Saturday, July 29, 2006

Ohio Supreme Court ignores Kelo precedent: Revenue, development not public use: other stories

Ruling affects other domain cases

The court ruled that "deteriorating" conditions can't be used as a justification for eminent domain.

Depending on how one looks at it, the Ohio Supreme Court's ruling on eminent domain Thursday came too late for Emma Dimasi - or just in time.

The Ohio First District Court of Appeals ruled this month that Cincinnati could take the home of the 80-year-old Clifton widow for the $4 million Dixmyth Avenue road-widening project. The city tore down the house last week.

While the decision came too late to save the home, it could be just in time to save the appeal.

Within hours of the Supreme Court decision, Dimasi's son and lawyer, Vincent A. Dimasi, asked the appeals court to reconsider.

The Supreme Court's decision criticized lower courts for "an artificial judicial deference" to states and cities, Dimasi said. That might give him another chance to make his argument that the city's action was driven by economic benefits - the $122 million expansion of Good Samaritan Hospital - rather than transportation improvements.

If the Dimasis prevail on appeal, it's unclear what they would win. They could theoretically get the land back - without the house but with a road. But since no Ohio court has ever had to "undo" an eminent-domain case, no one knows how that would work.

All over the state, lawyers for property owners are prepared to make similar arguments:

In Clifton Heights, the city of Cincinnati took 20 properties and small businesses to replace them with a new university-driven development plan. That case is now before the Ohio First District Court of Appeals, where lawyers for the property owners say Thursday's decision bolsters their case.

Specifically, the court ruled that "deteriorating" conditions can't be used as a justification for eminent domain.
"In this case, the city employee that did the review decided that anything less than 100 percent new was deteriorated - even down to a single piece of chipped paint," said Matthew W. Fellerhoff, the attorney for the owners.

In Cleveland, the port authority is using its eminent-domain powers to muscle out small-time developers in the Flats District along the Cuyahoga River in favor of a big-time developer who needs parking to build a $230 million shopping and housing complex.

"It seems like to me it's a very good decision," said Paul Shaia, one of the owners who operates a parking lot at the site. "... It's absurd. They want to take a public parking lot to give to a developer to make it a public parking lot."

House renews 1965 Voting Rights Act
By Andrea Stone, USA TODAY

Representatives from states singled out by the act because of past
discriminatory practices wanted changes.

WASHINGTON — The House of Representatives voted overwhelmingly Thursday to renew the 1965 Voting Rights Act, overcoming an attempt by conservatives to ease restrictions they said are no longer necessary.

The 390-33 vote preserves for 25 years a law enacted at a time when Southern states employed tactics to suppress black voting and was designed to ensure no state deny people the right to vote based on their race or color.

The act was due to expire in 2007. The Senate is likely to vote on the measure this month. [Senate approved 98-0 July 22.]

Supporters said the law is needed because minorities can still be treated unfairly when legislatures change rules or redraw districts.

"I gave blood. Some of my colleagues gave their very lives," said Rep. John Lewis, D-Ga., an activist in the Civil Rights Movement that led to the act's passage.

Lewis displayed photos of himself and others being beaten by state troopers in 1965 during a march from Selma to Alabama's capital of Montgomery in support of black voting rights. At the time, Alabama used intimidation to prevent blacks from voting.

"We must pass this act without any amendment, it is the right thing to do," he said to applause.

The law's renewal had attracted bipartisan support and the approval of President Bush. But representatives from states singled out by the act because of past discriminatory practices wanted changes.

Rep. Charlie Norwood, R-Ga., and a handful of conservatives proposed amendments to eliminate provisions requiring states like his to get federal approval before changing their voting procedures. They also proposed an end to multilingual ballots in certain states, saying it is unnecessary because proficiency in English is required for citizenship.

The South was being treated "as if nothing has changed in the last 41 years," said Rep. Lynn Westmoreland, R-Ga.

He said black Georgians today register to vote at higher percentages than whites and that elected black officials serve in the highest levels of state government.

"We have repented, and we have reformed, and as Fannie Lou Hamer famously said, 'I am sick and tired of being sick and tired,' " he said, invoking the name of the black Mississippi civil rights activist.

The measure has been renamed the Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act to honor the civil rights activists.

House Judiciary Chairman F. James Sensenbrenner, R-Wis., led supporters in blocking the amendments. Among those defeated was a proposal to limit the act's renewal period to 10 years and elimination of a provision that requires the Justice Department to monitor some local elections.

