Monday, August 30, 2010

Sliced Bagels in New York; Bloggers in Philly - Everyhting's Taxable

All levels of government are desperate to increase revenues rather than reducing spending, especially cutting public employment, benefits, and pensions.

Thus, governments are looking to all sorts of nickel and dime taxes to squeeze every conceivable penny out of their residents. No bagel is too small to take a tax bite out of.

New York has decided to enforce existing tax regulations whereby prepared foods served in a restaurant are subject to the state sales tax whether consumed on the premises or carried out. That’s normal in most states, but then comes the kicker. If you carry out a whole bagel, it’s not subject to the tax, but if the bagel is either prepared or sliced, then it’s subject to the sales tax. This rule caught bagel sellers by surprise and the tax is angering bagel consumers. The most amazing feature of this rule is that it is not in the New York tax code, but apparently exists in the black hole of the New York State Department of Taxation and Finance. When they decided to enforce it, they sent auditors to bagel sellers, and then assessed penalties against them for not collecting the tax.

Sliced bread in New York is not subject to the same sales tax penalty though.

New York Governor Patterson has just announced the State will impose its cigarette tax of $4.35/pack on cigarettes sold on Indian Reservations (Indian smokehouses) to non-tribal members. The issue involves critical issues of Indian sovereignty. A similar proposal in 1997 met with resistance by members of the Seneca Reservation. They shut down a 30 mile stretch of the New York Thruway. One out of every three packs sold in New York in 2009 was on Indian reservations, resulting in a $200 million revenue loss for the State.

Philadelphia is taxing a new revenue source. The Saturday Evening Post may have folded decades ago and the Philadelphia newspapers are flirting with liquidation, but bloggers are blooming. No success should go untaxed in this economy.

The City of Brotherly Love is now imposing a $300 business privilege license on bloggers. Make $25 in ads on your blog, and pay a $300 fee. But the exactions don’t end there. The city and state will then impose wage taxes, and income tax on any revenue.

One blogger, who made $50 over a few years, explained the revenue figures to the city’s tax amnesty program. A city employee responded by telling her “to hire an accountant.”

How did the city find out? Bloggers who listed the income from blogging, however minuscule, on their state income tax forms received the letters from Philadelphia.

The tax can be avoided by bloggers who blog for free. Taxing them would arouse First Amendment issues.

Question: Does Philly assess the business privileges tax against children lemonade stands, athletic booster groups with their refreshment and food stands, frequent sellers on E-Bay, and garage sales mavens?

New York’s Governor Patterson proposed earlier in the year to extend the sales tax to soft drinks with the ostensible purpose of reducing the consumption of fatty sodas. The measure died in the legislature, but will probably rise again like the Phoenix. Indeed, California already taxes soft drinks.

Sunday, August 29, 2010

Donald Bren Dodges a $134 Million Bullet

Forget Mel Gibson and Oksana Grigorieva

Forget the dysfunctional McCourts and their messy divorce headed to court next week.

The Donald Bren Jury reached a verdict for him after only two hours of deliberation.

The jurors hardly got to shake hands, much less get their free meals, or daily allowances of $15 after the first day. The lawsuit against him, seeking child support, was filed in 2003. Pretrial motions may have delayed the trial until a week ago, but the Los Angeles jury was quick in dispensing justice.

Forbes Magazine ranks Donald Bren 16th on the list of the 400 richest Americans. His estimated net worth is a measly $12 billion, give or take a couple hundred million either way.

The 78 year old Bren is the sole owner of the Irvine Company, which has been developing planned communities for decades in the 1/4 of Orange County that it owned. Its land included all of Irvine, and significant parts of Laguna Beach, Newport Beach, Orange, and Tustin. It owns shopping centers (Fashion Island, the Market Place, and the Irvine Spectrum)), golf courses (Pelican Hills), commercial property (in Orange County, West Los Angeles, San Diego, and Silicone Valley), apartment complexes, and yacht marinas.

Donald Bren did not found the Irvine Company, or build it up, but bought into it in 1977 with several partners, and then acquired complete ownership in 1986.

Donald Bren has been a major contributor to education. He has been especially generous to the University of California Irvine, University of California Santa Barbara, and to a lesser extent Chapman University. He has also been very generous to K-12 in Irvine Company communities, but also outside Orange County. He and the Irvine Company have also donated significant acreages of land for conservancy purposes. His charitable contributions are estimated to exceed $1.3 billion.

Unlike the other “Donald,” the poor Donald, the Donald Trump who lives to self-publicize as a marketing tool, one of the primary roles of the PR agents for the Irvine Company and Donald Bren is to keep his name out of the media. He shuns publicity, but will make public appearances. He’s not a recluse or hermit, unlike the late Howard Hughes. He simply wishes to preserve his privacy.

Thus, his decision to take to court a potentially salacious case seeking child support is a dramatic decision for him.

Donald Bren has been married three times, with children from each marriage. His child from his current wife is 7 years old.

In between marriages though, he sired two children by Jennifer McKay Gold, a former model who apparently can arouse lust in men.

Jennifer, on behalf of the two children, Christie Bren, age 22, and David Bren, age 18, filed suit against Donald Bren in 2003 seeking child support for the two. The amount sought was $400,000/month, retroactive to birth. The sum roughly comes to about $134 million – again petty cash or chump change to Donald Bren, but a principle upon which he was willing to spend a small fortune in litigating.

Jennifer’s assumption, and presumably that of her lawyer, was that Bren would pay a sizable stipend to keep his personal matters free from discovery and to avoid a public trial in which some of his personal life would be laid bare for public consumption.

They misunderstood and underestimated the man. This matter became one of business.

He did not become a multi-billionaire by being soft in business.

One columnist reported seeing 13 lawyers representing Donald Bren in the court room during the trial. Rough estimates then are that his weekly legal expenses during the trial exceeded $250,000, which would cover a lot of child support. His total legal expenses over 7 years may have reached the 8 figure mark, certainly far in excess of what she could afford.

