This page includes posts from July 27-August 2, 2003 in the usual reverse
order. Each posting on the home page is perma-linked to these
August 2, 2003
A few weeks ago Charles Hill and I had a nice telephone conversation about his potential visit to Delaware, to take place during his upcoming World Tour. We made arrangements about which day and what we’d do when he arrived here.
Last Sunday I received another phone call. Charles was in an agitated state of mind about my home state.
He had somehow just escaped the confusing Christiana Mall traffic circulation system, roughly 80 miles north of my home, and was lost. To make matters worse, by then Hill had already driven 22 miles within Delaware without seeing a single gas station, and the fuel gauge suggested his car was using the last few vapors from its nearly empty tank.
There is something to be said for being a Delaware native who (a) lived upstate, (b) works in the middle, (c) now lives downstate, and (d) represents the state transportation department. It gives one the opportunity to be a kind of local Onstar® navigation system for those who need it.
Charles told me which crossroad he had just passed. I told him to keep going for about a mile, where he would reach a gas station. We kept talking, and I could hear the relief in his voice as he quickly found the fuel stop.
About two hours later, we met and shook hands. At that point, Charles did something that reminded me that there are also some slight drawbacks to representing DelDOT— for example, folks freely express their opinions about my client and how it does its job, typically within nanoseconds of learning I represent the agency.
Charles cocked one eyebrow and said, “I waited seven and a half minutes for that last crossover light to change.”
I suppressed a small sigh, and then explained the Sunday traffic problem that plagues the beach area.
After that was cleared up, we drove into Lewes and had a delightful lunch and very pleasant visit. The conversation ranged over a wide assortment of topics, from the personal to the political.
I’m glad to have made his acquaintance, and look forward to our next meeting.
By the way, I also gave Charles a DelDOT map when we separated, and I’m happy to report that he successfully reached his home a few days later.
Glad I could help.
August 1, 2003
A few years ago Bill Bryson wrote In a Sunburned Country, one of his series of fine travelogues.
For the most part, Bryson kept to the genially humorous tone set in his other books such as A Walk in The Woods and Notes from a Small Island. In addition, however, Sunburned Country also included some deeply serious segments about Australia’s less-than-proud history involving the Aborigines.
For example, Bryson recounts a conversation with an Australian attorney named Jim Brooks, a member of a mid-1990’s human rights commission that investigated the Stolen Generations.
That was the name given to the results of an awful social policy. Between 1910 and 1970 the Australian government separated thousands of aboriginal children from their parents and resettled them in training centers or the equivalent of orphanages. Many of these children were so-called “half-castes,” due to their mixed parentage of white settlers and aborigines.
Bryson describes some of the remedial efforts adopted by the government since the practice ended over thirty years ago, but it’s obvious that the damage caused is deep and tough to eradicate.
This week we watched a great movie about the Stolen Generations called Rabbit-Proof Fence. I highly recommend it, and not just for the powerful performances by predominantly non-professional aboriginal actors.
The film takes its name from a 1500-mile long fence built in Western Australia to protect farming properties. The fence also guides three half-caste girls as they try to escape one of the training centers and return home in 1931.
Kenneth Branagh is the only name actor I recognize in the movie. He portrays A. O. Neville, the primary administrator of the program, whose defense of his mission is just as passionate as it is also now recognized as deeply wrong.
David Gulpilil plays Moodoo, an Aborigine employed as a tracker to find the runaways. His face and eyes convey the intensity of the conflict between his sense of justice and his responsibility.
There are many other fine performances, along with great cinematography and a surprising finish.
Renting this video is a far better use of one’s cash and time than indulging in some of the stuff showing in the theaters right now.
Trust me on this. You will not regret it.
July 31, 2003
Linda Carothers was convicted and sentenced for using interstate commerce facilities in the commission of a murder for hire. Her sentence included prison time in addition to three years of supervised release thereafter. During that release time, she was also to refrain from committing any crime, be it federal, state, or local.
