This page includes posts from April 13-19, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
April 19, 2003
Periodically one sees various environmental advocacy groups take off after golf courses. They see these 120-200 acres of mostly open space as more indicative of green in the wallet than green spaces for humans and wildlife. They're usually not at all happy about the distinction, as shown in this statement from a League of Conservation Voters site:
As often happens with other policy issues, the truth about wildlife and golf courses is, shall we say, a bit more nuanced than what anti-golf types might prefer.
Here are two local examples:
I took this picture on April 14 while covering a college golf match at Kings Creek Country Club, outside Rehoboth Beach.
The stand of pines in which this nest is found divides the first and fifth fairways on the course. The home sites in the area are on the outer edges of the two golf holes, with about 150-200 yards of space between the homes along the first hole and the homes along the fifth hole.
The human residents at Kings Creek take great pride in the continued local presence of this symbol of American patriotism.
The eagles don't seem to react to the presence of humans in any significant way. The fish in the ponds, creeks, and marshlands within the neighborhood, however, are at much more risk of a bad confrontation with an eagle looking for breakfast for its eaglets.
The blue heron in this picture is flying over the pond adjacent to the 12th fairway at Rehoboth Beach CC. I took this picture in late March. (BTW, stay out of that bunker in the upper left corner of the picture, if you want to make par.)
As with eagles, herons are also great fishers, and for the most part pay no attention to golfers as they pass by. The gangly shorebirds will move off a bit if one approaches too closely, but often return to the same spot at the water's edge in a few minutes.
As opportunities arise, I think I'll continue this series of photographic evidence that wildlife seems to enjoy golf courses, even if their self-appointed human protectors think otherwise.
April 19, 2003
Mohammed Saeed al-Sahaf, the former Iraqi information minister, established a new standard of incompetence among official spokesmen.
Notwithstanding the remarkable level of total unbelievability that Baghdad Bob achieved in a very short period, there are others out there who could nonetheless make him look like a genius at spinning.
Yesterday’s Associated Press reported an odd story about a New York lawyer charged with kidnapping, an offense worth up to 25 years in the Empire State’s correctional system.
Lawrence Omansky allegedly became embroiled in a real estate dispute with a man named Lawrence Schlosser.
According to the news story, the argument became a bit heated:
Omansky surrendered the next day and was released on $100,000 bail pending the trial.
The accused attorney did not talk to reporters, but his attorney did.
He really shouldn’t have bothered, at least based on this reported statement:
Somehow I don’t think so.
April 18, 2003
In this case, the county is trying to enhance public health, but some local landowners are apparently pulling out all the stops to try to prevent it.
As noted in the prior post, Hanover County is in the middle of a significant project to increase sewer capacity, while also focusing new growth to limited areas in order to preserve most of the county's rural characteristics.
Landowners whose property is next door to the new system's outfall pipe on the bottom of the Pamunkey River are not happy about this smart growth plan. They recently lost in Federal Court on the environmental claims they made there.
The newest part of the saga involves litigation at the state level, in which the same plaintiffs are challenging a critical state permit the county obtained for the same project. The Water Control Board granted the County's application, and the plaintiffs appealed.
The Board challenged the landowners' standing to file the appeal, and raised other technical defenses.
The County didn't, which showed a certain classiness on its part, if not a keen sense of the likelihood that these defenses would work.
After losing in the lower courts, the plaintiffs succeeded in keeping their appeal alive with the newest opinion from the Virginia Supreme Court. It knocked down the Board's technical arguments and remanded the case back to the lower court.
It's a very limited victory, however, that gives no hint of the eventual result. The courts usually apply a relatively deferential standard of review in such cases. That standard typically presents a very high hurdle for those challenging permits issued on the kind of extensive record on which these decisions are normally made.
The County Attorney continues to be optimistic about the chances that this permit will be upheld on appeal:
For the sake of this multi-million dollar smart growth project, let's hope so.
