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, I visited, 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, 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

Wednesday, August 14, 2013

Fannie Mae (update)

In yesterday's post, I asserted that Fannie Mae lacks the authority to exempt itself from state disclosure laws. After doing additional research, I now conclude . . . that I was right.

A federal district court judge in Pennsylvania recently ruled that Fannie Mae is exempt from state and county transfer taxes.  The judge's opinion can be read here.  That makes four out of five federal decisions that have gone Fannie's way on that issue.  The judge based his ruling on a federal statute, 12 U.S.C. § 1723a(c)(2), which specifically exempts Fannie from transfer taxes.

But there is no similar statute granting to Fannie an exemption from disclosure laws.  It would be surprising to have Congress act to enable Fannie to drop hidden time bombs on unsuspecting buyers, after all.  Fannie is not exempt from disclosure requirements under state law, whether those requirements be for hidden defects, presence of lead paint, underground septic tanks, or anything else.  Furthermore, there is no prohibition in the Fannie Mae charter against issuing disclosure statements as some lenders have asserted in the past.

Therefore, Fannie Mae is being misleading, at best, when it includes this language in the addendum that it demands be signed by every purchaser of an REO property:
6) BUYER acknowledges that they [sic] understand Seller has never occupied, seen or personally inspected the property, and is exempt from traditional property condition disclosures.  ______ buyer initials. 
Fannie Mae might take the position that this claim is self-executing, meaning that regardless of whether there is a statutory basis for an exemption, Fannie Mae becomes exempt once a purchaser signs the addendum acknowledging the existence of the exemption.  I believe this argument too would fail.  No one, not even a quasi-government entity, can contract away its obligation to obey the law.


Tuesday, August 13, 2013

Fannie Mae's Undisclosed Problems

In a previous post, I described my own encounter with the heavy-handed and self-defeating procedures utilized by Fannie Mae to unload its REO/foreclosed properties.  I quoted the following provision from the contract addendum that Fannie Mae asks all purchasers to sign:
6) BUYER acknowledges that they [sic] understand Seller has never occupied, seen or personally inspected the property, and is exempt from traditional property condition disclosures.  ______ buyer initials.
I made the following comment:
I don't think it is quite that easy, however.  State disclosure laws still obligate the owner to disclose what he knows, even if he never lived at the property.  It is possible that Fannie Mae could receive an inspection report from a potential buyer, which would then need to be disclosed to future buyers.  I've read elsewhere that Fannie Mae attempts to avoid this problem by remaining willfully blind.  They refuse to accept any inspection reports because they do not want to be obligated to disclose anything.
This week, I had another encounter with Fannie Mae that might demonstrates the willful blindness I mentioned.

I had an interest in this house, which recently appeared on the County Sheriff's sale list:
1337 SE Cherokee
A review of the court records revealed that Bank of America (successor to Countrywide Home Loans Servicing, LP) filed the foreclosure action in September of 2011, alleging an indebtedness in the amount of $112,194 on a loan of $125,800.  (The house has been vacant since that time.)  Judgment was obtained in December of 2011, the property was appraised at $130,000, and it was sold at sheriff's sale.  Then the plaintiff's attorneys realized that they goofed by not attaching the endorsed note to the Petition, so they asked that their own judgment be vacated so that they could start over.

A new judgment was entered in August of 2012, but the plaintiff's attorneys bungled that one as well, so they once again had to start over.

A third execution and order of sale issued in December of 2012, and a sale was scheduled for February 19, 2013.  This time, the house was appraised at $146,000.  There is no explanation for why the appraised value went up by $16,000 in two years.  During that time, it suffered water damage, was broken into, and, based upon the items I saw on the floor when I peeked through the window, might have been used as a meth cook site.  I doubt that the meth chef made $16,000 in improvements to the interior.  

I was interested in bidding on the property, so in an attempt to gather all of the information I could, I tracked the mortgagor down and mailed her a letter, asking her to disclose what she knew about the physical condition of the property.  I was overwhelmed by her emailed response:

I had put in a koi pond in the back which was apparently vandalized a couple of months after we left.  I don't know if vandals ever broke into the inside of the house.

The roof on the back of the house (south corner) was damaged after a nasty windstorm.  The fascia board was almost completely torn off because the power to house was (brilliantly) attached to that instead of a more sturdy structure.  This exposed an opening that I imagine now may have a few critters seeking refuge... not to mention weather having access.