Just before the vote, Rep. Maxine Waters, D-Calif., said the act should remain as is. She said that while voter poll taxes and literacy tests are now illegal, a federal judge as recently as Wednesday ruled that Georgia's law to require government-issued identification cards discriminated against minorities.

"Don't disrespect the civil rights movement," Waters said. "Show the world that America is sincere about democracy."

U.S. Constitution Wikipedia

Bill of Rights and background

Article I Sec 9

No bill of attainder or ex post facto law shall be passed.


attainder n. The loss of all civil rights by a person sentenced for a serious crime.

In the context of the Constitution, a Bill of Attainder is meant to mean a bill that has an negative effect on a single person or group (for example, a fine or term of imprisonment). Originally, a Bill of Attainder sentenced an individual to death, though this detail is no longer required to have an enactment be ruled a Bill of Attainder.

ONARCHITECTURE- Nine lives: Talk continues on Mall towers
Published July 27, 2006 in issue 0530 of the HooK.

[...]While the zoning might not be new, the fact that these tall buildings might actually be built is. As Planning Commission member Bill Lucy pointed out, the build-out implications of these tall building projects are different than they were in 1972 or 1985. [...]

HOTSEAT- Sime time: Libertarian takes on Hanger
Published July 27, 2006 in issue 0530 of the HooK.

[...] More clues to his Libertarianism: "Eminent domain is important to me," he says. The 2005 Kelo v. City of New London Supreme Court decision allows states to enact eminent domain reform. "Only 11 states haven't, and Virginia is one of them," he grouses.

Some people think Libertarians favor no government, but Sime dispels that notion. He calls Libertarians the "party of principle," and then acknowledges, "It's easy to stick by your principle when you're not in office." He says the party needs to do a better job of offering solutions to problems. [...]

UVa to announce interim dean within week
By Aaron Kessler, Daily Progress staff writer, July 28, 2006
“It was Rick Turner himself, actually, that reminded us years ago that not one student from CHS [Charlottesville High School] was attending UVa,” Alvin Edwards said.

The University of Virginia will be ready to announce an interim successor to M. Rick Turner within a week, and possibly sooner, officials say.

Turner, 65, the former dean of African-American affairs at UVa, announced his retirement Wednesday, 13 days after signing a pretrial felony diversion agreement with the U.S. Attorney’s Office admitting to making false statements to investigators about a “known drug dealer.” UVa placed Turner on administrative leave the following day, July 14, which coincided with the agreement being filed in the U.S. District Court in Charlottesville. University spokeswoman Carol Wood said UVa officials are looking to quickly fill the post with a candidate who can “create some stability in the office,” particularly because the start of the academic year is approaching.

“The goal is to make sure that the students and staff are feeling comfortable,” Wood said.

Associate dean Sylvia Terry has been serving as “acting” dean in Turner’s sudden absence. But Wood said Patricia Lampkin, UVa vice president for student affairs, is preparing to name a full-time interim dean who can lead the office of African-American affairs, for what could be months, until a permanent replacement is named.

“That will give [Lampkin] time to consider the next step,” Wood said.

Turner will remain on administrative leave until his retirement takes effect Monday. He is also president of the Albemarle-Charlottesville chapter of the NAACP and will continue to serve at least until his term ends in September.

Alvin Edwards, chairman of the Charlottesville School Board, said he believes Terry is doing a good job keeping things running at UVa and that she could be a good candidate to fill the slot on an interim basis. Edwards, who said he has not spoken with UVa officials about the matter, noted that what’s most important is for the office to avoid losing its footing and to keep the students in mind.

“For me, when there is a low, a gap, you have to keep going,” Edwards said. “You cannot stop, because if you do you sink into despair. You have to keep the focus on the students. The focus needs to be the future.”

Edwards thinks the relationship between the university and the African-American community as a whole in Charlottesville has been “evolving and growing,” and that education needs to be paramount for things to move in a positive direction.

“It was Rick Turner himself, actually, that reminded us years ago that not one student from CHS [Charlottesville High School] was attending UVa,” Edwards said. “Hopefully we’ve improved that relationship since then.”

But Turner has also been a somewhat polarizing figure, known for his heated rhetoric when it came to matters of race. His outspoken nature at public meetings is almost legendary. And last year, the Charlottesville school system itself bore the brunt of his criticism, with Turner accusing opponents of embattled former superintendent Scottie Griffin of being racists.

“She’s being dragged through the mud because she’s black and female,” Turner said during his 2005 “State of African-American Affairs” speech.

