Monthly Archives: October 2007

FEMA Deputy Administrator Answers Fake Questions From Fake Reporters at Fake Press Conference

Maybe the Federal Emergency Management Agency is still the same monument to buffoonish incompetence and Bush administration cronyism that it was during the Hurricane Katrina debacle, maybe it’s not. Either way, it’s quite clear that the agency hasn’t risen above willingness to commit outright fraud in its dealings with the public and the press.

WaPo reports that FEMA Deputy Administrator Harvey Johnson, inundated with phone calls about the fires currently consuming large chunks of California, scheduled a “news briefing” for 1:00 PM EDT today. The press got all of fifteen minutes notice. Reporters got an 800 number to use in the inevitable event they couldn’t get to FEMA’s offices in a quarter hour, but the phone hookup was listen-only.

After giving a statement Mr. Johnson announced that he would take questions. The few reporters in attendance lobbed softball after softball. Johnson deftly knocked them all out of the park. The reporters were also gracious enough to let Johnson pontificate at length regarding the agency’s present state of magnificence.

The tenor and substance of the briefing may have resulted the fact that the “reporters” weren’t really reporters at all. They were FEMA staffers.

FEMA’s deputy director of public affairs, one of the fake reporters, insists that “the staff did not make up the questions” and that Johnson didn’t known in advance what what the staffers were planning to ask: “We pulled questions from those we had been getting from reporters earlier in the day.”

Oh, I have no doubt of it! However, I suspect that vacuous inquiries like “what it means to have an emergency declaration as opposed to a major disaster declaration” and “Are you happy with FEMA’s response so far?” weren’t exactly the be-all and end-all of the reporters’ curiosities.

ThinkProgress has video of the fake press conference here and the response of Bush administration spokesmodel Dana Perino here. Not surprisingly, FEMA is all the way under the bus.

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Colorado Ethics Watch Withdraws Kliebenstein Complaint

Here I reported that on Monday Colorado Ethics Watch (“CEW”) filed a complaint with the Colorado Secretary of State against Republican HD33 candidate Nick Kliebenstein. The complaint averred, based on information contained in a contribution report filed on October 15, that the Kliebenstein campaign accepted three individual contributions of $800, double the per-person maximum of $400 applicable to State House of Representatives campaigns.

Today’s Broomfield Enterprise reports that CEW has formally withdrawn its complaint. The campaign explained that the three $800 contributions were in fact “six $400 donations by three husband-and-wife households.” The information in the original report resulted from data entry errors on the part of the campaign treasurer, which is apparently a not-all-that-uncommon consequence of the Secretary of State’s mandatory electronic filing system. When the campaign treasurer discovered the mistake and tried to file an amended report on October 16, the system wouldn’t take the amendment.

If the campaign’s explanation is good enough for CEW, it’s surely good enough for me. I clearly jumped the proverbial gun by describing the campaign’s conduct as “chicanery” in my prior entry. It was a garden variety mistake that could have happened to just about anyone. My apologies to Nick Kliebenstein and his supporters.

All the Blackwater News That’s Fit to Print

Hats off to Wonkette for compiling this list of recent articles regarding the gaggle of sociopathic thugs collectively known as Blackwater USA. My personal favorite thus far is the ThinkProgress piece about Blackwater’s ongoing public relations campaign and the myth that the company is saving us oceans of money.

The list doesn’t include any articles about Blackwater obtaining a piece of the $15 billion pie our government recently baked to fight the war on “narcoterrorism” — that’s old news by now — but it’s high time we got in on the action. Twenty percent of Blackwater’s activities under that contract will occur right here in the U.S. of A. Perhaps we should outsource purely domestic DEA and ATF law enforcement functions to Blackwater as well. Nothing says “law and order” like a bunch of heavily armed mercs busting down the door of a private residence, curb-stomping a dog to death and beating the shit out of a medical marijuana user. Why should Iraqis have all the fun?

So how does someone like Erik Prince warrant such favoritism? Colorado Confidential connects the dots here. In short, it’s all about the radical Christian right.

