Sneaking Suspicions
 
Archives-- December 1-7, 2002

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This page includes posts from December 1-7, 2002 in the usual reverse order. Each week's postings on the home page are perma-linked to these pages.

December 7, 2002
Whole Lott-a Stupid Goin' On

Here are some more links to the blogging community, as it reacts to the outrageous comments from Senator Lott I wrote about last night.

I'm in good company, it appears. Nonetheless, I have to say neither major political party holds a monopoly on those who make idiotic remarks concerning race relations. When I read the Armed Liberal's comments, for example, my first reaction was to agree with him. Then I remembered a few instances involving folks in my own party, in my state.

I recognize that others' experience may vary from my own.

December 7, 2002
Traffic Report

Today marks the eleven-month anniversary of this site. Thus far there have been 68,722 visitors, reading 87,211 pages. A burst of traffic related to the NYT/Masters controversy helped. Thank you, Glenn and Mickey!

Thanks very much for your patronage. Stop by again anytime.

December 6, 2002
A truly remarkably stupid thing to say

Senator Trent Lott of Mississippi is quoted as saying the following during a 100th birthday celebration for Strom Thurmond, the former Dixiecrat candidate for President in 1948:

"I want to say this about my state: When Strom Thurmond ran for president we voted for him. We're proud of it. And if the rest of the country had of followed our lead we wouldn't of had all these problems over all these years, either."

What an incredibly boneheaded statement.

Y'see, I can't help remembering why the Dixiecrats split off from the Democrats.

Would you mind telling us which "problems" you were talking about, Senator? Could they involve, oh, I don't know, the "problems" of recognizing basic civil rights?

The amazing thing is that I can't even imagine Strom Thurmond himself would make such a claim.

If this quote is correct, it sure sounds to me like Senator Lott has no real interest in a leadership position in the upcoming Senate.

NOTE: Go to these links for more about this little stunner.

IRONIC NOTE: The USS Harry Truman left Norfolk this week on a new mission.

December 6, 2002
Breaking up is hard to do, especially when it comes to taxes

Neil Sedaka was right.

If you’ve been a couple for a long time, it’s a hard, emotionally draining experience to break up.

Even for tax policy, as it turns out.

A newspaper story today notes that Delaware and other states may be forced to “uncouple” from their long-standing relationship with the Federal government’s tax system. Otherwise, they face the nasty prospect of losing billions of dollars of state tax revenue.

Here’s why:

[T]he state uses … federal taxable income [rules] for people and businesses rather than determining its own. When federal taxable income is lowered because of federal tax cuts, states find themselves applying their rates to a reduced figure and collecting less money.

For example, federal tax changes will cost Delaware an estimated $25.9 million this year, said Michael Strine, a spokesman for the state Department of Finance. In the 2004 fiscal year, which starts in July, Delaware will lose an estimated $35.6 million. The number goes up because Bush's 2001 tax cut package is being phased in over 10 years.

Delaware is not alone. Several states are staring at the same problem with their income tax laws.

In addition, other Federal tax law changes caused similar cuts in state revenues. For example, last March 25 I posted an essay about the estimated drop in Delaware's inheritance/estate tax revenues resulting from the reduction in Federal death taxes.

Republican Michael Castle is Delaware's only Congressman, and previously served two terms as Governor. He explained why his administration made no effort to uncouple Delaware's tax laws from the Federal system, and offered a suggestion to the current Democratic Governor:

"Back then, we thought we could grow our way out of the problem because [credit card] banks were still growing at a rapid rate," Castle said. But "this is a different economy than we had then." Disconnecting the two tax systems, "especially if they don't raise taxes in the process, may be a more attractive option this time," he said.

Breaking up won't be easy, at least from a political perspective. I believe it will be extremely difficult to convince folks that uncoupling the Delaware tax code wouldn't be the exact same thing as a tax increase. That unpalatable prospect is most likely the reason why Governor Ruth Ann Minner and others are now trying to postpone the implementation of the next round of Federal tax cuts. As she put it:

"We're already facing a $95 million deficit," Gov. Ruth Ann Minner said. "That's hard enough to deal with. I'd hate to see Washington make changes and add another $45 million to it."

On the other hand, I really doubt that the Bush Administration will come to the states' rescue with an agreement to postpone achieving one of the President's primary policy goals.

It's far more likely that the states will be forced to undergo a long, painful process of educating their constituencies on the benefits of uncoupling, and the unpleasant consequences of maintaining the current tax relationship with the Feds.