The legal problem for the disaffected family is that Jennifer signed 4 contracts from 1984 to the mid 90’s with Bren in which he agreed to pay child support, roughly $9,000 per month and education expenses including college and graduate school to age 25 for the two children, in exchange for which she agreed to drop any legal claims for child support. He paid about $3 million to them from 1988 to December 2002, and up to $9 million in total.

The claim therefore is that he committed fraud in getting Jennifer to agree to the contracts. The allegation is that he agreed to have a lifelong relationship with the children, but in fact failed to do so.

Testimony from the trial is interesting:

He said:

He never loved her;
He never intended a steady relationship;
He never told her he loved her;
Their relationship was “unconventional” and “contractual;
They went months without seeing each other, and that the relationship fizzled out by 1994;
He was shocked by the first pregnancy, and even more surprised the second time. He felt betrayed because "she promised ... she was protected." and
He said she understood from the beginning that his role with the children would only be financial.

She said:

They were in a loving relationship through 1997;
Bren knew she wasn't using contraceptives; and
Donald promised to maintain a relationship with Christie and David;

Let’s assume that we witnessed a Paul Newman “What we have here is a failure to communicate” moment. I have in my office a plague which says

“You know what you heard

I know what I said

I know what you heard is not what I said”

People in relationships often hear what they want to hear.

Another way to view the communications conundrum is that the law recognizes that men and women often say things in relationships, statements such as “I love you,” or "I'm divorced or separated" that will not give rise to legal liability. Consent is consent.

Jennifer McKay Gold presented no witnesses or documents to support her claims of Bren’s promises.

Christie and David Bren testified that they didn’t lack anything growing up in Beverly Hills. Christie, in her 10 minutes on the stand, said she “never went wanting for food or clothing and never needed or wanted anything she couldn’t get.” At 17 she was given a new Audi. David received a BMW. Christie didn’t think she was” different from anyone else” in her upbringing. David Bren testified that he had everything he needed, but a father.

The absence of a father in their lives made them feel angry, hurt, and abandoned.

Maybe I should have empathy with this argument. My parents divorced before I was born. I never saw my father. Indeed, I never got a phone call, letter, postcard, or any acknowledgment from him. Like millions, I grew up the child of a single mom.

They got to travel, and study, in Europe. For me it was a big deal to take the Key System train across the Bay Bridge to see my grandfather in Oakland. There was a period of time when I went to bed hungry at night.

Obviously my biological father never contributed a cent to my support. The two natural children of Bren received over $9 million from their father. They grew up privileged in Beverly Hills, attended private schools, David’s about to enter Boston University, Christie will attend the New York Film Academy in January, their mother remarried in 2001, providing them a step-father, and they carry the Bren surname (That should be worth something in life). Divorces, single parents, and dysfunctional families are common in Beverly Hills.

Their monthly stipend covered housekeepers, nannies, private tutors, and ski trips.

Upon reconsideration, I do not empathize with them. I pity the spoiled brats, who through their mother sued their father. They are now undoubtedly out of the Bren will, and at age 25 even the financial relationship will end. Both of them should have dropped out of the suit at age 18, but didn’t. They should have apologized profusely and curried his favor.

Her lawyer argued the two children have a right to share in his standard of living. He said the question for the jury was if the Bren children deserved child support reflecting Donald Bren’s “circumstances and station in life.” He also denied that Jennifer Gold was a “gold digger” or “scheming, conniving, loose woman” but rather a mother looking after her children’s rights.

Jennifer, outside of court, said: “It’s not that we are poor; that’s not the point…. I just want {them} to have what is theirs. It is their birthright.”

The common law has never historically given the same rights of child support and inheritance to natural children as to children born in wedlock. Even then, parents can disinherit their family members.

Jennifer’s record is interesting. During the time she was pinning for Donald, in their loving relationship and trusting him, she became engaged thrice, including twice to Steven Hoefflin, a famous plastic surgeon, but married in 2001 Jerome Gold, a former executive with Warner Music.

Jerome was earning $41,000 monthly in deferred compensation from Warner Music and an additional $30,000 from RP Realty Partners. He lost that position in April 2010. He earlier complained to her in March 2009 that she was spending too much – perhaps it was her monthly allocation of $2,500 for clothes and an additional $2,500 monthly for dry cleaning. They separated at that point.

She is now paying an hourly fee of $600.00 to her divorce attorney. Gold now claims to be living off a rapidly depleting home equity loan of $200,000. Does Don MacLean's “American Pie,” especially the line “The Day the Music Died” come to mind?

As for the future of the protagonists:

Donald Bren will go back to the Irvine Company, nurture his legitimate children in the business, and regain his privacy. They have a bright future.

Christie and David will soon be fledgling their way in life with an education.

Their father, after graduating from the University of Washington and serving in the Marines, came home to Orange County and started building homes one at a time. Through drive, expertise, and business acumen, the entrepreneur built a fortune, developing the heartland of Orange County. If Christie and David have inherited his intelligence and drive, they too will do fine in life.

Donald Bren testified at trial “Education is the most important gift a person can make to a child …. It would allow those two children to grow up and be successful in their own right and not rely on anyone else but themselves to become productive and happy human beings.”

That is the essence of the case.

As for the 55 year old Jennifer McKay Gold, she should pray nightly that her investment in plastic surgery pays off.

(Quotes are from the Los Angeles Times and Orange County Register).

Friday, August 27, 2010

The Ground Zero Mosque Faces the Western Backlash Against Militant Islam

Islam is a religion of peace, as are Catholicism, Protestants, Judaism, Hinduism, et al.

Sadly, some militants in the name of Islam have committed horrific, seemingly random acts of terrorism on a global basis.