Crusty Old Tort Goes to Washington

Mississippians Johnny Valentine, a humble plumber, and Sandra Day got married in 1993. Depending on who you believe, the marriage was either an unmitigated catastrophe from the get-go or a match made in heaven.

Sandra went to work for filthy rich oil and real estate tycoon Jerry Fitch in 1997. The two began an affair in the Spring of 1998, and Sandra gave birth to Jerry’s daughter in February 1999. Sandra and Johnny got divorced in late 1999, and Sandra ultimately married Jerry in 2002.

This would have been just another sad tale of a rich dude boinking his married underling but for the fact that Mississippi is one of a handful of states that still recognizes the common law tort of alienation of affection, which dates back to at least the 10th Century. Johnny sued Jerry on that theory. A Mississippi state court jury found in Johnny’s favor, awarding $642,000 in compensatory damages and an additional $112,500 in punitive damages. The trial court entered judgment on the verdict and Jerry appealed.

In April 2007 the Mississippi Supreme Court affirmed the judgment in its entirety. Fitch v. Valentine (pdf, 54 pages). After rejecting Jerry’s invitation to shitcan the tort of alienation of affection, the court disposed of a variety of challenges based on allegedly erroneous evidentiary rulings and jury instructions, and the verdict being against the manifest weight of the evidence.

Jerry also challenged the punitive damages portion of the verdict based on the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. The supreme court ruled that Jerry waived the issue by failing to raise it in the trial court.

Even so, the supreme court dealt with the merits of the due process claim in a single sentence appearing on Pages 25-26 of the opinion. In a line of cases dating back to 1989, the U.S. Supreme Court has held that the Due Process Clause imposes substantive limits on the amount of a punitive damages award. The Mississippi court ruled that the punitive damages award in this case, less than fifteen percent of the total judgment amount, was not “gross[ly] excess[ive]” for due process purposes.

After the Mississippi Supreme Court denied Jerry’s motion for reconsideration, Johnny’s lawyers instituted separate proceedings to collect the judgment amount. Jerry’s lawyers recently filed a motion (pdf, 17 pages) with U.S. Supreme Court Associate Justice Antonin Scalia in his capacity as Circuit Justice for the part of the country where Mississippi lies. Jerry wants Justice Scalia to stay the collection efforts against him pending the outcome of his soon-to-be-filed cert petition.

In his motion Jerry claims — correctly, it appears — that the Mississippi Supreme Court erroneously interpreted his due process argument as a challenge to the amount of the award. In truth, Jerry says, his argument is that the Due Process Clause also imposes substantive limits on the types of conduct that can constitutionally give rise to liability for punitive damages. Among the conduct a state can’t constitutionally punish via punitive damages is consensual sexual relations between consenting adults.

Endlessly funny is the fact that Jerry’s motion relies heavily on Lawrence v. Texas, 539 U.S. 558 (2003), in which the Court shot down a Texas statute criminalizing “sodomy” between consenting gay adults. Scalia, the sole audience for Jerry’s motion, wrote one of the most vigorous dissents of his career in that case.

Prediction: Jerry’s motion already rests on the “Read, Laugh, Deny, Discard” pile.

Lawyers, Guns and Money IV

Briefing on the District of Columbia’s request for U.S. Supreme Court review of a lower court decision holding that the District’s handgun law violates the Second Amendment is now complete. D.C. filed its reply brief (pdf, 20 pages) yesterday. Prior SCD entries on the case are available here, here and here.

The District and the residents who filed the lawsuit agree that the Supreme Court should take the case, but differ on what questions the Court should answer. The District wants review limited to its three arguments that:

[F]irst, the right protected by the Second Amendment is limited to weapons possession and use in connection with service in state-regulated militias; second, laws limited to the District do not violate the Amendment; and third, the District’s handgun ban does not infringe the right to keep and bear arms under any view of the Amendment.

The residents want broader review based on their interpretation that District’s statute effectively bans all “functional firearms.” The District spent a substantial portion of its reply brief arguing that the residents’ reading of the statute is overly broad.

