Sneaking Suspicions
 
Archives-- August 17-23, 2003

rwbstripe.gif (1115 bytes)
This page includes posts from August 17-23, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

 

August 23, 2003
Butterflies and blackouts

A butterfly flaps its wings in Brazil, causing a tiny shift in the air mass over Rio de Janeiro.

The shift eventually causes a tornado to touch down in Texas.

That was the famous hypothetical event once predicted by a meteorologist attempting to make sense of what is known in system analysis as chaos theory.

I was reminded of butterflies and tornadoes when I read today’s NYT piece by James Glanz and Andrew Revkin, about the latest analysis of the potential causes of the recent electrical blackout of much of the Northeast United States and Canada.

According to a Cambridge, Massachusetts consulting firm, the problem began with a transmission line sagging into a tree near Cleveland. The ensuing failure of that line strained other Ohio electrical suppliers in the transmission network, causing another shutdown. Cleveland then began siphoning power from alternative sources, leading to further overloads and shutdowns in Michigan, Ontario, and eventually New York.

It’s a fascinating scenario, and several industry observers seemed to accept its probable validity, according to the NYT reporters. The analysis also appears to fit the concept of chaos theory, in that a tiny change in one area causes significant alterations elsewhere.

Those who produce basic services usually find themselves blinking into the unfamiliar glare of unwanted publicity when their typically rare system failures take us all by surprise. In any event, the electrical industry has a natural, compelling, and market-based incentive to determine the cause of the blackout and how best to reduce the chance of a recurrence.

This blackout may also remind the political folks that most of our fundamental infrastructure is subject to genuinely chaotic events, with far less control over the results than many would find comfortable.

August 22, 2003
Parking—not exactly a privilege, and not exactly a right, either

Americans frequently assume that access to easy parking is a given--and in suburban areas, that’s a pretty safe assumption. Within most cities, however, it’s a different matter entirely. The intense competition for limited spaces within municipalities leads to a wide range of familiar parking solutions: timed parking, parking garages, parking meters, residential parking sticker districts, and so on.

When the issue then turns to parking for the handicapped, the social policies surrounding this special benefit often create additional emotional elements. Many times people complain about frequently empty handicapped spaces left unused. Other folks become indignant as they watch some obviously able-bodied person zip into a handicapped spot, without any concern for propriety. Dark whispers are sometimes heard about how others scammed the authorities into issuing them a handicapped tag to hang on their rear-view mirrors.

The emotions run high in part because the designated spaces express a very clear preference for the disabled, which causes some to question whether the system is being a little too fair. For others within the disabled community, on the other hand, these spaces are a matter of simple justice.

Parking is rarely that simple, however.

Helen Jones has multiple sclerosis. She works at a Salvation Army service center in downtown Monroe, Michigan.

Like many cities, Monroe maintains fairly tight controls on parking in its central business district. Anyone can park in the street spaces, but only for an hour. Anyone wishing to park downtown for more than 60 minutes without running the risk of a ticket can use a free parking lot a couple blocks away, which includes designated handicapped parking spaces.

Jones, however, has trouble walking, and sometimes must use a wheelchair. Her job also requires her to work odd hours. This fact prevents the town’s special free shuttle service from the free lot to her work site from being as useful as one might hope.

Jones therefore continued to park her car in a one-hour space close to her job, and kept it there all day. In response, Monroe’s parking enforcers continued to ticket Jones’ car.

She then sued the city. Jones claimed that under the Americans with Disabilities Act she had a right to park close to her work without risk of ticketing, regardless of the time limitations placed on the spaces she used. She lost her request for an injunction against the ticketing or to require the city to give her a free all-day parking space near her work, and appealed to the Sixth Circuit Court of Appeals.

Although there was a spirited dissent taking her side, Jones failed to convince a majority of the panel that the District Court made a mistake in refusing to grant the relief she sought: 

Jones has access to the service offered by Monroe - free downtown parking in specific locations. She does not have a right to free downtown parking that allows her access to her destination of choice….

The purpose of the one-hour limitation is to encourage patrons to shop at downtown businesses. Waiver of the ordinance limiting parking to one hour in the business district would be “at odds” with the fundamental purpose of the rule. By its very nature, the benefit of one-hour free public parking cannot be altered to permit disabled individuals to park all day without jeopardizing the availability of spaces to other disabled and non-disabled individuals. Such a waiver would also require Monroe to cease enforcement of an otherwise valid ordinance, which by its very nature requires a fundamental alteration of the rule itself.

Jones therefore could not establish her right to park when and where she wished.

If Jones and the Michigan disabled community look around, however, they may be able to use this decision to seek a political reversal in the Michigan legislature.

For example, if this situation had arisen within a Delaware city, Jones would never have been ticketed in the first place.

