This page includes posts from
January 30-February 12, 2005 in the usual reverse
order. Each posting on the home page is perma-linked to these
February 12, 2005
We spent a quiet evening at home enjoying several hours of great guitar music.
Last June Eric Clapton brought together an incredible collection of talent to The Cotton Bowl in Texas for his Crossroads Guitar Festival.
Youngest brother and I share a broad interest in music, and for Christmas he gave me a copy of the new DVD of the Festival, featuring 4 hours of highlights from the three-day event.
If this 2-disc set is any indication, the folks who were lucky enough to attend the show were truly blessed. I hope Clapton and the producers can pull together enough material for another DVD collection, so we can see and hear even more.
My only quibble is that one of my favorite guitar players, Leo Kottke, apparently wasn't among the participants.
February 12, 2005
I posted my newest golf book review today at Hole By Hole.
Cal Brown's The Sweetest Game is an eclectic blend of anecdotes, character studies, and useful insights into the real secret of golf.
February 11, 2005
Rainy day funds are usually a good idea for government finance.
Delaware and many other states have set up Budget Reserve Accounts or similarly named set-asides to cover unexpected revenue shortfalls or other disasters. Considering that neither states nor their political subdivisions can resort to the alternative of printing their own money (unlike Uncle Sugar), this kind of sensible forethought is usually commendable.
On the other hand, sometimes one’s interest in retaining surplus cash can go too far.
Last October I wrote about an unusual lawsuit filed in Delaware’s Chancery Court, brought by a pair of unhappy New Castle County taxpayers.
They sought declaratory and injunctive relief to block the now-former County Executive’s efforts to squirrel away almost a quarter-billion dollars in surplus cash into a series of reserve accounts.
The plaintiffs had standing to bring the suit because Delaware courts accept the notion that taxpayers can sue to prevent the illegal use of the money they send to government. Not surprisingly, these plaintiffs suggested that the excess cash must be sent back to the folks who paid it.
Here’s what I said back then about their prospects:
He ruled for the plaintiffs on the fundamental issue in the case, deciding that the county ordinance requiring that surplus funds “shall be equal to” 20% of two primary county budget accounts meant “shall be equal to,” not “shall be not less than.” His decision invalidated the current County budget, forcing the newly installed County Executive and County Council to deal with the consequences of their predecessor’s errors in judgment.
Chandler didn’t order a refund. Nonetheless, the net effect of his decision makes it hard to imagine that the County will find ways to spend all that surplus cash in a fit of pique, instead of returning at least some to its citizens.
I especially liked this passage from Chandler’s opinion:
Sometimes state and local governments need to be reminded of this fundamental duty.
Over the last three years a New Jersey company sold over two million Chinese-made pressurized gas-filled lighters through the Dollar Store chain.
Now, however, there's a problem, as noted in the headline:
Well, that was the bloody point of the things, now wasn't it?
The real point of the story is that the devices are being recalled because they don't meet Federal child safety standards, although thus far the company says they received no reports of incidents where the obvious risk associated with the lighters has also led to unexpected fires. There's just something that's both obvious and confusing about the headline.
The story also included this other gem:
Never heard that before--geez.
I realize that these kinds of warnings are an homage of sort to a certain litigiousness that's crept into American society. Even so, they do seem just a tad ridiculous, don't they?
February 9, 2005
Tonight there's a deadline for a golf column, so no essay posts for today.
On the fun news front, however, a local paper serving the state capital ran this story:
Sounds a bit like a disease, doesn’t it?
A little publicity never hurts.
February 8, 2005
William Carpenter is a former U.S. Attorney for Delaware, and now serves as a Judge on the Delaware Superior Court.
Last Friday he granted a motion for summary judgment in a business dispute, something that probably happened in several dozen state courts that same day across the country. Even so, his take on the fundamental issue in the case is noteworthy and commendable.
Gary L. Hall was a high-level executive with Acadia Insurance Company, a subsidiary of W.R. Berkley Corporation, with operations concentrated in the Northeast. His compensation package included several thousand stock options. In mid-summer 2003, Hall acted on these options and pocketed nearly $180,000.
A short while later, a recruiter contacted Hall about working for CNA, another insurance company. One discussion led to another, and he eventually accepted a position as Vice President for New England, two months after he had cashed in his Acadia options.
Naturally, the folks at his former place of employment were not pleased.
They sued Hall, arguing that his departure violated the stock option agreement he signed. The contract stipulated that the company could go after the money if Hall left them within 6 months of exercising the options, and also switched employment to a competitor.