Whether to grant review is entirely up to the Court, as is the scope of review. Most constitutional law wonks are predicting that the Court will take the case. The issues the Court wants the parties to address will likely be set out in the order granting certiorari. Stay tuned!

UPDATE:

SCOTUSblog’s Lyle Denniston reports that the Supreme Court will consider this case and a companion case at its November 9, 2007 conference. A decision on the cert petitions could come as early as November 13.

Republican Chicanery on Display Early in HD33 Race

Dianne Primavera (D-Broomfield) represents the folks of House District 33 in the Colorado House of Representatives. Dianne campaigned for the office twice. In 2004 she went up against Republican and former Broomfield mayor Bill Berens. Despite getting no financial support from the state Democratic Party, she lost by less than 2,000 votes.

Berens sat on his doughy white ass for two years and watched as his few meager legislative offerings failed spectacularly. The Dems persuaded Dianne to try again, this time promising support.

As before, Dianne proved an effective and indefatigable campaigner. Well do I remember walking door-to-door with her on a 104-degree day in August 2006. When my shift ended, I went home and crashed in front of an air conditioner for several hours. Dianne refilled her water bottle, hooked up with another volunteer and kept knocking on doors for another four hours.

Overcoming Berens’ incumbency, Dianne won by some 800 votes. Her first legislative session, 2007, was nothing short of extraordinary.

But that exceptionally narrow margin of victory in 2006 renders HD33 a big honking target for the Republicans in 2008. Enter Nick Kliebenstein, a financial advisor with Edward Jones. Kliebenstein is running for the HD33 seat as a Republican. He blabbers on about government acting as a mere “umpire” and allowing the Holy Free Market do all the actual work of turning our state into a laissez faire utopia.

It’s early yet, but the Kliebenstein campaign already has its tit in a wringer. Colorado Ethics Watch reports that the campaign has collected at least three individual contributions (one from a construction company owner, two from oil company officers) of $800. Trouble is, by law individuals can donate no more than $400 to a House candidate per election cycle. Oops!

After Ethics Watch filed a formal complaint with the Secretary of State, the campaign submitted “amended” reports stating that the three individuals in question only donated $400 apiece. The remaining money came from their wives. Yeah, uh, that’s right. The wives.

Kliebenstein’s people blame the whole mess on a “technical glitch” with the Secretary of State’s website. So much for personal responsibility.

Honest Christian Spotted

I spend a lot of time blabbering about the misrepresentations, dissemblings, half-truths and outright lies advanced by evangelical Christians in support of their political ends. In the interest of equal time, this entry is about motive honesty exhibited by a Christian living right here in dear ol’ Broomfield, Colorado.

Not long ago our local rag reported on Kohl Elementary School Principal Cindy Kaier’s decision not to have the usual Halloween party at the school. Not long thereafter, on October 17, the paper published a LTTE from some nutburger that leads off with:

Prayer is gone from the classroom, “under God” is out of the Pledge of Allegiance and now the ghosts and goblins are leaving the building. That is if the Kohl Elementary principal has her way.

My, oh my, what a mess. First of all, the notion that prayer is “gone from the classroom” is idiotic beyond description. No less an authority than the U.S. Department of Education actually offers Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools. Prayer certainly should be gone from the classroom, IMO, but it’ll never happen.

Congress, swept up in the prevailing kneejerk anti-commie hysteria of the day, added the words “under God” to the Pledge of Allegiance in 1954. From that day to this the words in question have never, ever been “removed.” Nor will they be. The letter’s author can find endless solace by checking 4 U.S.C. 4 on a daily basis.

Even more ridiculous is the author’s suggestion that Principal Kaier’s decision was somehow anti-religion. One of her stated reasons for canceling the party was that some families “don’t celebrate Halloween.” Having followed religion-government separation issues for some time, statements such as that reek of biblical literalist Christianity to me. In other words, people who spend disturbing amounts of time literally gibbering (speaking in tongues) and rolling on the floor (slain in the spirit) consider Halloween evil and anti-Jesus. Unfortunately, such people procreate, send their snot miners to public schools and spin themselves into a state of raging apoplexy when the school does something contrary to the Bible (as authoritatively interpreted by James Dobson, of course).

