Saturday, July 31, 2004

Assault-by-smoke trial fires up today
Here's a report on some creative condo litigation from the Cleveland Plain Dealer...

Robert Zangrando claims he has been assaulted by cigarette smoke. The smoke that wafted into his condominium from the cigarettes held outside by his neighbor, Nicole Kuder, was willfully blown in his direction and invaded his home, he says, which led to his additional allegations of battery and trespass. The right to breathe smoke-free air is the focus of a trial scheduled to begin today in Summit County Common Pleas Court. It is likely to include a visit by the jury to the adjoining Stow condominiums, testimony from expert witnesses and testimony on how the errant smoke led to Zangrando's health problems and decreased the value of his property. In a case that is attracting some national attention, Zangrando, 71, is seeking more than $50,000 in damages from Kuder, 28, who is moving. Zangrando, who said he has emphysema, said his health was damaged during the two years she lived there.

Expert witnesses, yet. I didn't know there were experts on second-hand smoke "willfully blown" from OUTDOORS into condominium units. Wow. Must be like some comic book character--Megalungs, or The Big Wind, or Superblow, or Captain Hurricane, or something. And it's not enough that defendant Kuder is moving out. No. It is still full speed ahead for the Zangrando Litigation Express.

Marbury v. Madison (1803)
Here's what the 36 "wall of shame" members of Congress should have read before putting their names on the ridiculous bill referred to below:

The constitution vests the whole judicial power of the United States in one Supreme Court, and such inferior courts as congress shall, from time to time, ordain and establish. This power is expressly extended to all cases arising under the laws of the United States; and, consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States.

In the distribution of this power it is declared that "the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction."
If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If congress remains at liberty to give this court appellate jurisdiction, where the constitution has declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance.
The authority, therefore, given to the Supreme Court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution...

Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.

Read the whole thing. Everybody should. Especially the "Bonehead 36."
HR 4892 IH
Here's the text of the bill referred to below, including the names of the brain-trusters who co-sponsored it with Representative Istook.
Congressman Ernest J. Istook, Jr. (OK05) :: Press Release :: Istook Introduces National Marriage Law

This is completely off-topic, but I had to point it out. Here is a great example of legislative devolution. Once upon a time, we are told, people elected the best and brightest among them to Congress. Now, at least in the 5th District of Oklahoma and 35 (!) other districts, they send nincompoops like Ernest Istook (R) who have never heard of Marbury v. Madison, the United States Supreme Court's 1803 ruling that established judicial review. Regardless of what you think of gay marriage, this bill is the dumbest, most ignorant piece of legislative grandstanding in recent memory.

Istook, who is rabidly opposed to gay marriage, has just introduced what is called a "court-stripping" bill (named the "Marriage Unity Law") that would take away the subject matter jurisdiction of the federal courts to hear challenges to the Defense of Marriage Act. The point is this. First, a gay couple who got married under Massachusetts law will move to another state, say, Pennsylvania. They will ask to have their marriage recognized there under the Full Faith and Credit clause of the US Constitution. Pennsylvania will say, sorry, we don't have gay marriage here, and under the Defense of Marriage Act we don't have to recognize your Massachusetts marriage. The gay couple will then sue in federal district court in Pennsylvania to have the Defense of Marriage Act (a 1996 law signed by Bill Clinton) declared unconstitutional.

Enter the Marriage Unity Law. The bill repeats the main point of the Defense of Marriage Act: "Marriage in the United States shall consist only of the union of a man and a woman." Then it goes on to take away the jurisdiction of the federal district and circuit courts to hear challenges to that principle: "Except as provided in paragraph (1), no Federal or state court shall have jurisdiction to hear or determine a claim arising under this section."

Now, here comes the monumental ignorance. What is in paragraph (1), the exception to the "no jurisdiction" rule? Here it is: "The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section."

Every lawyer, every first-year law student, and every undergraduate student with a course in Constitutional Law under his or her belt knows that in Marbury v. Madison the Supreme Court used the power of judicial review for the first time to pronounce a law passed by Congress unconstitutional because it changed the original jurisdiction of the U.S. Supreme Court, something that can only be done by amending the Constitution.