The kitchen has new appliances... Stainless steel side by side, oven with glass top and dishwasher.  The dishwasher apparently had a leak and may have damaged the floor beneath the vinyl tiles.

NONE of the windows downstairs will open (bought it that way).. Never got to fixing them because of the $10,000 quote.  The basement will be your biggest issue.

When there is a moderate rain, or snow melt, the basement floods.  There is a working sump pump, but (again brilliantly) it was attached to a garden hose outside... so when the temperature freezes... so does the hose... the sump pump will turn on, but not be able to evacuate any of the water due to ice in the hose.  There is a sink above the pump that goes to a regular drain, so you would have to bail out the pump into the sink.

When you have moderate to heavy rain or snow melt, water comes up through cracks in the floor, and squirts out of the walls like a water fountain.  My guess is the only way to solve the water issue in the basement is via French drains, but again... I couldn't afford to have them installed.

There are two HVAC units... one for upstairs one for downstairs.  I replaced the upstairs one a couple of years after I moved in.  The downstairs one died just before I left.  It was old... very old.

The wiring in the house is tricky.  Since I had a home based business, I had one room in the house completely re-wired to protect my computers, faxes, printers, copiers, etc.  The bedroom next to the downstairs bath is what I refer to as the 'safe room'.  It's the only one with decent electrical.

When in the basement, if you look up you will see the ceramic tubes with wire wrapped around them (old school wiring).  Whether that's active or not, or runs through the rest of the house or not, I can't really say.  There is a panel downstairs that the electrician worked with, and he didn't seem overly concerned.

I ran power out the garage because I had a lot of wood working equipment and had several outlets placed throughout the garage to accommodate them.

I also had power run from the garage out to where the pond is/was. It has it's own breaker in the garage.

The front facing window in the office/bedroom has a storm window.  The month that I left the house there was a huge storm.  The window filled with water then poured into the office.  I ended up drilling holes in the sill to help drain the water to the outside of the house because I couldn't get the storm window off.  It helped a lot, but the window would still leak into the room during a heavy storm.

In short, the house has everything but a poltergeist.  This was useful information.  I substantially adjusted my own  valuation of the property downward, but was still determined to attend the sale.

At the sale, the bank's attorney made a bid of approximately $99,000, which was more than I wanted to pay for a house that has alternating founts of storm water and bolts of electricity shooting out of the walls, so the bank got it, at which point it handed it off to Fannie Mae and exited the stage.

Eleven days ago, a For Sale sign appeared in the yard.  As with the other house I blogged about, Re/Max is the listing copany, but all offers must be made on-line, using Fannie Mae's Homepath website.  Here's the Homepath page for this particular property, offering it for sale at $121,900.  

If you view the photos and read through all the information on the webpage, you will not find any indication of the problems detailed in the email I received from the previous owner.  That's not surprising, since Fannie Mae never "lived there," and had no reason to seek out the previous owner for information.  

This is where the addendum language comes in.  It states that Fannie Mae has not seen the property and is exempt from disclosure laws.  Isn't it odd that they feel the need to announce that they are exempt?  If they have not seen the property and can honestly say they are not aware of any problems, why isn't that enough?  No "exemption" is necessary.

Maybe it is because there have been reports of Fannie Mae being informed of problems, whereupon they become deaf and dumb.  Consider this first-person account of Fannie Mae disclosure practices in California:
I used to work with a small team of REO listing agents and we had a Fannie Mae account. The asset managers expressly forbid us from sending them any reports or inspections on the properties. Even worse, they expressly forbid us from accepting or even looking at any inspections or reports done by buyers during an escrow. Their advice to us was that if a buyer’s agent emailed over an inspection report, delete it. 
Yes, the asset managers actually told us to delete files.
But such a thing wouldn't happen in Oklahoma, would it?  I emailed Re/MAX the list of horrors reproduced above, explaining that I received the list from the previous owner.  I asked whether any of those problems had been corrected.  Here is the reply I received:
Thank you for your interest in the property. The only repairs that are being done to our knowledge are some electrical and the only appliance that remains in home is a dishwasher. 
Okay, so they have chosen not to fix the leaky basement and other problems.  That's fine, but now that they are on notice of the problems, they must disclose them to all potential buyers.  60 O.S. 833 reads as follows:
A. A seller of property located in this state shall deliver, or cause to be delivered, to the purchaser of such property one of the following:
1. A written property disclaimer statement on a form established by rule by the Oklahoma Real Estate Commission which states that the seller:
a. has never occupied the property and makes no disclosures concerning the condition of the property, and
b. has no actual knowledge of any defect.
The Realtor also has a disclosure obligation per 60 O.S. 836(C):
A real estate licensee has the duty to disclose to the purchaser any defects in the property actually known to the licensee which are not included in the disclosure statement or any amendment.
Will Fannie Mae meet their disclosure obligations, or will they rely upon their self-proclaimed "exemption"?  If you are interested in 1337 SE Cherokee, I urge you to ask about known problems.  Let me know what you are told.  