Religion has been one of the major causes of war in the history of civilization, such as Protestants against Catholics in Europe. Most modern religions though have come to peace with other religions and have adopted a policy of religious tolerance. Even a semblance of peace has been observed in Northern Ireland over the past decade.

Militant Muslims are an exception, sticking to a strict, 7th Century reading of the Quran (Koran), as exemplified by the extremism of the Taliban and Wahabis and the brutality of Al Qaeda.

The Islamist extremist attacks are international, often by organizations affiliated with Al Qaeda.

The Jemaah Islamiyah, an Islamist terror group, set off the Bali, Indonesia bombs in 2002, killing 292, mostly tourists, and then in 2007 attacked the J. W. Marriott and Ritz Carleton Hotels in Jakarta.

Abu Sayyaf has engaged in numerous kidnappings in the Philippines, but in 2004 blew up a ferry, killing 116.

The Chechen Muslim rebels have been engaged in an especially brutal war to the death with the Russians, detonating bombs on several occasions in the Moscow subway system (the most recent being on March 29, 2010), seizing a school in Belsan on September 1, 2044 (334 hostages were killed, including 186 children before it ended), and a Moscow theatre in 2002 ((another 129 hostages died).

The March 11, 2004 Madrid train bombings resulted in 191 killed and over 1,800 injured with ten explosions on four commuter trains during rush hour.

A little over a year later on July 7, 2005 bombs detonated on three trains and one bus in London. The four terrorists and 52 innocent victims died, and another 700 were injured. A second, failed attempt occurred two weeks later on July 21.

Let us not forget the two intifadas, not to mention Hamas, Hezbollah, PLO, Islamic Jihad, PFLP, Fatah, and Abu Nidal.

India has faced long term terrorist attacks, initiated from Pakistan. The most notorious in recent years was the November 26, 2008 attack on the Taj Mahal Hotel and other locales in Mumbai. 170 people died in these attacks.

Canada yesterday broke up a Muslim bomb making terrorist plot, arresting three so far.

New York City has been the target of scores of plots, some especially horrific, some unsuccessful, some highly publicized, and some not well known to the general public.

1993 witnessed the first attack, a truck bomb in the underground parking garage, on the World Trade Center.

Ali Hassan Abu Kamal in 1997 shot seven people, killing one, on the Observation Deck of the Empire State Building.

New York has forestalled several attempted attacks on New York City in recent years, one of which has resulted in guilty pleas in recent weeks for conspiring to blow up the subway, bridge and tunnel systems of the City.

Let us not forget Ahmed Ressam, the Millennium Bomber, who was caught at the Canadian-U.S. border with a car bomb intended for LAX, Richard Reid, the Shoe Bomber, The Buffalo 6, the 2006 Jewish Federation of Seattle Shootings, the 2007 JFK Airport Plot, the 2007Fort Dix Attack Plot, and more recently Umar Farouk Abdulmutallab, the Christmas Day “Underwear Bomber,” Faisal Shahzad, the Times Square Bomber, and Major Nidal Malik Hasan, the Fort Hood Killer.

I do not associate the overwhelming majority of Muslims with the terrorists anymore that I associate most Catholics with the few Pro Life zealots who blow up or torch abortion centers and kill abortion providers.

However, when the moderates do not even speak out against the militants, then hostility to all members of the religion develops. The general public stops distinguishing between moderates and militants when the voices and bombs of the militants are the only voices heard. A religion in which fatwas are issued against writers and cartoonists, even by Grand Ayatollahs, and not denounced by moderate Muslims, is one which courts a backlash.

This backlash is growing in the western world against Islamist extremism, and to some extent, manifestations of Islamist culture, such as Muslim community centers.

Thus, Switzerland has banned minarets, and France is legislating against the Burqa. The irony is that through the 1950'S, 60's, 70's, 80's, and 90's Europe would lecture, if not harangue America on our history of discrimination and racism.

The proposed “In your face” mosque and cultural center in a building impacted on 9/11 has touched a nerve, and is contributing to the backlash with the American people, not just New Yorkers.

It will not happen for next it will face the death of a thousand American lawyers.

Monday, August 23, 2010

The Obamas Sojurn in the Gulf Between Spain and Martha's Vineyard

The Obamas just squeezed in a 27 hour trip to the Gulf Coast, between an ostentatious 5 day trip by Michelle and Sasha Obama to Spain, a three day campaign trip, and ten days in Martha’s Vineyard.

The first time claims for unemployment jumped to half a million on Thursday, August 19 in the Summer of Recovery. The President’s response is to recover on Martha Vineyard, while Congress leaves town.

27 hours in the Gulf for a photo op, compared to three days in California, Florida, Ohio, Washington, and Wisconsin. His fund raising trip to Los Angeles raised $1 million, and stalled traffic during rush hour on the 405 and Sepulveda Blvd for up to 4 hours. The commuters could use some vacation time.

The trip to the Gulf was squeezed in for political reasons. The vacations, especially to Spain as the Gulf was hurting, were playing poorly with the public.

The President in the Gulf once again managed to avoid meeting with some of the direct, economic victims of the Gulf – the 50,000 oil workers his Administration rendered unemployed by invoking a moratorium on off shore drilling. He gets to vacation on Martha’s Vineyard for 10 days while his Administration told them to apply for unemployment.

Personally, I don’t care how many vacations a President takes, where he vacations, or the duration of vacations by the President and the President’s family. I don’t care if he spends 365 days a year at Camp David, Martha’s Vineyard, Kennebunkport, Kalamazoo, or Mars. I don’t care if he plays 48 rounds or 48 holes of golf or mini golf, engages in pickup basketball games, or views concerts.

His effectiveness and success will be judged by what his accomplishments as President.

The Dog Days of August have not been good to the President, so he should get away. Either that or reassess his economic program. He’s a true believer, so that’s not going to happen.

Presidents need to decompress. The stress level in the White House may be immeasurable, especially as the polls head south.

