Tuesday, December 15, 2009

Happy holidays, Phoenix-style

Presumptuous busybodiness knows no particular season. The arrogant assumption of the right to boss people around is a year-'round affair that has bureaucrats patrolling for bacon-wrapped hot dogs in the heat of summer and chasing down joyful sledders in the cold months so they can jam helmets on their heads and force them to sit upright. But every now and then you get a perfect storm: nannystaters who meet the demands of the holidays with an uber-authoritarian frenzy wrapped in a bow. Then, public officials issue just-in-time-for-Thanksgiving orders to churches and synagogues in Phoenix, Arizona, to stop feeding the homeless on their own property because ... well ... slapping down a few warming trays to serve free food in a church utility room counts as operating a business in a residential neighborhood. And rules are rules, you know.

For now, the CrossRoads United Methodist Church -- the House o' God at the center of the decision, though it applies everywhere in Phoenix  -- is continuing its Saturday morning breakfasts, pending the hearing of its appeal in January by the Board of Adjustment. That means Christmas meals will be served, perhaps sparing the meddlers the worst possible press over their intrusive -- not to mention Grinch-ish -- ruling.

But  come January, doers of good deeds in Arizona will have to go hat in hand to a bunch of government seat warmers to find out if they'll be allowed to continue feeding hungry, poor people at their own cost, and under their own roofs.

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Monday, October 26, 2009

Arizona hits the asset forfeiture lottery

The Arizona Department of Public Safety, which includes the Highway Patrol, is making much fuss about two roadside stops last week that resulted in the seizure of over $150,000 in cash that was being transported in the vehicles. The money was taken on suspicion that it was the proceeds of criminal activity, and the two drivers have been booked on money laundering charges related to the as yet unidentified crimes.

That's right: unidentified crimes. Oh yes, it's a fair bet that the money -- $49,000 in a hidden compartment and $104,000 in a shoe box -- came from some underground trade, with drugs as the safest guess. But there was no way for police to know that for sure when they pulled the vehicles over for "speeding and a lane change violation" in one case and for "a following distance traffic violation." The police claim vague "indicators of criminal activity" as excuses for the subsequent searches of the vehicles that revealed the money, but the charges on money laundering alone suggest that the indicators didn't actually constitute evidence.

So the drivers are being charged with laundering money gained from criminal activities to be named at a later date, and their cash was taken on suspicion of being connected to those same mysterious activities.

Again, it will be no surprise to anybody if the cash does turn out to be drug money, but it should also be no surprise if it turns out to be perfectly legitimate cash. Police claim that their spidey senses are nearly infallible in such matters, but more than a few people over the years have had their money stolen by law-enforcement authorities who just wouldn't or couldn't believe that anybody would want to possess large sums of cash.
As long ago as 1995, then-Rep. Henry Hyde made a personal cause of exposing the confiscation of cash by police from innocent people. He emphasized the case of Willie Jones, a Nashville landscaper, who found it easier to do business in cash when purchasing supplies for his business -- and lost nearly $10,000 for his troubles. Unfortunately, Jones was only one victim among many of asset forfeiture laws -- weird vestiges of medieval legal theory that allow the authorities to seize and prosecute things under legal standards much less stringent than those required to prove cases against people.

Despite the attention of Hyde, the Cato Institute and the ACLU, and subsequent congressional hearings into asset forfeiture abuses, the situation hasn't really improved. Some communities -- such as Tehana and Jim Wells County, both of Texas, and Lamar County, Georgia, have become notorious for stopping passers-through and grabbing anything of value. Those who object are threatened with -- you guessed it -- money laundering charges. As of last year, The Jim Wells County Sheriffs's Department was generating one-third of its budget from roadside muggings.

Often, police will point to positive results from drug-sniffing dogs as indicators that seized cash is the proceeds of illegal activity (canine hits could well be the "indicators of criminal activity" cited by the DPS, since the arrests were made by a canine officer), but that's like tossing darts at an elephant considering that a whopping 90% of all U.S. cash has cocaine traces. One forensic scientist who has commented on the matter warns that the traces are high enough to cause false drug test results on people who handle large amounts of cash.
Asking dogs to sniff a bundle of the green stuff itself is like shooting fish in a barrel.

Odds are that the Arizona Department of Public Safety is right and the cash officers seized last week comes from drug transactions (and leave aside, for the moment, my strong belief that the government has no business criminalizing voluntary transactions among adults of any sort). But the DPS doesn't actually know that, it's just guessing. If the Arizona Highway Patrol didn't actually rob innocent drivers last week, it, like so many other law enforcement agencies around the country, certainly has in the past -- and it will likely do so again in the future.

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Saturday, May 16, 2009

Hey, Tempe, tattoo you!

A real, if incomplete, victory for economic liberty has been won in Tempe, Arizona:
After nearly a two-year battle, a Maricopa County Superior Court judge ordered this week that a Gilbert couple's permit to operate a tattoo studio in north Tempe remain valid.

But the ruling also ordered the Tempe City Council to review its decision to revoke the permit and revote on the matter.

Although Tom and Elizabeth Preston consider the court's decision an "opening-round victory," their permit to operate the business near McKellips and Scottsdale roads is still in jeopardy.
This is what comes of requiring people to get permission from government to do business -- and makes that permission conditional on the consent of every half-wit, bigot and competitor with an axe to grind. A two-year battle to open a retail establishment? I'd think that damned few people have the reserves and patience to engage in that sort of warfare. Kudos to the Prestons -- and to Clint Bolick of the Goldwater Institute, who represents them.

Are tattoo parlors really undesirable businesses? More undesirable than what?

If I was a landlord, I'd much rather rent to a tattoo parlor than to a government agency, which might decide it likes the digs so much that it wants to steal them. Private businesses don't generally try to nab title to their leased premises.


Wednesday, December 17, 2008

Your house is still up for grabs

The use of eminent domain for "economic development" -- involving the seizure of homes and businesses by government, which then transfer the properties to private developers -- elicited a brief moment of outrage in 2005. That's when the U.S. Supreme Court decided, in Kelo v. New London, that such abuse-laden arrangements were a perfectly legitimate use of the government power to take private property for public use, so long as somebody cuts a check to the owners. Angered by the court's decision, people and legislators pushed for state and local limits on eminent domain power of varying degrees of efffectiveness. And then ... well ... then the matter died.

But the abuse of eminent domain didn't die. Some measures -- the one in Arizona, for instance -- imposed well-written strictures on government officials. Others, though, were either poorly crafted or else deliberately structured to defuse anger without restricting government officials. Californians, for example, passed over a good measure in favor of one that accomplished very little.

And some states never even pretended to impose limits on eminent domain. Those states included New Jersey.

In Long Branch, New Jersey, a battle over a particularly egregious "economic development" land-grab has waged for years. The city government there wants to boot middle-class families from their modest oceanfront homes because, wouldn't you know, connected developers want to construct condos for the well-heeled, which would generate a rich flow of cash for city coffers.

Normally, this would just end badly, and quietly, as most homeowners surrendered and accepted what government officials have to offer rather than wage an uphill fight. But property owners in the Marine Terrace, Ocean Terrace, Seaview Avenue (MTOTSA) area banded together to push back, and they brought in the Institute for Justice to take on their case.

The two sides are now in court-ordered mediation after an appellate-level finding that the land-grab is illegal, but that the matter should continue to be dickered over before a judge.

What appears to be developing now if a face-saving effort by Long Branch officials to back away from the use of eminent domain in this case, but to retain it as a weapon in the future when the public-interest law firms have gone home and the neighborhood activists have returned to their family concerns. According to the Asbury Park Press:

After a second session with MTOTSA members Thursday night, Mayor Adam Schneider said Friday he continues to believe the case can be settled in a way that does not use eminent domain.

However, what eminent domain opponents likely will not see is the adoption of what certain group members and Councilman Brian Unger have labeled "Protecting the American Dream Ordinance," which would require the City Council to agree not to use eminent domain to acquire private property that would be transferred to another private owner.

The proposal, championed earlier this year by Unger and his private attorney, Jeff Williams, stalled, but MTOTSA member Denise Hoagland said the council's adoption now would give the affected homeowners more than the word of officials that eminent domain won't be used in their community.

Council President Michael DeStefano said he cannot support the ordinance because it makes certain assumptions that redevelopment is not a proper reason for exercising eminent domain.

Well, yes. The homeowners do contend that "redevelopment is not a proper reason for exercising eminent domain." Accepting it as grounds for land-grabs opens the door for any home or business to be seized if somebody else proposes to replace it with a larger house or a more profitable venture. Everything is up for grabs.