Edwards, though, said he bears no ill will toward Turner.

“Whenever anybody is down, I always try to support them,” Edwards said. “I don’t add to what they are going through.”

Turner’s agreement with government prosecutors requires him to complete 12 months of probation and to testify truthfully in any future court hearings if called as a witness. In return, the federal attorneys will not bring charges against Turner for what they allege were his false statements about his “knowledge of the activities of a known drug dealer.”

Federal officials have so far declined to name the drug dealer in question.

City that winked at Prohibition bans foie gras, public smoking
Saturday, July 29, 2006

CHICAGO (AP) — If you're a cell phone using, goose liver eating, cigarette smoking, fast food loving person, Chicago might not be your kind of town.

In this city that once winked at Prohibition, members of the City Council are cracking down on behaviors they deem unhealthy, dangerous or just plain annoying. They've taken aim at everything from noisy street musicians to captive elephants to fatty foods like fried chicken and french fries.

A proposal that would restrict fast-food chains from cooking with artery-clogging trans fat oils got a public airing this week, and in the last year alone aldermen have banned smoking in nearly all public places and the use of cell phones while driving. In April, Chicago became the first U.S. city to outlaw the sale of foie gras, a goose liver delicacy.

Critics, including the mayor, wonder if the City Council has suddenly deemed itself the behavior police.

"We have children getting killed by gang leaders and dope dealers," an angry Mayor Richard M. Daley said when the foie gras ordinance passed. "We have real issues here in this city. And we're dealing with foie gras? Let's get some priorities."

Aldermen say they are addressing real problems and protecting their constituents. And they dispute that the proposals are diverting their attention from major issues like a city budget crunch.

"We vote on literally hundreds if not thousands of ordinances in the City Council," said Alderman Joe Moore, who led the effort to ban foie gras after learning about what animal rights activists say is inhumane way geese are treated for their livers. "The fact that there may be greater wrongs to address doesn't mean we cannot also address what we might also view as lesser wrongs."

But some people think the proposals have allowed aldermen to avoid coming up with solutions to the city's bigger problems.

"How about worrying about the price of gas, taxes, helping homeless people?" asked Wayne Johnson, an insurance analyst, who was eating his own fried chicken lunch at a downtown food court recently.

Some wonder if the proposals have more to do with a changing city, one that is no longer the home of blue collar industries like the steel mills and stockyards, but rather of upscale enclaves and trendy businesses.

Whatever it is, more than a few people around the city want it to stop.
"I'm a big boy," said Kerry Dunaway as he munched on fried chicken downtown recently. "I can take care of myself."

Utilities Give Warming Skeptic Big Bucks
By SETH BORENSTEIN, The Associated Press, Thursday, July 27, 2006
"Last I heard, anybody can ask a scientific question," said Patrick Michaels.

WASHINGTON -- Coal-burning utilities are passing the hat for one of the few remaining scientists skeptical of the global warming harm caused by industries that burn fossil fuels.

Pat Michaels _ Virginia's state climatologist, a University of Virginia professor and senior fellow at the libertarian Cato Institute _ told Western business leaders last year that he was running out of money for his analyses of other scientists' global warming research. So last week, a Colorado utility organized a collection campaign to help him out, raising at least $150,000 in donations and pledges.

The Intermountain Rural Electric Association of Sedalia, Colo., gave Michaels $100,000 and started the fund-raising drive, said Stanley Lewandowski, IREA's general manager. He said one company planned to give $50,000 and a third plans to give Michaels money next year.

"We cannot allow the discussion to be monopolized by the alarmists," Lewandowski wrote in a July 17 letter to 50 other utilities. He also called on other electric cooperatives to launch a counterattack on "alarmist" scientists and specifically Al Gore's movie "An Inconvenient Truth."

Michaels and Lewandowski are open about the money and see no problem with it. Some top scientists and environmental advocates call it a clear conflict of interest. Others view it as the type of lobbying that goes along with many divisive issues.

"These people are just spitting into the wind," said John Holdren, president of the American Association for the Advancement of Science. "The fact is that the drumbeat of science and people's perspectives are in line that the climate is changing."

Frank O'Donnell, president of Clean Air Watch, a Washington advocacy group, said: "This is a classic case of industry buying science to back up its anti-environmental agenda."

Donald Kennedy, an environmental scientist who is former president of Stanford University and current editor-in-chief of the peer-reviewed journal Science, said skeptics such as Michaels are lobbyists more than researchers.