Monday, August 12, 2013

The Bee Counters

Where in the Constitution is the general government delegated the authority to count bees and produce manuals teaching others how to capture bees and start their own collection?  I don't know, but these photos are cool.

My guess is that Thomas Jefferson would oppose this sort of governmental activity, but with great reluctance.

Wednesday, July 24, 2013

"Patience is required . . . "

About this time last year, Fannie Mae started bragging about all the money they were making.  One might wonder why the U. S. government acted to bail out Fannie Mae in 2008, disbursing over $116 billion in taxpayer dollars.  I recently got a clue from my own Fannie Mae encounter.

A house that is across the street and two doors down from my own had been vacant for some time, so I did some poking around and learned that it was in foreclosure.  CitiCorp started the foreclosure proceeding in February of 2011, with the filing of a petition.  Attached to the petition is a copy of the note, showing that $84,000 was borrowed against this house.  THAT IS CRAZY.  We are talking about a simple 2-bedroom house that doesn't even have central heat and air.

The property owners were successfully served with summonses and failed to answer, so CitiCorp was able to get a quick default judgment.  Still, it wasn't until January of the following year that the property went to sheriff's sale.  It was then appraised at $55,800 (the same property that served as collateral for a loan of $84,000).  CitiCorp was the high bidder at the auction, acquiring the property for $37,200.

Oh, but there was a problem.  CitiCorp discovered that CitiMortgage, its own sister company, held a superior mortgage lien against the property in the amount of $38,500.  Oops!  The sheriff's sale had to be vacated and the foreclosure was dismissed.  (Did you pause and notice that a house with an appraised value of $55,800 was serving as collateral for loans totaling in excess of $122,000?  CitiCorp did not pause.)

In October of 2012, a new foreclosure action was filed, this time by CitiMortgage.  It named CitiBank, successor to CitiCorp, as a defendant.  Essentially, CitiMortgage sued itself.  Again, a default judgment was obtained and the property went to sheriff's sale.  This time, it was appraised at $45,800.  There is no apparent explanation for the $10,000 drop in appraised value.  (Don't these dumb appraisers know that this is a $122,000 house, according to the lenders?!!) Still, this is high, based upon my own knowledge of my neighborhood and Bartlesville real estate prices.

I attended the sheriff's sale, hopeful that I could acquire the property and use it as a rental.  Bidding against the attorney for CitiMortgage, I bid as high as $39,000, but the bank's attorney kept going, acquiring the property for $40,000.

The sale was confirmed on May 13, 2013, more than two years after the initial foreclosure filing, at which point the bank orally assigned the property to Fannie Mae.  The sheriff's deed was then issued to Fannie Mae.  You see, both of those undercollaterized loans were held by Fannie Mae, with CitiCorp/CitiMortgage merely acting as proxy/servicer of the loans.

Last week, Fannie Mae listed the property for sale through Re/MAX with an asking price of $25,500.  

This is where another pause is warranted, maybe even some head scratching.  Is this not the same property that was just appraised at $45,800?  Is it the same property that served as collateral for $122,000 in loans?  More importantly, isn't it the same property that I tried to buy for $39,000?  Yes, it is.  So why would a bank forego an offer of $39,000, only to turn around and list the same property for sale through a Realtor (who will receive a commission) at $25,500?

The short answer is that a bank would not do that.  But here, Fannie Mae is in the equation.  My guess is that the bank is made whole by Fannie Mae, regardless of how much it brings at sheriff's sale, so the bank does not care.  It might as well bid up the price all the way to the judgment amount, then kick it over to Fannie Mae.  The loss is then the problem of Fannie Mae and Fannie Mae's shareholders, or it would be if not for the federal bailout.  

I saw this same scenario play out once before, but involving much bigger dollars.  It made such an impression on me that I created a simple one-page website that tells the story.  You can find it here.  Apparently, little has changed.