Which is the option that politicians want to preserve for the future.

But Long Branch residents are rightfully concerned about their own homes and businesses first, and it looks like they're going to win that battle. The final defeat of eminent-domain abuse will have to be left to the future.

For them and for us.


Thursday, December 4, 2008

Different strokes for different folks (with lousy taste in architecture)

I don't know a lot about architecture, but I do know that I consider the work of the late Paul Rudolph, a modernist who died in 1997, to be a study in butt-ugly. You can see his Orange County, New York, Government Center below.

On second thought, I do see a certain powerful originality to-- Oh Hell. Who am I trying to kid? That's an eyesore.

But not everybody agrees with me. New York magazine reports that, while "his brutalist, sometimes off-putting buildings" were "once criticized as the worst of high modernism’s excesses," they "are now recognized as some of the most expressive American architecture of the twentieth century."

And therein lies the inspiration for the lesson for the day.

You see, in today's enlightened world of design review, where neighborhood committees and landmarks commissions have approval authority over developers' plans, a gathering of officials who share my architectural taste, but lack my live-and-let-live restraint, might easily deny the Paul Rudolph fans of the world the right to construct buildings they consider masterpieces. Or, conversely, Rudolph aficionados might force me to fashion my home along brutalist lines and then live in the godawful thing.

Taste really is a personal matter. All a government committee can do is enshrine one set of preferences at the expense of others held just as dearly by people who don't at the moment, hold coercive power.

So why not let us all build to our own fancy? I can live with Rudolph-inspired constructions so long as I'm equally free to satisfy my own preferences. Sure, we don't get to enjoy the pleasure of playing petty tyrant, but we may actually get some diversity of design, some creativity appreciated by some (if not others), something better than state-approved blandness. We all get a piece of what we want, instead of an endless battle to impose "the right way" on everybody else.

The price of seeing the occasional Paul Rudolph building is one I'm willing to pay.

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Monday, September 22, 2008

Hey officer, that dope is gonna cost you

Will police in Fort Collins, Colorado have to compensate a couple for a small crop of medical marijuana that was seized and left to rot in an evidence room? That seems like an unusual question to ask -- marijuana is illegal, right? -- but it's one that may well have to be answered in the positive according to legal provisions passed very deliberately by state voters.

Colorado has a fairly sensible system regarding the medical use of marijuana -- fairly sensible that is, short of simply recognizing people's right to grow, buy, sell and ingest whatever they please. But, given the limitations of the American legal environment, it's a decent law that allows the use of marijuana to alleviate a defined set of medical conditions, and even lets doctors and patients petition to add new conditions to the list.

In some states with medical marijuana laws, police have thumbed their noses at the public's laissez-faire sentiments and gone after people buying and using marijuana anyway. The assumption seems to be that a midnight raid and confiscation of plants and equipment are punishment enough in themselves, even if the courts dismiss all charges after the fact.

It's sort of do-it-yourself Prohibition.

The plight of James and Lisa Masters in Fort Collins isn't quite so clear-cut. They were clearly authorized to use and grow marijuana, but they hadn't made their status clear to the state for economic reasons.

In 2006, James Masters and his wife, Lisa, were arrested on suspicion of felony cultivation and intent to distribute. At the time, they were growing marijuana for themselves and for at least five other people with medical problems, their attorneys said. Lisa Masters, 33, has fibromyalgia and tendinitis; her husband, 31, suffers from chronic nausea and pain from knee and hip problems, Corry said.

Both had doctors' recommendations that they ingest marijuana for their medical issues, but they had not joined the state's registry, Vicente said, because they could not afford the $110 fee.

Without all the "i"s dotted and "t"s crossed, police felt justified in taking the Masters into custody and grabbing their 39 plants. Those plants then went into the evidence room, without air, light or water. That's not really a nurturing environment for a living crop -- a valuable living crop.

Fast forward in time after all charges have been dismissed and the charges ruled illegal. The Masters' property must now be returned to them. But ...

"All the plants were dead," said Brian Vicente, one of the attorneys for the couple. "Some had turned to liquid -- this black, moldy liquid. There was mold over everything."

This is a problem, because Colorado's Amendment 20, passed by the voters in 2000, specifically holds:

(e) Any property interest that is possessed, owned, or used in connection with the medical use of marijuana or acts incidental to such use, shall not be harmed, neglected, injured, or destroyed while in the possession of state or local law enforcement officials where such property has been seized in connection with the claimed medical use of marijuana. Any such property interest shall not be forfeited under any provision of state law providing for the forfeiture of property other than as a sentence imposed after conviction of a criminal offense or entry of a plea of guilty to such offense. Marijuana and paraphernalia seized by state or local law enforcement officials from a patient or primary care-giver in connection with the claimed medical use of marijuana shall be returned immediately upon the determination of the district attorney or his or her designee that the patient or primary care-giver is entitled to the protection contained in this section as may be evidenced, for example, by a decision not to prosecute, the dismissal of charges, or acquittal.
There's no penalty specified for police departments that don't follow the law, but that would seem to provide grounds for a lawsuit.
Such as the one the Masters have filed for $200,000 to cover the cost of their destroyed plants.
I'd say they have a good case.

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Friday, June 13, 2008

Eminent domain in the news

Delaware's legislature has passed a bill to reform the sort of abuses of the power of eminent that were specifically permiited by the U.S. Supreme Court's Kelo decision. The Institute for Justice's Castle Coalition calls SB 245 "a good eminent domain reform bill" that "would prohibit cities from taking private property for economic development." The bill now goes to the desk of Gov. Ruth Ann Minner where its prospects are uncertain.

Meanwhile, in New Jersey, Sen. Ronald Rice accuses fellow Democrats of ducking committee meetings so they won't have to go on the record about proposals for eminent domain reform.

And a Missouri Supreme Court decision allows property owners to sue the government when officials name a parcel as a target for a taking effort -- and then drag the process out, lowering property values, driving away tenants and destroying businesses.

The Castle Coalition offers model state legislation for combating eminent domain abuses here. A report card on state-level reform efforts as of August 2007 is available here.


Wednesday, June 4, 2008

Confused Californians reject property protection

Yesterday, California voters gave a thumbs-up to Proposition 99, a measure that, according to George Mason University law Professor Ilya Somin, "purports to protect property rights against eminent domain, but it actually provides almost no protection."

Why is that?

Well, says Timothy Sandefur of the Pacific Legal Foundation:

The fact is that Prop. 99 would not protect anyone in California from eminent domain abuse. It would not apply at all to small businesses, which are the most common victims of eminent domain. It would not protect people living in apartments at all. It would not protect farms, or churches. It would only protect “owner occupied residences.” And in fact, it would not even protect them, because the small print in the initiative eliminates such protections in almost every case of eminent domain abuse.

At the same time, Californians rejected Proposition 98, a measure that, says Somin, "really would forbid 'economic development' condemnations and other abuses."

It's hard to know what California voters had in mind, however, since Prop. 99 was falsely sold as a pro-property-rights measure. Prop. 98 was slammed mostly over a provision that would have phased out popular but oppressive government control of rents charged for privately owned rental properties -- controls that are already illegal in much of the state and on the wane elsewhere.

California voters may actually have intended to support property rights, while undermining them with their votes.

Whatever their intentions, though, state officials are likely to treat the vote as carte blanche to seize private property. As Somin points out in a post-mortem on the vote, "In effect, Prop 99 incorporates into the California Constitution an extremely broad definition of 'public use' that allows state and local officials to condemn almost any property they want."

Since Prop. 99 is a constitutional amendment, it essentially closes off whatever relief the state's courts might have offered property owners, instead limiting protections for private property to the meager offerings in the ballot measure.


Wednesday, May 14, 2008

Boulder land grab upheld

Last week, in Boulder, Colorado, District Judge James Klein reaffirmed his earlier ruling handing former colleague, Richard McLean, one-third of a neighbor's parcel of land for free.

The case so outraged residents of Colorado that the law under which the land-grab took place has already been superseded by new legislation. A separate legal change would prevent judges like Klein from presiding in cases involving former colleagues.

But the Kirlins, whose land was stolen by McLean and his wife Edith Stevens, have to pursue their rights under the old law. They vow to appeal.


