'd be mistaken.

Whenever Delaware goes to the bond market, its G.O. issues (and also its revenue bonds) are typically snapped up immediately by institutional investors, who also like the double-tax-free aspect of their corporate home state.

The current Administration is finally doing something about this fact of investment life, and they're to be commended for it.

Retail investors (that means you and me) have first dibs at $25 million of the upcoming $125 million issue, which just received a AAA rating from the usual suspects. To make it even easier, these bonds will be denominated in $1,000 increments. The two-day sale begins on January 10, with the institutional gang able to buy the rest on January 12.

The full story is in the prospectus, of course.

This is not a sales pitch.


I'm not kidding.

It's just news and commentary, is all.

But still--the alert investor is the happy investor, eh?

January 4, 2005
Who’s the dummy now?

I never thought I’d enjoy reading about dairy operations and price supports as much as I have in the last day or so.

That’s because Senator Harry Reid (D-NV) finally answered a question that Tim Russert should have asked last month. Reid took the opportunity of his first substantive interview on Meet the Press to make some harsh remarks about U.S. Supreme Court Justice Clarence Thomas and his potential fitness to become the next Chief Justice:

MR. RUSSERT:  Why couldn't you accept Clarence Thomas?

SEN. REID:  I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written.  I don't--I just don't think that he's done a good job as a Supreme Court justice.

In yesterday’s Opinion Journal, James Taranto noted that on December 26 Ed Henry of CNN managed to convince Reid to give an example of these supposedly “poorly written” opinions.

Reid cited the Hillside Dairy case, both for the high quality of Justice Scalia’s dissent and for the alleged awfulness of Thomas’ opinion. 

Taranto gleefully noted that Scalia didn’t actually write a dissent in that case, and then quoted Thomas’ short dissent in full.

And as Eugene Volokh noted in his post on this issue, there’s nothing in Thomas’ opinion that deserves Reid’s supposedly sincere, yet severe judgment.

For example, I ran the entire text of Thomas' Hillside dissent through Word's readability analysis. The Flesch-Kincaid grade level index is 12.0.

Just for the Senator's benefit, I should point out that a 12.0 reading is well past Golden Book-level

Voloky said he called Senator Reid’s office for an explanation, and perhaps he’ll receive one. 

If the Senator’s phone response practices match what he says about his email policy, however, he may have a bit of a wait. Reid says he limits his email responses to 

Nevadans or those with ties to the state.

I didn’t send an e-mail to Senator Reid about this particular screw-up of his, thanks in large part to this warning.

On the other hand, I can still ask the same question by posting it here on this site:

Who’s the dummy now, Senator?


I wonder if he’ll try to find another opinion to try to back up his original bonehead claim, or whether Reid will do the honorable thing instead, and apologize for his unwarranted attack on Justice Thomas.

No breath will be held waiting for that second option to be taken.

Update: Ann Althouse has a perceptive analysis of this issue.

January 3, 2005
A partial defense of Southern gentlemen

Jokes about Southerners have a long and varied history.

For example, those of us not from that part of the country are sometimes warned to run away from any young Southern gentleman who says, “Hey Y’all! Watch this!”

Those are likely to be his last words.

A recent news release by Georgia Tech may have unwittingly played into the hands of those who believe there’s just way too much truth in these jokes.

A group of GT students took a look at traffic fatality statistics, and discovered something ugly about their corner of the country:

From 1996 to 2000, almost one-third of the nation’s traffic fatalities occurred in just eight southeastern states, and of those, 64 percent occurred on rural roads, according to a recent Georgia Institute of Technology study. Take Florida - a less rural state - out of the analysis, and 71 percent of traffic fatalities in the region occurred on these highways as compared to 59 percent nationally.

"The most frequent crashes in the Southeast occurred on rural roads in wooded areas where people ran off the road and hit a tree,” said Georgia Tech Associate Professor of Civil Engineering Karen Dixon, who headed the regional study funded by the Federal Highway Administration (FHWA) via the Georgia Department of Transportation (GDOT).

Naturally, some folks tried to explain the reasons for this apparent regional anomaly.  

The Hattiesburg American suggested that the fatalities in Mississippi were due to diminished seat belt usage, and urged stronger legislation. 

A surgeon-blogger in Georgia suggested another potential contributor to the increased death toll was

the lack of a well-developed trauma/EMS system in the rural southeast, especially in rural south Georgia.

Those ideas certainly have their merits.

Even so, I think the primary reason for the regional disparity is actually pretty obvious, although it is not mentioned in the Georgia Tech news release:

There are more trees in the Southeast than most of the rest of the United States.

With far more trees hugging alongside rural two-lane roads, the chances for a fatal collision are vastly increased over other rural environments, such as the wide-open spaces between, say, Albuquerque and Santa Fe, New Mexico. 

Take a look at this map showing the percentage of non-Federally-owned land covered by forest, based on 1997 data. Varying shades of green depict the forest cover percentages, with the deeper greens denoting the most heavily treed areas:

Rather readily apparent, isn’t it?

Other parts of the U.S., notably Maine, also show significant patches of forest cover. Even so, there’s no mistaking the fact that the Southeast has more treed-over acreage than any other segment of the country.

Of course, a regional disparity in risky driving environments doesn’t excuse bad driving habits on rural roads, by any means. There are also some real policy issues to decide about the results of this study, such as whether people will support widespread tree removal in rights-of-way as a simple, effective safety project.

Judging by an anti-tree cutting editorial in the Charleston, South Carolina Post and Courier (registration required) inspired by the Georgia Tech study’s announcement, that fix is easy to offer and not so easy to sell.

Nonetheless, it’d be a shame if this valuable analysis became better known for the mistaken reinforcement it gives to preserving Southern stereotypes, instead of as a spur toward improving the nation's rural road network.


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


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