Sneaking Suspicions
Archives-- July 2-15, 2006

This page includes posts from July 2-15, 2006 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

July 14, 2006
A mystery of life, solved

I was driving home after a trial yesterday and came across this sign, not far from Georgetown, Delaware:

Isn't it nice to know that there is a real answer to one of the fundamental mysteries of life?

July 8, 2006
A slight tap instead of a hard punch can still send a message.

Not long ago, a recent New York émigré to New Castle County, Delaware decided to sue the government of his new home.

Some might call that a bit ungrateful, what with all the low-tax benefits to living in Delaware, compared to where he came from.

Nonetheless, as Chancellor William Chandler eventually ruled, Richard Korn had a legitimate grievance about how the New Castle County administration was hoarding a huge surplus, built up over several years. Under existing ordinances, they should have handled the money differently.

Korn demanded that the County be forced to return the overpayments to its residents, but Chandler refused to order that particular relief. Instead, he gave the County an opportunity to change its ordinances and make the fundamental political decision to spread the surplus over outlying years.

They took the hint, and adopted the necessary amendments to their budget laws.

I wrote about this case several times while it was ongoing, but I didn’t post anything about the final skirmish between the litigants in that lawsuit.

Naturally, it was about the money—part of it, anyway.

Korn sought an order compelling New Castle County to pay $500,000 in attorney’s fees for his efforts in forcing the government to deal with its huge surplus.

Compared to all that extra cash held by the county, it wasn’t a lot. On the other hand, embarrassed government officials were not at all inclined to be graceful in partial defeat, and fought hard against paying any of Korn’s fees.

The usual rule in Delaware courts, as in most states and in most Federal cases, is that a litigant pays his own way. There are only limited exceptions to this rule.

Chancellor Chandler reviewed the case once again, and ruled against Korn:

Plaintiffs argue, and I agree, that there is a definite, although intangible, benefit to the citizenry when its elected officials are forced to conform their actions to the dictates of law. In some situations where the actions of private whistleblower/litigants are found to confer a benefit upon the State and its citizens, the General Assembly has recognized this benefit by legislation providing that the plaintiffs’ fees and costs must be paid by the defendant [note omitted]. In other words, the Legislature has demonstrated that it is cognizant of the fact that our general American rule on legal fees does not sufficiently encourage litigation in areas where that litigation is found to be especially meritorious or in the public interest. Presumably, if litigation of the instant kind, involving budgetary authority and taxing authority, were considered to be in similar need of encouragement, the General Assembly would provide for a shifting of fees. It has not done so here. Without minimizing the importance of the result the plaintiffs have obtained on behalf of the interest of all citizens of New Castle County in governmental compliance with the law, the “good government” result achieved here is not the type of benefit that supports a common-law exception to the American rule that each litigant must bear his own costs.

I’m bringing up this story again because there’s a new Delaware case involving a local government, a lawsuit, and a potentially deserving claim for attorney’s fees.

The Town of Dewey Beach is a little place. Maybe that’s why the land-use arguments are frequently so bitter.

In recent years, residential and business property owners have fought over the potential conversion of former hotels and motels into residential condominiums, one of the ways in which some owners have sought to cash in on the tremendous run-up in beach area property values.

In 2004, the town’s planning commission considered the adoption of a new ordinance that would ease the regulatory path required for such conversions. After several public meetings, the Town Commissioners adopted the ordinance in December 2004.

Unhappy with this routine exercise of democracy, a few property owners then sued the Town. They raised several procedural claims alleging deficiencies in the ordinance adoption process, and otherwise attempted to have the ordinance formally eliminated by an injunction.

Another property owner, who had filed to use the new conversion ordinance, entered the litigation and suggested that the plaintiffs lacked any standing to bring this suit.

After reviewing the Complaint, Vice-Chancellor John Noble agreed:

[S]tanding cannot be premised on a merely abstract desire to ensure municipal obedience to the law. Indeed, the Plaintiffs have set forth almost precisely the type of generalized grievance that constitutes the classic example of a harm that will not, by itself, confer standing—i.e., a “common concern for obedience to the law.” [note omitted] Furthermore, they have failed to identify any “concrete and particularized injury.” [note omitted] Because the Plaintiffs have not met the threshold requirement of demonstrating standing, their claims must be dismissed.

Noble added the following in a footnote:

Their failure is not merely one of proof—such as relying on unverified allegations. Instead, their articulated interests are fairly characterized as political, and only political, in nature. In this context, generalized references to “density” or “quality of life,” without more, are not specific enough and do not adequately inform the Court of the consequences that would support judicial intervention into the municipal political process.

Boom went the lawsuit.