Monday, April 14, 2008

Social engineering through the law

The little piece of Arizona in which my wife and I live has been something of a refuge from an increasingly regulated and bureaucratized modern world. Down our dead-end road and in the area around, people have lived pretty much as they pleased, working on their homes and even building additions without permits, running businesses from land technically zoned as residential, keeping animals in numbers beyond those formally permitted by the busybodies in the distant county seat, and otherwise living their lives as they wish without terribly inconveniencing their neighbors.

Until now.

Last year, new neighbors purchased six acres across the road and split the land into three parcels. On the middle parcel they built an attractive faux-adobe home -- what most people call "Santa Fe-style" but which is more commonly referred to around here as a "Sedona-type" house. It's by far the most up-scale dwelling in an area otherwise populated by manufactured homes and simple stick-built houses.

But architecture wasn't the only thing the new people brought in -- they also imported a new set of attitudes and expectations. Within months after the completion of their house, the new people began filing complaints with the county against the people already living here. So far, the complaints have consisted of charges that people are running businesses from residential land, harboring more animals than allowed and allowing people to illegally dwell in travel trailers on land zoned for single-family homes.

We're not supposed to know who filed the complaints, but it's not hard to guess -- especially when a woman on the receiving end of a complaint (a descendant of the family that homesteaded the area) calls an acquaintance at the county and gets a nudge-and-wink acknowledgment of what she already knows.

Of course, the charges are true. Many of the people who abide here chose the area precisely because it's been possible to live here and ignore the regulatory accretia of 21st Century America. That's a known quality of the area, and people come here or avoid the area because of that characteristic.

But there's nothing written in stone about the area's immunity to modern law. If somebody starts insisting that every regulation and code be enforced, the folks living in the shadows can quickly run out of options. They either start abiding by the laws they tried to escape, they continue to flout them and suffer the consequences, or they leave. At least one home is on the market as a direct result of the new crackdown.

Which is probably what the new folks across the road have intended from day one. You see, this is an odd place to build a Sedona-type house -- unless you're looking to buy land at a discount in anticipation that the area will gentrify. And there's no better way to hurry along the process of gentrification than to insist on the enforcement of every rule that makes the local way of life impossible. When county officials start snooping in places they've never before been welcome, the local scrap-metal dealers, unlicensed horse boarders and eccentric bird collectors by necessity head for the exits -- and make way for blander folks more amenable to rule-bound life.

Then the value of the Sedona-type house will rise, as will that of the two adjoining parcels that the new people plan to develop with similarly up-scale homes and sell to buyers willing to pay a premium for a newly gentrified piece of Arizona that's been cleansed of the hoi polloi.

It turns out that the new people are building contractors and that they know the laws and the inspectors who enforce those laws very well. They're in an extremely good position to use their knowledge of the county's regulatory apparatus as a whip with which to drive "undesirables" out of the area. It's all about using government as a tool for social engineering.

Hmmm. Laws as weapons to be wielded by well-connected individuals against people less informed and less powerful. Whoever would have guessed?

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Tuesday, April 8, 2008

Adverse possession case heads back to court

Boulder, Colorado's own land-grabbing lawyers, Richard McLean and Edith Stevens, will have to make their case again in front of the same judge who originally awarded them a free share of their neighbors' land. The Colorado Court of Appeals granted a request by Don and Susie Kirlin to send the case that has divided the town back to Judge James C. Klein.

The Kirlins argue in the filing that newly available eyewitness testimony and a series of aerial photos prove McLean and Stevens conspired to "willfully fabricate" a path on the Kirlins' south Boulder land -- a key piece of evidence in the original lawsuit.

The path was used in the trial last year to help convince Klein that McLean and Stevens openly used the Kirlins' property for more than 18 years, which is one of the requirements to win land in an "adverse-possession" lawsuit in Colorado.

Meanwhile, legislation inspired by the case, to completely rewrite adverse possession law in Colorado, has gone to the governor's desk for his signature.

Whether or not McLean and Stevens get away with their legalized land theft, their action will make similar grabs much more difficult in the future.


Thursday, February 21, 2008

Starving the beast: A case history

I'm not a fan of homeowners' associations. To my eyes, they seem to include all of the bad aspects of government -- nosiness, intrusiveness, arbitrary rules, authoritarian leadership -- with even less of the already slight accountability and restraints on power that apply to formal government bodies. The last time we went house-hunting, my wife and I specified that we would not consider any property encumbered by an HOA, and we've set the same condition for our current house search.

But nobody makes you buy into an HOA. And, unlike governments, HOAs can't annex land and acquire unwilling new subjects the way governments can.

But that still leaves many people unhappy with the HOAs under which they live, just as many people are unhappy with local governments (which are much more difficult to escape). The Verde Village Property Owners Association, in Yavapai County, just outside Cottonwood, Arizona, is one somewhat typical HOA, in that many of its residents are unhappy with the rules it imposes on homeowners' enjoyment of their own property.

Unlike many HOAs, though, and completely unlike formal governments, the Verde Village Property Owners Association is an organization in which participation is voluntary. That doesn't mean mean obedience to the rules is voluntary; but payment of the annual dues that go to sustain the HOA, pay for the upkeep of common property and enable the organization to enforce rules is purely a matter of personal choice. And most people are opting out. Says the Verde Independent:

Only 200 families of the 3,800 property owners pay the meager $25 annual dues. That is not enough revenue to allow a large association to operate. ...

The organization also enforces the codes, covenants and restrictions. "The county doesn't have the time or money to do that. It is frustrating because people don't seem to want to be part of a community any more. More people are interested in avoiding their obligations than participating in the community," said Otterson. ...

But, as the regular income to the association dries up, so does the enforcement. The covenants will also expire in 2018.

Interesting ... So, when given the opportunity to choose whether to support their closest government body, the vast majority of people subject to its rule opt to starve it to death. That would be my choice, too, but I've never thought my views were representative of majority sentiment. On this one issue, anyway, apparently I'm more typical than I thought in my desire to put government out of my misery.

Wouldn't it be nice if the choice being exercised by most Verde Village Property Owners Association members was available to subjects of HOAs and formal governments everywhere?

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Monday, February 4, 2008

Kafka meets local government

The federal government is too distant, right? It's too far removed from the concerns of real people to be responsive to anybody but those with high-level political connections. State government is hardly any better; you're still talking about a distant capital and professional politicians with a taste for boundless power and little concern for the consequences of their actions. But local government -- that's better. You see the city council members at the market, you share a beer with them at the bar -- there's a human connection that makes all the difference, right?

Maybe not. Read on.

The Haunted Hamburger is a destination restaurant in the old mining town of Jerome, Arizona. With stunning views out over the Verde Valley, good burgers and beer, and a location in a borderline ghost town (population in the 1920s: 15,000; population now: less than 500) it's a common place for tourists and locals to end up after strolling through town to gape at abandoned buildings and hit the shops and galleries. Recently, though, the Haunted Hamburger seemed destined to join Jerome's status as the fourth-largest city in the state on the list of do-ya-remember conversation topics.

In an op-ed for the Verde Independent, Haunted Hamburger owner Eric Jurisin details his run-ins with a bureaucracy that's definitely punching above its weight in red tape.

In March 2007 I heard through the "grapevine" that the use of the upstairs of our restaurant had changed, was unsafe, and we were going to be shut down. We thought surely there must be a mistake because diners have been seated in the upstairs of the restaurant for the last 30-some years without incident and with town approval. ...

Finally, in response to our numerous requests, a meeting was held in June at the Haunted Hamburger. We were given a list of four minor corrections to make. We said we would comply to avoid any issues with the town and be certain that our restaurant was safe and open for business. We got a building permit as directed, and completed the work in less than nine days and happily went back to Town Hall thinking this matter was being resolved. We told Jeanne Trupiano, Planning and Zoning director, that all of the work was finished and ready for inspection.

Imagine our surprise when she informed us that although we completed all of the requested work, and the town thanked us for our cooperation, the town decided that the upstairs portion of our restaurant would be closed anyway and we should talk to Fire Chief Molloy.

Thoroughly frustrated, we wrote to the town's attorney, Phyllis Smiley, again asking why the Haunted Hamburger was targeted for closure and what else needed to be fixed. Initially, she was as flabbergasted as we were. She said she would investigate and get back to us. The attorney told us that the fire chief still thought there were building code violations at the restaurant. We asked again what they were. She would not tell us. At this point we had written no less than six letters to the Town asking them to specify their concerns so we could address them. As a last-ditch effort, we went to Chief Molloy offering to sprinkler the building and we were told that was not an acceptable solution.