April 17, 2003
I think John Fund might be suffering from a slight case of the flutters.
His essay in today’s WSJ Opinion Journal argued that the nation is facing a crisis of democracy because of an increasing (though incomplete) logjam of federal judicial appointments.
Fund correctly notes the increasing and corrosive influence of various interest groups on the current confirmation impasse:
In addition, there are equally questionable motives for some of the Democratic opposition:
Nice to see family ties so strong, combined with the novel suggestion that the Clinton Administration apparently remains in power in at least one respect.
Notwithstanding these examples of Democratic over-reaching, I usually give Fund credit for being more realistic than this piece seems to indicate.
I'm also not a huge fan of how senators from both two parties have acted on this issue, both with the current and the prior Administration’s nominees. Even so, to me this confirmation blockage is really not a constitutional crisis.
It's a fundamental political problem, for which political solutions remain for Republicans with the courage to act on their convictions.
It's not as if every judicial vacancy has been unfilled since Inauguration Day 2001. Several nominees have been confirmed for both the District and Circuit Courts, as Howard Bashman carefully noted in his blog as they happened. One of these nominees filled a vacancy in Delaware’s U.S. District Court a few months ago. I had the distinct honor of being among those interviewed about the nominee before his confirmation, based on our prior work together years ago on a major case.
If the Democrats had thus far blocked all of Bush's nominees, then perhaps Fund would have a point.
As for the impasse on the remaining nominations, both sides can wrap themselves up in as many flags or high-sounding arguments as much as they want, but it’s still a matter of mostly pure politics.
That fact is not lost on any thinking voters.
Equally obvious, the Bush Administration remains in a potentially powerful position to do something about it if they really want to, as Fund noted:
Besides appealing to the public, there are other options more directly aimed at the balking Senators.
After all, there will always be something a Senator wants from the Administration.
In addition, there will always be something the Administration wants from a Senator.
The trick is to figure out who needs who more, for what, and for those involved to decide on whether to act on that information.
If the Democrats keep up their obstruction, then any remaining access to the quiet little side deals they seek can dry up in a big hurry.
On the other hand, if the Republican Senate leadership continues to permit filibuster-light tactics, instead of holding the Democrats to the full requirements of a classic filibuster, then to that extent the Republicans have only themselves to blame.
If the Administration and its Republican allies in the Senate continue to have trouble obtaining the necessary confirmation votes for these judicial vacancies, it won’t really be a crisis of democracy.
It will be more like a critical shortage of the courage and commitment to use all the tools available to meet their goal.
April 16, 2003
The Sixth Circuit Court of Appeals issued a new opinion today that reaffirmed the potential benefits of Rule 68, and also reminded litigants of the risks associated with not being sufficiently attuned to the benefits of settling one's lawsuits.
As discussed in a prior post, Rule 68 allows defendants to make a pre-trial settlement offer that has some teeth in it if the plaintiff turns them down.
If the eventual verdict is less than what was offered before trial under this Rule, the plaintiff can be forced to pay the other side's post-offer costs of litigation. In civil rights litigation, there is the additional risk of losing the chance to have the defendants pay the plaintiff's legal fees.
James Pouillon is a long-time anti-abortion protester in Michigan. Shortly before Christmas 1994, he moved his usual protest location to a spot on the steps of the Owosso city hall. Two city police officers eventually arrested him for refusing their orders to return to the regular spot on a nearby sidewalk.
This incident led to the inevitable civil rights lawsuit, based on the First and Fourth Amendments.
That's also when things became interesting.
Twice before trial, the city defendants served Pouillon with offers of judgment under Rule 68. The first offer was for $2,500 including costs and attorney's fee. The second offer was sweetened a bit, to $10,001. He didn't accept either offer.
After a trial, the jury ruled for the defendants. Undaunted, Pouillon then appealed to the Sixth Circuit. The appellate panel affirmed most of the verdict, but ruled there had been legal errors with respect to jury instructions on a damages issue. They remanded the case back for a second trial.