Okay, whatever . . . maybe the taxpayers' loss can be my gain.  I decided to submit an offer on the house.  Per Fannie Mae's rules, only an owner-occupant may submit offers during the first 15 days of the listing of a REO property.  After that, "investors" are free to make offers.  Yesterday was the first day that investors could submit offers, so my own Realtor punched in the data to submit my offer online.  (Fannie Mae requires that all offers by submitted online, using their dedicated website.)  

But then Fannie Mae's Realtor informed us that Fannie Mae has come up with a new requirement. All potential buyers must sign and initial a 4-page "disclosure" that overrides much of the standard language found in any purchase and sale contract.  The provisions of this disclosure are so absurd, that I have to quote them.
1) REALTORS AND BUYERS: unlike traditional transactions, an REO/Foreclosure Seller [that's Fannie Mae] may CANCEL the CONTRACT at any time, for any reason.  _______ buyer initials.
Should I ask that I as the buyer also be given the ability to cancel for any reason at any time?  My guess is that they will tell me that some "traditions" are worth keeping and some are not.
3) . . . Patience is required to purchase an REO/Foreclosed property.  ______ buyer initials.
Are they asking me to stipulate that I have patience, or that I understand that I will need patience?  Should I also be patient in expecting Fannie Mae to pay back all of those bailout funds that they received?
4) REALTORS: Please make Buyer aware that after they [sic] have reached an agreement with the REO Seller, there will be additional addenda that will need to be signed.  In some cases this addenda will not be available for several days after the agreement is reached.  Patience is required, this [sic] is the normal process for REO companies.  _____ buyer initials.
I really don't know what this means, but it reads as though I must promise to agree to future changes to the agreement.  Those future changes are not known, but I need to be patient.
6) BUYER acknowledges that they [sic] understand Seller has never occupied, seen or personally inspected the property, and is exempt from traditional property condition disclosures.  ______ buyer initials.
Darn it, there went another one of those "traditions."  I don't think it is quite that easy, however.  State disclosure laws still obligate the owner to disclose what he knows, even if he never lived at the property.  It is possible that Fannie Mae could receive an inspection report from a potential buyer, which would then need to be disclosed to future buyers.  I've read elsewhere that Fannie Mae attempts to avoid this problem by remaining willfully blind.  They refuse to accept any inspection reports because they do not want to be obligated to disclose anything.
12) BUYER agrees to pay a $50.00 - or other amount required by Seller - per diem, in the event Seller agrees to Buyer's written request for a contract extension.  This per diem will be charged for each day through and including the new closing date specified in the written extension. ____ buyer initials.
Oh, but what if it is Fannie May who wants to extend the closing date?  Well, then patience is required.
This one is handwritten in block letters.  If this disclosure statement really must be signed in every REO foreclosure sale, I would suggest that Fannie Mae go all out and type the whole thing.
14) . . . It will be at the sole discretion of the Seller to turn on utilities for Inspections, on a case by case basis.
Maybe my case would be one of the lucky ones!
15) BUYER should also be aware that certain deed restrictions will be placed on the property to prevent the re-sale of that property within a short period of time, usually 60 to 90 days, this [sic] is determined by the Seller.  This practice by the Seller is to prevent flipping.  This applies to owner-occupants as well as investors.  ______ buyer initials.
I would call this the envy clause.  Fannie Mae invites investors to make offers, so Fannie Mae wants them to invest, but just not make a profit.  Profits are wicked.  So sign now, Mr. Investor, and you'll be informed later of precisely how long you must sit on your investment.  It will be "determined by the Seller."
. . . BUYERS and REALTORS: Please note: [sic] most foreclosure companies use title companies in Tulsa or Oklahoma City.  If you desire to close in Bartlesville, there will be a courtesy closing fee, which is approximately $225.00. 
Maybe you'll be driving an hour to the closing, or maybe two and a half hours.  If you don't like guessing, then cough up some "courtesy."

The final provision, also handwritten, gives notice that the Buyer will be responsible for paying the title report fee and the abstracting fee.  "Traditionally a seller's cost."

They might as well add a provision that says, "Don't even think about buying one of our properties, or we'll make you sorry."

Is there any wonder why Fannie Mae is so slow to move its inventory?  Fannie Mae is a collector -- it collects foreclosed properties, and it collects taxpayer dollars.

Tuesday, July 23, 2013

The Other Shoe Dropped in Ohio

It didn't take long.  In U.S. v. Windsor, the U.S. Supreme Court struck down that portion of the Defense of Marriage Act that defines marriage for federal purposes.  Justice Kennedy, writing for the majority, strained to reassure readers of the opinion that the applicability of the ruling was limited to the federal government and had no impact upon the ability of the States to define marriage.

