Sneaking Suspicions
Archives-- May 4-10, 2003

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This page includes posts from May 4-10, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

May 10, 2003
A good mix of old and new technology

When we built our house 14 years ago, we had to decide what kind of driveway we should install. Many of our neighbors in the development went with concrete or blacktop, both of which have drawbacks.

Concrete cracks, often in odd places. Blacktop owners, at least around here, seem to need to coat their driveways every year with new tar.

We stuck with old-fashioned crusher run.

For those without DOT experience, that’s gravel, but with pieces about 1-2 inches in size instead of the pea-sized stones most people think of when they hear the word.

We have to weed the driveway, but otherwise the stone path has a few advantages. First, we just like the look of it. Second, it’s like a huge doorbell, announcing arriving cars well before anyone reaches the front step. Finally, rainwater goes straight down through the stones, reducing stormwater flow from our property.

I feel so ecologically correct.

A Washington Post story today by John F. Kelly reports that the National Park Service is using a similar old technology, mixed with new ways to manage it, in a much harsher environment—the barrier island of Assateague Island National Seashore.

As summer approaches, Assateague is being readied for visitors, from birders in search of piping plovers to sunbathers eager to spread towels on miles of undeveloped sand. They'll find a beach whose National Park Service overseers have embraced a movement known as "sustainable design," a school that strives to rest gently upon the landscape. At Toms Cove, that means roads topped with a layer of broken clamshells….

The dried-out clamshells, mostly from quahogs who previously donated themselves to humans for clam strips and clam chowder, are spread out on a bed of clay.

Now, this approach to paving is not new. There are clamshell roads and pathways all over coastal towns and villages up and down the East Coast.

What I liked about the Park Service plan is how they integrated new technology into their scheme, in order to maintain the new facilities:

As for the clamshell roads and parking lots, a big overwash can cover them with more than a foot of sand. [Chris] Finlay [, the park’s architect and facility manager,] said the edges have been "GPSed," their locations marked by satellite global positioning systems and aerial photographs. Once they're found, the sand is skimmed off with a front loader to reveal the shells underneath. If the storm has changed the geography, Finlay said, the shells and clay base can be scooped up, moved and reinstalled.

This seems like a promising approach to handling the problem of preserving a kind of human permanence, in a place that the elements inevitably move around a bit.

There’s an additional benefit the story didn’t mention, however. Around here seagulls like to use concrete or blacktopped surfaces as handy places to do their own clamming. They drop their captured shells from high overhead, let the hard surfaces shatter the shells, and then eat what’s inside. After a while, the parking lots, streets, and sometimes driveways look salt-and-pepperish, with bits of shell and seagull “leftovers” spread all over.

If the Park Service plan catches on, the gulls will have to find another place to do their clamming.

May 9, 2003
A matter of family honor

I returned home late this afternoon from an overnight trip to State College, Pennsylvania, to attend the funeral of my cousin's wife.

She died at age 43 from complications relating to her five-year battle with cancer.

Throughout this difficult time, she bore her troubles with remarkable grace and spirit, in just the same way she acted before the discovery of the disease.

I'm also honored to say that my cousin handled himself with tremendous dignity during her last days, and especially during the funeral ceremonies.

His eulogy, delivered with a strong voice as the funeral Mass came to an end, was powerful and moving.

One part stands out. He said that if God had told him on his wedding day that he could go ahead with their marriage, but that it would only last for a short while, he would have gone ahead with it in a heartbeat.

I hope their young daughter someday understands and appreciates her mother's approach to life, and the deep love that her parents shared.

May 8, 2003
Maintenance duties

Political parties know that certain duties must be performed on a regular basis to maintain their fundamental base of devoted contributors. This includes creating news that the deeply partisan will appreciate and enjoy, even if no one else will care.

The media don’t mind. A certain amount of this fluff helps fill the news hole and potentially adds to the entertainment they provide, along with the comics pages and the sports section.

The Washington Post ran a good example of this news that fits (for the committed), in an article about how the Democratic leadership is carping over the money spent to support President Bush’s recent trip out to the Abraham Lincoln to meet the troops and make a speech. (Link via Drudgereport.)