Did we get a list of what was an acceptable solution? No, instead Chief Muma served me with a criminal citation vaguely alleging our building was unsafe along with an order from the town closing the entire restaurant. The town said the upstairs was unsafe. We were stunned at this turn of events. When we questioned why the entire building was being closed, he replied ... "just the upstairs, for now." ...

Our building was the only one being cited for criminal violations. The town prosecutor, Kenton Jones, was surprised that a criminal citation had been issued by Chief Muma. In spite of Mr. Jones' initial reaction, he could give no specific explanations for charges and refused to dismiss the charges. Having had no success with the town officials or their attorneys, we made a written appeal to the Town Council. Surely, the chief of police and the fire chief could not close our restaurant without an appeal process. The town's attorney rejected the appeal in a one-paragraph letter, saying we needed to appeal to the Appeal Board. The Appeal Board does not exist.

The issue has now been settled for about $50 in repairs to a fire escape and promises of future alterations. In a news account of the settlement hearing, we get a timeline of the dealings between the restaurant and the town leading to the recent conflict:

[Attorney John] Phillips said Jurisin's reputation was tarnished by the town as a "do-nothing merchant" in terms of fire safety, and recited the history of the Haunted Hamburger second floor.

In 1993, the restaurant operator was told that he would need to make a couple of changes in order to seat more than nine customers upstairs. Those changes included roof repairs and the creation of a second fire escape. The town building inspector at the time, Michael Kamrar, also a carpenter, offered to design and build the second fire escape. And in 1994, the emergency exit was "designed, built and approved," he said.

In 2002, the town complained because the fire escape had been built through a bathroom that locked on the inside. Jurisin agreed to take out the bathroom.

Then in 2007, the restaurant started to hear that the town wanted changes again, this time "a four-story fire escape."

Phillips said that there was no notice, no chance for appeal, and no opportunity to talk with town officials when the police chief posted a closure notice. The attorney noted that even though the building code calls for a board of appeal on such town actions, the town has no such board to appeal to.

At that hearing, witnesses for the restaurant include former Town Clerk Al Palmieri and former Fire Chief Dave Hall. Hall's testimony is particularly revealing, since he's the official who signed off on the fire escape that current Jerome officials now find inadequate.

By Hall's own admission, the fire escape he signed off on -- which was designed and constructed by the town building inspector -- doesn't meet code. That means the Haunted Hamburger faced potential closure of the business and repair costs imposed by town officials for code violations that were approved by town officials. Following procedures and getting the proper permissions isn't enough; now town residents are expected to shoulder the burden if the government officials administering those procedures and issuing those permissions violate their own rules along the way.

Damned if you do and damned if you don't.

As for that appeals board that's supposed to handle conflicts between locals and officials but which just doesn't exist? The local paper has editorialized that Jerome just might want to consider giving the thing some life.

There's a lot of romantic talk in American political life about local government being the most responsive and representative level of government -- the one at which most matters should be handled. I think that's probably true -- for what little it's worth. In reality, Eric Jurisin's experience demonstrates that proximity to the people doesn't mean that much. In a town of 500 residents, a savvy and well-established local business owner was still taken on a tour of a bureaucratic maze that could have destroyed him. The sole value of local government in this case was that Jurisin was able to put his reputation to work to drum up public support, and the town of Jerome didn't have the near-endless resources of a state or federal agency to draw on when a legal battle became inevitable.

State, federal, local -- it doesn't matter. When you hand coercive power to government officials, people suffer.

Update: Eric Jurisin, the owner of the Haunted Hamburger, agreed to drop his lawsuit against Jerome and its officials in return for the dismissal of a criminal citation against Jurisin. Legally, the matter has been settled, though it has left bad feelings in its wake. It has also left Jerome saddled with hefty legal fees.

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Save Fidler's castle

Via Hit & Run comes word of British farmer Robert Fidler, who, rather than try to wade his way through planning laws and bureaucrats who are no more tolerable in the U.K. than in the U.S., built himself a castle on the sly.

Over the course of two years, he managed to secretly – and unlawfully – build the imposing mock Tudor structure in one of his fields, shielded behind a 40ft stack of hay bales covered by a huge tarpaulins.

Once it was finished, he and his family moved in and lived there for four years before finally revealing the development – complete with battlements and cannons – in August 2006.

Mr Fidler claims that because the building has been there for four years with no objections, it is no longer illegal.

But he is under siege from council planners, who say the castle at Honeycrock Farm, Salfords, Redhill, Surrey, will have to be knocked down.

Taste is subjective, of course, but it appears to my eye that Fidler constructed a quite beautiful home without benefit of bureaucratic input. More important, he and his family really like their Tudor-style dwelling.

Perhaps that's the problem that many people have with what the Fidlers have done; they built what they like, without the hassle and expense of asking the government's permission. If you check the comments on the Daily Mail's Website, those opposed to Fidler and his family argue, over and over again, variations on: "If we're stuck with the rules, he should be too."

That seems to be the way authoritarian states are constructed. Meek people who are too timid to tell the government to go to Hell resent their more daring neighbors. Rather than admire and support initiative, they become allies of the people standing on their necks.

You can contact the Reigate and Banstead Borough Council -- the government entity that's tormenting Fidler -- here: customer.services@reigate-banstead.gov.uk

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Friday, January 25, 2008

The power of embarrassment

The case of a shameless land-grab by prominent retired judge and former mayor of Boulder, Colorado, Richard McLean, and his politically connected wife, Edith Stevens, has taken an interesting turn. Colorado State Rep. Claire Levy, whom Stevens served as campaign treasurer at the time she and McLean took advantage of the relatively unknown legal doctrine of adverse possession to steal one-third of a parcel of land from the neighboring Kirlin family, has proposed legislation to make such unsavory scenarios somewhat more difficult in the future. The legislative move would also help to distance her from her one-time allies, since the relationship has become something of an albatross around her neck.

One bill would address the unseemly and much-commented-upon situation which had current Boulder District Judge James C. Klein awarding former Boulder District Judge Richard McLean a profitable real estate windfall. The other bill, which she didn't originate, but which she is co-sponsoring, would somewhat reform the use of adverse possession so that it less thoroughly resembles highway robbery.

Levy -- who is friends with McLean and Stevens, and who has faced public calls to "disassociate" herself from the couple -- said her straightforward, four-sentence-long amendment would fix that issue. It requires the chief justice of the Colorado Supreme Court to appoint a presiding judge from another jurisdiction in county and district court cases where one of the parties is a current or former judge from within the same district in which the case is filed...

Levy also is co-sponsoring legislation that would change the requirements to win an adverse-possession claim, and would give judges in those types of cases the power to charge fair-market value for any land won through adverse possession. That bill is scheduled to be heard by the judiciary committee Feb. 6.
The reform bill, in particular, seems to be on the fast track to passage by state legislators caught unprepared by the level of public outrage over the legalized theft of a parcel of land by the savvy and well-connected Boulder couple. According to the Boulder Daily Camera, "[a]t least 31 state representatives and 17 state senators have co-sponsored" the measure.

Unfortunately, none of this means that the Kirlins get their stolen land back; it just makes similar robberies more difficult in the future. The family has appealed Judge Klein's initial ruling, but the Kirlins are given little chance of success. "Legalized theft" may be wrong, but it is, after all, legal.

All of this injustice comes at a significant price. The Kirlins estimate their legal bills at $200,000. They're pretty well-heeled, so they're not headed for the poor-house. But just imagine how little fight most families on a tight budget could put up under similar circumstances -- especially with disappointment the likely ultimate outcome.

Whatever reform measures do pass -- and it looks like something certainly will make it into the law books -- we can certainly thank the desperate efforts of Claire Levy and her colleagues in the Colorado legislature to put as much space as possible between themselves and the likes of Richard McLean and Edith Stevens.


Wednesday, January 9, 2008

Cry me a river

Do you remember Richard McLean, the retired judge and former Boulder, Colorado mayor, and his wife Edith Stevens, an attorney and political operative, who used their knowledge of the obscure (to anybody who isn't an attorney) doctrine of "adverse possession" to legally steal one-third of their neighbors' parcel of land? They've been ostracized and vilified in their town for their actions, as has Judge James C. Klein, who issued the ruling in the case.

But they still have supporters.