Chief Justice Roberts, in his dissenting opinion, wrote:
While I disagree with the result …I think it more important to point out that its analysis leads no further. . . The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States…may continue to utilize the traditional definition of marriage.
 Justice Scalia was not so gullible.  In his dissent, he wrote:
In my opinion . . . the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion . . . 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.
 Addressing Justice Kennedy, Scalia wrote:
It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.
In other words, Prophet Scalia was predicting that the Windsor decision would soon be used as a precedent to declare a STATE's definition of marriage unconstitutional.  I thought it would take longer than a month for Scalia to be proven correct, but this week it was reported that a federal judge in Ohio ordered state officials to recognize the marriage of two men that was performed in Maryland.  Citing language from Windsor, the judge declared Ohio's definition of marriage as being between a man and a woman to be a violation of the U. S. Constitution.

Thursday, May 23, 2013

A Conspiracy to Commit Journalism

Over the past two weeks, we've learned that the Justice Department has tapped the phones of AP and Fox News reporters as part of two separate leak investigations.  This revelation has provoked much angry buzzing from members of the press and talking heads who typically give obeisance to the Obama administration and keep their stingers pointed elsewhere.

Much of the loudest buzzing has centered around the news that the Justice Department labeled Fox News reporter James Rosen a conspirator for soliciting information from a State Department contractor for a story.  It caught my attention that ABC's Jack Tapper, in commenting on the Justice Department's treatment of Rosen, remarked that this is sarcastically being referred to as "a conspiracy to commit journalism."

I also found an opinion piece by Xeni Jardin using that phrase as the caption.

I then remembered where I first heard this phrase.  In was in a 2001 column by Ann Coulter, in which she discussed the Senate Democrats' attempt to torpedo the nomination of Ted Olson for Solicitor General.  The torpedo was Olson's association with The American Spectator ("TAS") and its "Arkansas Project."

I should back up.  In 1994, TAS pushed over the first domino that would ultimately lead to the impeachment of President Bill Clinton with the publication of "His Cheatin' Heart," an article by David Brock about Gov. Clinton's use of Arkansas State Troopers to help facilitate his multiple trysts.  (I think I first subscribed to TAS in '92, and I remember the article well.)

This was followed by several more investigative stories aimed at the Clintons.  Funding for these stories came, in part, from the Scaife Foundation.  This newly enhanced investigative function of TAS came to be known as the Arkansas Project.  Some of what the Arkansas Project uncovered became part of the Kenneth Starr investigation, and at least one of Starr's witnesses, Judge Hale from Arkansas, was also a source for some of the TAS pieces.

The Clinton forces, bloodied and bruised but not out, managed to get a special counsel of their own appointed to investigate the Arkansas Project.  The primary allegation was that of witness tampering, but in the end, TAS itself was being investigated.  There were no indictments, and the special counsel concluded that no crimes had been committed.  But the investigation just about ended TAS.  I remember that the publication was taken over by George Gilder, who acted as sort of a caretaker, at the time.  All but two members of the staff were fired or left.

Returning to the nomination of Ted Olson, the Arkansas Project was used against him on the basis of Olson having served on the board of the American Spectator Foundation during the time of the Arkansas Project.  In criticizing this attack on Olson, Ann Coulter, began her column with the following:
Last week, every Democrat on the Senate Judiciary Committee voted against Ted Olson, Bush's nominee for solicitor general. The Democrats are troubled by accusations that Olson may have associated with conservatives who were conspiring to commit journalism.
I have no idea whether Ann Coulter was the first to use that phrase, but that's the first place I saw it.  In 2007, Ted Olson was nominated to be Attorney General and the Arkansas Project once again came up.  Interestingly, the Wall Street Journal then published the following in its editorial:
Ultimately the Spectator board voted to shut down the project, and in any case committing journalism is not a crime. The Arkansas Project was never accused of breaking any laws, although the Clinton Justice Department did investigate the magazine over the campaign, which strikes us as a much creepier sort of partisanship than exercising one's First Amendment rights.
Referring to it as a "creepier sort of partisanship" is somewhat of an understatement.  In essence, the president used the power of the Justice Department to go after his enemies and attempt to silence, if not jail, the reporters and publishers doing him harm.  At the time, I thought it betrayed ideological blindness and shortsightedness on the part of the mainstream press when it looked the other way and pretended not to notice.  Now that the current Justice Department is tapping the phones of the AP, they are taking notice.

