Sneaking Suspicions
 
Archives-- March 9-15, 2003

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This page includes posts from March 9-15, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

March 15, 2003
Shameless boosterism

One of my best friends works for a defense contractor named ILC Dover. The company is most famous for the space suits it builds for NASA, but they also do many other projects, including fabric for lighter-than-air craft and military gas masks.

On September 11, for example, my friend was in a small Middle Eastern country that doesn't always show up on maps, and was stuck in transit for awhile.

As you might expect, he can't always talk about what he's working on.

On a few occasions, however, he can proudly tell me about some of his projects.

The Philadelphia NBC affiliate ran a story this week about one of them--civilian gas masks.

I'm most impressed with the mask's transparency, which should really help reduce some of the risk of panic among children, who can readily see who is trying to help them.

Cool!

March 14, 2003
The circus is coming to Augusta—for the Masters

In my golf column last week, I suggested that the upcoming Masters Tournament has all the makings of a three-ring circus.

First, there’s the well-known campaign by Martha Burk and her group to force an opening for a female candidate for membership in Augusta National. As part of that effort, Burk applied for a demonstration permit for the Saturday of Masters weekend.

(At this point, there is still no word on which highly-paid woman CEO or similarly situated person possessing the normal Augusta National membership pedigree (except for certain natural-born equipment) might be using Burk for this purpose. I suggest this only because it’s hard to imagine why Burk would push this issue for just any woman. After all, membership in Augusta National is usually considered a rare, expensive, and highly desirable jewel among the nation’s well-to-do golfing fanatics.) 

Second, there’s the me-too campaign by the Rev. Jesse Jackson, seeking a similar permit to show solidarity with Burk’s group. 

Third, there’s the new campaign by some KKK wingnut also seeking a permit, allegedly to defend the rights of the current members of Augusta National.

Neither the club nor its African-American or other members are too keen about this “support.”

There are two other demonstration permit applicants, both of whom seem to be aimed against Burk's group.

This week’s Augusta controversy involves the decision about where the circus rings will be located, and which act will use which ring.

Burk’s group and the ACLU filed suit against the use of the local government’s newly enacted demonstration ordinance, as well as the decision by Sheriff Ronnie Strength to limit the demonstrations to a site about a third of a mile from the main entrance to Augusta National.

In golf terms that’s about 586 yards, or a very long par 5 from the action.

Burk is not pleased, as quoted in Clifton Brown’s NYT article:

"We made a very reasonable request to protest peacefully in an area near the front gates," Burk said. "The area where they're trying to push us is designed to keep us away from the front gates, and away from the people we are trying to influence. The property where they want us to protest is owned by the club, which indicates that the club may be influencing the decisions being made on this issue."

Burk also displayed a youthful sense of fairness on the issue of which circus ring her group deserved:

Burk said she thought her organization should take precedence over anyone else because it was the first to apply for a permit.

"I believe that everyone should understand the concept of first come first served," Burk said. "The fact that other groups want to protest in the area that we asked for first should be irrelevant."

The local paper helpfully provided an overhead graphic that shows the problem nicely:

This graphic makes it obvious that there’s not much room near the club’s entrance for anything beyond tournament visitor access. No matter who wants to demonstrate, there is the additional important issue of preserving emergency vehicle access to the site during the crowded conditions when the Masters tournament is underway.

The sheriff's explanation makes sense, as often happens with a public official stuck between a rock and a hard place:

"The city of Augusta owns no property in this area, and this is the closest open space to the club entrance that would be safe for everyone and enable the city to treat everyone requesting a permit the same," the sheriff said.

Notwithstanding the probability that the sheriff is acting in complete good faith, I think the judge hearing the injunction request will not uphold the current permit conditions.  Based on my modest experience with picketing cases, there will be a more closely defined effort to find a demonstration location that is fairly safe, and much closer to the club’s entrance.

