This page includes posts from November 3-9, 2002 in the usual reverse order.
Each week's postings on the home page are perma-linked to these pages.
November 9, 2002
I make oatmeal raisin movie cookies on the Film Festival Weekend for a few reasons.
First, even though each cookie is fairly large, they are easy to sneak into the theater. Second, the recipe makes plenty to share with our friends, who also prefer cookies to a steady diet of movie popcorn and candy. Finally, the time it takes to prepare them fills up the morning nicely, before traipsing off to an all-afternoon, all-evening session at the Festival.
The recipe is based on one I found in Farm Journal's Cookies, (Galahad Books Edition, 1995).
Pre-heat the oven to 350 degrees.
Soften or melt the butter, and pour it into a large mixing bowl with the brown and white sugars. Cream the mixture (I use a hand-held electric blender) until it is fluffy. Add in the vanilla, and then, while still beating, add one egg at a time to the mix.
Sift the flour, salt, and baking soda together, and add to the butter/sugar/egg mixture. Then stir in the oats and raisins. (This step alone will give your forearms a nice workout.)
Using an ice cream scoop or similar semi-large spooning device (a thumb at the right time will help release the dough from the scoop), drop the cookie mixture onto cookie sheets that have been greased with the shortening. Each raw cookie should be about 3 tbs. in size, and for a normal size sheet, don't put anymore than 8 cookies at a time. They spread out while baking.
Each batch will take between 10-15 minutes, depending on your oven's quirks. I usually time each batch for 12 1/2 minutes, and have another sheet ready when each batch is done.
Cool on racks, and try to make them all before other folks in the house steal at least one. It won't be easy.
With our ice cream scoop this recipe makes 64 cookies, each one about 4" in diameter.
November 9, 2002
Writing for this site usually takes place while sitting in a comfortable chair in a darkened room, staring at a screen.
This weekend the chair, the room, and the screen are changing locations and sizes in a big way.
It’s time for the fifth annual Rehoboth Independent Film Festival, and it’s a highlight of the fall we have never missed.
Blogging will be light as we sit in comfortable chairs, in darkened stadium-style theaters, staring at a whole bunch of movies on the screens. There are a hundred to choose from, and there’s no way we’ll see them all.
Some, of course, are not merely movies. A few are *films*, and others might qualify as <sniff-sniff> cinema.
Below are summary reviews of the movies we saw. The URL references take you to the Film Festival pages for the capsule summaries and other information. The reviews use the same grading system the Society asks ticket holders to provide as they leave each showing: Total Bomb, Just OK, Good, Great, and Outstanding.
Many of these films can be seen at other film festivals, in limited release, or eventually on video/DVD.
A new addition to the Man Who Represents Himself Has A Fool For a Client File
James Toledano is an attorney. He was also the chairman of the Orange County California Democratic Party in 1996. He managed to screw up the handling of a $10,000 political contribution so badly that the Federal Election Commission caught wind of it, and actually did something about it.
That alone takes some doing, but if anything Toledano made things even worse by representing himself in the eventual FEC enforcement proceedings, before the U.S. District Court, and finally in appealing to the Ninth Circuit.
Toledano’s amazing performance (think former Congressman James Traficant with even more of an attitude, if that’s possible) is just too much fun to summarize effectively in this space.
Read it for yourself, and enjoy.
I just hope Ann Salisbury can fill us in on the rest of the details.
November 7, 2002
Jane Galt, Jonah Goldberg, and others suggest that tax simplification would be a good thing to attempt in the next year or so. I thought I'd contribute to the discussion, and see how folks who read this site react.
I suggest three changes in the tax code: The Freedom Fee, Alternative Minimum Tax (AMT) Reform, and Social Security Tax Reform.
The Freedom Fee--President Bush, in his inaugural address and in his post-September 11 speech, suggested that all of the nation's citizens should do their part to help preserve and protect America, for themselves and for future generations. The Freedom Fee provides a modest, easily understood, and easily applied framework for nearly all Americans to meet that goal.
It works as a form of alternative minimum tax, but unlike the existing statutory scheme, the Freedom Fee would apply to all taxpayers. The Freedom Fee would be determined by dividing the taxpayer's Adjusted Gross Income by 2, and then multiplying that result by 1%.
For those who enjoy looking at formulas, the Fee can be expressed as follows: FF= (AGI/2) * .01.
A taxpayer with an AGI of $20,000 would pay a Freedom Fee of $100.