This time, Pouillon decided to try to accept the $10,001 offer. In response, the defendants said "no dice."
This time, the second jury ruled in Pouillon's favor, but only awarded him $2.00 in nominal damages.
In post-trial motions, Pouillon moved for fees and costs, as did the defendants. The district court sided with Pouillon, and awarded him $35,690 in attorney's fees.
The defendants then appealed the case back to the Sixth Circuit, which reversed the post-trial decisions.
First, the usual rule in civil rights litigation is that one has to actually "prevail" before being entitled to the payment of attorney's fees. In this case, Pouillon expressly sought compensatory and punitive damages, but did not seek any injunctive relief. In this context, the Court had little difficulty concluding that the award of nominal damages was insufficient to support the additional award of over $35,000 in attorney's fees:
Second, there was also the matter of Rule 68. As the Court noted, there's nothing in the Rule that made the defendants' two offers expire after the first trial:
Since the $2.50 jury award was far below the initial Rule 68 offer of $2,500, the District Court should have awarded the defendants their post-offer litigation costs.
Sometimes one can lose while winning. The plaintiff here appears to have made an unrealistic assessment of his chances, and he won't be able to slough off the costs of his mistake onto the other side.
Under these circumstances, it looks like justice (and
Rule 68's purposes) were well-served.
Former Iraqi Information Minister Mohammed Saeed al-Sahaf managed to make his way into the news again.
Depending on the actual facts, however, he might be past caring:
(I hadn’t heard of Comical Ali—I thought everyone was calling him “Baghdad Bob.”)
Either way, for his sake I hope the reports of his suicide turn out to be just as much B.S. as the hapless minister himself tried to shovel off onto the rest of the world.
After all, a man with his peculiar talent could have gone far, once released from his Iraqi assignments--lobbying for the tobacco industry, for example.
That’s assuming, of course, that he wasn’t facing any war crime charges for his own conduct during Hussein’s brutal reign.
On the other hand, if al-Sahaf is really dead, it’s also entirely possible that it was no “suicide” that did him in.
I can readily imagine some of the former regime members were less than pleased at the minister’s increasingly ridiculous briefings, and decided to do something about their displeasure, with extreme prejudice.
Perhaps at some point he became just too embarrassing to be kept alive, even for them.
We’ll find out eventually.
April 15, 2003
A few weeks ago the Fieldsboro, New Jersey borough council truly distinguished itself when it banned the placement of yellow ribbons on its welcome signs facing travelers entering the town.
This ham-fisted approach to sign control earned the Fieldsboro officials a stunning number of highly incensed townsfolk, a huge national outcry, and the ridicule of talk radio hosts, bloggers, and many others.
Apparently the mayor and council weren’t content to set themselves on fire just this one time.
This past Monday, just as the significant battles for control of Iraq were essentially completed, the council unanimously decided to place two yellow ribbons on each of the signs.
While their decision was probably intended to help defuse the situation, for many folks this is a classic example of too little, too late.
In addition, the council managed to continue to be a bit graceless about it:
Some folks are still really annoyed about the original decision:
Considering that I represent a transportation agency that also has to deal with stuff being attached to its signs, one might think I’m sympathetic to the Fieldsboro council.
I actually am, but perhaps not in the way they might like.
Folks who do stupid things frequently deserve at least a smidgen of compassion.
Even so, there was no reason to go into a mad rush to assert the town’s right to control what was attached to its signs. The council could have easily waited a week or so before reminding the townspeople that the ribbons and other displays might eventually become a problem if not removed. It’s doubtful that a short delay in enforcement in this instance would have put the town in legal jeopardy the next time that someone attached a sign or ribbon to their property.
Sometimes one just has to marvel at the capacity of some local governments to infuriate the people they allegedly represent.
April 14, 2003
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 2002-2003