For example, Jersey barriers could be put in place along Washington Road, just for this purpose. It’s possible that Burk and her friends, and her opponents for that matter, could be restricted to a narrow corridor of pavement opposite the club, perhaps near the intersection with Eisenhower Drive.

Ms. Burk’s current goal is to provide maximum inconvenience and maximum negative publicity against the club, as she continues her attack against its members’ constitutional rights to freedom of association.

Nonetheless, I don’t believe the District Judge will keep Burk’s group a combined driver, three-wood and a good mid-iron away from the famous Magnolia Lane.

I also don’t believe the court will give Burk’s group the opportunity to put others’ lives at significant risk, for the sake of an argument about which genders of rich persons should belong to Augusta National.

March 14, 2003
Concert note

Last night we drove to the main campus of the University of Delaware to see Cherish the Ladies perform at Mitchell Hall to a sold-out audience.

It was well worth the 170-mile round trip.

Readers with an appreciation for Irish folk music (and on this weekend, who would deny it?) should check out the itinerary of this talented group of women, and try to go to a show soon.

They were accompanied by two step dancers, whose movements wowed the audience as much as the musicianship.

So you see, there was a good reason why I couldn't post anything here yesterday.

Culture called, and I had to answer.

March 12, 2003
A short note about Congressman Moran

The Washington Post ran an impressive editorial today about Congressman James Moran and his recent idiotic remarks about the influence of Jews on American foreign policy.

What WaPo said.

I will be watching the Virginia Democratic Party to see what they do about this. Unfortunately, I doubt that the national office of the party will do anything.

March 12, 2003
Losing the money when you didn’t have to

Sometimes it’s not so much a matter of finding the money, so much as it is a matter of not losing it when you didn’t have to.

This morning Howard Bashman linked to an Atlanta Journal-Constitution story about a Georgia Supreme Court ruling that the City of Atlanta’s occupation tax for lawyers was unconstitutional.

As I read the decision, it’s pretty clear that this was a case of missed opportunity.

About five years ago, lawyers practicing in Jonesboro, Georgia challenged a similar city occupation tax, and won:

[M]unicipalities may impose an occupation tax that includes lawyers within its scope so long as the tax is a revenue measure only and does not act effectively as a precondition or license for engaging in the practice of law.

Shortly thereafter, Atlanta amended its tax ordinance to try to avoid a similar holding. The city just didn’t go far enough, under the Georgia law concerning who may actually regulate the practice of law:

[W]e agree with the trial court that Atlanta’s ordinance remains indistinguishable in effect from the [Jonesboro] ordinance…: payment of the tax is a precondition to the practice of law, and incarceration for practicing law without payment of the tax would impede the practice of law ….

To make matters worse for Atlanta, this latest Supreme Court decision is retroactive:

As the trial court cogently noted, Atlanta was clearly aware of the [Jonesboro] ruling … and could have chosen a tax scheme that did not act as a precondition to the practice of law (the trial court suggested that taxing for the previous year rather than the coming year would suffice), but did not. In addition, as the appellees point out, Atlanta has had the use of the money it collected under the occupation tax ordinance and the lawyers from whom it was collected have lost that use. Weighing those equities, we are not persuaded that justice requires prospective application.

AJC reporter Steve Visser quoted the City Attorney saying that the potential tax refund could be a "very big" hit to the city.

It also looks to me that from a legal perspective this result didn’t have to happen.

Even the trial court pointed out how the ordinance could be amended to avoid conflicting with the Georgia attorney regulatory scheme.

In addition, I really doubt that a general gross receipts tax that applied to attorneys would run afoul of the Georgia constitution. It’s a valid way to tax service industries, and it can be applied universally regardless of the business or profession.

If it’s structured correctly, a gross receipts tax simply won’t act as a precondition to the practice of law. It taxes the aftereffect of the practice instead—the money paid to the attorneys by their clients.

As currently set up, the Delaware version for many businesses and professions is set as a monthly payment of 0.384% of gross revenues, with a $50,000 monthly deduction before any tax is due.

