Sneaking Suspicions
Archives-- December 14-20, 2003

This page includes posts from Dec. 14-20, 2003 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

December 19, 2003
National Champions!

Why yes, I am a graduate of the University of Delaware, which just happens to be the 2003 Division I-AA National Football Champions.

So glad you asked!

December 19, 2003
Pogo's cousin's anniversary

Congratulations to Terry Oglesby, the Possumblogger, on the occasion of his blog's second anniversary!

December 19, 2003
A Chutzpah Olympics contender

Alan Simmons is a gold-medal contender in the chutzpah Olympics.

In 1992, Simmons took a trip to Jay Peak, Vermont from his home in Ontario. He was accompanied by his two young sons and a 15-year-old girl whose mother Simmons dated previously.

After skiing and dinner, the group returned to a hotel room to watch videos. Simmons gave the kids some soft drinks, and the children all sacked out until just about noon the next day.

It wasn't just all the activity that made the kids so sleepy. Simmons had spiked their drinks.

Four years later, while investigating Simmons for other alleged crimes, the police turned up an incriminating videotape. It showed Simmons engaging in a wide variety of sex acts with the comatose teenage girl during that Jay Peak weekend. Another videotape showed Simmons engaging in similar acts with Canadian women, who had also been knocked out by the drinks Simmons gave them.

Simmons eventually pled guilty to Federal criminal charges relating to the Jay Peak incidents, and was sentenced to 168 months' imprisonment. In addition, the judge placed an additional restriction on Simmons for the three years of supervised release he must serve after his confinement:

The defendant shall not possess or view any pornographic material, including videotapes, films, magazines, books and photographs, nor shall he subscribe to ‘adult-only’ movie channels.

Simmons actually had the temerity to appeal this special condition:

[H]e asserts that the prohibition does not provide adequate notice of what is prohibited. Second, Simmons asserts that the condition is neither reasonably related to a legitimate sentencing purpose nor sufficiently tailored to serve only such a legitimate purpose.

On the other hand, the Second Circuit had no such difficulty in upholding the sentencing judge's decision:

For purposes of evaluating artistic or cultural merit, the term "pornography" is notoriously elusive.... However, while the lack of clarity in the term is undeniable in the unregulated sphere of cultural debate, it is ... significantly eliminated in the context of federal criminal law. ... In fact, federal law provides considerable guidance as to the meaning of the term pornography in 18 U.S.C. § 2256, which defines terms used in the statute ... Simmons ... [was] convicted of violating [citations and note omitted].

The Court held that this statutory definition provided ample notice to Simmons of what he shouldn't look at during his release time far in the future.

In addition, there wasn't any real question about the legitimacy of this special condition:

While incarcerated in Canada, Simmons refused to participate in the Sexual Behavior Clinic, and was evaluated there as "at high risk for general and violent recidivism."... Given that Simmons often videotaped his sexual attacks upon his victims, it was reasonable for Judge Murtha to conclude that there was a connection between Simmons’s viewing and possessing sexually explicit material and his criminal behavior. ... [T]he special condition imposed is not overly broad. Among the videos seized by Canadian authorities from Simmons’s home were videos of him engaging in various sexual acts with seemingly unconscious adult women. ... Clearly, Simmons poses a potential threat not only to minor females, but to adults as well. Accordingly, it was reasonable for Judge Murtha to impose a prohibition on pornography generally, not only on child pornography.

Frankly, you just have to wonder what Simmons could have possibly been thinking in making this bogus claim.

Then again, perhaps as with his original offense, perhaps Simmons was just doing all his thinking with the head with no brain.

December 18, 2003
Private Premium, Public Purpose?

The Ninth Circuit issued a decision this week about a California town’s attempt to benefit mobile home owners directly at the expense of the homeowners’ landlord.

At least, that’s how the landlord saw it. 

The suit is a new wrinkle in the field of regulatory takings law. While several significant hurdles remain to be overcome before a final decision is made, the factual setting and the landlord’s allegations take this case far beyond the usual land use permit dispute. 

The City of Morgan Hill, California lies just south of San Jose, and along with many other Left Coast cities has it own rent control ordinance.  

Hacienda Valley Mobile Estates (Hacienda) owns a 165-lot mobile home park within Morgan Hill’s city limits. Morgan Hill used its rent control laws to restrict the lease payments Hacienda’s tenants paid for the parking pads on which the mobile homes were placed. The landlord could seek increases, but the amount is subject to rate-setting by a city commission. 

In this context, “mobile” is usually a one-time thing. Most mobile homes are trailered to a single location and stay there. When the homeowners want to move, they usually sell the home instead of taking it with them. 

That’s where the city’s 1992 vacancy control ordinance came into play. The new law, an amendment to its rent control ordinance, prohibited landlords from setting new rental terms for the incoming mobile home owners, holding them to a modest $25 transfer fee instead. Otherwise, the tenants paid the same rent as the people who sold them the trailer, subject to the risk that the rent control commission would approve a rate increase. 

That risk is apparently pretty low.  

Hacienda filed for a $200/month lot rent increase in April 2000. The city commission set the new rate at $4.03/month instead, a smidgeon less than $50 per year. 

