Friday, January 10, 2014

How Low Will It Go?

This is an update to this earlier post about a foreclosed property I was interested in bidding on at sheriff's sale.  The bank's appraisers valued it at $146,000 at the time of the sheriff's sale.  Afterwards, it was listed for sale at $121,900.  Almost six months later, the property still hasn't sold.  The price has been lowered multiple times and now rests at $79,000.

As stated in my earlier post, the indebtedness was around $112,000 at the time of the foreclosure sale.  I'm assuming the lender was made whole by Fannie Mae.  The difference between that number and the ultimate sale price will be Fannie Mae's loss.


Monday, December 30, 2013

Kitchen decision already heading for U. S. Supreme Court

This is an update to last week's blog post about the Kitchen decision from a federal district court in Utah.

SCOTUSblog reports:

The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages.  State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.
Justice Sotomayor will be the one to make the initial decision on whether to grant a stay.  Read the full story here.

UPDATE:  Justice Sotomayor granted the stay.

Thursday, December 26, 2013

A shoe drops in the 10th Circuit



Last Friday, in Derek Kitchen, et al. v. Gary R. Herbert, et al., a federal judge ruled that Utah’s constitutional amendment banning state recognition of same-sex "marriage" is unconstitutional.  “The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.”  The full text of the decision can be read here.
In a July blog entry, I wrote about a similar federal judicial decision out of Ohio.  The title of my blog entry, "The Other Shoe Dropped in Ohio," was a reference to a line from Justice Scalia's dissenting opinion in U.S. v. Windsor, the U.S. Supreme Court decision that struck down that portion of the Defense of Marriage Act that defines marriage for federal purposes.  Justice Scalia scoffed at the majority's assurances that its decision would be limited to the federal level.  "As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."  By this, he meant that it was only a matter of time until a court would apply Windsor at the state level.  The Kitchen decision proved Scalia's predictive acumen. 
The decision did indeed rely upon Windsor ("the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant . . . ").  Ironically, it cites Scalia more than any other Supreme Court Justice, adopting his argument that the Windsor majority's reasoning necessarily compels a similar outcome at the state level.  
So the Kitchen court, in its own reasoning, progresses through a series of Supreme Court decisions, culminating with Windsor, to conclude that it is compelled to rule against the Utah amendment.  The judge would have us believe that he is not rewriting the Constitution, rather it is we who have changed:
Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.  The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex.  The court, and the State, must adapt to this changed understanding. 
But whose knowledge has changed and who is it that "must" adapt because of that change?  The implication of the judge's ruling is that his knowledge, and not that of the overwhelming majority of the voters of Utah that has changed.  So it is not through deliberative debate and decision making through any sort of democratic means that "adaption" will occur, but by judicial compulsion.  
The judicial compulsion that is the essence of the Kitchen decision has greater significance for the state of Oklahoma than did that of the Ohio decision, because Utah and Oklahoma are both in the 10th Circuit.  Lawyers for the state of Utah have already announced that they are appealing the Utah decision.  If the U.S. Court of Appeals for the 10th Circuit upholds the decision, that ruling will become binding precedent on federal courts in Oklahoma, in which case Oklahoma's own constitutional amendment, which was approved by 76% of the voters, will be in jeopardy.
So I was not surprised to learn that litigants in Oklahoma have already attempted to capitalize upon the Utah decision.  Lawyers for two same-sex couples suing for the right to marry and to have a "marriage" from another jurisdiction recognized in Oklahoma have filed an additional brief following the federal ruling out of Utah.  The brief can be read here
The couples make the simple argument that the state constitutional amendment at issue in the pending Oklahoma litigation is very much like the one in Utah that was ruled to be in violation of the U.S. Constitution.  The facts and legal arguments in both cases are much the same.  (The Oklahoma litigation has been pending much longer than the one in Utah.) The couples argue that the efficient administration of justice requires that the federal court in Oklahoma rule in their favor so that they can take part in the same appeals process that is now advancing.  


Tuesday, November 12, 2013

Three times the accounts, three times the fun


It seems that everyone with a blog has a tale about their failed attempt to sign up on-line for Obamacare.  My own tale is already a month old and is no different from all the others, but I'm starting to feel like there is a noticeable void in my blog without out, so here it is . . . 