As a source of revenue, the gross receipts tax does very nicely, thank you. In Delaware it’s been bringing in roughly $140 million per year.

I just have to wonder what Atlanta’s political dynamics were that kept the city from fully altering its occupation tax system before this litigation and its fiscally painful result.

March 11, 2003
Finding the money by not paying for it in the first place

This finding-the-money stuff is becoming a bit of a series at this site, isn’t it?

In the last several months I’ve posted occasional pieces about the different ways that state and local governments search for revenue to deal with their current budget woes.

It just so happens that this week I’ve been working with my clients on an assignment that’s not so much finding new money, but a tried-and–true method to not needing it in the first place--by not paying as much for it.

The Delaware Transportation Authority will soon go to the bond market for a new sale of its Transportation Revenue Bonds, and compared to the size of their usual issues it’s likely to be a fairly hefty one. The current plan is to use almost half the proceeds to refund DTA bonds first issued in 1993, resulting in huge savings in debt service interest costs.

The DTA is not the first government to do this by any means. Hundreds if not thousands of governments are using the same tactic that millions of homeowners use when market conditions warrant—refinancing to take advantage of historic lows in interest rates.

Unlike homeowners, however, there are strict tax laws that limit the number of government debt refinancings that can be done without ugly tax consequences.

On the other hand, since tax-exempt issuers already pay fairly low tax-advantaged rates, one can easily imagine just how cheap the new debt service payments will be compared to twenty years ago.

I took a look at the daily activity list at Moodys for March 10. Among the 45 issues scheduled for that day, the announcement titles for at least one quarter of the bond sellers directly state that the purpose of the issue is to refund or refinance their old debt.

My clients’ 2003 Series Transportation Revenue Bonds don’t announce in the title that refunding the 1993 bonds is one of the proposed uses of the new money. That information is contained in the Preliminary and Official Statements, among other formal documents. If DTA’s approach to divulging its plans is common, that one-quarter group in yesterday’s Moodys’ list is probably a conservative estimate of those who are also refinancing for significant savings.

Other transportation agencies are joining in the fun. For example, New Jersey plans to refinance a large portion of the $2.8 billion in outstanding debt now owed by the New Jersey Turnpike and the Garden State Parkway.

Refinancings simply don't carry the same enticing cachet for the media as other government policies and practices. Even so, the millions of dollars that taxpayers save through this back-office technique is money they don't have to pay toward the cost of the government they choose to have.

As it lowers the carrying cost of government, it also saves money that nervous legislators and governors don't have to request with new taxes and fees.

That combination makes it a pretty practical solution, as I see it.

March 11, 2003
When it comes to some aspects of human nature, we’re all experts

The Delaware Supreme Court issued a fairly blunt opinion on March 5 that reversed a trial court’s order dismissing a plaintiff’s slip-and-fall case.

It was all about cutting corners and the legal requirements for expert testimony.

A woman left a motel and walked toward a nearby restaurant, on her way to buying a newspaper at a vending machine on the side of the restaurant. She didn’t remain on the sidewalk, but instead cut the corner across a bit of landscaping. She claimed she tripped on a 2-inch high piece of landscape edging and fell down, injuring herself.

In pre-trial motions, the restaurant tried to force the plaintiff to present detailed expert testimony about the actual tripping hazard presented by the edging. The trial court agreed. She then found a civil engineer willing to present such evidence, but the restaurant then challenged certain aspects of the testimony the engineer planned to present. A second trial judge (the first one had retired) agreed with the restaurant a second time, and excluded the testimony. This effectively cut a corner in the legal proceedings, by giving the restaurant a pre-trial order dismissing the suit. 

On appeal, however, the Supreme Court disagreed. It discussed the now-common standards for expert testimony in light of Daubert, 509 U.S. 579 (1993), along with opinions from other jurisdictions, and held that this simply wasn’t a case where expert testimony was really necessary:

[W]e all know people cut corners. We may not know how frequently people cut corners, or what personality types are most likely to cut corners, or how close to the corners people tend to make the cut. Any of those additional facts might require expert testimony. The basic fact that people cut corners, however, does not.