December 5, 2002
Keyboard Virtuosos

While surfing over at The Kitchen Cabinet, I followed a link to a cool picture of Glenn Reynolds in his secret lair, typing on his laptop.

Something about the photograph, however, spawned a search for a familiar depiction of another keyboard virtuoso in a different medium--Rick Wakeman of Yes.

Didn't take long:

I read somewhere that Reynolds is a veritable whirling dervish as he blogs.

Wakeman's Six Wives of Henry VIII is a classic.

I am one of Google's biggest fans.

December 5, 2002
More fun with Augusta National and the New York Times

Let’s personalize this NYT-Masters controversy a bit, in keeping with a common blogger technique.

I am a member of Shawnee Country Club, and just completed a three-year stint on its board and two one-year terms as the club president.

Shawnee’s members include folks from widely different backgrounds, educational achievements, incomes, races, creeds, and sexual preferences.

I really enjoy belonging to Shawnee for three primary reasons, beyond the fact that it’s a challenging and fun place to play golf:

(a) the broad community cross-section that its members represent;

(b) the annual membership costs are a remarkable bargain (especially compared to most American country clubs); and

(c) it’s about the least pretentious country club I’ve ever seen.

For example, there are always more pickup trucks in Shawnee’s parking lot than any other type of vehicle. Several of the truck owners can buy and sell those of us who wear ties for our jobs, of course, but in any event no one makes a big deal about what they do off the course. 

More shoes are changed in that parking lot than in either locker room. 

There are no scheduled tee times, except for tournaments. Although the club’s dress code requires collars on the shirts, denim pants and shorts are a common fashion choice.

Shawnee has never had a PGA or LPGA tournament played on its course, and it’s highly unlikely it ever will. On the other hand, we held the state high school golf championship a while back, and host several other community-related charitable tournaments throughout the season.

I believe one would be hard-pressed to find a country club that has less in common with Augusta National.

Except in this important respect--Shawnee is also a private membership club. Shawnee’s members enjoy the same constitutional protections for their freedom of association as the men whose club hosts the Masters.

The Augusta members’ determination to have a men-only club is their decision, their privilege, and their right.

The fact that Augusta National plays host to the Masters Tournament doesn’t take anything away from the fundamental rights of its club members to decide who will join them. It is simply irrelevant.

The Masters bears the same relationship to that club’s men-only membership arrangement as the Milford Lions tournament relates to Shawnee’s lesbian membership, or to the characteristics of any of the rest of its members for that matter.

It’s a mystery to me how the NYT editorial leaders could honestly believe that their contrary position comports with fundamental civil rights principles.

Maybe the NYT just doesn’t care, because it has a different agenda than respecting the quiet, private exercise of those rights.

December 5, 2002
Feeling non-essential

Winter weather sometimes serves as a chilly reminder about one's actual importance in the grand scheme of things.

This morning's snowstorm helps prove that I'm not all that and a bag of chips.

Only the State's "essential" employees are expected to report to work today.

This classification includes the snowplow operators, the nursing staff at the state rest homes, and many other folks who perform critical services for the Diamond State's citizens.

It does not include the state's attorneys.

I'll try to bear up under this crushing blow to my outsized ego.

Heh.

December 4, 2002
A Nicely Subversive Holiday Gift Catalogue

The holiday season brings many catalogues to our house.

I don't mind at all.

Sometimes the flood of mail with an official "PRSRT STD. U.S.POSTAGE PAID" symbol on a corner can provide useful column fodder. On other occasions, the catalogues are handy short-term reading material for the smallest rooms in the house.

And sometimes, the commercial offerings are just a lot of fun.

Today's mail brought us the new Holiday 2002 edition of the delightfully subversive Demotivational® posters and other fine products from the folks at Despair.com

My older daughter is the proud owner of the full-size Procrastination 24" x 30" Lithograph, a Christmas gift from last year. It has a place of honor in her college dorm room.

The six new offerings for this year are awfully tempting, covering such topics as Meetings, Indifference, and Limitations.

This year I might just buy several of these satirical gems.

December 4, 2002
A chilling deprivation of civil rights? Not

One of the recurring problems with pro se litigation is the fact that so many plaintiffs try to shoehorn their claims into statutory schemes ill-fitted for the task.

This tendency shows up frequently in claims brought under 42 U.S.C. Section 1985(3). After all, this section’s provisions are so tantalizing, as shown by this explanation:

"The elements of a cause of action under § 1985(3) are: (1) a conspiracy, (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Childree v. UAP/GA Ag Chem, Inc., 92 F.3d 1140, 1146-47 (11th Cir. 1996).