Here's the important part: the Freedom Fee would not be offset by any credits, except for income taxes already withheld or paid. Even if a taxpayer would otherwise owe no federal income tax for any reason, or be entitled to an Earned Income Credit refund, the Freedom Fee would still be paid by that taxpayer.
The fact is that many, many millions of people in this country pay no direct income tax. With the payment of the Freedom Fee, on the other hand, each taxpayer could say that he or she made a direct contribution to our nation's security and defense, even if that person otherwise paid no direct income taxes.
AMT Reform--Related to this issue, I suggest a new AGI-based floor below which no AMT calculations should be required, other than the Freedom Fee discussed above. I suggest this floor should be set at $500,000.
This one change should produce several beneficial effects. As Jane points out in her recent post, the cost of tax computation is a drain on the nation's economy. The AMT plays a role already too large and increasing every year relating to this problem, because the AMT system is not directly indexed for inflation.
Increasing the AMT floor will not alter the law's application to the relatively few high-dollar taxpayers for whom the AMT was originally intended to apply.
However, this reform measure would eliminate millions of taxpayers from the onerous task of making this complex alternative tax calculation. In any event, the Freedom Fee will nonetheless assure that all taxpayers make a direct personal contribution to the national security and defense. That, by the way, is something that the current AMT law doesn't do.
Social Security Tax Reform--I'm not comfortable with the fact that the current Social Security tax system takes in far more dollars than it needs to cover the current expenses of operating the various benefit systems for which these taxes are collected. Beyond meeting the SS programs' costs, an earmarked wage tax such as Social Security should not be used for other purposes. In addition, I believe the Federal government could do something more than seek interest rate cuts from the Federal Reserve in order to stimulate the economy.
Therefore, I suggest a 2% rate cut in the base tax collected for Social Security--one per cent from the employers' contribution, and one per cent from the employees' contribution. Instead, this money could be directed to an SEP, 401(k), or similar direct investment program of the employee's own choosing.
This reform measure should help Congress prioritize the remaining funds used to handle the non-Social Security-related costs of governance, by reducing a not-so-hidden direct tax on wage-earners that is nominally set aside for one purpose, but in fact used for many others.
It may also help spur the economy, by redirecting millions of dollars into private investment instead of government IOUs.
And again, the Freedom Fee will make sure that all taxpayers make a direct contribution to meeting the cost of national defense. In addition, the Freedom Fee has no income limit, unlike the base tax for Social Security.
With this three-part proposal I may have managed to find a middle ground, on which all sides of tax policy disputes could find something with which to vehemently disagree.
Then tell us how you would achieve these same three goals.
November 7, 2002
Douglas Bruce is a free-lance photographer. He successfully sued the Weekly World News for copyright infringement. The popular tabloid used a picture he took beyond the usage limits licensed by the photo stock agency that sold his picture to the newspaper. The picture showed President Clinton shaking hands.
Bruce wasn’t happy with the damages portion of his award, and appealed. On review, the First Circuit upheld most of the lower court’s methodology in determining the amount to which Bruce was entitled. The appeals court corrected one aspect of the calculation, and therefore added about 25% more to the total damages he was due.
The really important part of the opinion, however, dealt with a far more serious concern:
I’m so pleased that the First Circuit panel made a point of telling us that the Space Alien is fictional.
Probably a good thing they cleared up that nagging little question.
It's been bothering me for years.
November 7, 2002
Today marks the ten-month anniversary of this site. Thus far there have been 60,696 visitors, reading 76,422 pages.
Thanks very much for your patronage. Stop by again anytime.
November 6, 2002
The election for state representative where we live could provide a clue to the potential political influence of the gay community here.
Pete Schwartzkopf, the Democratic candidate for the newly-created 14th District, won fairly handily over Mike Meoli, the Republican candidate, by 53.1% to 46.3%.
Neither candidate had any prior election experience, and on most issues they took similar, moderate stances. Schwartzkopf is the captain of the local state police troop, and Meoli is a local businessman. Both were active community participants, with a host of charitable and public-spirited contributions on their resumes.
The new district is about evenly split on party registration. Even so, the consensus going into the campaign was that the Republican-dominated State House created the district's boundaries to enhance their party's chances to win it.
Meoli easily won a primary election, and kept running hard thereafter. He and Schwartzkopf seemingly benefited from roughly equivalent name recognition.
About the only thing I could see different about the two candidates was their stance on H.B. 99, a bill to outlaw discrimination based on sexual preference that died in the last General Assembly.