In response, Hall argued that CNA wasn’t truly a competitor of Acadia, and that the take-back provisions were an illegal liquidated damages provision, more in the nature of a penalty.
These arguments didn’t go far:
The Judge’s final comments were the most impressive part of this decision:
At least in this court, the notion that a deal’s a deal is not an outdated concept.
February 7, 2005
I support the Bush Administration's proposal to cut the level of farm subsidy payments, including the notion of capping the amount to be paid to any recipient.
My thinking on this may be colored to some extent by the weekend experience of completing our state and federal income tax returns, and adding those taxes to our total FICA, Medicare, and property taxes. After all, it stands to reason that one's interest in cutting government budgets would increase in direct proportion to one's total tax load.
As the NYT piece notes, the proposal will be fought by the usual agricultural interests, but the President also has his supporters in the Senate:
The Environmental Working Group's subsidy pages for Delaware show that in 2003, over $17 million in USDA payments went to over 1500 recipients, and that about 26% of all Delaware farms received some kind of federal payment. Only one such entity received over $250,000; however, the EWG notes that their database has its own limitations, and it's probably safe to assume that the actual number of those given more than $250 large is more than the one shown in that report.
I expect that the farming interests in the Red States will make it deeply uncomfortable for many Republican Senators and Congresspersons. Therefore, any real progress on this issue will most likely depend on an alliance with the other side of the aisle.
That's why I'll be very interested to see how many Blue State members of Congress in both Houses set aside their apparently deep antipathy for the Administration and work toward achieving this deceptively simple goal.
Another update: Josh Claybourn would be greatly surprised if this proposal is ever adopted.
February 5, 2005
Hats are among the items that my late father-in-law and I shared in common, in addition to our birthdays. My own collection never matched the sheer scale and variety of Mr. Bill’s fedoras, driver caps, ascot caps, and buckets, but at my wife’s urging I held onto a few of Mr. Bill’s, and still wear them today. (We also shared the same hat size—7 3/8).
My own favorite hat was a Panama that set me back a nice piece of change over twenty years ago. On the rare occasions that we went to one of the Atlantic City casinos, that hat was always part of the ensemble. Unfortunately, a bad bit of packing put the hat into a permanent state of disrepair.
I always wear hats whenever I play golf or go boating. My formerly long, 70s’ era tresses are much, much shorter now, and quite a bit thinner, too, which makes some kind of headcover the smart thing to do. For golf, it’s either a baseball style or driver cap, but for boating I always tapped into my inventory of golf-logo'd baseball caps.
During this past summer, however, I discovered that a strong headwind while running at full throttle could easily flip a hat right off my head and into Rehoboth Bay, where it would sink out of sight before I could turn the boat around to retrieve it. After a few such incidents, I bought an inexpensive Old Navy baseball cap. The adjustable velcro® strap is snug enough to keep it on without also causing a headache.
Glenn’s comment about the best way to buy hats is well-taken. It’s just not something you should buy untested. On the other hand, if an online hat company has a liberal return policy, go ahead and give 'em a try.
In either case, it helps if your spouse or some other brave soul agrees to assist you in the purchase of any hat more fashion forward than a baseball cap, although even for them there are some styles that just don’t look right on some folks.
Hats are among the fashion items that require a cold-eyed assessment from someone other than the wearer, a person perfectly willing to tell the aspiring bon vivant that he looks completely ridiculous. If you’re lucky enough to have someone fulfill that role, by all means join those of us who prefer to be something other than bare-headed when we’re out on the town.
February 5, 2005
Today I spent a less than delightful 5 hours or so working on our state and federal income tax returns.
Would someone please remind me again why I'm not a registered Republican?
February 2, 2005
At the annual Transportation Research Board meeting in DC last month, I expressed an interest in joining the Transportation Law committee. The folks in charge were fine with the idea, and asked me to send them a copy of my resume.
That meant I had to update the dern thing.
Having gone through the effort, I thought some of you might be interested in seeing it.
Just click here.
February 2, 2005
I don't watch a lot of television, but I'm now watching a bit more than I have been.
On Monday nights I'm currently hooked on a new mystery series called Medium, starring Patricia Arquette as a psychic assistant for a Phoenix district attorney. The story lines have great twists and turns, and the depictions of her psychic experiences are very well done.
That's why I was pleased to learn yesterday that the show's just been given an extension from it's initial run for this year, and set up for an entire season of episodes next year.
Check it out if you haven't already.