Nonetheless, in application Section 1985(3) actually involves a fairly limited universe:

The purpose of § 1985 was to stifle the serious class-based deprivation of constitutional rights by private parties, not to serve as a general federal tort law, and, as such, a claim under § 1985(3) requires the proof of invidious discriminatory intent as well as the violation of a serious constitutional right protected not just from official, but also from private encroachment.

Benon and Irene Trawinski filed a pro se complaint in Federal Court, in part under Section 1985(3), based on problems with their heating and air conditioning unit.

They sued Carrier Corporation, who built the unit. They sued Weathertech Distributing Company, Inc., the distributor of the unit. They sued Standard Heating & Air Conditioning, Inc., who installed the unit in the Trawinskis’ home in 1993.

Apparently things hadn’t gone so well after the installation:

The Trawinskis complain that this new system was defective in its operation, producing noisy and ineffective cooling in the summer and improper heating in the winter, all causing various damages both to the structure of Trawinskis' home and to the health of the Trawinskis themselves.

In November 2001, the Trawinskis were sufficiently hot enough about the problems to sue these companies in Federal Court. Among other claims, they

allege[d] that … the manufacturer, distributor, and retailer of the system conspired to violate the Trawinskis' civil rights in violation of 42 U.S.C. § 1985(3) through their misrepresentations concerning the quality of the system.

After losing in the District Court, the Trawinskis appealed to the Eleventh Circuit, whose reception of their claim was decidedly chilly:

The district court found that under the allegations of the complaint, no viable § 1985(3) cause of action existed, and we agree….

There is no constitutional right, protected against private encroachment, to a[n] energy-efficient air conditioning unit or to business relationships free from misrepresentations. Thus, the district court … did not err in dismissing appellants' § 1985(3) claim for failure to state a claim.

I can safely say I never thought I would read a court decision distinguishing between air conditioning and our fundamental rights as citizens.

Wonders never cease.

December 3, 2002
A curious sense of proportion in the latest newspaper crusade

The American journalism tradition includes several examples of successful press crusades against a whole host of deeply serious matters.

For example, William Randolph Hearst led the charge in the 1890's against Spain. His constant newspaper coverage of the Maine disaster and other events in his New York Journal helped propel the country into the Spanish-American War.

The Washington Post kept alive the coverage of the Watergate break-in and the Nixon Administration during the 1972 presidential campaign.

The Los Angeles Times deserves credit for its extended treatment of the Rodney King beating case and its aftermath.

And now?

The New York Times devotes pages of ink and thousands of pixels on a membership controversy involving one of the most exclusive private country clubs on this green earth.

Compared to the issues previously deemed worthy of a sustained journalistic attack, this latest little tempest just doesn't resonate with the awesome scope of its potential impact on social policy, now does it?

The most recent piece of breathless prose solemnly notes the resignation of a retired former CBS and S. G. Warburg executive from his membership in Augusta National. Thomas Wyman says he quit the club solely because the rest of his fellow members don't agree with him on admitting similarly accomplished women to membership status.

His position is certainly an honorable one, although as Susanna Cornett notes, it's a bit odd that Wyman waited for 25 years after joining to make an issue about who else can be a member.

Nevertheless, one wonders about the NYT's sense of proportion in reporting about Wyman's recent change of heart.

After all, it's not as if the other Augusta members aren't constitutionally entitled to make such decisions. The freedom of association is recognized in many other areas of life, sometimes even by the NYT itself.

In addition, the NYT's own potential hypocrisy on this issue remains unaddressed by the paper's management. Howell Raines has yet to disclose whether he will accept the suggestion I made on November 18,  and repeated by at least one other blogger and several other writers, that the Times should disavow any profits to be made from covering the next Masters Tournament.

Perhaps we should establish a New York Times-Masters Tournament Insincerity Watch, to be continued until the newspaper holds itself to the same standards it seeks others to adopt.

UPDATE: I did. See the upper right hand corner of this site's home page.

December 2, 2002
You can't bank on other people's property without paying interest

The Associated Press reported on a recent decision by the U.S. Court of Federal Claims that the Federal Government owed $410,000 to 13 landowners as a direct result of the Rails-to-Trails Act's effect on their Missouri property.

