Sneaking Suspicions
 
Archives-- January 30-February 12, 2005


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 archive pages.

February 12, 2005
Whole lotta guitar goin' on

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
Shameless self-promotion

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
Must have thought it was going to really pour

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:

[T]his kind of lawsuit just doesn’t occur all that often around here. When it happens, however, the plaintiffs tend to win. I think that's attributable to the fact that these folks are usually financially savvy, and also know when to pick a fight. 

Based on the opinion issued by Chancellor William Chandler yesterday, he agrees.

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:

New Castle County… should be accorded a degree of deference necessary to manage its affairs for the benefit of its citizens. Embodied in this approach is the notion that most disputes concerning the County’s policies are political in nature and must be resolved at the polls, not in the courts. This is a rare case, however, where the County … exceeded its own authority established by law.... [I] t is clear that once the County had determined for itself that it would retain surplus revenues (and established the procedure by which that should be accomplished,) the County became obligated to follow its own ordinance. Indeed, the concept of fidelity to the law “presupposes a commitment by the governing authority to abide by its own rules…” [citing Lon L. Fuller’s The Morality of Law].  The public has a right to expect no less.

Sometimes state and local governments need to be reminded of this fundamental duty.

February 10, 2005
Two warning Claudes

An AP story today earned a couple Claudes for the semi-daft warnings contained in the headline and in the story.

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:

New Jersey Company Recalls 2 Million Barbecue Lighters Because They Could Pose a Fire Hazard

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:

Lighters should not be incinerated or punctured.

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
It’s a disease, I tell ya

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:

Blog bug spreading through Delaware online community

Sounds a bit like a disease, doesn’t it?

Among other Delaware bloggers, the piece quotes two writers who appear on the Blue Hen blogroll on the main page, as well as yours truly.

A little publicity never hurts.

February 8, 2005
“A deal’s a deal” is not an outdated concept

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:

[T]he Court finds that this is such a clear cut case of a material and substantial competitive business that nothing more was required and clearly Plaintiff has not acted in bad faith in the decisions that have been made.

…[T]he Court is unpersuaded by the Defendant’s liquidated damage argument. Counsel may put whatever spin they want on this provision, but to the Court it is simply a contractual obligation that requires a senior management employee to remain with the company for six months if he wants to retain the full benefit of the stock option. If he does so, the financial savings he realized with the purchase of the stock is his to keep regardless of his future employment. On the other hand, if he leaves before the end of the six month period, he must pay the market price of the stock. He knew of this obligation and simply now is asking the Court to free him of this responsibility. 

The Judge’s final comments were the most impressive part of this decision:

While perhaps naive, the Court cannot end this opinion without at least questioning whatever happened to the business world of a person being bound by his word and accepting the consequences of his personal decision. When did we turn from a business environment of personal integrity to one of litigation simply for greed and self interest? If one ever hoped that a business world of high integrity existed, it is not evidenced by this litigation. What is clear to the Court is that this litigation can only be characterized as a desperate attempt by the Defendant to avoid an agreement entered into in good faith by all the parties. The Court will not condone the Defendant’s conduct nor accept its legally creative arguments in this matter. 

At least in this court, the notion that a deal’s a deal is not an outdated concept.

Good.

February 7, 2005
Subsidize this

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 White House proposal is a vindication of sorts for Senator Charles E. Grassley, Republican of Iowa, who has advocated "reasonable payment limits" for three decades.

"When 10 percent of the nation's farmers receive 60 percent of the payments, it erodes public confidence in federal farm programs," said Mr. Grassley, who describes himself as the only family farmer in the Senate. "Unlimited farm payments have placed upward pressure on land prices and contributed to overproduction and lower commodity prices, driving many family farmers off the farm."

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.

Update: If you're in the mood, compare the subsidy recipient listings found at EWG for your state with what you can find on Opensecrets.org's database of political donors. It might be illuminating.

In addition, Virginia Postrel and Glenn Reynolds contribute to this discussion.

Another update: Josh Claybourn would be greatly surprised if this proposal is ever adopted.

February 5, 2005
Off the top of my head

I followed Glenn Reynolds’ link to Roger Simon’s website, where the fedora-festooned writer proudly announced he’d been cited by Manolo for his hat-wearing prowess. 

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.

That's a small skate in the net that we threw back.

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
Tax Time

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
The Resume

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
Medium doesn't always mean average

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.

Cool.

Check it out if you haven't already.

February 1, 2005
Stupid or evil

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:

Concern was expressed in the Commission’s deliberations that if the Church didn’t build a church on the property but instead sold the land, the purchaser would not be bound by the PUD. That was wrong. Nothing in the text of the PUD proposed by the Church, in the provisions of the New Berlin Municipal Code, or in the general property law of Wisconsin or elsewhere, suggests that the ordinance would lapse with the sale of the property. If the PUD said it was just limiting what the Greek Orthodox Church could do with the property, then a subsequent purchaser would not be bound. But since the PUD would restrict the use of the property, rather than just the conduct of its present owner, the Church’s successors would be bound. 

