Sneaking Suspicions
 
Archives-- June 8-14, 2003

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This page includes posts from June 8-14, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

June 14, 2003
Band Parents

My wife and I are band parents.

We’re fine with that.

It’s given us a chance to watch our daughters develop their musical talents, one in flute and the other with clarinet. Both girls play well, and both forged the special bonds that often occur among members of a marching band.

The fact that the Cape Henlopen band has been among the best in the state for the last decade or so hasn’t hurt, either.

In addition, the band’s marching cadence from its drumline is incredibly catchy and effective. During Christmas and other parades, a common sight is the swaying and toe-tapping of the crowd as the sound of the familiar beat goes by.

That’s probably why we enjoyed watching Drumline so much last night. 

The girls had seen the movie when it was in theatrical release, and both raved about it.

The plot, the dialogue, and the eventual resolution are not the reasons to see this movie. These elements are completely, utterly predictable.

Just watch it for the musicianship, the choreography, and above all the great drumming, and don’t skimp on the sound system.

Even folks who aren’t band parents will love it.

June 13, 2003
Same-Sex Wedding Etiquette

Andrew Sullivan discussed in several posts this week the recent Ontario appellate decision upholding a lower court's determination that same-sex marriages are legal.

The policy and legal issues concerning the expansion of marriage rights beyond the heterosexual are worthy of serious debate.

On the other hand, it's not a subject that should be limited to sober commentary.

For example, a buddy of mine who follows this issue with keen personal interest gave me a copy of an e-mail that describes the top ten critical etiquette rules to be followed for this eventuality.

Here's a somewhat edited version (I replaced the tenth rule with my own suggestion).

  1. On the day of a gay wedding, it's bad luck for the two grooms to see each other at the gym.
  2. Superstition suggests that for good luck, the couple should have something bold, something flirty, something trashy, and something dirty.
  3. It is customary at gay and lesbian nuptials for the parents of the happy couple to have an open bar during the entire ceremony.
  4. Gay wedding tradition dictates that both grooms refrain from eating any of the wedding cake because it's all carbs and sugar.
  5. It's considered bad luck for either of the grooms to have dated the priest.
  6. During the first dance, it's considered unlucky to use glow sticks, flags, whistles, or hand-held lasers.
  7. For good luck at the union of a drag queen, the bouquet is always thrown in the face of a hated rival.
  8. The reception hall must have a disco ball and at least one go-go dancer.
  9. The wedding singer is not allowed to sing any of the following:  Let's Hear It For The Boy, It's Raining Men, or I Will Survive.
  10. If one of the grooms walks down the aisle wearing a white tuxedo, there shall be no pointing, giggling, hooting, or catty comments about Memorial Day, Labor Day, or virginity.

June 12, 2003
Update on the Salt Lake City/LDS sidewalk case

Last fall I wrote a post about a Tenth Circuit Court of Appeals decision that a sidewalk transfer deal between Salt Lake City and the Mormon Church ran afoul of the First Amendment.

The LDS wanted to obtain control over a sidewalk/plaza area owned and maintained by the city, adjacent to the primary place of worship for the Mormons. The city didn't have a problem with giving up the property for most purposes, including letting the Church regulate the uses of the property, but retained a formal easement over the area, to permit pass-through traffic to reach other parts of downtown.

That desire to have one's cake and eat it too proved fatal to the deal.

Here's the relevant passage from the opinion, as quoted from the prior post:

If it wants an easement, the City must permit speech on the easement. Otherwise, it must relinquish the easement so the parcel becomes entirely private….The City's attempt to create a public throughway but withhold speech rights on that throughway is ineffectual simply because the City has attempted to exercise power the First Amendment does not afford.

This morning Howard Bashman noted an Associated Press story about a new deal involving the same pedestrian plaza and the threat of new litigation, even as the prior case awaits action from the Supreme Court:

The swap would allow the church to prohibit smoking, sunbathing, bicycling, obscene or vulgar speech, dress or conduct on the plaza. It also would allow the church to ban any preaching it did not approve of.

"We have people willing to be plaintiffs," Utah ACLU Executive Director Dani Eyer said Wednesday. "We're going to take a hard look at how this decision was made."

... Tuesday night, the all-Mormon City Council voted 6-0 with one abstention to approve Mayor Rocky Anderson's plan to give up the city's easement - and accompanying public free-speech rights - through the Mormon church-owned downtown plaza in exchange for the community center.