Boulder County Bar Association president Sonny Flowers wrote a column for the Boulder County Bar Newsletter in which he described opponents of the land-grab as "dumb, short-sighted, lacking in perspective or just plain wrong." Having issued his critique of the vast number of people outraged by an incident of a well-connected couple helping themselves to somebody else's property simply by trespassing on it and then filing a claim, Flowers concedes:

I can't cause anyone to change his or her mind. Not about this. Too many minds are made up. Perhaps they are made up because they are afraid personally for their property rights. Maybe those minds are made up because the first time they heard about the case, viscerally, they reacted by thinking, "That shouldn't happen!"

Count me among the people who are outraged and unlikely to change their minds.

Flowers is upset that people unfamiliar with the details of the law "would hide behind their alleged ignorance of a law that goes back more than 600 years." The outcome was by the book, he says, so people should accept it and be grateful "that our judges are excellent and our judicial system is the best."

The Boulder Daily Camera has the full story here with a link to the full column in PDF format.

I've written about this sort of reaction before -- about the (inevitably) legal professionals who are so enamored of the system within which they work that they think any outcome reached through legal formalities is acceptable, no matter how thoroughly it shocks the consciences of the people the law is supposed to serve. As I said then:

A legal system can not be constituted as an eternal game of "gotcha" played by those with mastery of the law upon those lacking such knowledge. No matter how comfortable lawyers, judges and their friends are with the existing state of affairs, there's nothing inevitable about the survival of the current legal system if it comes to be seen as producing outcomes that offend the consciences of most people, and if the law is perceived as a weapon with which the well-connected can prey upon the unprepared.

Like too many lawyers, Flowers is overly impressed by the mechanism of the law, forgetting that the law is a tool that is useful only so long as it reaches outcomes that are widely acceptable.

The people up in arms over the seizure of the Kirlin family's land aren't "dumb, short-sighted, lacking in perspective or just plain wrong." They're pissed off that the law could reach an outcome that they find profoundly unjust. Castigating the public for failing to appreciate the beauty of his pet legal system shows that Flowers really doesn't understand that there's nothing sacred about that system; it can be swept aside if it consistently produces results that people find unjust and unacceptable.


Thursday, December 13, 2007

The law isn't the last word

Those of us unlucky enough to have attended law school inevitably had a classmate or two who browsed through casebooks and came across legal tricks that allowed them to wreak undreamed-of havoc on unsuspecting merchants, neighbors and the world at large. For those wayward classmates, the law was a new and dangerous toy they could use to call the tunes to which other folks dance. It was as if they'd woken up Christmas morning, unwrapped their presents, and discovered a lockpick set and wiretapping gear -- and carte blanche to put the stuff to use. Whether or not those legal tricks ought to be used was somehow beside the point.

It seems that many lawyers never get over the ain't-that-cool revelation about the power of their field of knowledge. Think, for example, of Richard McLean and Edith Stevens, a retired judge and attorney in Boulder, Colorado, who used the relatively obscure legal doctrine of "adverse possession" to go to court and swipe a third of Susie and Don Kirlin's neighboring parcel.

Unsurprisingly, the land-grab triggered a groundswell of support for the Kirlins and outrage toward the well-connected couple who manipulated the law to their advantage.

In one of the offending couple's few statements on the case, Edith Stevens responded to the Kirlins' loud complaints about the outcome of the case by saying, "They lost the case, and they are disgruntled litigants."

Supporters of McLean and Stevens are few and far between, but they seem invariably to be drawn from the legal profession. In a letter to the Boulder Daily Camera, Conrad Lattes, who clerked for McLean, wrote:

All that I know about the merits of the adverse possession claim filed against the Kirlins is that McLean and Stevens successfully proved the elements of their claim. Unless you were present for the trial and heard all of the evidence, you cannot know any more. If you don't like the adverse possession law, which is the law in all 50 states and is derived from English common law, seek a legislative change, but don't make personal attacks upon people who assert their legal rights, especially when you only know a portion of the facts.

Like those law-school students with their exciting, new legal knowledge, Stevens and Lattes are missing an important point about the role that law plays in any properly functioning society.

A legal system can not be constituted as an eternal game of "gotcha" played by those with mastery of the law upon those lacking such knowledge. No matter how comfortable lawyers, judges and their friends are with the existing state of affairs, there's nothing inevitable about the survival of the current legal system if it comes to be seen as producing outcomes that offend the consciences of most people, and if the law is perceived as a weapon with which the well-connected can prey upon the unprepared.

Fundamentally, legal systems are a matter of compromise. At the heart of the birth of every legal system is a situation like, oh, this one:

Mr. Thomas: Hey, Mr. Smith! Where are you going with that baseball bat?

Mr. Smith: Didn't you hear? Mr. Jones ripped me off in a business deal. I'm going to break his legs and sell his stuff to get my money back.

Mr. Thomas: Hmmm. That seems like a clumsy way to resolve a dispute -- and one fraught with potential for future conflict. How about I get together with Ms. Brown and Ms. Walker and we hear you both give your sides of the story. If you convince us that Jones owes you money, we'll make sure he pays you.

Mr. Smith: Well ... I guess that does sound better than looking over my shoulder for Jones's sons to come after me. If you can make that work, I'll go along with it.

Oh, all right. Maybe that does conflate several centuries of gradual evolution into a neat package. But you get the picture. To hold people's respect, the legal system has to maintain a reputation for producing results better, on average, than people can get through their own resources. It has to resolve disputes equitably, preserve property, protect rights and do it all without enraging the people it supposedly serves. If the system loses public respect, the baseball bats come out.

Or, maybe, something evolves to take it's place. It's happened before.

In the Middle Ages, when the legal systems maintained by various local warlords consisted largely of dunking suspected witches and poking accused tax cheats with red-hot irons, Europe's growing ranks of merchants decided that the tools at hand were inadequate for resolving commercial disputes. So they ignored the official courts and created their own.

The resulting Lex Mercatoria evolved from the ground up, extended beyond national borders and derived its authority from wide, popular support. It was successful enough that fragments still exist today.

Of course, that doesn't mean that McLean, Stevens and company are likely to trigger the creation of an alternative legal system. Not yet, anyway. But it does mean that, when their use of the law outrages public opinion, the problem lies not in popular understanding of the law, but in the law itself. If the law seems unjust to the public, it fails in its primary mission.

McLean and Stevens complain of the vitriol heaped on them, and that they've received threats in the mail. If nothing can convince them that they've done wrong, no matter how legal their actions, then perhaps the evidence that people are turning to extra-legal means of retribution against the couple will convince them that, perhaps, their actions are undermining the legal system they so gleefully exploit.

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Wednesday, December 5, 2007

Gone to pot

Hmmm ... Interesting ...

Here's the scenario: Cops seize 39 live marijuana plants from a Fort Collins, Colorado, couple who grew the pot for medical marijuana users. Cops apparently stash the plants as evidence, but don't do anything to care for them. Cops get a shock when charges are dropped against the couple because (Surprise!) medical marijuana is legal in Colorado and the couple had crossed its legal "T"s and dotted its "I"s. Now the cops have to return the seized property -- the plants.

But they're dead.

Now, the couple is suing the police for the value of the lost crop, estimated at more than $100,000.

If I had to guess, I'd say it never crossed the cops' minds that this case could go against them, and that they might eventually have to return the seized plants in anything resembling their original condition. It seems to me that "you break it, you bought it" is the operative concept here. Smugly assuming that you have an open-and-shut case shouldn't be a shield against the obligation to care for private property of which you've conditionally taken possession.

Of course, this is America -- the land of prohibition, where drugs are bad, mm'kay. Under the circumstances, I'm very curious to see how the case plays out.

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Monday, November 26, 2007

Judges covet your property

The Denver Post has a piece on the use of adverse possession -- the legal doctrine that allows people to seize neighbors' property through prolonged, unchallenged trespassing -- that casts a little light on the controversy simmering in Boulder. It seems that retired Judge Richard McLean isn't the only legal eagle in a black dress to use special knowledge of the law to make a killing in real estate.

At the time of the case in 1989, Donald P. Smith was a state appeals-court judge. He acquired a 20-foot swath the length of a neighbor's half-acre lot that he had used as a driveway to his weekend home in Buffalo Creek.

In another case, former Boulder County Judge Marsha Yeager used the law to seize a 100-foot-long stone fence that was built as an architectural component of a neighbor's stone home on Seventh Street.

Adverse possession may make sense when it comes to settling good-faith boundary disputes between large land owners in remote areas, but the doctrine is clearly being abused by savvy public officials who just want to widen a driveway or prevent a neighbor from constructing a home -- without incurring the cost of paying for the privilege.