One travel problem for President Obama is that he is missing greeters on several legs of his trips. He flew into Georgia a few weeks ago and the Democratic candidate for Governor was campaigning in a small town far away. He flew into Texas and was greeted by the Republican Governor. The Democratic candidate was nowhere to be found. He traveled to New York City a couple of weeks ago for two fundraisers. Wall Street concerns contributed $15 million to his 2008 Presidential campaign with Goldman Sachs leading the way with $1.1 million. Feeling betrayed by Obama, and horrified by his rhetoric, they've boycotted the President. One event was even canceled.

He should contact WalMart about hiring some of their greeters when he comes to town.

Obama is radioactive to many Democrats this election cycle. They’ll take his checks, but not his presence, so he might as well vacation wherever and whenever he wants.
He doesn’t like to travel to disasters though, unless it’s Haiti or he can send in the lawyers. He didn’t do Tennessee during the massive flooding last Spring and he’s ignored Iowa the past months as it’s been inundated.

Martha’s Vineyard is attractive as a Presidential vacation site because it is so isolated. He won’t see any unemployeds on the Island.

Sunday, August 22, 2010

Random Thoughts on President Obama's Mosque Moment

I have a feeling of déjà vu all over again. President Obama jumped into an altercation a year ago on July 16, 2009 between Harvard Professor Henry Louis Gates, Jr., an African American, and Sergeant Jim Crowley, a white Cambridge police officer, by taking the professor’s side without learning the facts. He stated the Cambridge police “acted stupidly.’ He later called it a learning moment, but apparently learnt little from it. The President’s biases are too deep. The American people sided with the officer.

The American people do not believe a mosque or Muslim Community Center should be established within 2 blocks of Ground Zero. Actually the building, the Burlington Coat Factory, was struck by pieces from one of planes. That makes it part of Ground Zero. Let me rephrase the statement. The American public does not want a mosque built at Ground Zero.

President Obama had wisely stayed out of the dispute, stating it was a local matter for New York.

But then on Friday the 13th at a Ramadan dinner at the White House he endorsed the mosque:
“Muslims have the same right to practice their religion as everyone else in this country…. That includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances…..”

The next day, 800 miles away in Florida, he said he didn’t say what he said: “I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque” near Ground Zero. He must think the American people are stupid because his plain words the night before certainly sounded like a Presidential imprimatur to the Ground Zero Mosque.

His Saturday remarks continued: “I was commenting specifically on the right that people have that dates back to our founding. That’s what our country is about.”

He’s also wrong both legally and historically.

As a Constitutional Law Professor, President Obama must know that the First Amendment, including Freedom of Religion, did not initially apply to the states. It was adopted, along with the other 9 amendments in the Bill of Rights, as a restraint on the new federal government. Only after the post- Civil War adoption of the 14th Amendment did the Supreme Court progressively apply most of the Bill of Rights to the states.

As a sidebar, an interesting vignette on the First Amendment and the Mosque comes from Speaker of the House Nancy Pelosi. She wants an investigation of the opponents of the Mosque.

The Pilgrims and Puritans fled England seeking religious freedom, but that did not mean they wished to extend freedom of religion to others. Thus, Roger Williams had to flee to Rhode Island to seek freedom of religion.

The main problem is the premise that this dispute involves an issue of local New York City land use planning.

The irony is that easterners, especially New Yorkers, have no difficulty telling westerners, especially in the Rockies and the Southwest, how they can use, or often not use their land. They view the resources and beauty of the West as a national asset.

The famous eastern historian, Bernard DeVoto, once wrote a letter to the editor of the Denver Post: “You are certainly right when you say ‘us natives’ can do what you like with your scenery. But the national parks and monuments happen not to be your scenery. They are our scenery. They do not belong to Colorado or the West. They belong to the people of the United States, including the miserable unfortunates who have to live east of the Allegheny hillocks.”

The people of America view Ground Zero just as much a national memorial as the Arizona Memorial at Pearl Harbor. A Shinto Shrine by the Arizona would be as inappropriate as a Islam Mosque by Ground Zero.

A secondary issue is that many communities are now using their zoning powers to restrict churches. In other words, freedom of religion does not guarantee the right to put a church, temple, mosque, synagogue anywhere you wish on private property.

A third factor is if this proposed community center is intended to foster reconciliation and peace between Christians and Muslims, it's having the opposite effect.

The mosque debate will probably not be a defining issue in November; the economy will control. But the debate further defines President Obama in the eyes of the American people.

He is not one of us; he does not share our values. I don’t think he’s Muslim, or a closet Muslim. I simply believe he has inhaled in the 1980’s too much of the anti-Americanism of the 60’s in his higher education, church, companions, and political career. Remember that in his few years in the Senate, he consistently voted as the most liberal voting Senator, surpassing Ted Kennedy and other noted senate liberals.

He got a pass for 20 years worshiping with the Reverend Jeremiah Wright, but then step by step, drip by drip, bowing to King Abdullah on April 2, 2009 in Saudi Arabia, treating Israel’s Prime Minister Netanyahu with contempt, his failure to select a Church in D.C., the press conference in Turkey on April 6, 2009 in which he stated “We do not consider ourselves a Christian country,” and his appeasement of Iran, the American people realize he’s from a different value set – one they do not accept.

He doesn’t even directly address the issue of his religious views, letting his press office state that he worships daily. No wonder that up to a quarter of the American population believe President Obama is a Muslim.

America is a primarily Christian country, but one in which the American people are tolerant of non-Christian religions. That is part of America’s strength – a tolerance of diversity. That is breaking down in the Ground Zero debate. President
Obama did not facilitate tolerance in his remarks.

Sunday, August 15, 2010

The End of Congress As We Know it

Congress, at an all-time record low in popularity, is undergoing a seismic change in its existence. It just refuses to recognize it.