Knowing the hard feelings that the prior litigation generated, I'm sure there are folks who'd like to sue about this new arrangement between the LDS and the City. On the other hand, if the only substantive change relating to the plaza was to take the hint given in the Tenth Circuit opinion quoted above, I don't think there's much chance of winning a new order killing the deal.

Governments have the authority to abandon or sell off rights-of-way, including sidewalks--even sidewalks that are popular places to preach about the evils of the Mormon Church, for example. The problem with the original deal was that the sidewalk remained a public forum, in that the city didn't give up all of its easement rights.

If there's nothing implicating the First Amendment about the other half of the agreement relating to the community center, therefore, I don't think the ACLU will take the case any further.

That organization doesn't like to file lawsuits it can't win.

June 11, 2003
Family and other traditions at the beach

For many years our family has celebrated the end of the school year the same way.

We have dinner at Nicola's Pizza, a nice little restaurant in Rehoboth. (Try the Nicoboli sometime.)

This morning younger daughter finished her sophomore year of high school at 9:30 a.m., with her biology final. By 9:45 she and a bunch of her buddies were on the beach at The Boardwalk and Delaware Avenue.

She managed to develop a nice little sunburn fairly quickly, which was pretty predictable considering that today was only about the fifth day without rain out of the last forty.

By the time I returned home from work, however, any pain from the excess sun had worn off, and it was time for all of us to go back into town.

Earlier this week older daughter had all four wisdom teeth pulled, so she had to take a few precautions with her meal. Cutting up the spaghetti into very tiny pieces worked pretty well.

As we sat and talked and ate, the rest of the place filled up with a few locals, some tourist families, and several groups of June Bugs.

This is the week that graduating seniors from high schools all over the Mid-Atlantic fill up the local motels--hence the nickname.

Many of the girls showed a more than passing acquaintance with how low they could wear their hip-hugging jeans without violating "community standards." The backwards-facing baseball hats on several of the boys remained tightly fitted on their heads as they munched their pizzas.

Every so often we could see glances being stolen between the girls and the boys, scoping possibilities for later in the evening.

You see, during this particular week in Rehoboth, many traditions are celebrated by their repetition.

June 11, 2003
Kind of brings a whole new meaning to “I can get it for you wholesale.”

As it turns out, there can be some distinct benefits to knowing exactly where and from whom the stuff you’re fencing was originally stolen.

That’s at least one of the lessons to be taken from an Eleventh Circuit decision issued June 10.

Jorge Machado suffered a great loss when a trailer holding over 130,000 items of women’s underwear was stolen--but not because he owned either the trailer or the underwear.

His problems started when the investigation about the missing trailer led to a warehouse Machado rented. Inside the facility the police found thousands of blue jeans, 100 computer monitors, and other stolen items.

Machado eventually pled guilty to a single count of conspiracy to receive stolen goods. The judge sentenced him to 21 months' imprisonment, in part because the pre-sentence investigation showed that the retail value of the stolen stuff for which Machado was accountable exceeded $1,000,000.

On appeal, Machado argued that the wholesale value of this eclectic collection was only $537,746, and that therefore he should not have received such a harsh sentence for the single charge. He claimed that the goods were stolen from a wholesale dealer and would have been resold for wholesale value (if they hadn’t been stolen first).

As it turned out, this was a matter of first impression in the Eleventh Circuit, but the Fifth and Eighth Circuits had already ruled in favor of using retail values under the Federal sentencing guidelines.

The Eleventh Circuit disagreed with their brethren in the other two circuits:

The sentencing guidelines do not specify whether the retail or wholesale value should be used when determining the market value…. The loss to the victim is to be determined within the factual context of the case, utilizing wholesale, retail, or other relative values as the circumstances require….

Uniformity is no doubt a goal of the sentencing guidelines, but so too are the principles of fairness and accuracy. [The relevant portion of the guidelines] goes to great lengths in tailoring the sentencing enhancements based on the value of the property stolen, ranging from enhancements in the base offense level by 2 for losses more than $5,000, and by 26 levels for losses exceeding $100,000,000. [citation omitted]. Utilizing a retail value approach without considering the factual context of the case increases the possibility that some defendants may be over-sentenced for an offense.

The district court erred in measuring loss on the basis of the retail value of the property without considering the factual circumstances of Machado’s case.

Looks like Machado won’t be spending as much time as a guest of the Federal correctional system as he first thought.

Of course, the other lesson of this case is to be a little more careful about which thieves you decide to assist in storing or fencing stolen materials. Many of them aren’t too bright. They might just leave a trail so clean that the police chasing them can find you, too.