She didn’t quite make it. Almost half-way through her three years, she was arrested in Missouri for second-degree assault. This led to a probation revocation hearing, complete with conflicting testimony:
Nice touch, “accidentally.” Almost child-like in its simplicity, don’t you think?
The district court decided this incident violated the supervised release conditions, and sentenced Carothers to an additional 24 months in prison.
In addition, the judge added a bit of ironic salt to Carothers’ self-inflicted wound, by also ordering her
Carothers appealed the new sentence, arguing that there was insufficient evidence for the judge to conclude that she had actually done anything wrong.
In some other context, perhaps, the limited “he said-she said” evidence might not have been enough to reach any firm conclusions.
Here, however, it was adequate to the task:
I tend to think that her original offense, involving a murder for hire, may have also played a role in determining that hitting the car in front of her three times was something other than a highly unusual, completely innocent coincidence.
Let’s hope that anger management course helps. At the very least, she should have plenty of time to practice those new social skills before her next release from the college of correctional knowledge.
July 30, 2003
Pushing for policy change through litigation is by no means limited to leftists, although that portion of the political spectrum seems to use this anti-democratic tactic more frequently than others.
I don’t use “anti-democratic” here as a pejorative term, but simply as an accurate description of what is actually happening when people bring litigation after losing in the political arena.
After all, on a few occasions resort to the courthouse is necessary, for example when a particular majority fails to respect a particular minority’s constitutional rights.
Even so, anyone seeking to push for policy change as a plaintiff should first make sure they have a good legal case. That’s because the news that someone is trying to achieve a political result through the courthouse can influence others to also make the effort, regardless of the first lawsuit’s eventual success. For the sake of representative democracy, therefore, a little more circumspection before filing the complaint would be a good thing.
Yesterday the Ninth Circuit handled one of these less-than-stellar cases, brought by folks who may have been completely sincere in their political opposition to a local ordinance, but whose legal claims were weak at best.
A few years ago the S.D. Myers Company was the low bidder for an electrical service contract with the City of San Francisco. However, the Ohio firm was unwilling to sign off on the City’s required contract provision that implemented San Francisco’s Nondiscrimination in Contracts Ordinance,
Myers filed a lawsuit to avoid this contract requirement and hold onto their winning bid on First Amendment grounds, citing their religious opposition to the domestic partnership element of the ordinance. That lawsuit failed, and Myers lost its contract.
The California Assembly recently enacted new legislation that established a mechanism to create and register domestic partnerships. Myers filed a new lawsuit, claiming that the new state law completely pre-empted the San Francisco contracting ordinance.
The company didn’t win this new argument, and in my opinion shouldn’t have made the effort. This was not a close case.
First, the courts are usually reluctant to find that a law enacted by one government is pre-empted by another law passed by a higher-level government. This shows an appropriate respect for the democratic process.
Second, a pre-emption argument usually only prevails when the two laws involve the same issue. In this case, they didn’t. San Francisco’s ordinance is an anti-discrimination measure, in which domestic partnerships are potentially involved. The state’s registration statute provides a method to create such partnerships, but otherwise has nothing to do with an enforcement scheme involving city contracts. The two laws simply don’t contradict each other.
Finally, the new state law did not address the entire field of potential issues concerning domestic partnerships:
The appellate panel therefore affirmed the lower court’s dismissal of the lawsuit.
The legal and policy issues concerning domestic partnerships remain unsettled, even among those who support the new institution. For example, some universities and other organizations only recognize such partnerships for same-sex couples, while others do not impose that limitation.
It’s also clear that some people oppose the very idea of such partnerships, for religious or other reasons.
As this case illustrates, however, effective opposition to social policy legislation requires a careful assessment of the appropriate method to overturn the democratic processes that created these laws. For most situations, that means a return to the political arena, and not an ill-considered rush to the courthouse.