AP Writer Jim Salter noted that these claimants were the first of a likely long list of those to whom compensation is owed for the effect of converting an old rail corridor into the popular Katy Trail, which runs along the Missouri River for over 200 miles. One spokesman said there were 285 additional affected property owners.

Judge Eric Bruggink ruled on the liability question in January 2000, leaving the determination of individual compensation claims to a later date.

I discussed a recent Wisconsin Rails-to-Trails opinion on November 1. No compensation was owed in that case, and the distinction between that decision and this one is important.

In the Wisconsin case, the railroad company owned the corridor property through a 19th Century land grant. Under the applicable federal and state laws, the adjacent property owners never owned any reversionary rights in the corridors, even if the railroads ceased to operate along the route.

In the Missouri case, however, the Missouri-Kansas-Texas Railroad Company operated its railroad over the plaintiff's lands through the use of easements granted for that specific purpose. Judge Bruggink ruled that these easements were abandoned, in that

[i]n each instance there was both an intent to abandon rail service and acts in furtherance of that intent.

Furthermore,

Recreational hiking, jogging and cycling are not connected with railroad use in any meaningful way.

The Court also made a nicely practical comment about the purpose of the railbanking law and the fundamental requirement to pay compensation for a taking:

The likelihood that the Rails-to-Trails Act was motivated by a commendable interest in public recreation or was an exercise in great foresight is immaterial. Rights in private property are more durable than the current majority’s notion of what constitutes a worthy cause. As Justice Holmes said in Pennsylvania Coal Co. v. Mahon, "a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." 260 U.S. 393, 416 (1922). See also Armstrong v. United States, 364 U.S. 40, 49 (1960) (the "Fifth Amendment’s guarantee . . . [is] designed to bar government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.").

There is a chance that this decision will not be the final word on the Katy Trail claims. In the liability opinion Judge Bruggink noted that judges in other courts have ruled the other way, citing cases in Maryland and Minnesota. The judge also commented that he would have preferred to certify the state law question on the easement's scope to the Missouri courts, but there is no mechanism to obtain the decision from that state's Supreme Court.

I wouldn't be surprised if the government sought a second opinion or two, considering the potential multi-million dollar liability at stake on this trail and perhaps many others.

December 2, 2002
Small Town Christmas

Tonight was the first of three Christmas parades held held around here every year. A few thousand folks braved a fairly stunning chill factor just off the ocean to watch the Rehoboth Beach version of this longstanding tradition. The towns of Milton and Lewes will have their parades later this week.

At least one family member has marched in these parades since Daisy Troop days over a dozen years ago. This year the Cape Henlopen High School marching band included our family representative, and this time we managed to be on the correct side of the street to see her as she went by.

The parade included three high school bands, two middle school bands, assorted Girl and Boy Scout troops, several horse riders from nearby equestrian stables, a wide selection of decorated Corvette Sting-Rays, a few church floats, and a large number of volunteer fire engines and other vehicles from at least a half-dozen towns, among other entries.

Cold but fun. Parades seem to bring out the smiles on so many people.

December 1, 2002
Five Claudes for a tired old comedy shtick headline

This Claude-worthy headline fairly leaped off the computer screen when it appeared in today's WaPo:

Long DMV Waits Irk Customers

The story relates the "perfect storm" conditions that befell those who waited until November 30 to renew their car registrations in Virginia. As Will Vehrs can confirm, Virginia Governor Mark Warner previously closed a dozen DMV offices as part of a cost-cutting effort. That fact, combined with the holiday weekend, helped create a large flock of truly unhappy campers:

At the end of the 273-person line was Aina Santos, 48, of Vienna, whose driver's license was expiring last night.

"This," she said, eyeing the slowly shuffling line of humanity before her, "is insane."

Here's a tip to all those hopeful novice comedians who may be reading this five-Claude headline--jokes about DMV lines have been done to death. Switch to fresher topics, such as the trouble with the American airline industry, or the in-laws.

December 1, 2002
Handy Clean Air Act Primer

I've posted a couple essays on this site about the Clean Air Act and the compliance problems that affect long-term planning for state and local governments.

In today's NYT, Matthew L. Wald wrote a fairly balanced news analysis of the recent Clean Air Act proposals and their effect on the states. The piece explains some of the critical details of the upcoming changes in the Act's regulations, and describes the perceived impact of those changes on the pollution planning that Northeast states are now busy completing.

It's a well-done bit of reporting.

Full disclosure: I am not compensated by the NYT for these referrals.


   

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Fritz Schranck
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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.

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© Frederick H. Schranck 2002