February 1, 2005
When a panel of federal judges concludes that a city government must be either incompetent or acting in bad faith, it’s a pretty sure bet that the result of the litigation won’t a happy one for the municipality.
That may sound a little harsh, but a Seventh Circuit decision issued today provided a good example.
A Greek Orthodox congregation bought a 40-acre parcel of land in New Berlin, Wisconsin, with plans to build an expanded church facility on 14 of those acres. They’d outgrown their existing church in a nearby town.
Their new property looked promising, situated next to an existing Protestant church and adjacent to another property that had recently been rezoned for another church use.
Church officials applied to rezone this portion of their acreage from residential to institutional. However, the city planning department suggested there might be a problem if the Church failed to raise the estimated $12 million needed to build their structures, after the property was rezoned. In response, the Church offered to cover the property with a special planned unit development ordinance (PUD). The PUD would restrict the property to church uses, and thus eliminate the risk.
The Planning Director was fine with the proposed fix (it’s pretty common nowadays), but the PUD plan didn’t make it past the Planning Commission or the City Council, both of which voted it down.
As Judge Posner noted for the unanimous appellate panel, at least one suggested reason for the turndown was less than compelling:
The Mayor’s alternatives were no better.
The first one (a conditional use permit) wouldn’t alter the zoning classification, but would expire well before any reasonable period needed to raise the $12 million and complete construction. In addition, the expiration risk would deter potential donors, creating a double whammy. When the city argued that the church might not be held to the permit’s timeframe, Judge Posner’s response was understandably curt:
The mayor then offered that the Church could apply for a different PUD, one that would retain the residential zoning classification if the building plans fell through. This alternative also failed to impress the Seventh Circuit:
Unwilling to go along with the City’s decision, the Church sued for relief under the Religious Land Use and Institutionalized Persons Act of 2000 (RUILPA, 42 U.S.C. § 2000cc). The District Judge ruled in favor of New Berlin, but the circuit panel reversed.
As Judge Posner noted, the RLUIPA forbids land use agencies from placing substantial burdens on a religious institution, unless the government can prove that the burden furthers a compelling governmental interest and is the least restrictive alternative in achieving that goal.
The panel described the problem with the City’s decision in brutally frank terms:
Adding salt to the wound, Judge Posner then referred to the
The panel ordered the district court to grant the relief sought by the Church, but with a 90-day stay
Based on the language used in this decision, I doubt it will take the full 90 days to complete that task.
As I see it, however, this New Berlin case doesn’t cause me any such constitutional heartburn.
January 31, 2005
Mike Myers’ So I Married an Axe Murderer is one of our family’s favorite comedies.
Myers plays two characters—Charlie Mackenzie, a commitment-shy performance artist, and Charlie’s Scottish father, Stuart.
Stuart is a man of strong opinions, and he’s not afraid to express them:
I thought of this dialogue shortly after I read a press release issued this afternoon from James B. Ropp, Delaware’s Securities Commissioner.
The announcement describes the charges that led to last week’s Superior Court sentencing of Timothy Martin Arnold for three counts of felony Theft and three felony Securities Fraud charges.
The story behind Arnold’s 5 ½-year prison term and restitution order sounded remarkably similar to what Stuart was yelling about:
It appears that Stuart Mackenzie’s fictional world view is shared by several other souls in real life, who are now the poorer for it.
I’m glad to see that Arnold will now be paying for his crimes, but he probably deserves some credit for being as upfront as he was about the risks associated with his bogus investments.
After all, a “Pure Trust Certificate” could be considered an exact description of what he was selling. As the investigators proved, there was nothing more than his victims’ trust to support these notes.
And since a least one such victim is born every minute, unfortunately there will be similar opportunities for glib con men in the future.
January 30, 2005
Snow, sleet, icy rain, and then more snow filled most of the day around here:
Other than taking the photo above and a few others, it was a good day to stay indoors, read Father Joe, listen to a reunion concert of Keith Emerson and The Nice, and watch Justin Leonard win the Bob Hope Chrysler Classic.
So I did.
Hope your Sunday was equally pleasant.
January 30, 2005
Congratulations to the Iraqi people for their overwhelming choice today for democracy over thugocracy.
Seeing those fingers convinces me that this same kind of indelible proof would be useful in eliminating some of the election fraud that still plagues our own voting processes.
Of course, it won't eliminate the questionable use of absentee ballots, of course, such as the recent Washington State example noted by Stefan Sharkansky.
But a similar photograph of smiling, ink-stained Americans would certainly help restore one's faith in the democratic process here at home, now wouldn't it?
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 2002-2005