Under 21 Del.C. Sections 2134(f) and 2135(f), any person who is issued either a handicapped registration plate for her car or who obtains a handicapped tag to hang on her rear view mirror can park in most parking zones and any metered spot, without fear of ticketing. The only exceptions are for areas with rush hour parking restrictions, or where parking would create a traffic hazard, or similar limited circumstances.

That law wasn’t enacted because the Feds said Delaware was required to change its parking laws. It was enacted because the disabled community managed to convince the General Assembly that the cities’ modest loss of parking meter revenue and spaces was outweighed by the needs of the handicapped for better access to their choice of destinations.

In other words, sometimes it’s better to seek one’s privileges through the political process, rather than argue for their attainment as a matter of right.

August 21, 2003

History lessons

Geitner Simmons writes movingly and well about many topics, especially American geography and history.

He also finds other good sources of interesting history writing, and is happy to point them out to his readers.

This week Simmons quoted extensively from another blogger, South of the Suwannee, who found a great article about the civil rights struggle in Florida in the Orlando Sentinel. It was a fine accompaniment to Simmons own recent piece about Louisiana's race difficulties.

Whenever the topic comes up, I like to recommend three books on black history. The authors' political slants vary, but in each case I believe they present the facts fairly. In addition, each writer avoids the easy resort to the bitter polemics that frequently mar other treatments of this part of the American experience.

Richard Kluger's Simple Justice describes the halting but eventually successful process whereby the NAACP and many others achieved victory in Brown v. Board of Education, in a stirring history.

Raymond Wolters was one of my history professors at the University of Delaware. He was the first historian I ever met who explained how Woodrow Wilson's presidency was a near-complete disaster for American black aspirations and advancement. Several years after I graduated, Wolters wrote The Burden of Brown, a sober history describing what happened in each of the communities that were directly involved in Brown. In one respect it is a sequel to Simple Justice, but in most other ways it is far more than that.

I also appreciated the eye for detail displayed by Nicholas Lemann in The Promised Land. It's a frequently moving, frequently frustrating history of the black migration from the South to the Northern states in the second half of the 20th Century.

August 20, 2003
Ribbon-cutting

 

I attended two nearly identical ribbon-cuttings in the last two days, for two new, nearly identical schools.

 

About 6 years ago, the Cape Henlopen School District asked me to become part of a Facilities Task Force concerning their school buildings. We were asked to develop and recommend to the board a long-term plan for the district's capital needs. It took a bit more than a year, and we presented them with a 20-year schedule for the creation of two new middle schools, then a refurbishment of the district's single high school, followed by the replacement of the elementary schools.

 

Several of us on the Task Force also attended the public hearings on the eventually-adopted proposal to answer questions. We did more of the same in later meetings seeking public comment on the required bond referendum.

 

The voters approved the bond issuance by a 2-1 margin, which set a record statewide at the time, in a district noted for its high retiree population.

Must have struck a responsive chord.

I then served on the District's interview panel to help select the architects who were to design the two schools, using the basic design framework we suggested:

  • Final build-out to support 700 in Grades 6-8
  • Library/Media Center, Cafeteria, Gymnasium sized to fit eventual build-out
  • Modular classroom segments to enable each building to support approximately 500 students at first, and later add an additional 200 kids when growth required it.

Farther along the process, several of us on the original Task Force then joined a new panel and developed the recommended attendance zone boundaries for the two schools.

The ceremonies yesterday and today celebrated the upcoming openings of the first new school buildings in the district in well over 30 years.

Ribbon-cutting for the new Mariner Middle School for the Cape Henlopen School District, August 19, 2003.

It was fun to help the community on this project. It was especially enjoyable to watch the faces of the kids and parents who will be the first to use the new schools walking around the new rooms, chattering away excitedly during the open house after the ribbon-cutting.

 

August 19, 2003
Not exactly a judicial temperament

Thanks to Howard Bashman and others, I've been following the recent events concerning the elected Alabama Chief Justice, Roy Moore, and his continuing efforts to impose his will upon the Federal judiciary.

I mean no disrespect when I suggest that Chief Justice Moore's litigiousness concerning his new Ten Commandments boulder is itself a great argument against the popular election of state judges.

Delaware's supreme court justices are selected by the Governor on a recommended merit basis and confirmed by the State Senate. For that reason alone, I just can't imagine any Delaware supreme court justice being as fundamentally and indefensibly defiant as Chief Justice Moore has been in this case.

Geez.

August 18, 2003
Preserving privilege and piping plovers at the same time--nice argument, if you can make it

 

Fire Island is a classic spit of barrier beach, lying a short distance from and roughly parallel to the southern side of Long Island. Its current shape is about 32 miles long and from 1/4- to 3/4-mile wide.