In accordance with the maxim that even a blind squirrel finds a nut on occasion, an October 21 LTTE suggests that I might have been correct. The author gets major honesty points for writing:

When my children began school, I was one of “those” moms who talked to the principal and teachers, explaining we were Christians and didn’t celebrate Halloween. I asked for alternative assignments for my children during October, as many assignments were Halloween based. On Halloween, I kept my kids home from school. They felt isolated sitting in the hall doing alternative assignments. I still couldn’t compromise, knowing the truth about Halloween.

She then engages in an irrelevant and largely inaccurate discussion of Druids, tossing in terms like “demonic” and “Satanic” for good measure. But also to her credit, she acknowledges that “Schools are not allowed to celebrate religious holidays.”

Whether she considers that rule applicable to Christmas — yet another pirated pagan holiday — remains to be seen. For present purposes, the candor of the October 21 letter is strangely refreshing. All too often accomodationists bent on purging public schools of anything they consider unchristian are less than candid about their aims.

Colorado Supreme Court Round-Up (10/22/07)

Opinions:

Pagosa Area Water & Sanitation Dist. v. Trout Unlimited (pdf, 46 pages).

Much of Colorado is a high plains desert. That being true, water is big deal in this state, so much so that we have special courts to adjudicate water rights.

Water and sanitation districts are distinct, statutorily-established units of government that exist to supply water and to maintain reservoirs, treatment plants, etc. In this case, two such districts that service residents in and around Archuleta County came up with a plan, based on projected population growth, to divert enough water from the San Juan River to keep the Dry Gulch Reservoir full through the year 2100. The districts filed an application with the water court for approval of the plan. Several groups opposed the application. After a trial, the court essentially granted the districts all they asked for.

The state constitution provides that water is public property “subject to appropriation.” Appropriations are granted to public agencies and private persons intending to make a “beneficial use” of the water; hoarding to effect speculation for profit is a no-no. A public entity’s application must be consistent with “reasonably anticipated requirements based on substantiated projections of future growth.” The planning period for water appropriation must be “reasonable.”

Related to the anti-speculation doctrine is the statutory “can and will” rule, which provides that a water appropriation will be granted only if “it is established that the waters can and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time.”

The rule announced in this case is unremarkable:

We hold that a governmental water supply agency has the burden of demonstrating three elements in regard to its intent to make a non-speculative conditional appropriation of unappropriated water: (1) what is a reasonable water supply planning period; (2) what are the substantiated population projections based on a normal rate of growth for that period; and (3) what amount of available unappropriated water is reasonably necessary to serve that population for the planning period, above its current water supply. In addition, it must show under the “can and will” test that it can and will put the conditionally appropriated water to beneficial use within a reasonable period of time.

The Court’s disposition — remand to the water court for additional findings of fact — isn’t especially remarkable either. However, the Court interpreted one of its past cases in a way that appears to impose a presumptive fifty-year limit on planning periods for public entity appropriation applications:

Although the fifty year planning period we approved in Bijou is not a fixed upper limit, and each case depends on its own facts, the water court should closely scrutinize a governmental agency’s claim for a planning period that exceeds fifty years.

Cert Petitions:

Four denied, two granted:

1) Roberts v. People, No. 07SC430 will answer these questions:

Whether the court of appeals erred in holding that a theft by deception continues to be committed until it is detected; and therefore in holding that the various amounts of money the defendant surreptitiously took from his employer on different occasions constituted a single theft, unaffected by the statutory six-month limitation on aggregating the value of property stolen from multiple thefts; and in holding that the defendant’s sentence was mandatorily aggravated because he was on probation for another offense by the time these particular takings were detected.