"Conspiracy to commit journalism" is a clever phrase, but unfortunately, this is not the first time such sarcasm is warranted.

Friday, May 17, 2013

The 30-Year War

Yesterday, the Senate Armed Services Committee held a hearing on the 2001 Authorization to Use Military Force (AUMF).  Due to this week's scandal trifecta, the hearing received little coverage, so you might have missed the revelation that our two War Parties have delivered the United States' first 30-year war.  Wired's Spencer Ackerman described the relevant exchange here:
"Asked at a Senate hearing today how long the war on terrorism will last, Michael Sheehan, the assistant secretary of defense for special operations and low-intensity conflict, answered, 'At least 10 to 20 years.' . . . A spokeswoman, Army Col. Anne Edgecomb, clarified that Sheehan meant the conflict is likely to last 10 to 20 more years from today - atop the 12 years that the conflict has already lasted. Welcome to America's Thirty Years War."
You'll recall that the AUMF was passed in response to the 9/11 attack.  Although it did not contain the word "war," it came to serve as the legal basis for engaging in a global war on terror that has no termination point and no geographic boundary.  But despite the war fatigue of the U.S. electorate, there is no talk of repealing the AUMF, rather the committee only considered whether it needs to be broadened.  Does anyone know what victory will look like? 

Monday, April 22, 2013

AICCM - Another Money Pit

The Oklahoma Constitution reports that the Native American Cultural and Educational Authority is returning to the feeding trough in their fourth attempt to get the state legislature to increase funding the NACEA claims is needed to complete the American Indian Cultural Center and Museum.

Oklahoma taxpayers have already provided $63 million for the construction and more than $26 million to the agency for operations and debt service. Last November, the Native American Cultural and Educational Authority (NACEA), the state agency created to develop the facility, announced their plan: “We are currently preparing to return to the Oklahoma Legislature to pursue funding for The Center. We will be seeking $40 million to match pledges of $40 million in private, tribal and local government support.” That would bring the total price of the project, including federal, state, local, and private funds, to $173 million, not including future interest on the bonds.
State bond debt payments on the project have been running $5.5 million per year.  If the additional funding is approved, this will rise to almost $9 million.

As with so many other government projects, this one hasn't worked out as planned.  The initial bond was meant to cover the full costs of the project, but the money ran out in 2007 after completing the parking lot and the shell of the main building.  It has remained in this embarrassing state ever since.  No doubt, thousands of families anguish, year after year, wondering when the AICCM will be completed, so that they can schedule their long-anticipated family trip.  "Sorry, kids.  Not this year."

I have thought of a solution.  Anyone who has driven for more than an hour on the highways of Oklahoma has seen tribal casinos in varying sizes, ranging from a small mobile home to a Vegas-style colossus, such as Downstream Casino, where I dined last night.  None of these structures required taxpayer funding.  Some of the largest did not start out large, but had humble beginnings.  As the slots revenue poured in, a temporary structure would be replaced with a small permanent structure, and it would then be replaced with a larger structure, and then you'd suddenly start seeing construction cranes.

Let us try this approach with the AICCM.  Start our with a small facility -- something like The Standing Bear Museum and Education Center in Ponca City.  If the tribes are so inclined, perhaps they could chip in some of their casino revenues.  Then when visitors break down the doors to get at all of that wonderfully displayed American Indian culture, maybe the NACEA will be justified in building a larger facility.

Plan B would be to fill the existing incomplete shell with slot machines.  The existing debt would be paid off in a matter of months.

Monday, February 25, 2013

Opaque Transparency in Oklahoma State Government

I receive a regular email from a service that monitors the Oklahoma state legislature.  Reading a list of bills recently passed by committee, I noticed something called the Transparency Accountability and Innovation in Oklahoma State Government 2.0 Act of 2013.  It is HB1003, introduced by Representative Murphey.  I looked it up on the legislature's Bill Information site and found this bill summary:

 HB 1003, as introduced, creates the Transparency, Accountability and Innovation in Oklahoma State Government 2.0 Act of 2013 and is a shell bill.
 It turns out that this is a pretty detailed summary, since the full text of the bill is as follows:

SECTION 1.     NEW LAW     A new section of law not to be
codified in the Oklahoma Statutes reads as follows: 
This act shall be known and may be cited as the “Transparency,
Accountability and Innovation in Oklahoma State Government 2.0 Act
of 2013”. 
SECTION 2.  This act shall become effective November 1, 2013.
When the bill summary refers to HB1003 as a "shell bill," it means that the guts will be added at a later time.  Often, the majority party will use this technique to avoid public scrutiny.  There will be a shell bill that will just sit until near the end of the legislative session, when the contents will be added and the bill will be quickly and quietly passed.  Sometimes, the added contents have little or no relation to the original title of the shell bill.