 

I refer to "current shape" because Fire Island is subject to the same shifts in its makeup as every other barrier island on the East Coast. The wind, ocean waves, and human interactions with the sand dunes cause erosion, movement, and sometimes the eventual disappearance of these islands. Hurricanes and other storms sometimes speed up these processes, but the only constant about barrier islands is that they never stay the same.

These facts of natural life don't sit well with human beings, many of whom point to deeds and other property instruments as proof of their ownership and dominion, even over geologically ephemeral phenomena such as barrier islands.

The fact that some of these folks spend millions on their vacation homes on these islands shows the value they place on preserving their privileges of ownership.

Those with significant property interests at stake often push the State and Federal governments to spend taxpayer's money to preserve the barrier islands from the ravages of natural events, especially when some previous attempts at controlling nature produce unintended side-effects, such as increased erosion from man-made groins and other devices.

These folks are not above attempting to use the environmental protection laws for their personal purposes.

That doesn't mean the courts will agree with them, but it does mean that these people will make the effort.

The Second Circuit today affirmed a U.S. District Court decision dismissing a lawsuit attempting to force the Department of the Interior, the U.S. Army Corps of Engineers, and New York State to implement the Fire Island Interim Project (FIIP). This scheme would have cost an estimated $52.8 million for the initial efforts, plus $5.2 million per year in maintenance expenses, to create new sand dunes and restore eroded beaches.

The alleged beneficiaries, of course, would not be limited merely to those who just happened to own some highly valuable beach property. According to the plaintiffs, the FIIP would also benefit the piping plovers that nest on the island.

Plovers are migratory song birds, now described by the U.S. Fish and Wildlife Service as "likely to become endangered in the foreseeable future."

After the FIIP cost estimates were prepared, however, the Interior Department and the Corps decided not to go forward with the project. Furthermore, New York State did not endorse the Federal proposal.

The court decisions came down to a simple matter of standing. The plaintiffs could not show that the FIIP would halt the results of earlier, human-caused changes in the island's beaches. In addition, they could not make the connection between the court order they sought and their current predicament:

Despite plaintiffs-appellants' optimism, there is no indication that the FIIP would, in fact, remedy Fire Island's erosion problems. Moreover, we recognize the the FIIP is merely an interim plan spanning a five-year period. Accordingly, even were the FIIP successful, at best, it would be terminated and shortly replaced by another program whose chances of success are only speculative at this point in time.

The appellate panel noted that the plaintiffs essentially sought an equitable remedy for what might eventually be ruled as a taking of their property rights. Under longstanding precedent, no such injunctive relief is available. Instead, just compensation would be paid for such takings, if that fact were ever established.

The plaintiffs are not actually left to their condemnation remedy, of course. They continue to have recourse to their friends in Congress, where beach replenishment projects are a time-honored tradition in government spending.

From the Fire Island property owners' perspective, relying on the political process for Federal help provides nowhere near as certain a guarantee of assistance as a court order would have. In part that's because others have some very different ideas about the best way to deal with the island's erosion.

Nonetheless, it was the only real choice the plaintiffs should have had under these circumstances, and is the best remaining option.

August 18, 2003
Off by that much

The NYT’s renewed emphasis on correcting mistakes is a welcome development, but it can still be a bit startling.

Today’s mea culpas included a gem relating to basic geography, in a story the editors said ran in last Saturday’s paper about electrical systems in the eastern United States and Canada:

Some maps in the grouping mislabeled the state southeast of Ohio. It is West Virginia, not Maryland.

Oops. Missed it by that much.

I’m sure the folks from the Mountaineer State were a bit surprised to see this error creep into the NYT reportage. I doubt that this kind of mistake is made all that often when discussing the great state of West Virginia.

If the NYT had screwed up in placing Delaware on the map, on the other hand, the newspaper would have simply joined the crowd.

Delawareans are used to this disrespect, actually. Whenever I meet someone from some state far from my own, I brace myself for the geographic guesswork that often follows shortly after I tell them I’m from Delaware.

Here are the three most common responses:

  • “Isn’t that up near Connecticut or Massachusetts?”
  • “Where is that?”
  • “Is that in New Jersey somewhere?”

Why, it’s enough to give a Diamond State native a complex, or something.

August 17, 2003

Shameless Promotion

Estaban Parra wrote a nice piece about lawyers and their blogs in today's News-Journal.

Of course, the fact that he mentions this site and has some very kind things to say about it may have played a role in my evaluation of his work.

Perhaps.


   

Contact Information:

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

fschranck-at-
sneakingsuspicions.com


Home Page
Table of Essays
Table of Essays 2002
Links to the Weekly Archives



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