The public was appalled in 1994 at the growing sense of corruption (think the House Bank) and elected a Republican Congress for the first time almost a half century.

Too many Republicans though carried on the same practices of pork barrel spending and earmarks to buy votes. Some Republicans proved they were just as capable of corruption, bribery, and sexual peccadilloes as Democrats. This reality should not be a shocker since immorality is non-partisan.

No, the previous change occurred when Senator Robert Packwood was forced from office. The Washington Post disclosed shortly after Senator Packwood’s reelection in November 1992 that he had a history of sexual harassment, especially when drunk. The Senator hung onto his office until he was forced to resign on September 7, 1995.

Senator Gary Hart’s primary loss to Vice-President Mondale in 1984 signaled the change in mores, at least when displayed publicly.

Packwood’s fall marked the end of the period in the life of the Senate, especially with the hideaways built into the new Senate Office Building, where drunken, as well as sober Senators, felt privileged to hit upon, aka sexually harass, any female within harassment range. The Senate hideaways often served for trysts.

The names of some of the offending Senators are legendary, including perhaps two who rose to the Presidency, and some who tried.

The new change started in the 2006 mid-term Congressional elections. The Republicans and general election voters tossed out many big-spending Republicans, while others retired. The trend continued in 2008. Obviously, other issues were also at work, but hallowed names, such as Ted Stevens, fell by the wayside.

Voters in both parties have become intolerant of corruption, witness the defeat of Congressman William Jefferson of New Orleans, and Republicans linked to the convicted lobbyist jack Abramoff.

The Public is through with traditional tax and spend politics. This November may be the end of FDR’s famous maxim: “Tax and tax, Spend and spend, and Elect and elect.”

This year is witnessing the retirement, death, or primary defeats of many Democrats, including David Obey, the Chair of the House Appropriations Committee who gave us the pork barrel Stimulus Bill, and other gems. A few, who lost office earlier, such as Dan Rostenkowski, passed away this year, also signifying the passage of the old.

Here is the list of the “Old Guard,” not all of whom were ever accused of unethical behavior, who have left Congress over the past four years, or have passed away this year, keeping in mind that November may add dozens more to the list. Short-termers do not make the list.


Sherwood Boehlert
Tom Delay
John Doolittle
Bart Gordon
Peter Hoekstra
John Hosttetler
William Jefferson
Nancy Johnson
Patrick Kennedy
Carolyn Cheeks Kirkpatrick
Jim Leach
Alan Mullohan
Jack Murtha
David Obey
Ralph Regula
Dan Rostenkowski
Jim Ryun
E. Clay Shaw
Chris Shays
Bart Stupak
Curt Weldon


Robert Bennett
Joe Biden
Kit Bond
Harry Byrd
Conrad Burns
Chris Dodd
Bryan Dorgan
Judd Gregg
Arlen Specter
Ted Stevens

Thursday, August 12, 2010

Don't Video Police Behaving Badly in Maryland: The Plight of Anthony Graber

Anthony Graber is a 25 year old staff sergeant with the Maryland National Guard. He loves to ride his Honda motorcycle so much that he often attaches a video camera to his helmet to record the trips. He was ticketed in early March for going 80 in a 65mph zone. He admits to it.

His problems began when he posted the video of the ticketing on YouTube a week later on March 10. The video shows him riding along and then stopping in traffic. Suddenly an unmarked, grey sedan swerves in front of him. A plain clothes state trooper jumps out of the car and jams a gun at Graber right up to the bike, ordering him to get off the bike. (Check YouTube).

Officer Joseph D. Uhler then holstered his gun and identified himself as “state police.”

Officer Uher’s conduct may well have crossed the line past overzealous into unreasonable and unprofessional behavior, if not into legal liability. Pulling a gun on a minor traffic infraction is not a generally accepted police practice today.

But that is nothing compared to the subsequent actions of the police and local prosecutor, Joseph I. Cassilly.

Graber is living with his wife and two children at his parent’s house in Abington, Maryland. Six police officers raided the house on April 8, wakening the family, and during the 90 minute search, seizing 4 computers, the camera, external hard drives and thumb drives.

Gruber was not then arrested because he was recovering from gall bladder surgery. He turned himself in a week later, and was rewarded with spending 26 hours in jail.

One might think this was a major drug bust.

Instead, the local prosecutor Cassilly had obtained a grand jury indictment alleging violations of the state wiretapping laws. Apparently the prosecutor is claiming that taping a law enforcement officer issuing a ticket in public is a major crime. If convicted on all the charges, Graber could face a prison term of 16 years.

The Maryland statute doesn’t cover videoing, but the recording of the audio. It was posting the video with audio of the officer that allegedly violated the law.

The Maryland statute requires all parties to consent to a recording of a conversation if there is “a reasonable expectation of privacy.”

Therein lies the rub. Courts have consistently held a police officer is a public figure, who has no expectation of privacy for public actions. That would clearly include an arrest or traffic ticketing. Incidentally, we, as private figures, do not have a reasonable expectancy of privacy with our public conduct.

Indeed, the regular cruisers of the Maryland Highway Patrol, as with many law enforcement agencies, have dashboard cameras on them to record traffic stops and arrests. We have no legal expectation of privacy in being taped under these circumstances.

But now, when this officer’s conduct is called into question, he claims his privacy has been invaded.

The vast majority of law enforcement officers act professionally, as evidenced by the dashboard video cameras. A relatively few step out of line and are captured on videos stepping out of line.

Cassilly argues that officers should be able to consider their on-duty conversations as private. The Maryland Attorney General in August 2000 and July 2010 legal opinions disagreeing with this argument, but it has not yet been judicially resolved in Maryland. Almost all appellate courts that have decided the issue have decided in favor of the releaser of the recordings.

In many states the radio conversations of police, such as to the dispatcher, are routinely recorded, and must be made available in litigation. No expectation of privacy can therefore exist for thrse conversations.