I read the stern quotes from Henry Waxman and Robert Byrd, themselves such careful stewards of the public fisc. Then I thought back to the Republican leadership and how they went on and on about Clinton’s LAX runway haircut story.

Oh, the indignation! Oh, the deep concern! Oh, the worry over public finance!

Oh, b***s**t--on both sides.

May 7, 2003
Not a lot of sympathy for these folks

A Reuters story today reminded me to look up e-Bay and see if I can’t buy myself the world’s smallest violin.

It seems that a recent JD Power and Associates survey shows that Hummer owners are the leading complainers about their new vehicles:

In the group's annual survey of consumers during the first 90 days of ownership, General Motors Corp.'s highly profitable Hummer brand had 225 complaints per 100 vehicles. By comparison, the top-ranked Lexus, by Toyota Motor Corp., had 76 complaints per 100 vehicles.

Somehow many of these folks, possessing perhaps more cash than common sense, managed to be put out about the most predictable drawback to buying a 6,400 pound vehicle with a huge engine:

Gary Cowger, president of GM North America, said the H2's fuel consumption was the No. 1 complaint among owners, outpacing the No. 2 gripe -- that the SUV's headlights were aimed too high -- by a 2-1 margin. GM has fixed the headlight problem, Cowger said.

Nice to hear about the headlight fix, I suppose.

GM admits that Hummers average between 11 to 13 miles per gallon. Because of the vehicles' sheer size, however, the MPG ratings don’t have to appear on the window stickers.

Personally, I really doubt that any civilian Hummer owner made his SUV purchase dependent on fuel consumption comparisons.

On the other hand, reading that the burn rate that these behemoths produce is the primary complaint of their owners doesn’t produce much empathy in me, and I don’t think I’m alone in that reaction.

I’ll even bet these same complainers aren’t happy about all the space the Hummers take up in their garages, too.



May 6, 2003
When it comes to municipal annexation policy, you can’t make a federal case about being forced to buy into the whole package.

Some municipal annexation policies are pretty common throughout the country.

Most places, for example, require the parcel to be annexed to be contiguous to the current city boundaries. In addition, most cities require any property owners seeking to tap into city water or sewer systems to also annex their property into the municipality.

In other words, if you want to use city services, you have to buy into the whole package.

Holding developers to this annexation-for-services requirement shouldn’t become a Federal case, but it did in a recent dispute arising in Claremont, California. Fortunately, the Ninth Circuit upheld a jury's determination that there was nothing about this routine land use policy that converted adherence to it into a violation of the Fair Housing Act.

Smita and Tarun Sanghvi owned an Alzheimer’s care facility in Los Angeles County. They wanted to expand their operation, and asked the adjacent City of Claremont if they could hook into the City’s sewer system.

City officials told the Sanghvis they had to first annex their property into Claremont to obtain the sewer service, but the developers refused. Instead, they filed suit under the Fair Housing Act and 42 U.S.C. Section 1983, arguing that the City policy discriminated against Alzheimer’s victims who would have been able to use the expanded facility.

A jury ruled against them, and the property owners then appealed to the Ninth Circuit.

The panel noted the City’s reason for its policy:

[B]y requiring the annexation of property in exchange for a sewer connection, the City could require property owners to conform their properties to the City’s general development plan…. This evidence … supported a finding that the City had a legitimate, non-discriminatory reason for denying a sewer connection to the Sanghvis’ property.

As for the Fair Housing Act requirement to reasonably accommodate the needs of the disabled, the developers faced a separate legal problem:

The Sanghvis presented no evidence from which the jury could conclude that the requested accommodation was an accommodation required by the Alzheimer’s patients. It was an accommodation sought by the Sanghvis for their personal benefit. They wanted a sewer hook-up without annexation because they did not want to incur the added cost of complying with the City’s building requirements. This was an economic concern of the Sanghvis, not a therapeutic concern of the Alzheimer’s patients.