Shortly before the launch of www.healthcare.gov, I visited www.healthcare.org, which appears to be a website set up by the healthcare insurance industry to promote the still-gestating government-managed scheme.  It attempted to dispel the many "myths" about ACA, and gave assurances that the skies would always be sunny atop Big Rock Candy Mountain.  

The website has a handy calculator you can use to determine whether you will qualify for a government subsidy for the purchase of mandated coverage.  I do not qualify.  Another section walks you through the process of determining whether you will be hit with a tax/penalty and how much that will be.  Yes, I would owe a tax/penalty but for the grandfathered status of my existing high-deductible policy.  If I change my policy in any way, then the tax/penalty will kick in.

The website claims that, according to the Congressional Budget Office, less than 2% of Americans will actually be hit with a tax/penalty.  Except for my tenuous grandfather status, I would fall into that 2% category.  I'm finding it hard to believe that my circumstances are really that unique.

A couple of days after the launch of www.healthcare.gov, I decided to check it out just to see what my options are.  I went into the office early, thinking I might need a few extra minutes to complete the process.  A half an hour later, I hadn't managed to get as far as creating an account for logging in.  For a lengthy period of time, the screen would tell me to be patient while I waited for the scree for creating an account. Once it proceeded to the account creation page, I entered the requested information and established a username and password.  The system sent a confirmation link to my email address and I clicked on it.  I received a message telling me my account was successfully created.  I was automatically directed to the log-in page.  I entered my username and password and I received a message telling me they were invalid.  I tried again – same result.  I clicked on “forgot password.”  A new link was emailed to me.  I followed the link, answered the security questions, and then reset my password.  Then a message told me that the reset failed because I did not answer the security questions correctly.  (I know I answered them correctly.  I couldn't have forgotten the name of my first pet that quickly.)  I started all over, creating a new account.  Same result.

In the end, I created three accounts, none of which would allow me to log in.  (Now I'm likely on a government watch list for creating multiple accounts.)  I had the option of calling an 800-number, or seek the assistance of a government funded "Navigator" who could coach me on lying my way through the system, but instead, I decided to abandon the quest.  I emailed a local insurance agent who emailed me multiple quotes for Obama-compliant policies within a couple of hours. 

Thursday, October 10, 2013

The Bag Man

I was recently in the District Court of Nowata County for a civil motion docket.  Intermixed with the civil matters were several criminal plea hearings.  One of them was for a defendant charged with possession of a controlled substance and drug paraphernalia.  Those are two separate charges, each serving as the basis for criminal penalties.  

When Judge Gibson read the charges, he asked the defendant, who had no legal representation, what type of "drug paraphernalia" he possessed.  "A bag," said the defendant.

"A bag?  What kind of bag."

"Just a little plastic baggie."

Judge Gibson then looked at the Assistant District Attorney and asked him him that was correct.  The Assistant District Attorney sheepishly mumbled that it was correct.

The unrepresented defendant plead guilty to both counts, so the plastic bag discussion did not need to continue.  The judge accepted the plea.

I found it curious that a man can receive jail time for possessing a plastic bag, so I pulled up the statutes.  63 O.S. 2-405 makes use of drug paraphernalia a crime.  It provides, in part:

A. No person shall use tincture of opium, tincture of opium camphorated, or any derivative thereof, by the hypodermic method, either with or without a medical prescription therefor. 
B. No person shall use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act, except those persons holding an unrevoked license in the professions of podiatry, dentistry, medicine, nursing, optometry, osteopathy, veterinary medicine or pharmacy.
"Drug paraphernalia" is defined by 63 O.S. 2-101:
"Drug paraphernalia" means all equipment, products and materials of any kind which are used, intended for use, or fashioned specifically for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body, a controlled dangerous substance in violation of the Uniform Controlled Dangerous Substances Act including, but not limited to:
a. kits used, intended for use, or fashioned specifically for use in planting, propagating, cultivating, growing or harvesting of any species of plant which is a controlled dangerous substance or from which a controlled dangerous substance can be derived,
b. kits used, intended for use, or fashioned specifically for use in manufacturing, compounding, converting, producing, processing or preparing controlled dangerous substances,
c. isomerization devices used, intended for use, or fashioned specifically for use in increasing the potency of any species of plant which is a controlled dangerous substance,
d. testing equipment used, intended for use, or fashioned specifically for use in identifying, or in analyzing the strength, effectiveness or purity of controlled dangerous substances,
e. scales and balances used, intended for use, or fashioned specifically for use in weighing or measuring controlled dangerous substances,
f. diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or fashioned specifically for use in cutting controlled dangerous substances,
g. separation gins and sifters used, intended for use, or fashioned specifically for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana,
h. blenders, bowls, containers, spoons and mixing devices used, intended for use, or fashioned specifically for use in compounding controlled dangerous substances,
i. capsules, balloons, envelopes and other containers used, intended for use, or fashioned specifically for use in packaging small quantities of controlled dangerous substances,
j. containers and other objects used, intended for use, or fashioned specifically for use in parenterally injecting controlled dangerous substances into the human body,
k. hypodermic syringes, needles and other objects used, intended for use, or fashioned specifically for use in parenterally injecting controlled dangerous substances into the human body, objects used, intended for use, or fashioned specifically for use in ingesting, inhaling or otherwise introducing marihuana, cocaine, hashish or hashish oil into the human body, such as:
 
(1) metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls,
(2) water pipes,
(3) carburetion tubes and devices,
(4) smoking and carburetion masks,
(5) roach clips, meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand,
(6) miniature cocaine spoons and cocaine vials,
(7) chamber pipes,
(8) carburetor pipes,
(9) electric pipes,
(10) air-driven pipes,
(11) chillums,
(12) bongs, or
(13) ice pipes or chillers,
 
m. all hidden or novelty pipes, and
n. any pipe that has a tobacco bowl or chamber of less than one-half (1/2) inch in diameter in which there is any detectable residue of any controlled dangerous substance as defined in this section or any other substances not legal for possession or use;
provided, however, the term "drug paraphernalia" shall not include separation gins intended for use in preparing tea or spice, clamps used for constructing electrical equipment, water pipes designed for ornamentation in which no detectable amount of an illegal substance is found or pipes designed and used solely for smoking tobacco, traditional pipes of an American Indian tribal religious ceremony, or antique pipes that are thirty (30) years of age or older;
Comprehensive, is it not?  It seems that any object that touches illegal drugs falls within the definition of "drug paraphernalia."  So yes, a plastic baggie is drug paraphernalia.  Unless you have a way to cause your drugs to follow you about, free-floating in the air, if you possess drugs, you also possess drug paraphernalia and therefore you have committed two separate crimes.  This is one more way the District Attorney can stack up charges and potential penalties in order to pressure a defendant to agree to a plea arrangement.

Or do you think the authorities are just trying to keep Ziplock bags off the streets?


Thursday, September 5, 2013

Another Money Pit (Update)

In April, I blogged about the American Indian Cultural Center and Museum in OKC, half-built and out of money seven years after construction began. Here's a recent AP article reporting that although the funds to resume construction have not been secured, a new opening date has been set for 2017.

"[T]he state is paying $52,000 a month for security at the site until lawmakers can vote on the $40 million funding bill in February."

According to Executive Director Blake Wade, the $40 million funding bill needs to be passed because we cannot afford to keep paying $52,000 a month in security costs.

Are you convinced?




Thursday, August 22, 2013

Born that way (but not THAT way)



On Monday, NJ Governor Chris Christie signed a bill barring any person licensed to provide professional counseling from counseling minors to avoid homosexual identity or behavior.  Reported as legislation to ban "conversion therapy," the text of the legislation, which I did not find in any of the news stories I read, is much broader.  The meat of the legislation reads as follows:
   2.    a.  A person who is licensed to provide professional counseling under Title 45 of the Revised Statutes, including, but not limited to, a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, certified psychoanalyst, or a person who performs counseling as part of the person's professional training for any of these professions, shall not engage in sexual orientation change efforts with a person under 18 years of age.
     b.    As used in this section, "sexual orientation change efforts" means the practice of seeking to change a person's sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender; except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another, or counseling that:
     (1)   provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and
     (2)   does not seek to change sexual orientation.
The new legislation is being reported as restricting the actions of "licensed therapists," but clearly the real aim is parents whose attitudes are out of line with the opinions of the governor and the legislature.  It is unlikely that licensed therapists are cruising the school yards and pouncing on unsuspecting youths to ply them with "conversion therapy."  It is also unlikely that kids are sneaking out of their windows at night to seek out such therapy on their own.  No, if there is any counseling going on, you can be sure that it is by the wishes of the parents.