Properly viewed, [the] expert opinion relates only to the fact that designers should take into account pedestrian walking habits; and that, given people’s tendency to cut corners, the landscape edging should have been low enough to avoid being a tripping hazard for those who took the short cut.

The case now goes back for a trial.

In the meantime, of course, businesses that face this risk of human nature can always exercise the option to use landscaping that would make the corners a bit more difficult to cut, thereby reducing the chance for injuries and lawsuits.

Box hedges are nice.

March 10, 2003
Zealous representation and sins of omission

State ethics rules for lawyers recognize that private practitioners have a responsibility to be zealous in representing a client’s position.

The limits of that responsibility are not always discernible under a “bright line” test. It’s more of a continuum. Even so, some lawyers engage in conduct that doesn’t necessarily go beyond zealous to something completely unethical, but nonetheless fails to meet clients’ real needs.

I saw an example of this in a recent Seventh Circuit decision involving copyright law.

The parties were involved in a heated dispute over exactly what kind of copyrights to software were actually obtained in a bankruptcy court sale. The plaintiff company argued that it retained the copyright, while the defendant company argued that it either fully obtained the copyright in the sale, or at least obtained sufficient rights to do what it was doing with the software.

One primary legal issue dealt with how the term “nonexclusive” was understood and applied to the case, a matter of intellectual property law beyond the scope of this post.

Here is the relevant critical passage from Judge Posner’s majority opinion (emphasis supplied):

Any doubt about the meaning of “nonexclusive” is dispelled by the exchange over the term between the lawyers and the bankruptcy judge, after the critical passage, elided by ITOFCA in its brief, is restored….

Ouch.

When a court points out that your side edited out a vital portion of the record below, that’s a real problem. The right thing to do, even though often more difficult, was squarely face the issue presented in that record.

Playing hide the ball, especially when both the other side and the judge's law clerks can easily detect it, is not zealous representation. It's closer to stupid on the way to totally wrong.

Even if somehow this was an innocent editing error, the fact that the court discovered it can’t help but influence the judges reviewing the case. It’s especially important in close cases, where the law and/or the facts could be fairly interpreted to support either side.

I would like to say that I’ve never seen this happen in any litigation in which I’ve been involved, but unfortunately I can’t. I suppose the temptation to cut a corner in one’s advocacy can be overwhelming at times.

When these sins of omission occur, however, it’s something that the other side’s attorney should point out, as part of his or her own ethical responsibilities.

March 9, 2003
Trees and sand and attitude

Sometimes you wish folks would just stop, take a slow deep breath, and think about how their attitude appears to others. It might just help them decide to use another approach to persuading other people to accept their position, or at least help in crafting a compromise.

The NYT ran a fascinating story about a San Francisco conflict between tree-huggers and sand-huggers.

The U.S. Fish and Wildlife Service is proposing to remove 3,800 cypress and eucalyptus trees from the Presidio National Park, as part of a plan to restore sand dunes to the area. That’s about 3.8% of the total trees in the 1,480 acre park, a beautiful and popular part of the Bay Area. The Army planted the original trees in the 19th Century, when the Presidio was a military installation.

The FWS has its reasons:

The dunes are immeasurably older than the trees and are home to an endangered species: the San Francisco lessingia, a delicate bell-shaped yellow flower that flourishes in wind-swept sand….

The draft plan calls for increasing the lessingia habitat by removing more "wind obstacles" (translation: trees). The trees, on the hillside above the dunes, include stands of Monterey cypress, their wind-sculptured limbs and fanning branches a symbol of the Northern California coast.

A prior restoration experiment on about 13 acres increased the number of endangered flowers in the area from about 600 to over a million, according to the NYT report.