On this issue, the Ninth Circuit's decision is analogous to recent Third and Seventh Circuit cases discussed last March and February. In all three examples, the property owners essentially argued for favorable treatment based on the special legal rights of others, and not themselves. Thankfully, none of these Circuit Courts bought the argument.

Based on these decisions, municipalities shouldn’t face significant Federal legal consequences by the continued, consistent application of common-sense land use policies.

May 5, 2003
Not such a good job of picking your plaintiff

The kind of government work in which I assist my clients usually involves making choices, often under less than ideal circumstances. Frequently the policy decision could rationally go either way, depending on one’s preferences.

On occasion, the threat of litigation is part of the decisional mix. When that happens, the process of making the choice also includes the determination of which person or organization could sue the agency after the choice is made, and whether the agency could successfully defend that choice against that particular litigant.

I refer to this process as “Picking your plaintiff.”

I thought about this recurring management/legal issue after reading a DC Circuit Court of Appeals decision issued last week involving the IRS, the folks at Judicial Watch, and the Federal Freedom of Information Act (FOIA). 

As I read the case, it looks to me like the Federal agencies didn’t do such a good job at picking their plaintiff.

Larry Klayman runs Judicial Watch, a self-styled public interest law firm which has established a certain reputation for litigious behavior over the years. Some may argue whether Klayman and his firm weren’t forced into that mode of action by the reactions of those it challenged, or whether they made a conscious choice of that style of advocacy. For present purposes, however, it’s enough to note that this aspect of Judicial Watch’s reputation is well known.

In June 2oo1, Klayman filed a FOIA request to the IRS and the Treasury Department. He sought to inspect and copy relevant documents the agencies possessed concerning former IRS Commissioner Charles Rossotti, a company called American Management Systems, Inc., which Rossotti co-founded, a contract the company obtained from the IRS, and the background information concerning a “conflict-of-interest” waiver Rossotti obtained.

Judicial Watch also asked for a “fee waiver” from the usual copying charges that would otherwise apply to the FOIA request.

Under Federal law, these charges can be waived. The entity seeking to avoid payment must show that the request is “in the public interest”, along with some proof that disclosure

"is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester." 5 U.S.C. § 552(a)(4)(A)(iii).

Neither the Treasury Department nor the IRS granted the fee waiver request to Judicial Watch. Those decisions then took precedence over the original FOIA request. Judicial Watch quickly sued about the waiver denial, before seeing any documents, and lost in the District Court.

Klayman's group had a much easier time of it before the DC Circuit.

The government first argued that the FOIA request somehow wasn’t specific enough. In response, the appellate panel noted:

With "reasonable specificity"-all that FOIA requires, …Judicial Watch sought documents regarding specified "operations and activities" of the IRS, i.e., a conflict- of-interest waiver executed by the Deputy Treasury Secretary for the Commissioner of the IRS, the Commissioner's relationship with a private company doing business with the IRS, and decisions by the IRS involving the private company. …We cannot imagine what else Judicial Watch could have said to satisfy the government's appetite for specificity [citations omitted].

The government then contended that the request was insufficiently tailored to develop public understanding about the IRS, to which the Circuit Court’s response was nearly incredulous: 

What could be more important to the public's understanding of IRS operations than knowing whether its commissioner awarded a government contract to a company he co-founded and in which he held stock?

The government then complained that Judicial Watch did not tell the government how it intended to disclose the information to the public.

Given the alacrity with which Judicial Watch usually seeks publicity for its efforts, this argument probably shouldn’t have been made, either:

[The Judicial Watch letter] lists nine ways in which it communicates collected information to the public: press releases; a newsletter with a monthly circulation of "over 300,000 copies nationwide"; a website…; an "Infonet" listserve with "over 60,000 subscribe[rs]" …; congressional testimony; a nationally syndicated news and information television show Judicial Watch helps to produce; a Judicial Watch-produced weekly radio program…; appearances by Judicial Watch employees on television and radio programs; and conferences organized by Judicial Watch. Judicial Watch might have added that it will use these methods to publicize any information it obtains from this request, but the government points to nothing in FOIA, the IRS regulation, or our case law requiring such pointless specificity.