It does not appear that this is what is happening with HB1003.  The contents have already been filled in by amendment and this was done prior to the bill being approved in committee.  As amended, the bill does not appear to be anything sinister.  But I still found it amusing that a bill with "Transparency . . . in Oklahoma State Government" in its title starts out as a shell bill that offers no clues as to its true purpose.

Thursday, February 21, 2013

First Amendment Right to Trespass?

The Seattle Times reports on a recent decision by the 9th U.S. Circuit Court of Appeals that a Seattle city ordinance violates the free speech rights of the publishers of yellow pages phone books.  The ordinance created an opt-out registry that permits city residents to opt out of having phone books dumped on their porch.  The phone book companies went to court to fight for the right to continue to go onto other people's private property and dump unwanted phone books.  The Court of Appeals ruled in favor of the trespassers, finding that such conduct is protected by the First Amendment.

Why do phone book companies want to go to the expense of printing and delivering phone books to people who don't want them, you might ask.  The article does not address this, but my guess is that it because the ad reps need to be able to brag to potential suckers clients that x-number of phone books get distributed each year and therefore their ads will be seen by x-number of people.  The phone book companies couldn't care less whether the phone books are ever opened, so long as they get "distributed."

Bartlesville's local newspaper, the Examiner-Enterprise, puts out a free edition called the Hometown Shopper.  It contains a few news articles from the regular edition, but is mostly stuffed with ads and circulars.  One copy of each edition of the Shopper gets tossed into the yard of every residence in town.  People learned long ago that the paper contains nothing but junk, so no one other than deranged hermits and OCD paper-stackers ever bother to remove the rubber-band.  The papers go straight from the yard to the trash bin.

Actually, that's the best case scenario.  Often, the Shoppers don't even get picked up, so they lay where they were tossed for weeks and months, slowly rotting away, until they get sucked into a mower and become Shopper confetti.  I've seen yards with as many as seven Shoppers.  You might think that the litterer paper-boy would notice this accumulating pile of rolled-up sog-logs and conclude, "These people must not want their free Shopper.  Maybe I should stop delivering them."  But no.  For the same reason that phone books will continue to be delivered in Seattle, the Shopper will continue to be delivered in Bartlesville -- the number of monthly deliveries, not readership, is what counts.

The Examiner-Enterprise has a "Readers' Roundtable" on its editorial page and claims to publish all letters received from readers.  I put this boast to the test by writing a letter to the editor, complaining of the Shoppers that are littering our streets and yards, becoming a general nuisance to our community.  I advised any potential advertisers to not fall for any sales pitch from the ad reps talking about how many copies of each issue of the Shopper get delivered each month, but to look around and see how many are unopened and rotting.  Guess what?  The newspaper decided to make an exception to their policy of publishing all letters.  Mine never appeared.  Despite my request that the Shopper no longer be tossed into my yard, the litter continues.

I have been tempted to file a police report, but now it seems that the law is on the side of the litter-bugs, at least according to the Court of Appeals.  I could not find the decision to read for myself, so I do not know the reasoning of the majority, but I doubt that I will ever be convinced that a private business or anyone else has a First Amendment right to come onto my property to give me something I've told them I don't want.  Can I now toss my garbage (which will no doubt include water-soaked Shoppers) in the yard of the publisher of the Examiner-Enterprise and call it freedom of expression?  Many municipalities have ordinances that ban door-to-door salesmen.  Isn't that also free speech?  Some municipalities, including Seattle, I believe, have ordinances that prohibit vegetable gardens in front yards.  Someone please explain to me how a city can tell me I can't grow tomatoes in my yard, but that same city can't prevent other people from littering my yard with advertising circulars?