The conduct of the police and prosecutor raise serious First and Fourth Amendment issues.

Something else is present in the prosecution of Graber. Some law enforcement officials in Maryland are trying to discourage, through the full police powers of the state, the recording of police misconduct. The treatment of Graber is an attempt to send a message – You record us, and we will come down as hard as we can on you.

The attitude of Cassilly is as great an abuse of prosecutorial power as that as Mike Nifong with the Duke Lacrosse players.

We have all seen on TV, beginning with the Rodney King beating, videos of Law Enforcement officers apparently engaged in excessive force. Maryland had a similar episode last March after a Maryland-Duke basketball game. A student was beaten by three police officers. The student and a friend were accused by police of assaulting them. A video surfaced showing the students were innocent. The conduct of the officers is now under investigation.

Cell phones with camera and video capacity are ubiquitous today, precluding any expectancy of privacy.

My advice to Anthony Graber is that when he finally wins the case, he should bring a 42 U.S.C. §1983 case against the prosecutor and police for violation of his constitutional rights.

Sunday, August 8, 2010

The Bell Maelstrom Just Gets Deeper and Deeper

First the good news:

The Los Angeles Times continues to be a newspaper that engages in traditional investigative reporting.

Second, transparency is coming to public salaries in California. John Chiang, the state Controller, has ordered the posting of all salary information for elected officials and employees. Many communities are already doing it as a result of the Bell disclosures.

One problem though is trying to ascertain the total value of compensation packages. The base salary is easy, but other expenditures may come into play. For example, a few of the Bell employees subsequently received over $100,000 for additional purposes.

Other communities might provide housing allowances, car, gas, and repair benefits, cell phones, and the list goes on.

Third, as public salary figures emerge, Bell stands out in the avarice of its public officials. Many city managers and other public officials took pay cuts during this economic downturn. They are to be commended.

And now the bad news:

The Bell scandal gets more sordid daily, as details continue to emerge.

The poor citizens of Bell were paying the second highest property tax rates in Los Angeles County. The countywide tax rate averages $11.60 per $1,000 of assessed value. The rate in Bell is $15.50, which is about 50% higher than those of Beverly Hills, Palos Verdes Estates, and Manhattan Beach, and even higher than Malibu’s. Only a few residential parcels in the City of Industry pay a higher rate than the homeowners of Bell.

The Bell rate was rising while the property values were dropping, spending was cut on community services and police, and the salaries of the Magnificent 7 soaring.

City Manager Robert Rizzo’s reported salary was $787,387. The Los Angeles Times now reports that his total compensation package was $1.540.299.96, which included 107 days of vacation time annually, 36 sick days, and pension and social security benefits. Bell would pay $48,996 into Rizzo’s deferred compensation plan and $20,496 into his 457 plan, the equivalent of a 401K for government employees – all of this in addition to his CalPers pension. Bell also covered his health insurance premiums and any medical bills not covered by health insurance.

The total compensation for vacation and sick days was $386,736, which exceeds the posted salary figures of any Los Angeles city official. For example, L.A. Mayor Villaraigosa’s salary is $232,425 annually.

Angela Spaccia's stated pay was $376,640, but the total package came to $845,960 including $188,640 in vacation and sick leave. Police Chief Randy Adams' package rose to $770,046 including $76,046 in vacation and sick leave.

In short, these three public officials were earning more in vacation and sick leave alone than almost all Bell residents were earning period.

Aside from the personal venality of the 4 Bell Council members paying themselves almost $100,000 annually, any Council member who signed off on Rizzo’s package should be recalled for gross incompetence.

If this package was not properly approved by the Bell City Council, then someone is going to jail. In any event, a grand jury investigation is probably in the works for Bell.

We now know that the Magnificent Seven were not the only bell officials receiving high salaries. Two other officials were each earning over $400,000. Lourdes Garcia, the Director of Administrative Services, earns $422,207 and Eric Ergana, the Director of General Services, earns $421,402. Annette Peretz, the Director of Community Services, grosses $273,542. Other high salaries include $247,573 for a deputy city engineer, $295,627 for the Business Development Coordinator, $238,705 to a police captain,, and $229,992 to a police lieutenant.

On the other hand, many underpaid, low scale employees were laid off in recent years.

Angela Spaccia, the $376,288 Assistant Manager of Bell, was loaned out to the neighboring Maywood when it contracted with Bell for services. Bell billed Maywood $10,000 monthly for Angela’s services as Interim Administrator. Bell is receiving 50,833 monthly to run Maywood’s operations. She may or may not have resigned from Maywood last Friday, but her contract with Maywood is up next week.

The CapPers pension debacle deepens. CalPers is the primary pension fund for California public employees. It is temporarily delaying the payment of pensions to the three retiring Bell officials, pending investigations of their validity. The problem for Calpers is that 4 years ago it flagged the 47% salary increase for Robert Rizzo and notified Bell that it would have to apply to CalPers for an exemption. Bell applied for the exemption, which CalPers granted. Thus, CalPers was aware of the excessive salaries and pensions from an early date, and in essence ratified them.

141 other municipalities have been told they will have to cover some of the Bell pension costs because of the way CaLPers operates.

Allegations of voter fraud have emerged in Bell elections, especially with absentee ballots. Just as significant, instances of self-dealing and conflicts of interest have arisen between Bell and Council members, including Mayor Hernandez.

Municipal and county employees throughout the state are especially outraged because they fear a voter backlash with already unpopular tax increases, and government employee compensation packages.

The Bell Council members justified the compensation package for Rizzo and the other Bell employees because of how fiscally sound the city was managed.

We now know the city issued $35 million in lease revenue bonds to acquire some federal land near the 710 freeway and adjoining a tract it already leases to the Burlington Northern Santa Fe Railway. Lease revenue bonds do not require voter approval because they do not obligate the general funds of a community. The intent was to also lease this land to the railroad, but the lease was never consummated.