Meoli opposed the bill, and Schwartzkopf supported it.
As a result, the local gay community really came out politically for Schwartzkopf. His campaign posters were prominently displayed on gay-centered and gay-oriented bars, restaurants, and B&Bs. Yard signs for the Democrat appeared on many gay-owned properties, at a rate I've never seen before around here. In my conversations with gay residents in and around Rehoboth, the depth of support for the Democrat was nearly unanimous, and impressive.
It'll be interesting to see if the professional politicos in Delaware agree with this analysis.
November 6, 2002
Every so often as a government attorney, one reads an appellate opinion that produces several painful winces almost immediately.
It happened again last night, while perusing the unfortunate case of Maris Herzog v. City of Winnetka.
The first clue that the City was unlikely to hold onto its lower court victory appeared when Judge Posner made a point of noting that the defense counsel for the police officers stipulated to the facts as presented in the plaintiff's opening brief.
Not a good sign.
The second clue appeared with the Court's opening recitation of the facts:
The case went quickly downhill from there. On the stipulated record, Ms. Herzog was subjected to a truly nightmarish experience by a probationary police officer, whose superiors clearly failed to supervise her actions effectively.
The Seventh Circuit had little difficulty reversing the lower court's grant of summary judgment to the City.
Posner carefully noted that the Circuit decision was compelled by the parties' factual stipulation, which wasn't binding on the court below on remand. Even so, it sure looks like the kind of case that should settle, and soon.
November 5, 2002
Lydia Colombo did not like Raymond O’Connell, the school superintendent for Stratford, Connecticut. She felt he should not keep his job, and decided to enlist others in her cause.
Colombo filed a recall petition with the Board of Education, alleging that O’Connell should be removed for “illegal and unethical conduct.”
O’Connell didn’t simply sit there and take what Colombo was dishing out. He hired a private attorney, who wrote Colombo and threatened a libel lawsuit if she didn’t retract her allegations. Connecticut’s libel law requires this kind of letter before filing suit, to give the parties a chance to resolve the problem without court intervention.
No such luck here. Colombo refused, and fired back with her own pre-emptive strike.
She sued O’Connell under 42 U.S.C. Section 1983, alleging that the Superintendent’s letter threatening a libel lawsuit violated Colombo’s First Amendment free speech rights.
In a deposition, however, Colombo admitted that the letter did not actually cool her ardor to press for O’Connell’s removal. In fact, she agreed that she
This particularly inconvenient fact, along with the basic requirements of Section 1983 lawsuits, proved fatal to Colombo’s case.
In upholding the lower court’s dismissal of the lawsuit, the Second Circuit Court of Appeals panel noted that a plaintiff must allege (a) some actual injury caused by (b) official action.
Colombo’s lawsuit failed on both counts.
First, Colombo admitted no real injury from the lawyer’s letter. Furthermore, the letter did not produce any “chilling effect,” deterring Colombo from her right to petition the Board for O’Connell’s removal.
Second, and in my view more important, there was no official action. O’Connell only acted as a private citizen seeking to vindicate his own rights when he retained counsel to write the letter threatening a libel lawsuit. To keep her suit alive, Colombo had to show that in making the threat to sue, O’Connell acted as a public official, or as Section 1983 puts it, “under color of state law.” She couldn’t meet that requirement, because it simply wasn’t true.
As the Court noted:
On occasion, some of my more thin-skinned agency clients seek advice on whether they can sue some of the state’s more aggressive citizens for libel or slander. In expressing their opposition to policy decisions, these folks upset my clients by challenging their integrity, good faith, and other personal characteristics, such as the circumstances of their birth or mental condition. I normally remind the clients that I can’t give them personal legal advice, and suggest they seek private counsel. I then tell them that their attorney will most likely explain the hurdle that NYT v. Sullivan puts in their way if they want to bring a libel action.
As the Second Circuit says, public employees don’t “check all of their First Amendment rights at the door” by working for the government. Nonetheless, for those in the public official category developed in the Sullivan line of cases, they can only pick up all of their belongings with the right kind of claim ticket. They must prove that the person who libeled them either knew the damaging allegation was false, or acted with reckless disregard for whether or not the allegation was false.
In this case, I have the feeling that the plaintiff was the one actually attempting to produce a “chilling effect,” by filing this lawsuit.
Looks like it didn’t work.
November 4, 2002
Certain events in popular culture can provide a valuable clue or two about a nation's character.