Now it just so happens that, in one of life’s little ironies, the plaintiffs’ attorney is currently the Mayor of Dewey Beach. He won the election as the lawsuit was pending.

His political position may have been a factor in a recent decision by the business owners who successfully intervened in the case and convinced Vice-Chancellor Noble to dismiss it.

Molly Albertson of The Cape Gazette reported on July 7 that Highway One Ltd. is seeking an order for court costs and attorney’s fees.

Highway One will file a motion Monday, July 10, asking six plaintiffs in the suit to split court costs of about $750. Highway One also wants Dewey Beach Mayor Courtney Riordan to pay its attorney fees, estimated at more than $30,000.

“We’re including Courtney because he instigated this action,” said Highway One partner Jim Baeurle. He said Riordan filed the lawsuit as a campaign tactic. “We’re saying to the court that this suit was frivolous and political.”

According to Albertson, Town officials discussed the matter and decided not to join in the request for reimbursement, although the town’s litigation expenses were estimated at $20,000 to $25,000.

The Town’s reluctance to keep this particular pot stirring is perfectly understandable, given that so many commissioners were involved in the lawsuit on both sides.

On the other hand, Baeurle’s additional quote in the Cape Gazette story about seeking the fee award  has some resonance:

“It’s the principle of it. Unless people are held accountable, what deters them from doing this again?” he said.

I think Baeurle has a legitimate point, although I can also understand the Chancery Court’s probable reluctance to order the plaintiffs to reimburse all of the other side’s attorney’s fees.

There should be some serious consideration by the Court of what the standing problem illustrated so perfectly about this lawsuit. It was essentially an anti-democratic attack on the normal law-making functions of a city government, without any claim of individualized harm that would have kept alive the suit against the newly adopted ordinance.

There was literally no merit to the litigation in any legal or equitable sense, and, unlike the Korn lawsuit, there was no real public interest served in filing this lawsuit.

When governments are sued under these circumstances, and/or when private parties intervene in such suits in order to protect their legitimate property interests, the Courts should be more amenable to relaxing the standards against awarding attorney’s fees.

I’m not suggesting that the Court should award all the fees sought. If anything, it seems to me that in the Korn case, requesting the $500,000 was one of the best ways to never see any of it.

Instead, I think the Chancery Court could appropriately decide that these kinds of lawsuits are just frivolous enough to support sending a little tap at the responsible parties, instead of hitting them with the hard punch of awarding all of the other sides’ legal costs. An award of a few thousand dollars in fees would have sent a message about the potential costs of defending the indefensible, as the County did in the Korn case. A similar message should be given to litigants about the risks of seeking to win in the courts what they lost in the political process, as occurred in this Dewey Beach example. 

That kind of message might not deter some folks, but it could be a useful deterrent against the ill-advised enthusiasms of some others.

July 5, 2006
He’s that good

The statewide newspaper ran a nice feature today on Bee Neild, a friend of mine who is a popular longstanding bartender at Rehoboth's Back Porch Café.

If you want to know why he’s so good at what he does, just read this.

July 4, 2006
The 2006 Summer Screening Series

Last week the Rehoboth Beach Film Society began its Summer Screening Series at the Movies at Midway. 

The series gives movie buffs a chance to influence what will be shown at the upcoming Independent Film Festival, scheduled this year for November 8-12.

At 7 p.m. on Mondays and Tuesdays, folks can go to the upstairs screening room and watch two movies each night—one short and one feature. Joe Bilancio, the RBFS festival programming director, introduces each movie and then leads a group discussion after the viewings. 

Bilancio said he makes these summer selections from the hundreds of submissions he’s currently evaluating. What we see is taken from the pile of likely candidates. He uses the summer series and the group discussion to help winnow down the nominees to the hundred or so that will make up the final selection. 

As far as we know, this open process is not generally done for other film festivals, but it’s a popular part of the RBFS tradition. 

The Series is open to the public, and a very small donation is requested to offset some of the expenses. 

If you’re in town sometime between now and August 15, try to fit this opportunity in your schedule. It’s well worth it.

July 4, 2006
The etiquette of towing

We had weekend guests, and someone suggested we should take them for a boat ride. 

The last time we were out the engine was running a bit ragged, so on Saturday morning I said I’d take the boat out by myself for a quick run to make sure everything was running well enough to take the group for the ride. I assured my wife that I would easily be back in time for the big breakfast she was going to make. 

Fortunately, the only trouble was some seaweed that had fouled the prop, so after that was cleared off the boat ran fine. I took it out to Rehoboth Bay at the mouth of Love Creek for about a half-mile, and then turned back toward our lagoon. 