It’s not just the wind that’s stirring up. Tree-loving environmentalists have a real case of the flutters about the idea:

When the draft plan was unveiled last year, a San Francisco Chronicle columnist wrote of "sand-hugging zealots" and a future of sand "hurling across a barren landscape."

The attitude from those favoring the plan is equally touchy:

Environmentalists have scorned the eucalyptus trees as a troublesome invasive species.

Those dune-friendly claims didn’t sit well with Leland Yee, a city supervisor:

"Plants and trees without the proper papers to show their pre-Mayflower lineage are called `invasive exotics' and are wrenched from the soil to die," Mr. Yee, now a member of the State Assembly, fumed in an op-ed piece he wrote for a community newspaper last year. "How many of us are `invasive exotics' who have taken root in the San Francisco soil, have thrived and flourished?"

The real story, of course, is that the Presidio is home to a variety of environments, altered by the hand of man over many years. Each micro-environment has its own merits, and the FWS is now trying to figure out the best way to maintain a balance of interests among the flora and fauna now inhabiting the park.

On its face, the Service’s proposal seems pretty modest. It suggests a 3.8% reduction in the current number of trees, in favor of an increase in the amount of dune space in the Presidio. That’s not a huge impact, but its opponents apparently don’t want any reductions. On the other hand, those favoring the dune proposal probably didn’t win a lot of converts with that talk about “invasive species,” a term which is scientifically correct but none too diplomatic.

(I suppose one could say that both of these two groups have developed a “fight them on the beaches” mentality, but that would be a really bad pun, wouldn’t it? Irresistible, but nonetheless bad. Sorry.)

For those whose work requires frequent contact with environmental regulators and/or activists, the self-righteous attitudes on both sides of this controversy will seem all too familiar. The irony is that in this case both tree-huggers and sand-lovers are smarting from being subjected to the superior tone they so often display to others, who may not share their sense of proportion about matters environmental compared to other social issues.

The other intriguing irony about this controversy is that it illustrates the all-too-human resistance to change. These folks seem to forget, however, that a seaside environment left to its own devices changes constantly.

We have a similar tree and dune environment mix here in Delaware, with a similar pedigree to the Presidio, but on a scale a little more than three times the size of the San Francisco landmark.

Cape Henlopen State Park is also a former military installation, used as part of the nation’s coastal defenses during World War II.

Years ago the Army planted 40,000 Japanese Pines among Cape’s sands and dunes, mixing them with the native loblolly pines and the few other plants that could live in the harsh sand/salt water environment. These non-native trees are subject to attack from a native nematode, however, and struggle to last longer than 25 years. Still, the forested areas are now viewed by most folks as a beautiful addition to the park.

The dunes at Cape Henlopen are impressive environments in themselves. Several of them are known as “walking dunes”, moving slowly west from the beaches and the ocean to the east.

Thus far the state natural resources department hasn’t experienced the same intensity of environmental infighting about Cape Henlopen Park that the FWS will have to address as it completes the plans for the Presidio.

Cape’s most recent environmental controversy concerned long-time plans for a bike trail that would use some of the forested area, while skirting some of the marshland on the western edge of the park’s 5,000 acres. After a lot of work, including some effective diplomacy and compromises, the bike path is now well underway.

It’s a bit much to expect everyone to agree on the proper balancing of a host of competing environmental policies. Nonetheless, many folks in the environmental movements could achieve more of their goals with less effort if the attitude they displayed to others was less holier-than-thou and more how-are-thou. Some of them might just gain this insight from their experience with this Presidio problem.

Note: Below are two pictures I shot today at Cape Henlopen State Park. Pretty place, isn't it?

These dunes tower over the beaches and ocean to the east. The Harbor of Refuge light and a ship are on the horizon.

Cape Henlopen State Park's forested areas are popular for hikers, campers, and (if today's experience is any proof) birders.

   

Contact Information:

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

fschranck-at-
sneakingsuspicions.com


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© Frederick H. Schranck 2002-2003