Now, we have 36 people in the House of Representatives who know less about the most basic principle of constitutional law than the average political science undergraduate student. How can this be possible, when so many members of the House are attorneys? How can such a bill be introduced at all, and more to the point, how can 35 other people put their NAMES on it?

Friday, July 30, 2004 Girl Scouts won't have to break the law anymore
And you thought HOAs were bad...

By The Associated Press
(7/29/04 - SPRINGDALE, AR) — Girl Scouts in Springdale, Arkansas, don't have to worry about breaking the law. This week, a new city ordinance takes effect, legalizing door-to-door sales. Local Girl Scout leaders say they never realized their annual cookie drive had been illegal. The city council legalized solicitations, with a few strings attached. Homeowners may post signs requesting not to be disturbed or sign up for a "do-not-knock" roster. One local Girl Scout leader is pleased with the council's actions. She says people look forward to buying their Thin Mints and other cookies from neighborhood scouts.

Thoughts on the Pennsylvania slot machine bill

I've been off the air while taking the Illinois bar exam, so I have a lot to catch up on now that I'm back.  First, I think the PA slot machine thing is very significant.  It is a great example of the gap between what state and local government are providing and what taxpayers are willing to pay for.  The fact is that probably 25% of what state and local governments do, the middle class suburban taxpayer--the people paying the bills for goverment--would cut in a heartbeat.  People want basic services at low cost, nothing more.  Politicians want to deliver all sorts of stuff--goodies to their cronies, payoffs to organized interests that support their campaigns, social welfare services, life sentences for stealing cookies with two prior felonies,  massive new government office buildings named after politicians, and on and on. 

I don't buy the Democratic party's mantra that we all really want all this stuff but just need to be educated into understanding that we have to pay more taxes for it.  Once upon a time, I did.  But the evidence is piling up that the contrary is true.  Most obviously,  most taxpayers don't want to pay for urban dysfunction any longer, and that's where a lot of the money is going.  For example, a ton of dough is going directly into the pockets of unionized public school teachers and administrators who are grotesquely overpaid, given how awful urban public schools are.   Take a look at the performance of the Philadelphia city school system, for example.

If PA (along with Illinois, and other states) has to resort to disguising taxation as gambling, it's time to cut services. 

How does this relate to HOAs and privatization?  Very directly.  Nobody likes taxes or assessments, but the HOA/special district model--paying fees for direct local services--probably has more support than paying general purpose state and local taxes.  The problem is that the HOAs are run so badly.  If they worked like they are supposed to, stopped the petty over-regulation, and confined themselves to providing good services at the lowest possible cost, they wouldn't have much opposition in principle because it's better than shoveling money down the governmental rat hole.  Exhibit A is California.  Sure, there's some anti-HOA sentiment.  But compare it to the rage at state government that swept Gray Davis out and the Governator in, and of course the property tax revolt of 1978-1983. 

I'm not talking about what's right and wrong here.  I'm talking about what people want and are willing to pay for, and how they want to pay for it. - Slot machines may soon be legal in Pennsylvania - Jul 4, 2004
HARRISBURG, Pennsylvania (AP) -- The state House of Representatives passed and sent to the governor a bill to legalize as many as 61,000 slot machines in Pennsylvania.

As the Legislature's marathon election-year session continued early Sunday, the House also appeared likely to approve a companion measure that would eventually funnel $1 billion a year of the new gambling tax revenue into property tax cuts for homeowners.

What does it say about the relationship between PA state government and the people of the Commonwealth that they need to fund services by licensing and taxing gambling? Seems to me there was a time when people wanted certain services from state and local governments, so they elected people who figured out how much all that would cost and set tax rates accordingly. The money came in, the books were balanced, and the next year they did it again. Now we have a situation where state and local government cannot persuade people to pay taxes for all the services government wants to provide. Either cut the services or raise taxes--but don't make up the difference between what people are willing to pay for and what government wants to do, by licensing a money-wasting, family-destroying, parasitic venture like this.