For example, this weekend's World Championship Punkin Chunkin should give Saddam Hussein a less-than-subtle hint that his days are truly numbered.
For example, the winner in the Air Cannon category was a team from Michigan, whose weapon nicknamed Second Amendment shot a pumpkin a total of 3,881.54 feet.
How did they make such a precise measurement, you may ask?
Global positioning equipment, of course.
Second place went to a team using The Big 10-Inch. The News-Journal reporter wrote that the the cannon is "said to be named for the size of its barrel."
Others may suggest a different etymology.
Here's what Hussein should take from this story:
November 4, 2002
The following is an exact copy of the first five story links in the AP-Other Government section of Findlaw’s News page, as they appeared late on Sunday evening on the East Coast:
I could be wrong, but it sure looks like some folks may not have enjoyed their weekend.
November 4, 2002
Thursday morning we experienced our first frost of the season. I took the hint, and on Saturday at Food Lion I bought a package of 24 SnapnStartttm Firestarters kindling blocks for our fireplace. These handy items are made of sawdust and wax pressed together. Each piece is about 2” x 1” x 6”.
I usually put one block with five or six pieces of firewood on the grate, and light a few crumpled pieces of newspaper underneath them to start the evening’s fire.
As I put the Firestarters container into the shopping cart, I read the following notice appearing in half-inch high bold print on the side of the box:
CAUTION—RISK OF FIRE.
Gosh, I sure hope so.
November 3, 2002
In fact, one would be hard-pressed to see how our respective views could be any further apart.
The short version is that I thought the panel made a good decision, and he didn’t.
The long version is here. It is my interpretation of the primary objections raised by the Man Without Qualities (MWQ), followed by my response. If I misread his arguments, we should know soon enough.
Musil makes the following points (I’m summarizing here):
1. The opinion “seems to eject government regulators entirely from evaluating whether doctors’ medical recommendations are in fact good medicine.” (emphasis in original.)
2. The opinion “apparently deliberately attempts to evade” the fact that marijuana use remains illegal under federal law, even in those states that have legalized it for medical uses.
3. The logic of the opinion would extend to preventing a doctor from being investigated solely on the grounds that he prescribed laetrile; or, if a psychiatrist, on the ground that he “’recommends’ that a patient work out all that nasty oedipal stress by having sex with the patient’s child”.
4. The opinion’s stress on the First Amendment would apparently block a patient’s ability to sue a doctor for malpractice based on the recommendations a doctor made.
5. Judge Kozinski’s concurrence is primarily a cost-benefit analysis, using such heartwarming but essentially wrong arguments such as the claim that doctors derive no direct benefit from giving this advice other than the “satisfaction of doing their jobs well.” Since the doctors are in fact paid for the advice, there is an obvious benefit.
In response to the first point, I simply disagree, and cite both the primary opinion and Judge Kozinski’s concurrence.
The Court’s description of the injunction, which I quoted in my first post, is as follows:
I read that text as not limiting the government’s authority to confirm the bona fides of the doctor-patient relationship with respect to a recommendation of marijuana.
In addition, Judge Kozinski’s opinion pointed out the medical requirements for making the recommendation, which goes to the question of whether the recommendation was made in good faith as part of a bona fide doctor-patient relationship. I quoted this portion in my prior post:
As to Musil’s second point, I suggest his concern is more a matter of emphasis he considers misplaced. The Circuit Court did not engage in actual deliberate evasion of the facts of federal drug law. The opinion frequently refers to the fact that marijuana use is against federal law. Nonetheless, it also holds that one aspect of the Clinton Administration’s regulatory efforts to further that drug policy happens to run afoul of states’ rights and the First Amendment. In that respect, it is no different from case law on other issues that effectively limit executive branch actions taken to enforce legislation .
In my view, the laetrile and child sex examples Musil raises are illogical and unwarranted extensions of the limited holding in this case. As the Court’s Appendix shows with several examples from the Federal medical marijuana experimental program, marijuana is legitimately medically indicated under certain circumstances, such as AIDS-induced anorexia and pain relief for some terminally ill patients unresponsive to other treatment. In this respect the plant is similar to the coca leaf, in that cocaine is also legitimately medically indicated. Nonetheless, both drugs are illegal substances under most conditions, with marijuana apparently only legally administered under that Federal program.
In contrast, no state or federal medical entity would or could uphold a laetrile recommendation or suggestion to engage in sexual misconduct with a child as shielded by the First Amendment from prosecution, under licensing statutes or otherwise. Musil’s instances of what at best constitute gross medical malpractice are qualitatively different from the medical marijuana setting. That is why I do not believe that the logic of the opinion travels as far as MWQ suggests.