Bell is in default on the bonds.

The Bell maelstrom deepens every day.

Friday, August 6, 2010

The Bell Tells for Lee in Bell

The vast majority of law students attend law school to become lawyers, but not necessarily knowing what type of lawyer, or even specialty, they wish to be. Often they discover their interest, or it discovers them.

For example, few law students matriculate with dreams of being a municipal counsel. Yet, that can be a very lucrative practice area, or niche, as Edward Lee discovered.

He became counsel to several cities in southwest LA, including Bell, Covina, Downey, and Maywood. Between the four of them, Lee and his law firm were billing over $1 million annually in fees (Bell $243,000, Covina $477,000, and Maywood $500,000).
Billings like these entitle you to partnership in many firms. His firm, Best, Best & Krieger has about 200 attorneys in eight offices in California. Their specialty is government law.

The City Counsel’s role is to advise on the legality of Council actions, and review contracts, including employment contracts, but not necessarily to provide advice on the wisdom of the action. Bell Counsel Lee signed off on the Bell personnel contracts paying the excessive salaries.

Alas for Mr. Lee, Downey terminated his services on Thursday, July 29 on a 3:2 vote. Downey council members did not want to be tarred with the Bell scandal. They also canceled the contract with his law firm. Covina followed suit on August 2.

Edward Lee terminated his partnership with his firm last week, and then also resigned from representing Maywood. He explained that he wished at this point to represent Bell through its troubles.

He then sought appointment as Bell’s interim city attorney.

More alas for Mr. Lee!

Like 4 Bell Council members, Mr. Lee appears tone deaf. They don’t seem to understand the anger of Bell residents. Seemingly new revelations about venality, or at least venal activities, not to mention incompetence, by Bell officials are surfacing daily, and the temperature in Bell rises. Recall papers have been served on the 4 council members, two of whom said they would not run for reelection, but all resisting resignation.

After a contentious meeting Wednesday night, with scores of Bell residents demanding his ouster, the Council rejected Lee's appointment.

Edward Lee is now a lawyer without a law firm, a partnership, and perhaps a client. Lee is in Legal Hell in Bell.

The fallout from Bell continues.

No Apology for Hiroshima and Nagasaki

The 65th Anniversary of the Atomic Bomb leveling Hiroshima was earlier today. The US for the first time sent an official delegate to the ceremony. The Japanese want an apology.

The Japanese never apologized for the sneak attack, a blatant violation of international law, on Pearl Harbor. Nor do I believe that they send an official representative to the solemn Pearl Harbor Anniversary ceremonies.

They have not apologized for the Rape of Nanking.

They have not apologized for the Korean comfort women.

They have not apologized for the executions, including beheadings, of allied POW’s.

They have not apologized for executing the crew of one of the Doolittle bombers.

They have not apologized for the Bataan Death March.

They have not apologized for the forced labor of POW’s.

They have not apologized for their Unit 731 human experimentations in Manchuria.

They have not apologized for their germ and biological warfare

Some general apologies have been made by past Japanese Prime ministers, but successors often express contrary views. Many of their atrocities have not even been acknowledged.

Japan, which understandably is opposed to nuclear proliferation, does not acknowledge that their scientists were also working on The Bomb. Whichever country developed The Bomb first was going to use it.

Their school textbooks are silent on the Japan's 15 years of aggression and war crimes in China and the South Pacific.

Hitler and the Nazi genocides are horrific crimes, but the German people have confronted their past.

I’m not saying the Germans were better than the Japanese. Nor am I saying that the victorious Allies did not engage in what could be viewed as war crimes. Churchill recognized that it was a good thing in terms of war crimes that the Allies won the war.

I am saying that Japan deserves no apology until it is honest with itself and victims.

The two atomic bombs saved millions of lives as they ended the War. The estimates of allied casualties in invading the Japanese home islands ranged up to a million, which does not include the projected Japanese military and civilian casualties.

Tarawa, Peleliu, Iwo Jima, and Okinawa were fair warning of the ferocity with which the Japanese would defend their lands to the death, as well as sacrifice their civilians.

The Military forces fighting the Germans in Europe knew that VE Day bought them some respite, but most were to be redeployed to the Pacific Theatre for the invasion of Japan.

Apologies? No.

Thanks from the veterans who survived the war because they were not sacrificed on the beaches of Japan.

Thanks from the Chinese, Koreans, Vietnamese, Cambodians, Laotians, Indonesians, Burmese, Indians, Malay, and Russians who lived because of The Bomb. And thanks from the mothers and wives whose sons and husbands returned alive from the brutal Pacific Theatre.

Thursday, August 5, 2010

First the Burqa, Now France is Going After the Gypsy

France has joined the anti-Muslim reaction in Europe to fatwas against writers and cartoonists and subway bombings by enacting legislation to ban the wearing of the Burqa in public. Swiss voters in November 2009 banned the construction of Muslim minarets

And now President Sarkozy of France has announced a campaign against gypsies. Gypsies, also known as Roma, Romani or Gitanos, are second only to the Jews in terms of historic discrimination in Europe.

While gypsies are associated with Romania, the words Roma and Romani are not in fact related to Romania – the spelling overlap is purely coincidental. The Roma are believed to be the descendants of an ethnicity that left northern India about 1,000 years ago for reasons unknown. They then dispersed throughout Europe and into the New World. The word “Rom” comes from Sanskrit. Romani is an Indo-Aryan language with the root language being ancient Punjab.

Major ethnicities within the Roma include Kale, Romanichal (especially in the United Kingdom), and Sinti.

Unlike the Diaspora of the Jews, who could dream of returning to a homeland in Jerusalem, the Roma have nowhere to return to. Thus, they are perpetual wanderers through the world.