Richard McLean and his wife, lawyer Edith Stevens, need to be put through the wringer until they return the property they stole from the Kirlin family. That's a matter of justice in this specific case, and a deterrent to others who might try to engage in a little legalized theft.

Contact McLean and Stevens here:

2059 Hardscrabble Dr.
Boulder, CO 80303
Home Phone: 303.494.3324
Fax: 303.494.6973


Tuesday, November 20, 2007

Crime pays -- if you're well-connected

In Boulder, Colorado, retired judge, former mayor and all-around well-connected politico Richard McLean and his wife, attorney Edith Stevens took a shine to property adjacent to their own, so they had one of McLean's former colleagues on the bench steal the parcel from its rightful owners and give it to them.

No, I'm not kidding.

Don and Susie Kirlin had purchased the land in the early 1980s, planning to build their dream home on the site. But McLean and Stevens claimed that since they'd trespassed on the land continuously for many of those years, they'd gained the right of "adverse possession" over the property -- an obscure and dubious legal doctrine originally intended to encourage development in sparsely settled areas. It's apparently also a handy tool for clever legal-eagles looking for borderline legal scams to run on their neighbors. District Judge James Klein bought their argument and ordered the Kirlins to hand over one-third of the parcel.

In what may be a surprise only to McLean and Stevens, the move has proven controversial. The controversy has spawned protests and an effort to have the duo investigated for legal-ethics violations.

You can find full coverage of the case here in the Boulder Daily Camera.

McLean and Stevens have reputations as Boulder-style advocates for community-controlled open space in preference to private property rights. They're also extremely plugged-in politicos with power and influence among the Boulder elite. It shouldn't be any shocker, then, to discover that, when they talk about community control, they mean themselves and their friends.

Unfortunately, this is invariably the case whenever somebody advocates that, for the "good of the community," protections for individual rights should be curtailed. Well-intentioned people are won over by the soft-and-fuzzy argument that the interests of the majority should prevail over the "selfish" freedom of the individual. But it's not some ethereal concept of common good that benefits from these incursions -- it's the politically powerful who always come out on top.

Protections for individual rights -- like that of private property -- are hard-nosed, realistic shields against creatures like Richard McLean and Edith Stevens.

Here's an appropriate quote from Frederic Bastiat:

Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve. Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim -- when he defends himself -- as a criminal. In short, there is a legal plunder ...

Update: Courtesy of the Wayback Machine, here's Richard McLean's contact info:

2059 Hardscrabble Dr.
Boulder, CO 80303
Home Phone: 303.494.3324
Fax: 303.494.6973


Tuesday, October 30, 2007

Pigs in blankets of red tape

People have been raising livestock in my neck of the woods for as long as there's been settlement here. This is the kind of place where you can drive down the road and see goats munching on weeds in yards, cattle grazing in fields, pigs wallowing in pens, chickens in coops ...

You get the idea.

There's exotic stuff too. Some people around here raise such animals as llamas. I'll be damned if I know what they're doing with llamas, but to each his own.

But we're getting an influx of new people, some of whom want the rural way of life without, you know, those icky rural parts. They don't like to see trucks parked in yards or to hear chainsaws tearing into firewood or to see people loading up guns for hunting season. Basically, they just want the view, and they want to move out the folks already here and share the setting with people like themselves.

And they really don't like to smell animals.

Somehow, enough of them have apparently congregated down the road in Camp Verde to force through an ordinance that requires people to seek special use permits if they raise more than a few animals a year. The law was originally targeted at one guy who raises pigs for sale, but since the U.S. Constitution so rudely bans bills of attainder, the wording applies to anybody who raises livestock anywhere in town.

This raises special concerns since, among the most enthusiastic breeders of animals in Camp Verde, are kids raising pigs and other critters for 4H and Future Farmers of America. "The town is so adamant to stick it to us that they are willing to sacrifice what is going on with the 4-H program," the pig breeder targeted by the bill told the local paper.

The petty bureaucrat detailed to enforce the law begs to differ, of course.

[Community Development Director Nancy]Buckel said she has yet to set guidelines for the use permits, but has a basic idea of how that process will go.

"We will draw up a simple application form, where the 4-H member is going to have to do some work. They will have to outline their 4-H practices, how they are going to dispose of manure and draw up a map of how the housing will be laid out.

It's not going to be a free gratis thing. I think going through the application process will not cost them anything but will be a learning process," Buckel said.

Oh, what a valuable lesson. The virtue of begging a government official for permission to do on your family's own property what your parents and grandparents did on their own initiative. That's right; teach the kids to bow and scrape.

Inevitably, the paperwork burden will simply dissuade many children from raising animals, ending generations of tradition and what I consider an important measure of self-reliance. Of course, that may be the idea.

Nancy Buckel, nasty piece of work though she is, didn't pass the ordinance, but she's as good a place to start as any. She can be reached at: 928-567-8513 x118 or plnrnan@cvaz.org

The Camp Verde town council as a whole can be reached at: towncouncil@cvaz.org

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Sunday, October 14, 2007

Land grabbers tested at the polls

Americans are angry about eminent domain, but how angry? That's the question in Riverside, California, where a city council packed with enthusiastic fans of using the government's power to seize homes, businesses and land to benefit private developers faces an election on November 6.

Since 2004, when Dom Betro, Art Gage and Steve Adams took seats on the City Council, the Riverside Redevelopment Agency has filed 18 eminent domain lawsuits to help spark revitalization downtown and in other parts of the city.

The council acts as a board of directors for the agency, whose mission is to eliminate blight and boost the city's economy.

Betro, Gage and Adams are all seeking reelection Nov. 6. Their opponents and voters have raised eminent domain as an issue in the races.

From 1990 through 2003, Riverside city councils voted 12 times to authorize the Redevelopment Agency's use of eminent domain, though the city was unable to say how many lawsuits the agency filed as a result of these votes.

Since 2004, the council has voted 13 times to authorize the agency's use of eminent domain. Sometimes an authorization involved several parcels and multiple owners, and the agency filed more than one lawsuit as a result.

If anger over the U.S. Supreme Court's contemptible Kelo decision remains at a healthy simmer, the land-grabbers on the Riverside city council could face the necessity of searching for real jobs; if voters' memories are as short as politicians usually say, the election will likely doom Riverside to a continuing frenzy of assaults on property rights.

Meanwhile, in Kansas, politicians and their friends in the press are arguing that even the limited eminent domain reforms passed in that state went too far and are hobbling good works. Aww, shucks, we can trust 'em. Right?


Tuesday, September 25, 2007

The risks of propping up a corpse

Those of you who have--ahem--occasionally shared copyrighted content through peer-to-peer (P2P) networks know that the music and movie industries have their panties in a bunch over the free distribution of copyrighted material. In fact, these industries are so upset that they've sued uploaders and downloaders of copyrighted material (risking horrible PR among entertainment media end-users) and even hired private firms to sabotage networks like Gnutella and Bittorrent.

Prominent among the companies that hire out their services to track file sharers and monkeywrench P2P networks is Media Defender. This company has earned boos and hisses from around the world from folks who like their information to be free in the most literal sense possible for its efforts, including uploading worthless files to clog file-sharing networks and the establishment of bogus file-sharing sites to entrap would-be sharers.

But the copyright vigilantes have proven vulnerable to high-tech counter-vigilantism (is that even a word?) Media Defender has been targeted by a group of activists who style themselves as Media Defender-Defenders, and who've scored an impressive coup by nabbing vast quantities of internal company emails revealing the painful details of the the pro-copyright business as well as source code for the company's decoy files.

All of this is either good or bad depending on where you stand on the subject of intellectual property and on file-sharing. There's certainly an argument to be made in favor of protecting property rights and respecting the integrity of intellectual property--that argument defines file-sharers as, to one extent or another, thieves who can justly be thwarted. That makes the folks at Media Defender the good guys and Media Defender-Defenders a gang of bad actors who should be vilified for what it's done.

But intellectual property isn't quite like other types of property--it's much different, in fact. There's no inherently exclusive possession of words or images the way there is with land or things. Out of necessity, civilizations around the world have long seen the need to establish who has the proper claim to a field or a horse, but the practice of establishing some sort of claim to all copies of a book or a picture or an idea is a bit more esoteric--and much more recent. Protection of intellectual property is an artificial construct meant to encourage writers, artists and inventors to innovate, rather than a formalized system meant to preclude the need for Ogg to bash Bogg over the head for trying to steal his corn crop.