According to Hacienda, this combination of events eventually led to a regulatory taking: 

Hacienda alleg[es] that the [vacancy control o]rdinance had combined with complex economic factors and the Commission’s refusal to grant a rent increase to create a “premium” on the spaces in its Park. Hacienda argues that the below-market rate rent it is required to charge makes its Park attractive to potential mobile home buyers. Sellers of mobile homes in the Park are therefore able to command a “premium” over and above the worth of the home for the right to continue to live in the Park at below-market rates. In effect, Hacienda is arguing, the Ordinance has created an income transfer, with the sellers of mobile homes collecting the rent that Hacienda is not allowed to charge in the form of a premium on the sale of the mobile home. This premium, Hacienda argues, constitutes a taking of its property as the Ordinance is applied. 

The Federal District Court dismissed the case on ripeness grounds, and the Ninth Circuit affirmed that determination. However, the appellate panel also held that Hacienda could continue to seek compensation under its takings claim in California’s state court system. It noted that no prior-reported California case involving rent or vacancy control ordinances had addressed the kind of claim Hacienda was making. The panel then ruled that the state courts had to have the first opportunity to address it before the landlord could bring the suit in Federal court. 

That result is not too surprising. What I find intriguing about this case, however, is an issue that the Circuit Court didn’t address. 

Takings law is based on a fundamental rule applicable in all states, namely that private property cannot be taken for a public purpose or use without the payment of just compensation. 

Usually, there’s no real question about the public purpose part of that formulation. The disputes typically center on how the private property is burdened by the government, or how best to compensate the private owners for the government’s decision. 

In this case, however, I question whether the parties haven’t skimmed over the public purpose question.  

Assuming that Hacienda’s income transfer allegation is true, the primary effect of the government’s decisions was to grant a significant monetary benefit to particular private parties—namely, the former tenants who sold their homes at a premium price, thanks to the city ordinances and local economic factors. 

In other contexts, the courts have not hesitated to uphold a taking claim by blocking the taking itself, through a determination that the dominant purpose of the government’s actions was to serve private ends.

In the mid-1980s, for example, the Delaware Supreme Court overturned a parking authority’s condemnation of private land for a new parking area, where the News-Journal was the primary beneficiary.  Wilmington Parking Authority v. Land with Improvements, 521 A.2d 227 (Del. 1986). 

In this case, the courts could be faced with an interesting conundrum, if it determines that the dominant beneficiaries were the mobile home sellers, and not the far more ephemeral goal of preventing excessive vacancy rates in mobile home parks. 

After all, permitting the landlord to raise its rents doesn’t do much for the new tenants, who already paid a premium for the home on the assumption that the rents would remain low. Placing a constructive trust on the home sellers doesn’t seem likely, either. 

Perhaps the final solution will be to have the city pay those premiums to the landlord, at least until the city’s rent control commission changes its mind about what a fair rent should be.

December 18, 2003
Pre-Christmas crush

Apparently a sizeable number of my clients have a keen desire to take vacation next week, but also want to move a bunch of paperwork out the door before they go.

Between their calls for help and Christmas shopping after dinner, blogging has necessarily been a little light.

It's nice to be wanted, though.

December 14, 2003
Bill Roth

Bill Roth always ran for re-election as if he thought losing was a distinct possibility.

I've always given him a lot of credit for that.

One of the longest-serving elected officials in Delaware history died late last night.

The Montana native moved to Delaware for work. He first won election to Congress in 1966 in a victory over an incumbent, which is pretty rare in Delaware politics.

Roth never seemed to forget that experience, however.

He ran every campaign as if he was the underdog, no matter how much of a prohibitive favorite the polls would say his chances were, and no matter how much of a landslide the eventual victory margin would be.

Roth became famous nationally for several pieces of legislation which he championed, notably the 1981 tax cut (which he always referred to as "Roth-Kemp") and the more recent Roth IRA. Within Delaware, however, he was far more well-known for his constituent service, and deservedly so.

I dealt with Roth's Wilmington and Washington staff on several occasions while representing DelDOT, and was uniformly impressed by the staff's professionalism and their loyalty to Bill Roth. That combination is not always in evidence among Congressional staffers.

Roth finally lost out his last try for re-election to the Senate to another long-serving public elected official, Tom Carper, who'd just completed a popular two terms as Governor. Even then, losing wasn't for lack of effort on Roth's part--his advancing years simply caught up to him.

My condolences to his family.

December 14, 2003
Just a bit too cruel

I'm not one of those who believe that U.S. Senator John F. Kerry (D-Mass.) should become our next president.

It's also true that his campaign for the 2004 Democratic nomination has seen better days than those experienced lately.

Even so, this headline from the NYT Associated Press stories seemed just a bit too cruel:

Kerry Asks Supporter to Stick With Him

After all, the story says he has supporters.

December 14, 2003
Saddam's Hidey-Hole

Something about the fact that they found and captured Saddam Hussein hiding in a hole in the ground amuses me.

It just seems so much more fitting that he'd be caught in those surroundings, compared to other alternatives such as one of his obscene palaces.

And by the way, who told Hussein it was a good idea to try to pass himself off as Ted Kazsynski?



Contact Information:

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


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© Frederick H. Schranck 2002-2003