"I don't think it's unethical any more than most lobbying is unethical," he said. He said donations to skeptics amounts to "trying to get a political message across."

Michaels is best known for his newspaper opinion columns and books, including "Meltdown: The Predictable Distortion of Global Warming by Scientists, Politicians and the Media." However, he also writes research articles published in scientific journals.

In 1998, Michaels blasted NASA scientist James Hansen, accusing the godfather of global warming science of being way off on his key 1988 prediction of warming over the next 10 years. But Hansen and other scientists said Michaels misrepresented the facts by cherry-picking the worst (and least likely) of three possible outcomes Hansen presented to Congress. The temperature rise that Hansen said was most likely to happen back then was actually slightly lower than what has occurred.

Michaels has been quoted by major newspapers more than 150 times in the past two years, according to a Lexis-Nexis database search. He and Lewandowski told The Associated Press that their side of global warming isn't getting out and that the donations resulted from a speech Michaels gave to the Western Business Roundtable last fall. Michaels said the money will help pay his staff.

Holdren, a Harvard environmental science and technology professor, said skeptics such as Michaels "have had attention all out of proportion to the merits of their arguments."

"Last I heard, anybody can ask a scientific question," said Michaels, who holds a Ph.D. in ecological climatology from the University of Wisconsin at Madison. "It is a very spirited discussion that requires technical response and expertise."

Other scientific fields, such as medicine, are more careful about potential conflicts of interests than the energy, environmental and chemical fields, where it doesn't raise much of an eyebrow, said Penn State University bioethicist Arthur Caplan.

Earlier this month, the Journal of the American Medical Association announced a crackdown on researchers who do not disclose drug company ties related to their research. Yet days later, the journal's editor said she had been misled because the authors of a new study had not revealed industry money they got that posed a conflict.

Three top climate scientists said they don't accept money from private groups. The same goes for the Web site, which has long criticized Michaels. "We don't get any money; we do this in our free time," said contributor Stefan Rahmstorf, an ocean physics scientist at Potsdam University in Germany.

Lewandowski, who said he believes global warming is real just not as big a problem as scientists claim, acknowledged this is a special interest issue. He said the bigger concern is his 130,000 customers, who want to keep rates low, so coal-dependent utilities need to prevent any taxes or programs that penalize fossil fuel use. He said his effort is more aimed at stopping carbon dioxide emission taxes and limits from Congress, something he believes won't happen during the Bush administration.

On the net:
Pat Michaels' Cato Institute Web site
Intermountain Rural Electric Association

The Echo Effect

What's the bias of the global warming story? The assumption that government scientists, who accept no private funding, somehow present no conflict of interest. The university scientists provide worst-case predictions to scare people so government can raise taxes and fees, require more private spending to comply with new regulation, and from the new taxes fund more research on global warming to scare some more and more funding to the research. If your income source is not a conflict of interest, what is?

And then the critcism that Michaels' coverage in the press is way out of proportion to his viewpoint. If a story has balance, the reporter seeks out views on both sides. If a hundred people are on one side and one person on the other, the one person gets excessive coverage. The government scientists ask us to ignore the scientific method and trust them, since more of them are in agreement. And they don't want opposing ideas to echo out into public discourse. But at least they don't accept any private money.

What's wrong with the voting rights act? My first reaction was that it's a bill of attainder because it selectively applies to some states and not others, a double standard and unequal application of the law. But after some research, a bill of attainder seems to be a law that applies to everyone but the punishment is different for different groups. Bill of attainder is Unconstitutional. But unequal laws seem to be perfectly legal.

But now I see the act more like a probation order. Some states must get approval from the Justice Department before changing any voting rules. These states and jurisdictions have been on probation since 1965. It seems Congress has assumed the role of the courts. But the courts require due process and a guilty finding before imposing restrictions. Not only has Congress been able to impose laws selectively, but they also require the select goup to get for approval from an agency, arbitrary in its decisons and outside the court process. So the targeted states are discouraged from making positive changes because of an approval process that presumes guilt.

One last comment on the echo effect in the blogosphere. Isn't this the purpose of communication? Someone speaks to you and their words echo in your mind. Sometimes the words resonate or even reverberate. On the internet much duplication results when links are changed, so a click from your page no longer goes to the page that you're currently echoing. News from the Associated Press echoes in hundreds of newspapers and radios. That's a good thing.

The trick is how to get new original ideas to echo throughout the world. But criticizing the echo effect is like saying, this chair would be much nicer if it weren't designed for a person to sit comfortably.


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