2) The Court will answer these questions in Delarosa-Ramirez v. People, No. 07SC159:

Whether the court of appeals erred by failing to consider petitioner’s challenge to the constitutionality of subsection (d) of the criminal impersonation statute, C.R.S. section 18-5-113(1), on grounds that the statute is both facially void for vagueness and unconstitutionally vague as applied to petitioner.

Whether the court of appeals erred in holding that the trial court’s failure to instruct the jury on the meaning of the word “might” in the criminal impersonation statute did not require reversal of petitioner’s conviction.

Whether the court of appeals incorrectly concluded that the district court did not err in permitting irrelevant and prejudicial testimony to be introduced to the jury through a prosecution witness.

Whether the court of appeals erred in holding that the prosecution introduced sufficient evidence to prove the elements of criminal impersonation beyond a reasonable doubt.

Dems Capitulate Again

Rarely if ever have I been more disgusted with the feckless and cowardly Democratic leadership in Congress. Remember the Protect America Act of 2007? Well, it’s back in a big way, with Senate Dems gleefully quaffing even more Bush administration semen than before!

WaPo reports a “compromise” among Senate Democrats, Senate Republicans and the administration on a new bill that “will include full immunity for those [telecommunications] companies that can demonstrate to a court that they acted pursuant to a legal directive in helping the government with surveillance in the United States.” The immunity provision is apparently retroactive, as the Post reports it “would wipe out a series of pending lawsuits alleging violations of privacy rights by telecommunications companies that provided telephone records, summaries of e-mail traffic and other information to the government after Sept. 11, 2001, without receiving court warrants.”

When the legislation passes — and it will — those Ninth Circuit cases involving the “state secrets privilege” and about fifty similar lawsuits get bitch-slapped into history’s dustbin. Barring company insiders stealing reams of information from their employers and making the information publicly available, we’ll never, ever, under any circumstances know anything resembling the full extent of this administration’s unlawful domestic surveillance activities.

But hey, the Senate Dem leadership managed to strong-arm one concession from the other side. The new law will sunset. In SIX FUCKING YEARS. Thank God our next president will have the same Hitleresque authority that the Blessed Decider currently enjoys.

Meanwhile, a significantly less odious Democrat-sponsored bill that was making its way through the House of Representatives got put to the sword yesterday when House Republicans outmaneuvered Nancy Pelosi’s bony, idiot ass yet again. Incredibly, Pelosi continues to raise the incompetence bar for all future Speakers of the House with every breath she takes.

Vitter: Let’s Use Public Money to Promote Creationism

Notorious Republican hooker aficionado and rumored diaper fetishist Senator David Vitter refuses to be shamed. Americans United for Separation of Church and State reports that Vitter slipped a $100,000 earmark for some outfit called the Louisiana Family Forum into a Senate Appropriations Committee report on a bill allocating money to the federal Labor, Education and HHS Departments.

Anyone who’s paying attention knows that the word “family” in an organization’s title is contemporary code for “biblical literalist Christianity,” and LFF is no exception. LFF’s website describes its mission as “persuasively present[ing] biblical principles in the centers of influence on issues affecting the family through research, communication and networking.”

And how exactly does LFF go about “persuasively present[ing] biblical principles”? One way is promoting the teaching of creationism in public schools.

The latest in this roughly month-old story is a letter signed by thirty-six organizations — from the ACLU to the Texas Faith Network to the Herpetologists League and all points in between — condemning the earmark as grossly unconstitutional. Details of LFF’s creationist agenda are in the four-page letter, available in pdf here.

So, then, here we go again:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

In Vitter’s own words:

As a member of the Senate, my top budget priority is to establish greater fiscal disipline. To accomplish this, I support many budget reform measures, including:

. . .

  • Bucking the Appropriations Committee Leadership and voting against appropriations bills which are bloated and fiscally irresponsible.

This is precisely what our nation needs: another “limited-government” Republican advocating an indisputably ultra vires use of public money in the service of YHWH and his rabble-rousing kid.

UPDATE: Vitter caves. Chalk one up for the good guys.