The Roma, like the Jews, have never fully assimilated into the larger culture of their countries, although they tend to adopt the prevailing religion of the country. Few today are actually the wanderers of past generations.

The worldwide population is estimated at 8-10 million with the majority residing in the Balkans. 2.2 million are in Romania, comprising 10% of the population, and also giving belief to the myth that gypsies are Romanian. Even Romania discriminates against them. 75% of the Romanian Roma reside in poverty, compared to 24% of the general population. .

Alas for the Roma, they have acquired a negative reputation, summed up in the title of Cher’s 1971 hit “Gypsies, Tramps and Thieves.” We use the phrase ‘gypsy cab” to denote an unlicensed cab. We talk about roaming bands of gypsy or Roma crooked home contractors. We have images of gypsy fortune tellers, who can read the future. Their image in Europe is also one of idleness and living off welfare.

England centuries ago sent Romanichals to the New World and to Australia on the penal boats. Even two years ago 68% of Italians surveyed wanted the gypsies expelled from Italy.

Roma too have been victims of genocide. A generally accepted figure of the Holocaust is that roughly 6 million Jews were killed by the Nazis and their confederates. Second on the list were Gypsies. The figures are inexact, but the genocide of Roma is believed to be between 220,000 and 1 ½ million in the “Porajmos,” or up to 80% of the Roma population in Europe.

Contra to the popular image of Roma, they have become major cultural figures throughout the Mideast, Europe and the Americas.

Roma celebrities we recognize include Yul Brenner (1/4 Roma, 1/4 Jewish), who was Honorary President of the Roma until his death and started out in gypsy camps, Michael Caine, Bob Hoskins, Rickie Lee Jones, Tracey Ullman, and if the internet is right, Elvis Presley. Charlie Chaplin may, or may not, have been Jewish, but his mother was Roma, and his father may also have been. Other Roma include Augustine Bearce at Plymouth Colony and John Bunyan of The Pilgrim’s Progress.

April 8 is International Roma Day, but July 28, 2010 became the “Day of Let’s Kick the Gypsies Out of France.”

France police in the small town of Saint-Aignan fatally shot a 22 year old gypsy on July 16. Two days of riots and clashed between gypsies and police followed (clashes between police and minorities after a fatal shooting are not uncommon in the United States).

President Sarkozy on July 28 ordered the expulsion of illegal gypsy immigrants and the dismantling of their camps. He claimed that they posed a security problem to France. He also asserted they smuggle children, exploit children for begging, and engage in prostitution and delinquency.

The French Interior Minister said about 300 illegal camps would be closed within 3 months. Foreign gypsies residing illegally in France would be deported immediately. I n addition, in one of the cruelest threats a state can make to its citizens, he vowed to sic tax inspectors on them. About 400,000 gypsies and traveler minorities reside in France. About 95% are French citizens.

The threats of the French president and Interior Ministry rekindled memories of World War II when the French authorities sent the French gypsies to concentration camps.

We are witnessing in France a political leader with fading popularity resorting to demagoguery against a despised minority. It often works to the advantage of the politician.

(By way of disclosure, my father was Romanian, which makes me half Romanian. Whether or not I have Roma in me would have to be determined by DNA since I do not know)

Monday, August 2, 2010

Kirk Herbstreit Fumbles His Writeoff

ESPN’s Emmy winning Kirk Herbstreit is one of college football’s top commentators.

He was equally good in 1992’s, quarterbacking the Ohio state Buckeyes to a 13-13 tied with Michigan. Since a tie was as good as a win for Ohio State during the John Cooper years, Kirk is a hero to Buckeye fans everywhere.

Unfortunately, he was also the most accurate among the commentators in predicting the performance of the Michigan Wolverines under Coach Rodriquez.

Leave it to a Buckeye.

He was so good at Ohio State, and loyal to the Buckeyes, that he resides in Upper Arlington, a suburb of Columbus. No Goodbye Columbus for Herbstreit.

But Goodbye to a large tax deduction, for which penalties have attached.

Upper Arlington residents discovered an ingenious deduction that accomplished three goals: provide a public service, demolish an unwanted house, and claim a sizable deduction.

Forget remodeling; no DIY; just raze/torch the existing house and rebuild from scratch.

The solution: Donate the residence, but not the land, to the Upper Arlington Fire Department, which then torches the dwelling in a live fire exercise. The owners then have to clean up and remove the debris and ashes, but those costs are minimal compared to hiring a demolition company to destroy the house. If the Fire Department torches the property, it’s not arson.

This practice had been going on for about two decades in Upper Arlington. From 1988 to 2009 31 dwellings and 1 commercial structure were donated to the U.A.F.D., but only one since 2005. Residents in Minnesota and Wisconsin were adopting the tax stratagem. Too bad Birmingham, Bloomfield Hills, and Grosse Points, Michigan had not caught on.

The Herbstreits’ donated their Upper Arlington home to the fire department in 2004, claiming a charitable tax deduction of $330,000. They then spent over $1 million building the replacement home.

They mistimed the deduction, fumbling the return.

The IRS started questioning the practice in 2004, disallowed the Herbstreits’ deduction, and assessed a delinquency and penalties of $134,606. That burns. The United States District Court in Columbus affirmed the IRS’s ruling on July 21, 2010.

The court’s decision though was not based on the burning issue of the legality of such deductions, but rather on procedural penalties. The Herbstreits failed to provide both a “sufficiently qualified appraisal” and “a sufficient contemporaneous acknowledgment of the purported deduction.”

They, or their accountants or lawyers, failed to follow basic procedural requirements of the IRS Code. Admittedly, learning an Ohio State playbook as a quarterback is not the challenge of mastering the Internal Revenue Code of 1964.

As a football player at Woody Hayes U, Kirk should have realized it comes down to the fundamentals of blocking and tackling rather it be football or taxes.

Quarterbacks should never fumble the handoff or writeoff.