As I approached the first channel markers on Love Creek, however, I saw a powerboat, drifting between the poles. I slowed down and called out to the older couple standing in it, with three large crab pots taking up most of their remaining space. 

The man said that his inboard/outboard engine had heated up, smoked, and now seemed to be frozen up. While I stood off, he tried one more time, unsuccessfully. 

I asked if they wanted a tow back to where they came, and they quickly accepted. We tied off the two boats, and I began towing them back to the Love Creek Marina, a mile or so away. 

It soon became obvious that this was going to take a while. Even in the channel, the depth meter was reading only a foot and a half of water. I had to raise my engine a bit to keep it from touching bottom, especially since the tow rope was pulling down the back end of my boat just a bit. 

I also think this is why his engine seized up. At any speed faster than no-wake, there’d be more than enough mud stirred up to clog any water intakes and foul up the engine’s cooling system.

Not wishing to repeat that experience, we crawled. After a half-hour or so, we made it back to the launching ramp and adjacent boat slip, next to Route 24’s Love Creek bridge. 

As I threw the tow rope back to the other boater, he called out, “What do I owe you?” 

I said, “Nothing. That’s fine.” 

His wife insisted, “No, we should pay you. What can we give you?" 

I said, “Nothing, really. Just do the same thing for someone else sometime.” 

They finally seemed satisfied with that suggestion, thanked me again, and then turned their attention to tying up their boat and spending their day in a very different manner than they had planned.

As I rode back out the creek, I started thinking about the etiquette of towing.

There’s something of an expectation that other boaters should come to your aid when your boat needs a tow. There’s also an expectation that you should make the offer to repay a volunteer tower for their services. Nonetheless, I think there’s also an expectation that the boater receiving the tow won’t really be dipping into their wallet for this purpose. If they return the favor to some other boater in distress, however, that should be enough. 

I slowly rode back out to the Bay, and throttled up for a short full speed run once I reached it. I then returned to our dock, and drove home. 

Breakfast had long since been served--but it reheated easily, and tasted great.

July 4, 2006
Shameless Self-Promotion

Over the weekend I posted my newest golf book review, which you can read here.

Stephen Goodwin's enjoyable Dream Golf: The Making of Bandon Dunes reads a bit like an extended New Yorker magazine article, about the creation of the now-famous Oregon golf resort.

July 4, 2006
While I was away from here

Lately I’ve been on a somewhat erratic, extended break from blogging--but I had my reasons.

I think some large part of the non-blogging was due to my younger daughter, but I’m not blaming her by any means. If anything, I should thank her.

Our 26th wedding anniversary was May 24, and our daughters treated us to dinner at Fins Fish House and Raw Bar. During this part of the year, with both of them actively working in the local restaurant trade, an evening out for the four of us is not easy to schedule. Luckily we found a time to be together. 

Among other items, I ordered a half-dozen fresh, raw Tatamagouche oysters. No one else at the table wanted to sample them, wrinkling their noses at the offer. Nonetheless, they wanted to know what oysters tasted like. I said, “They taste like where they’re from.” 

The discussion then ranged from what we were having that night to what we enjoy eating, especially Cajun and Creole dishes. I then brought up an idea I had that was related to our discussion of the news that a small restaurant in Rehoboth was up for sale. I told the family that I was thinking of starting a little catering business that would specialize in Louisiana cuisine. I said I thought it would be fun, since I already know how to prepare several such dishes, some in large quantities. 

Younger daughter turned to me and quietly said, “Why do you turn everything you like to do into work?” 

That was a bit of a stunner. 

She had a point, of course. In fact, it was remarkably similar to something my wife had said to me several years ago.

They’re both correct.

I think it has something to do with guilt. Somehow I have it in my head that it’s okay to enjoy what you’re doing if there’s some element of responsibility attached to it, and it’s not so okay if you’re doing something just for fun.

I need to work on that attitude. 

So after thinking about my family’s comments, I decided that blogging was becoming a bit of a job, and that I should reconsider how I was spending my time. After a few more posts, I stopped writing for this site for a while. 

I began writing this post at the end of a four-day holiday weekend, which began for me very late Friday night as I left Legislative Hall during the General Assembly’s end-of-session marathon. Among other things, I had to read the Bond Bill’s fine print to make sure that what I drafted there for my clients had remained intact. 

It was, and so shortly afterward I was able to leave the building. 

On the way home, as midnight approached, I started thinking about returning to blogging, but with a better approach to the process. I’m going to try to keep this from feeling like a responsibility, and more like something I do for the sheer enjoyment of it. That was the original idea, after all.

I’m not sure this approach will affect the tone of anything that’s written here—but we’ll see.


Contact Information:

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

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© Frederick H. Schranck 2002-2006