In addition, this decision does bring a whole new meaning to “I can get it for you wholesale.”

June 10, 2003
News judgment

Matt Drudge sometimes displays a fairly vicious sense of humor as he cobbles together the headlines he uses for his Drudge Report.

He mixes straightforward news of natural disasters throughout the globe, accompanied by a wide collection of the manmade variety, along with just enough odd stuff to remind readers that this is not their everyday Gannett publication.

To be blunt, I think Drudge uses an old R.E.M. song as his inspiration:

It's The End Of The World As We Know It (And I Feel Fine)

This morning’s collection is a very good example:

British Scientist Puts Odds for Apocalypse at 50-50

FBI drains Maryland pond in anthrax probe...

Asthma sufferers flock for miracle live fish 'cure'...

Bill Clinton argued against firing Times' editor Raines, sources say...

I especially like the weird news pieces, like that last one.

June 10, 2003
A few votes for chutzpah

The Ninth Circuit today issued a decision affirming the dismissal of a civil rights complaint against The American Way of Life.

I suppose the plaintiffs deserved a few votes for chutzpah, but that’s about it.

An outfit called Single Moms, Inc. (no emotional string-tugging there, eh?) filed suit against the Montana Power Company (MPC) and the members of the Montana House and Senate, among others, relating to the passage of utility deregulation legislation in the Big Sky State.

The lawyers (!) representing these women charged that the power company’s paid lobbyists succeeded in obtaining the passage of these new laws by (gasp!) lobbying, allegedly resulting in higher energy costs they could not afford to pay.

For this indignity they demanded $5 million in damages for all single Montana mothers, along with an injunction against disconnecting any gas or electric services for failure to pay the bills in the future.

Happily married Montana mothers can afford their electric bills, apparently.

The District Court dismissed the suit, and the appellate panel had no difficulty agreeing with the result.

Some of the circuit court’s comments could have come straight out of a high school civics class:

… MPC’s lobbying was an exercise of its lawful First Amendment right to petition the government….

If we deemed citizens’ lawful and protected efforts to influence government “state action,” then citizens could be held liable whenever their political activities played a role in government action later determined to have been unconstitutional. Such a holding would create a new category of state action (lobbying) and a new battlefield—the nation’s courtrooms—in political contests. Such a holding also would have a chilling effect on legitimate political expression in derogation of the First Amendment. It would threaten to deprive government of useful information that private citizens might otherwise provide. This is a significant countervailing reason against attributing MPC’s lobbying activity to the government. MPC’s lobbying activities were the typical actions of a private individual or corporation that seeks to tell lawmakers what it wants or needs from government; such lobbying activities, whether an aid or a hindrance to good governance, are not “state action” implicating individual constitutional rights.

I’m not a big fan of referring to chilly temperatures when discussing First Amendment rights. I figure most folks interested in exercising these rights are usually plenty warmed up already.

Even so, this was a remarkably annoying lawsuit.

Cases like this one tend to encourage some people to use the court system for fundamentally political purposes, instead of doing the hard work of truly participating in their local, state, and federal government through democratic means.

It's something even single moms can do.

June 9, 2003
You sentence a guy to an additional 130 years in prison, and all of sudden he’s got a problem with that?

Sean Jamison made, as they say, a few bad choices in his life.

On the other hand, one of his decisions probably saved his life, but he’s not seeing it quite that way right now.

In late 1999 the police arrested Jamison and charged him with a wide array of serious offenses:

first degree intentional murder, first degree felony murder, four counts of first degree robbery, and related weapons, assault, burglary, and conspiracy charges.

Almost a year later, Jamison found himself in a capital trial in Delaware’s Superior Court.

Now, the Diamond State is not a place anyone would like to face such grave charges. As of early 2002, Delaware is the leading state in executions per capita for the entire country, ahead of more famous contestants for that honor such as Oklahoma, Texas, and Virginia.

Three days into his trial, Jamison decided to accept a plea bargain. The state dropped the intentional murder charge, and Jamison pled guilty to

first degree felony murder, possession of a firearm during the commission of a felony, four counts of first degree robbery, two counts of first degree assault, first degree burglary, second degree assault, first and second degree conspiracy, and possession of a deadly weapon by a person prohibited.

The prosecution agreed to recommend a life sentence on the felony murder count, along with the minimum sentences on the remaining charges. If these non-binding recommendations were accepted, Jamison faced life plus 22 years and nine months plus (oddly enough) one year's probation.