Musil’s fourth point is logically related to his third argument. It is equally flawed, though I can understand why he might think this way, based on prior First Amendment case law.
NYT v. Sullivan broke free from long-established precedent to create a First Amendment exception for conduct previously considered libelous under the common law, when a public official is the victim. It also changed the fundamental understanding of state versions of the free press/free speech clause, which included references to potential responsibility for abuses. Section 5 of Article I of the Delaware Constitution is an example.
Even so, NYT v. Sullivan did not eliminate the law of libel; it constructed an additional barrier for certain victims. It’s too far a stretch to suggest that the First Amendment would bar a private right of action in malpractice case if a doctor recommended marijuana under the wrong medical conditions. This regulation, as limited by the Ninth Circuit, does not eliminate private malpractice litigation under any circumstances, no matter what the victim’s public or private status. A doctor who screws up in making a medical marijuana recommendation is just as liable as one who recommends the wrong medicine in another context.
Musil’s fifth point, disapproving of Judge Kozinski’s “satisfaction for a job well done” quote, is partially legitimate. That comment is just a bit glib, if taken literally.
I glossed over it on first reading, because I thought Kozinski’s later points were logical and appropriate. I agreed with his assessment that the real emphasis should be on the patients, as well as on the states’ rights implications of the Federal policy.
Given the fact that THC as found in marijuana is legitimately medically indicated, albeit under limited circumstances, I thought the judge’s point about having ready access to a professional medical opinion about its’ suitability for certain patients had a certain resonance. From my perspective, I considered the states’ rights element of his opinion to be even stronger. Even though this drug continues to be illegal under Federal law, it is readily available for those who seek it. Faced with its ubiquity, therefore, physicians act professionally when attempting to make sure their patients are advised of the drug’s suitability for their medical conditions.
In addition, several states have now adopted legislation that formally recognizes the plants’ medicinal value. That’s what triggered the Federal policy eventually altered in this litigation. The state medicinal marijuana laws should be recognized by the Federal government as a legitimate expression of state sovereignty. I don’t consider this recognition to be overruled by the supremacy clause under these circumstances, given the actual limitations of the injunction.
Notwithstanding this injunction, if a doctor prescribes marijuana, he’s in trouble. If a doctor recommends marijuana without regard to a patient’s individual medical condition, he’s in trouble. If a doctor helps a patient obtain marijuana, he’s in trouble. If the state licensing board can point to evidence triggering an investigation other than a bona fide recommendation to use marijuana, the doctor faces trouble.
That last fact is why I consider the decision to be symbolically important. When I’ve dealt professionally with the Delaware Board of Medical Practice, the cases were never based on single bit of evidence. Given the high stakes, those of us prosecuting such cases are well aware of the need to “overprove” one’s presentation before such boards. (See a prior post, "So why did you move your practice here, Doctor?"). The number of instances where an investigator for a medical licensing board would actually rely solely upon the fact of a medical recommendation of marijuana is nearly non-existent.
As one might expect for a state government attorney, I have a certain predilection in favor of states’ rights. I accept the “laboratory” analogy. I helped create many legislative and policy “experiments” over the years. I don’t always agree with the policy choices, but I'm not the one who ran for office. Different states certainly can adopt different approaches to issues, as in this case. I do not wish to expand Federal authority that could unduly limit this exercise of state authority. That is the main reason I agree with this panel decision.
The MWQ didn’t hide his feelings about the Ninth Circuit (using the phrase “ever-zany” was my first clue). In other cases, I might be inclined to accept that characterization.
In an update, Musil also wondered if my suggestion that the Federal government not seek en banc review or appeal the panel decision to the Supreme Court expressed a wistful hope against the certainty of reversal.
I meant what I said, although I personally doubt the Justice Department would take my advice. I considered this case to be one of those occasionally tough ones facing government lawyers, where they are more than aware that their clients’ position is better argued as a political matter than as a legal matter. Despite the change of administrations, that problem remains in this litigation.
I may be wistful, but it’s for a good reason.
Note: The rest of the text, of course, is as follows: “I'm high on the real thing: powerful gasoline...a clean windshield...and a shoeshine, over…," from the Firesign Theatre album, Don’t Crush That Dwarf, Hand Me the Pliers.
Beach Blogger Weekend!
November 16-17, 2002
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