July 29, 2003
My work sometimes puts me in contact with a wide range of creatures.
I mean that literally.
I went to a meeting today with the husband-and-wife owners of a salvage yard at their place of business along Interstate 95, a few miles south of Wilmington. The yard was full of old cars in a wide range of decrepitude, several piles of tires, some deeply damaged boat hulls dating back to the 1960s or so, and other junk.
The problem is that the owners had used state-owned land adjacent to their property for additional storage, which is not something any state official said they could do.
We were there with their attorney to see how the owners were complying with an outstanding clean-up order, and to discuss the upcoming environmental testing of the properties to determine the rest of their potential legal responsibility.
As we walked around the yard’s main building, I suddenly came upon a pot-bellied pig.
A junkyard hog, as it were.
The quiet little pig was jet black, and weighed about 80 pounds or so. It stared at me for a second or two, and then returned to foraging.
The salvage yard owners told us that Sam the Ham was the wife’s pet, and that it wasn’t really used as a guard pig. On the other hand, they also said that customers from the city tended to give Sam a wide berth.
It actually was a cute little porker, as these things go. Still, it was not exactly on my list of what I ever expected to see during this meeting.
I assume that if Sam ever had a litter, the pig’s owners would refer to them all as the little Pharaohs.
Makes sense to me.
July 28, 2003
The Associated Press reported today on the scheduled opening this fall of the nation's first public high school for lesbians, gays, bisexuals, and transgendered students.
The Hetrick-Martin Institute is assisting the City of New York with the expansion of an existing program, previously limited to two classrooms.
The story quotes Mayor Bloomberg, whose comments were certainly politically correct:
That's an understandable sentiment from a political leader. It's also more than a bit disingenuous.
After all, segregating LGBT kids from other students is so much easier than imposing effective discipline throughout the school system, including expelling the goons who accost other kids. Helps cut down on those long, drawn-out disciplinary hearings, with reluctant witnesses and expensive lawsuits from the goons' parents, y'see.
The piece also includes this quote from the Institute:
I don't think anyone seriously disputes the first portion of that statement. It's a goal all parents share, regardless of their children's sexual identity.
On the other hand, the second part of that statement seems to suggest that the Institute believes segregating LGBT students promotes diversity.
How else to explain the concept that a separate LGBT education facility will help all students accept and celebrate their entire community?
I respectfully suggest that the Supreme Court suggested otherwise a long time ago--in 1954, in fact:
Then again, perhaps I'm just a bit old-fashioned. Maybe I just don't understand the truly modern notions of equality.
July 27, 2003
Well, that turned out nicely.
Last week I attended an afternoon session at the New Orleans School of Cooking, hosted by Kevin Belton.
It was a lot of fun, not least of which because Belton had some great material beyond the ingredients for the dishes he showed us how to prepare.
For example, while patting the middle of his 6’6”, over 300-pound frame, he said, “Around here, this isn’t fat. It’s credibility.”
Pastaletta was one of the menu items, and is a great option for a cold summer supper.
It’s based on the muffaletta sandwich, a classic of New Orleans cuisine, but uses pasta instead of the round loaf coated with sesame seeds.
Here’s the basic recipe:
Muffaletta olive salad is in short supply around here, so I made my own:
Mix the chopped ingredients, and put in a small container. Then fill the container with the olive oil until it nearly covers the mix, and chill.
I also varied from the recipe by adding an additional half-pound of the ham and another 1/4 pound of the provolone.
Cook the pasta according to the package directions, and then drain and cool it overnight or at least a few hours before the meal. Add the olive salad to the pasta, and mix well. Then add the ham, salami, and provolone, again mixing well. Top with the sesame seeds and serve with a garden salad and French bread.
The School of Cooking says this recipe is good for 4 to 6 persons. Based on our experience last night, however, that would be 4-6 persons with very hearty appetites. Expect to see some leftovers, which you won’t mind at all.
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