The Superior Court judge wasn’t as forgiving as the prosecutors, however, and sentenced Jamison to life without probation, parole, or any other sentence reduction on the felony murder charge. The trial court also tacked on the statutory maximum totalling an additional 152 years for the other crimes.

Displeased with this result, Jamison then sought to withdraw his guilty pleas and force the state back into court for a full trial.

In a fairly terse Order, the State Supreme Court disagreed with Jamison’s suggestion of error.

First, no one made any promises about the eventual sentence. Second, Jamison acknowledged that he knew what the maximum sentences could be for the offenses to which he pled guilty. Third, there was no indication his counsel’s assistance was ineffective.

Finally, the Court noted that Jamison did obtain something pretty valuable from the deal—he’d stay in prison forever, and the state wouldn’t execute him:

Jamison’s decision to plead guilty three days into his capital murder trial in exchange for the State’s recommendation of a life sentence provided Jamison with a clear benefit. Jamison acknowledged during his plea colloquy that he was guilty of the offenses, that he understood his plea agreement would result in him spending the rest of his life in prison, and that he was satisfied with his counsel’s representation. In light of this record, we find Jamison’s present allegations of prejudice to be unsubstantiated.

Perhaps upon reflection Jamison will come to understand that a deal’s a deal, especially when it’s made with full knowledge of the potential consequences.

After all, he’ll have an additional 130 years to think about it.

June 8, 2003
Finding the money in Alabama, with God’s help

One of the benefits of reading blogs is the chance to learn more about other parts of the country, from folks who really know where they live.

For example, Alabama is among the minority of states that I have never visited. Thanks to bloggers such as Terry Oglesby and Mac Thomason, however, I think I have a much better sense of that Southern state’s politics and culture.

Earlier this week the NYT ran an extended article about Alabama Governor Bob Riley. The Republican former Congressman is pushing a significant reform program to deal with a crippling structural budget deficit, along with a significant shift in tax incidence from the poorest Alabamans to those better off.

The Governor’s Office was sufficiently impressed with the NYT piece that it posted the entire piece on the governor’s official website.

The following quotes may have been news to many NYT readers, but anyone reading Thomason and Oglesby in the last few months would have simply smiled in recognition:

"No one likes to raise taxes, least of all me," Mr. Riley said. "On the other hand, the inevitable is here."

That, and a chance to right wrongs. Mr. Riley, a proud product of the Bible Belt who speaks of his goals in moral and religious terms, seems to be emphasizing compassion over conservatism.

"If the New Testament teaches me anything, it teaches me not only to love thy neighbor but also to help those who are the least among us," Mr. Riley said. "Having a regressive tax structure is one thing. But when it starts at $4,600 for a family of four, that’s immoral."

Yesterday the state legislature adopted Riley’s suggestions, showing that if God is truly involved in Alabama policy-making, at least He’s bipartisan:

The Democrat-controlled Legislature approved the largest tax increase in state history Saturday -- a $1.2 billion package that now goes to a vote of the people.

Republican Gov. Bob Riley pushed through a package built largely on property tax and income tax increases at a time when Alabama is struggling through the worst fiscal crisis in decades.

"For 100 years, we have been trying to do some of the things that happened today,'' Riley said.

The package would plug a $675 million deficit in state budgets, institute government accountability measures, and provide funding for new education programs, including college scholarships for ``B'' students.

The package would also alter what is ranked as one of the most regressive tax systems in the country by reducing property and income taxes on Alabama's poor while raising taxes on many middle-income and all upper-income families.

The plan goes to a statewide referendum on September 9, a requirement under Alabama law that shows how much trust the people of that state have placed in their political leadership in the past.

Not too much, and perhaps with good reason, but maybe this time the people will go along with what looks like a decent plan for improving the state and its citizens' lives.

Regardless of one's religious beliefs, this proposal has the potential to bring some real transformation to a flawed system of state budgeting and taxation.

I do have a slight quibble with one quote in this latest NYT report:

Wayne Flynt, an expert in Southern political history at Auburn University, said Riley's morality argument wouldn't work in more secular states, but it appeals to conservative Christians in a Bible Belt state.

"He is locating the debate in the Bible and biblical justice to the poor. I think the whole nation is mystified by that,'' Flynt said.

Perhaps Professor Flynt needs to visit other states more often, or read bloggers from other states.

If he did, I don’t think he would have made that last remark. Arguing for one’s reformist political objectives by reference to Biblical teachings, in whole or in part, is neither a new idea nor limited to the Gulf Coast.


   

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