My own take is that protection of intellectual property is a good thing--but that it has to operate within the needs and limitations of the real world. Yes, writers (especially writers, damnit), artists and inventors should be encouraged to produce and enrich the world around them. But if you reach the point where products of the mind can be reproduced at a whim--or the click of a mouse button--so that intellectual property as we currently understand it can be protected only by prosecution of the public-at-large, sabotage and suppression of technology, then something has to give. And what has to give is the artificial model of intellectual property that has served us so far, but may no longer be relevant.

What should replace that model? I'm not sure--but I think that replacement shouldn't be dictated; it should evolve to meet new conditions.

That means that file sharing and the hacking of Media Defender aren't questions of good vs. evil, but rather fundamental changes in the world in which intellectual innovations are made. Technology has outstripped the old model; it's time for something new. And Media Defender got tripped up in the act of propping up a corpse.

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Wednesday, August 22, 2007

MP3s just want to be free

Cory Doctorow has an interesting piece in Australia's ITNews.com.au asking why the music and movie industries are so dead-set on cutting their own throats by attempting to suppress modern distribution systems that could, potentially, be very lucrative for everybody concerned.

Hollywood loves sequels -- they're a safe bet if the franchise is already successful. But you'd have to be nuts to shoot a sequel to a disastrous flop.

The Napster debacle was the entertainment industry's biggest-ever flop. That disaster took place six years ago, when the record industry succeeded in shutting down the pioneering file-sharing service. Record companies show no signs of recovery.

The disastrous thing about Napster wasn't that it it existed, but rather that the record industry managed to kill it.

Napster had an industry-friendly business-model: raise venture capital, start charging for access to the service, and then pay billions of dollars to the record companies in exchange for licenses to their works.

Yes, Napster kicked this plan off without getting permission from the record companies, but that's not so unusual.

The record companies followed the same business plan a hundred years ago, when they started recording sheet music without permission, raising capital and garnering profits, and then working out a deal to pay the composers for the works they'd built their fortunes on.

The point that Doctorow makes is that every time the recording industry "wins" a round against new technological distribution systems, it drives entertainment consumers to new alternatives that are harder to shut down and run by people increasingly less willing to discuss deal-making.

The public wasn't willing to wait for Sony and the rest to wake up and offer a service that was as compelling, exciting, and versatile as Napster.

Instead, they flocked to a new generation of services like Kazaa and the various Gnutella networks. Kazaa's business model was to set up offshore, on the tiny Polynesian island of Vanuatu. Kazaa bundled spyware with its software, making its profits off fees from spyware crooks.

Kazaa didn't want to pay billions for record industry licenses -- it used the international legal and finance system to hopelessly snarl the RIAA's members through half a decade of wild profitability. The company was eventually brought to ground, but the founders walked away and started Skype and then Joost.

Meantime, dozens of other services had sprung up to fill Kazaa's niche -- AllofMP3, the notorious Russian site, was eventually killed through intervention of the US Trade Representative and the WTO, and was reborn practically the next day under a new name.

Interestingly, Doctorow doesn't delve into arcane discussions about the rights and wrongs of intellectual property rights protections. He dwells, instead, on the practicality of denying people convenient access to material they want without offering a viable alternative. Inevitably, he says, convenient technological solutions will arise, no matter what legal regime is in place.

Plenty of entrepreneurs are looking at easing the pain and cost of setting up your own mythtv box. The only reason that the barriers to widespread adoption of BitTorrent and mythtv exist is that it hasn't been worth anyone's while to capitalise projects to bring those barriers down. But once the legit competitors of these services are killed, look out.

The thing is, the public doesn't want managed services with limited rights. We don't want to be stuck using approved devices in approved ways. We never have -- we are the spiritual descendants of the customers for "illegal" record albums and "illegal" cable TV. The demand signal won't go away.

This strikes me as the most compelling argument against attacks on peer-to-peer file sharing, YouTube and the like. Fundamentally, it's much easier to tailor legal arrangements to suit the societies they serve than it is to engineer societies to conform to preexisting business models and artificial (yes, artificial) though useful constructs like copyright. If people want electric light, it makes no sense to insist on selling them lamp oil, and if they want (and can create easy access to) shared music and video files, it's just smart business to find a way to make money off of that desire rather than wage a losing campaign to bludgeon consumers into purchasing CDs and DVDs.

I say this as a writer who, frankly, has benefited from traditional copyright protections. I very much like being paid for my work. Yet I was an early user of Napster despite my misgivings about the morality of the set-up. Sharing song files was just so easy compared to buying entire CDs for the one or two tracks I really wanted to hear, especially when there were always whispers of some new format lurking in the wings, ready to do to my CD collection what CDs had done to my LPs. It was impossible to resist the lure of getting what I wanted when I wanted it.

People's wants, needs, desires and abilities evolve; law and business have to change to keep up.

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Tuesday, August 14, 2007

Community values

The Arizona Daily Star is one of those newspapers that is, unfortunately, painfully predictable in its editorial line. Whatever the topic, the Daily Star's editorial board will take the position that maximizes government power, promotes the group over the individual and minimizes personal liberty.

In this recent editorial, the Daily Star applied its peculiar filter to the manufactured (by the political establishment and its friends) controversy over Prop. 207. The proposition, passed by Arizona voters by an almost 2-1 margin last November, strongly curtailed the power of government to seize private property for the benefit of private parties. It also required that landowners be compensated for the impact of regulatory takings--government actions that deprive property owners of some or all of the use of their property. Not surprisingly, politicians don't like the measure and have been trying to undermine its impact ever since--with the encouragement of certain editorial writers.

Before I get to the Daily Star editors' specific comments about Prop. 207, let me throw in a little philosophical musing they included that explains where they're coming from.

Private property rights are fundamental to our form of government, but Proposition 207 went too far. In effect, it sacrificed the will of the community on the altar of 19th-century libertarianism. The result is anti-social legislation.

The trajectory of civilization has been a movement from farm to village to town and city and nation — a movement away from isolation and toward community building. In the process, individual wishes — at least to some extent — become subordinate to the needs of the community. ...

So individualism is a sad relic of the past and the rights of the individual must be suborned to the demands of the group? Lovely. Mussolini--or Lenin--couldn't have put it better. Neither, for that matter, could some anonymous tribal chieftain from ten thousand years ago.

In fact, the long, dark history of the human race has largely consisted of individuals being squashed by the "needs of the community." From the slaves who built Egypt's pyramids through Roman gladiators and Aztec human sacrifices to the wary citizens of the 20th Century's people's republics, individualism has largely existed as an exception to the rule--a brief breath of fresh air eventually choked off by a slave master, prince or commissar. Even the democracies of the past largely functioned as majoritarian tyrannies, crushing personal freedom beneath the will of a larger group of thugs than the kings and oligarchs who lorded over most countries. Just ask Socrates how that worked--he drank poison to appease the prejudices of the mob.

In the United States, we've been lucky to have enjoyed a rare effort to deliberately establish a nation that--however imperfectly--valued the individual above the group. It was nice while it lasted. I don't expect the Daily Star to publish much of a eulogy.

So, given the Daily Star's explicit disdain for the lowly individual, is it any wonder that the newspaper has little love to spare for Prop. 207?

The trouble with Proposition 207, as recent cases in Flagstaff, Phoenix and Tempe have shown, is that it renders community values subordinate to the individual, and it has the potential to freeze well-intentioned community planning.

Grrr. Those damned individuals! Always getting in the way of the community. Ein Reich, ein volk, ein ... Ummm--you get the point.

There you go. That's the nature of the opposition to Prop. 207 in Arizona. And that's the culture that prevails among the "right-thinking" folks who dominate too many of the editorial pages in this state. If it protects individuals from the mauling paws of government officials, they're against it.

Maybe we should make their wishes come true and exempt newspaper editorial writers from the occasional protection for individual liberty that still comes along from time to time.

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And they're off!

The race is on to gather 700,000 valid signatures to put a measure to reform eminent domain before California voters. California came breathtakingly close to approving a far-reaching measure that would have reached beyond overt land grabs and also shielded property owners from regulatory takings. While a nearly identical measure passed overwhelmingly in neighboring Arizona, the effort proved too ambitious for Californians. The new measure is more narrowly tailored to address abuses of eminent domain.


Wednesday, August 1, 2007

Overregulated Arizona

In a recent piece, Arizona Republic columnist Robert Robb details the impositions inflicted by Arizona's legislature upon the suffering citizens of this state.

This last session, there were 296 laws enacted. Few of them were consequential. The overwhelming majority involved some minor tweak to the Tedious State. ...