The new legislation serves to frustrate the wishes of those parents, substituting the judgment of elected officials for that of the parents over their own children.  The legislation does this indirectly, only because the legislature knows that to craft a more direct impingement of parental rights would doom an already constitutionally dubious law.  The federal courts have consistently maintained that parents have a fundamental right to direct the upbringing of their children as they see fit:
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.
Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944) 

The liberty interest at issue in this case-the interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this Court.  In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.
Troxel v. Granville, 530 U.S. 57 (2000)

Section 2(b) of the legislation defines "sexual change orientation efforts," prefaced by the phrase that legislators are overly fond of: "including, but not limited to."   This phraseology, which also appears in Section 2(a), is often the "tell" for an overly broad legislative scheme.  Here, the definition includes (but is not limited to), "efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender."   What else is included?  Your guess as good as the legislature's.  The "but not limited to" language is a catch-all that is meant to send the message: "Don't even think about it."

By itself, "efforts to change behaviors" is quite broad.  Parenting is all about changing behaviors.  Children come into this world with an assortment of naughty inclinations, and it is the duty of parents to civilize them by changing their behaviors.  But the governor and the legislature have proscribed one set of behaviors that must not be changed.  Commenting on his signing of the bill, Governor Christie explained why this is so, saying that he believes that homosexuals are born that way.  But if parents must keep their hands off of any trait that a child is "born with," then parenting itself is eliminated.  "Stop putting clothes on that baby!  He was born that way."

But wait.  Even the governor must make exception to his "born that way" logic, because the legislation makes exception: "except that sexual orientation change efforts shall not include counseling for a person seeking to transition from one gender to another."  If you were paying attention, you might have noticed that "gender" is something you were born with.  (We, like the New Jersey legislature, will overlook the grammatical rule that words have "gender," while people have "sex.")  Nonetheless, the legislation makes it explicit that a licensed therapist may counsel a minor toward changing genders.  Some speech is freer than others, and the professional discretion of the therapist is respected, except when it isn't.

The language restricting counseling (speech) is preceded by a litany of quotes from experts, associations, and studies (but none involving youth counseling), meant to give a veneer of objective scientific fact, that fact being that counseling youth away from homosexuality is harmful.  "The experts have spoken, so we must act!"  The underlying assumption is that the experts, or at least the ones favored by elected officials, are wiser than parents and therefore any interference with parental rights is justified by the compelling governmental interest of protecting children from the harm to which their parents are blind.

Conspicuously absent from any of the news articles I read on the New Jersey law was any mention of the newly enacted Russian law that has received so much opprobrium in recent weeks, and is the obverse of the New Jersey law.  It bans the "propaganda of non-traditional sexual relations."
Propaganda is the act of distributing information among minors that 1) is aimed at the creation of nontraditional sexual attitudes, 2) makes nontraditional sexual relations attractive, 3) equates the social value of traditional and nontraditional sexual relations, or 4) creates an interest in nontraditional sexual relations. 
Explaining the purpose of the law, Russia's Sports Minister, Viitaly Mutko said, ""We want to protect our younger generation whose physicality has not been formulated. It is a law striving to protect rights of children – and not intended to deprive anybody of their private life."  In other words, "it is for the sake of the children."

Regardless of one's views of homosexuality, legislation such as that in New Jersey and Russia should be condemned as intrusive overreach on the part of the government, infringing upon freedom of speech and parental rights.  Asserting that it is all done for the sake of the children is a feeble justification too often used by statists of all stripes.  Here again, the U. S. Supreme Court has it right:
The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 
The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state.
Parham v. J. R., 442 U.S. 584 (1979)

 "The best interests of the child," a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. 
"The best interests of the child" is not the legal standard that governs parents' or guardians' exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.
 Reno v. Flores, 507 U.S. 292 (1993)


Posted at Irving Two Smokes