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 City argues that the one-year deadline could be extended. Not true: “No extension shall be made to a conditional use permit.” [citation omitted]. The repeated legal errors by the City’s officials casts doubt on their good faith.

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: 

It seemed obvious that the mayor, unless deeply confused about the law, was playing a delaying game. The PUD proposed by the Church would have had the same effect as the one proposed by the mayor, namely preventing a nonreligious institutional use of the property by either the Church or its successors. 

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:

The Church … doesn’t argue that having to apply for what amounts to a zoning variance to be allowed to build in a residential area is a substantial burden. It complains instead about having either to sell the land that it bought in New Berlin and find a suitable alternative parcel or be subjected to unreasonable delay by having to restart the permit process to satisfy the Planning Commission about a contingency for which the Church has already provided complete satisfaction.

No doubt secular applicants for zoning variances often run into similar difficulties with zoning boards that, lacking legal sophistication and unwilling to take legal advice, may end up fearing legal chimeras. On that basis the City, flaunting as it were its own incompetence, suggests that the Church can’t complain about being treated badly so long as it is treated no worse than other applicants for zoning variances. But that is a misreading of RLUIPA. A separate provision of the Act forbids government to “impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” [citation omitted]. The “substantial burden” provision under which this suit was brought must thus mean something different from “greater burden than imposed on secular institutions.”…

If a land-use decision, in this case the denial of a zoning variance, imposes a substantial burden on religious exercise (…include[ing] the “use, building, or conversion of real property for the purpose of religious exercise,” [citation omitted]), and the decision maker cannot justify it, the inference arises that hostility to religion, or more likely to a particular sect, influenced the decision.  

Adding salt to the wound, Judge Posner then referred to the

whiff of bad faith arising from the Planning Commission’s rejection of a solution that would have eliminated the City’s only legitimate concern.…

The panel ordered the district court to grant the relief sought by the Church, but with a 90-day stay 

to give the City a chance to negotiate with the Church such arrangements as may be necessary to eliminate any possibility that the land might be put to a nonreligious institutional use without the City’s consent.

Based on the language used in this decision, I doubt it will take the full 90 days to complete that task.

I’ve written about the RLUIPA a couple times before. The issue of its facial constitutionality is now before the Supreme Court in a case arising out of the Sixth Circuit, called Cutter v.Wilkinson.

As I see it, however, this New Berlin case doesn’t cause me any such constitutional heartburn.

January 31, 2005
Every 60 seconds

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:

Stuart Mackenzie:Well, it's a well known fact, Sunny Jim, that there's a secret society of the five wealthiest people in the world, known as The Pentaveret, who run everything in the world, including the newspapers, and meet tri annually at a secret country mansion in Colorado, known as The Meadows.

Charlie: Who are the other members of this pentaveret?

Stuart: The Queen, the Rothchilds, the Gettys, the Vatican, and Colonel Sanders before he went tits up. Oh, I hated the Colonel with his wee beady eyes. And that smug look on his face.


    

Charlie: Dad, how can you hate "The Colonel"?

Stuart: Because he puts an addictive chemical in his chicken that makes ya crave it fortnightly, smartass!

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:

In 1997 and 1998, Timothy Martin Arnold sold unregistered securities in the form of “Pure Trust Certificates”….  Although Arnold promised a return of 20% per month on these investments, the investors received no income, nor did they get the money they “invested” back.

Securities Investigator Scott Rugen identified 45 victims in 15 states…. Collectively, the total loss to investors was estimated to be in excess of one million dollars.  The fraudulent investments sold by Arnold were referred to as “prime bank” notes.  Arnold’s “prime bank” pitch for these fraudulent securities described a secret foreign banking system, he said was known only to the very rich, which issues securities, bonds, notes and debentures guaranteeing a very large rate of return to the rich families of the world who have access to it.  In fact, there was no secret foreign banking system and, Arnold simply kept the investors’ money and spent it.

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
Winter Sunday

Snow, sleet, icy rain, and then more snow filled most of the day around here:

Ice covered grass, January 30 2005

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
A good idea for our own elections

Congratulations to the Iraqi people for their overwhelming choice today for democracy over thugocracy.

The photographs and stories of proud voters, most of whom are holding up a finger showing the ink-stained proof of voting, are truly impressive.

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.

This or similar ideas would certainly discourage the election day antics that have marred Milwaukee, Wisconsin, as noted in the Captain's Quarters blog.

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?

UPDATE: Well-known fellow moderate Ann Althouse adopts a similar position on inking American voters.


   

Contact Information:

Fritz Schranck
P.O. Box 88
Nassau, DE  19969
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fschranck-at-
sneakingsuspicions.com


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