Finally, the government argued that Judicial Watch failed to show that the general public didn’t already know about the waiver, citing a reference to it in a publication called Insight. The appellate panel in response noted that the FOIA request extended well beyond the particular conflict of interest waiver document itself, and that in any event,

nothing in the record before us suggests that the waiver has been disclosed to anyone other than Insight.

The panel concluded by referring to the legislative history of the FOIA waiver request legislation:

At oral argument, counsel for Judicial Watch asserted that the government's response to its waiver request amounted to just the sort of "roadblock[ ] and technicalit[y]" that led Congress to liberalize the fee waiver provision. 132 Cong. Rec. 31,415 (1986) (Sen. Leahy). We cannot disagree.

From a policy standpoint, I’m not so sure that the FOIA fee waiver request law is such a hot idea. The rest of us have to make up the cost difference, after all, and as this case shows, sometimes there are added costs in litigating over who qualifies for the “free” copies.


On the other hand, now that Congress set up this special break, the government should do a much better job of figuring out how to comply with it.


Judicial Watch simply wasn’t the right plaintiff to pick for that purpose, as a quick glance at its current web site easily proves.


May 5, 2003
Get Well Note


Blogger-raconteur Gary Farber is recovering from a bout of pneumonia. Perhaps he caught the bug while standing outside his home, throwing puppies into a gas-powered wood chipper (although I doubt it).


Anyway, while home recuperating, Farber is back to blogging with something of a vengeance. Stop by when you can.


May 4, 2003
Testing yourself against the best

I left our bedroom at 6:30 yesterday morning to take care of the dog, part of my usual routine, and was immediately greeted by an odd sight.

Younger daughter was on the hallway floor, doing situps.

Now, this is a child who does not mind sleeping in on Saturday mornings. She has an obvious talent for it, in fact, and enthusiastically engages in the practice most weekends.

This time she looked up at me and said quietly, “I couldn’t sleep.”

I understood perfectly.

All week we’d heard about the big soccer game Saturday afternoon with St. Mark’s High School.

St. Mark’s has a long and successful history in girls’ high school soccer, including winning the last three state championships. I’m told their entire starting lineup this year is involved in the Olympic Development Program

Cape Henlopen High School, on the other hand, is a relative newcomer to the sport. The Vikings qualified for the last three state tournaments, winning the first round each time, but then losing in the next. Older daughter was one of three captains on the team that was also co-conference champion two years ago.

The two teams had never played each other, and Cape made the 80-mile drive to the upstate school’s home field yesterday afternoon.

At around 11, a teammate picked younger daughter up and they went to the coach’s house for a team breakfast. She was even more psyched after the meal, if that’s possible.

The team bus left for the game a short time later, well before we did. A side trip that took a bit longer than planned kept us from reaching the stands before the first 15 minutes of the first half had already been played.

By then the game was already a surprise to both teams. Cape scored the first two goals in the first nine minutes, putting St. Mark’s into unfamiliar territory. This season the undefeated Spartans hadn’t spotted any team two goals before scoring one of their own.

On average, the St. Mark’s players were noticeably larger than Cape’s. All the girls on both teams are in great shape this late into the season, but as the game wore on the size and talent differential began to take their toll on the Cape squad.

Despite the heroic efforts of a certain right fullback and the rest of her highly motivated team, St. Marks scored six unanswered goals for the win.

After the game, I spoke briefly with the Cape coach. He was justifiably proud of his team’s effort, and also made a good point: “It’s always good to have the opportunity to see how you match up against the best.”

Younger daughter and her teammates were, if anything, exhilarated by the experience. She confirmed what we saw from the stands—all of the girls worked very hard, never gave up, and managed to put a scare into the more-talented team, earning their respect.

Cape is now 6-1-2 for the year, with a chance to be conference champions this year and an even better chance to do well in the state tournament.

The Cape team measured itself against the best competition they will likely face this year, and should be happy with the comparison. As many of these players already realize, sometimes one gains more from a hard-fought loss than an easy victory.


Contact Information:

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


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© Frederick H. Schranck 2002-2003