The Tedious State really likes to tell us how to do our jobs. To renew a hearing aid dispenser license now will require 12 hours of continuing education, rather than the dangerously low previous requirement of only eight. I'm sure you're glad to hear that.

Unlicensed contractors, or those who aid or abet them, will be ineligible for probation until all sales taxes due for the job are paid. I understand that government has to get its. But, in most cases, won't the cost of incarceration quickly exceed the amount in arrears?

Nurse practitioners will get to do more, but those who sell insurance at self-service storage facilities will have to be licensed.

It wasn't all bad news.

In some cases, the grip of the Tedious State was relaxed a bit, but this serves mainly to illustrate how intrusive it has become. Motorcycles can now be driven in HOV lanes and optometrists were given greater authority to prescribe antihistamines. The lending authority of banks was expanded a little and credit unions were permitted to charge prepayment penalties on business loans. Internet estimations of home values were put beyond the regulatory clutches of the Board of Appraisal.

This three-steps-forward, one-back movement toward control-freakery has has been my experience of Arizona, too. Every year there are a few more rules and regulations, only partially counterbalanced by the repeal or softening of some silly restrictions that sufficiently ticked off enough people to get legislators' attention. Building codes and "general plans" are a good example. Not too many years ago, you could build what you pleased on your own land in Yavapai County; now you're subject to a host of restrictions and requirements, as well as a long-term scheme for how the county "should" be developed--at least, according to the fever dreams of the current crop of elected and appointed parasites.

But the Grand Canyon State is still far freer than the East Coast people's republics in which I was raised. That's not just because we still have less red tape ensnaring us than our eastern cousins. It's also because many of the residents turn a cheerfully blind eye to so many laws, and to their neighbors' defiance of those laws. I and my neighbors build, burn, remodel and run businesses with little concern for the wishes of state and county busybodies. The only other place I've seen such cheerful disregard for the law was in New York City, a jurisdiction so overburdened with regulations that only a masochist with plenty of free time would consider submitting to many of them.

Occasionally, though, the people become part of the problem. At the polls, last year, Arizonans voted to penalize anybody willing to work for a lower wage than popular opinion thought appropriate. They also joined in the national xenophobic fervor and passed new restrictions on immigrants at the ballot box. That electoral tantrum then prompted the legislature and governor to join in the anti-immigrant fun.

Overall, then, Arizona--like the U.S. as a whole--seems destined to become less free as the years go by. The saving grace, if there is one, will be the extent to which Arizonans will willfully defy the laws they and their supposed representatives put into place.

I sincerely hope that I continue to enjoy the company of cheerful scofflaws.

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Friday, July 20, 2007

Whose property is it?

Gee. How broadly do you think the categories in this executive order will be interpreted?

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Thursday, July 5, 2007

Oh no! Arizona's property measure is a success!

In an unfortunately typical piece of drive-by journalism, the Arizona Republic sets its sights on Prop. 207, a property rights measure that won two-thirds of the vote when it was put before the voters last November.

Breathlessly, the Republic warns us:

A new state law billed as a property rights safeguard has dealt a blow to residents and city leaders who want to save old neighborhoods, create shopping districts or influence what is built in their communities.

Little in Proposition 207 dealt with eminent domain: the power cities have to force property owners to sell.

Arizonans are now finding out that the measure severely limits cities' power to change land use, a crucial tool that helped create signature Valley neighborhoods such as Mill Avenue in Tempe, the Encanto historic district in downtown Phoenix and the Esplanade at 24th Street and Camelback Road.

Similar proposed projects across Arizona face years of delay because cities must get property owners to sign legal waivers to avoid lawsuits.

The newspaper's take is the same load of condescending pap we heard before and after the 2006 election: Oh, pity the poor Arizonans, duped into supporting a radical property rights measure dressed up as eminent domain reform.

Yeah, right.

I know just a little bit about the history of Proposition 207 because I worked for Americans for Limited Government, a principle supporter of the measure, during the campaign to get it passed. In the op-eds I penned, I was very open about the impact of Prop. 207 on a wide variety of land-use restrictions. I was open about that impact because we all thought that was a major selling point for the measure--it would protect private property against a wide variety of incursions; not just the type currently making the headlines courtesy of the miserable Kelo decision.

For its part, the Republic used its editorial and news pages to vigorously attack Prop. 207's broad protections for property owners.

The matter was thoroughly discussed.

And 65% of voters thought a little protection for their homes and businesses against intrusive bureaucrats and politicians was a great idea.

Now the Republic is back, pointing to the early effects of the proposition and trumpeting, "See? We told you so!"

Well, yeah, you did, you annoying nits, and now that you mention it, the results ... well ... the results look pretty damned good!

The Republic cites a dropped plan for a property-restricting historic district in Tempe, a tussle over a plot to impose a burdensome business district in Phoenix and a battle over yet another proposed historic district in Flagstaff.

In all three cases, property owners who don't want to surrender their liberty and money to government planners and neighborhood bullies are turning to the provisions of Prop. 207 to protect themselves from being dragooned into grand schemes that they oppose.

It's hard to even understand the hurt feelings over the business district, since the article makes clear that the idea can still be implemented using businesses that agree with the project, and skipping those that don't.

As for historic districts--those are a perfect example of what Prop. 207 was intended to protect property owners against. Historic districts are an oppressive way for busybodies and politicians to use the power of the state to convert whole areas into museums to some fancied era. Why buy a favored building and maintain it when you can simply decree that your neighbor's house must be maintained as a shrine to some romanticized bit of the past?

Quite rightly, Prop. 207 mandates that homeowners who object to being burdened by a historic designation, among other restrictions, must be compensated for their trouble.

Oddly, the article barely touches on one troubling outcome of Prop. 207: The growing tendency of some government bodies to extort waivers of property rights out of home and business owners.

Some cities are abusing the waivers, said Timothy Sandefur, an attorney for the Sacramento-based Pacific Legal Foundation, a group that advocates for property owners. Owners shouldn't have to sign away rights so the city will grant minor requests, he said.

Sounds interesting, right? Who is "abusing the waivers" and what does that mean?

Well, you won't find out in the pages of the Republic.

According to the East Valley Tribune:

Trying to get a permit to add on to your business? How about a zoning change?

If so, you might be forced to sign a waiver saying you won’t ever sue the city for any government decision that affects the value of your property.

On Thursday, Mesa joined cities across the state that are trying to get around a new, voter-approved property rights law.

Starting now, property owners in Mesa requesting annexations, zoning changes and approval of site plans to construct apartment buildings, retail centers and manufacturers will be compelled by the city to sign the waivers. Residential additions do not require waivers.

Cities are requiring property owners to sign away their rights?

That bothers me a lot more than hearing that Prop. 207 is actually working as intended.


Friday, June 15, 2007

Property rights breakthrough

Good news on the eminent domain front from, of all places, New Jersey.


Thursday, June 7, 2007

Eminent domain report card

I'm nursing a truly preposterous headache caused by a bout of dehydration earlier this week (remember friends, when mountain biking in the desert, bring water) followed by a night of insomnia. But borderline incoherent as I may be, I still noticed this excellent update on eminent domain from the Institute for Justice.

The report was released by the Castle Coalition, a grassroots project of the Institute for Justice, which argued the Kelo eminent domain case before the U.S. Supreme Court. The Castle Coalition examined and graded eminent domain laws for each of the 50 states over the past two years—since the Kelo decision allowing eminent domain for private gain.

“This report finds that your right to own your home free from the specter of eminent domain abuse depends on which state you live in,” said Steven Anderson, director of the Castle Coalition. “States in the Northeast as well as California remain some of the biggest abusers of eminent domain and legislators in those states have so far refused to pass meaningful eminent domain reform despite the public’s overwhelming desire to be protected from eminent domain for private gain.”

I note that my own much-beloved Arizona drew a B+, beating out my college GPA by a solid margin. The Grand Canyon State's decent score came no thanks to Governor Napolitano, who vetoed a reform bill passed by the legislature. Instead, voters bypassed the government entirely and approved Proposition 207, greatly strengthening protections for private property.

The top scorers, with A or A- scores are:

  • Florida
  • Michigan
  • Nevada
  • New Mexico
  • North Dakota
  • South Dakota

The dunces of the national class are:

  • Arkansas
  • Connecticut
  • Hawaii
  • Maryland
  • Massachusetts
  • Mississippi
  • New Jersey
  • New York
  • Oklahoma
  • Rhode Island

All of these states scored an F.

Download the report to see how your state did--and how it earned the score it got.