Friday, February 15, 2013

Robert Wright Signs Off

I don't regularly read Robert Wright, so I was ambivalent when I saw his final column, "singing off" from The Atlantic, bu buried within his ponderous goodbye were some wise observations that deserve repeating:

I'd like to quickly articulate three beliefs of mine that I rarely articulated this year, but that informed much of what I wrote, especially in the realm of foreign policy. 
[1] The world's biggest single problem is the failure of people or groups to look at things from the point of view of other people or groups--i.e. to put themselves in the shoes of "the other." I'm not talking about empathy in the sense of literally sharing people's emotions--feeling their pain, etc. I'm just talking about the ability to comprehend and appreciate the perspective of the other. So, for Americans, that might mean grasping that if you lived in a country occupied by American troops, or visited by American drone strikes, you might not share the assumption of many Americans that these deployments of force are well-intentioned and for the greater good. You might even get bitterly resentful. You might even start hating America. 
[2] Grass-roots hatred is a much greater threat to the United States--and to nations in general, and hence to world peace and stability--than it used to be. The reasons are in large part technological, and there are two main manifestations: (1) technology has made it easier for grass-roots hatred to morph into the organized deployment (by non-state actors) of massively lethal force; (2) technology has eroded authoritarian power, rendering governments more responsive to popular will, hence making their policies more reflective of grass roots sentiment in their countries. The upshot of these two factors is that public sentiment toward America abroad matters much more (to America's national security) than it did a few decades ago. 
[3] If the United States doesn't use its inevitably fading dominance to build a world in which the rule of law is respected, and in which global norms are strong, the United States (and the world) will suffer for it. So when, for example, we do things to other nations that we ourselves have defined as acts of war (like cybersabotage), that is not, in the long run, making us or our allies safer. The same goes for when we invade countries, or bomb them, in clear violation of international law. And at some point we have to get serious about building a truly comprehensive nuclear nonproliferation regime--one that we expect our friends, not just our enemies, to be members-in-good-standing of.

Saturday, February 2, 2013

Postal Service says it's immune from local traffic laws

A government lawyer’s attempt to get dismissed nearly $700 in traffic tickets given to the U.S. Postal Service is being met with a hearty and humorous, Heck no. 
In a Jan. 22 letter sent to both the city of East Cleveland, Ohio, and the company that operates the city's photo-enforcement program, Postal Service attorney Jennifer S. Breslin says two school-zone speeding citations and five red-light infractions by postal trucks in December should be ignored. 
“In providing mail service across the country, the Postal Service attempts to work within local and state laws and regulations, when feasible,” wrote Breslin, after reminding “To Whom It May Concern” that postal workers promptly deliver over 200 billion pieces of mail annually.
“However, as you are probably aware, the Postal Service enjoys federal immunity from state and local regulation,” she continued.
That last bit did not go over well with American Traffic Solutions (ATS), the Arizona-based company that enforces East Cleveland’s camera citations. 
“By attempting to hide behind an immunity claim, you are aiding and abetting your drivers in their blatant disregard for the traffic laws in East Cleveland, which have endangered other drivers, pedestrians and school children,” ATS attorney George Hittner wrote in his three-page response to Breslin, who received it on Thursday. (He also cc'd the postmaster general, two U.S. representatives and two senators.)
Read the rest of the article here.

The response to the imperious letter from the Postal lawyer is enjoyable, but I would appreciate it more if it was not coming from a private company.  Something is askew when local government not only contracts out the enforcement of traffic laws to a corporation, but also relies upon that corporation to defend its own sovereignty.

Friday, February 1, 2013

Q&A with Congressman Bridenstine

Last night, Congressman Jim Bridenstine conducted a town hall meeting at Wesleyan University in Bartlesville.  Before it started, question cards were handed out to everyone who wanted one.  A member of Bridenstine’s staff assured the audience that every submitted question would be answered;  if the one-hour time allotted for the meeting proved to be insufficient, then all remaining questions would be answered by email.  Fortunately, the congressman was able to get to all the questions.  (No rebuttals or follow-ups from the questioners were permitted.)  

I commend Congressman Bridenstine for conducting the town hall meeting and for beginning it with a thorough, straight-forward explanation of all the votes he has cast in the House.  I also appreciate his commitment to answer any and all questions.  However, I was not satisfied with the answer he gave to the question that I submitted.  Since no rebuttal was allowed, I will make it here.  (If I’m lucky, it will at least be read by my wife.)

Here is my question:

Why fear the sequester?  It is the only realistic chance we have of getting spending cuts.  Republicans seem to fear cuts to defense, but even after the sequester, the U.S. will be spending more on defense than the next 10 countries combined.  Shouldn’t defense spending be cut along with everything else?

Well before my question was read aloud by a member of his staff, Congressman Bridenstine, without prompting, had already addressed the topic of sequestration and made it very clear that he opposes it precisely because it includes cuts to defense.  He claimed:

  1. According to Defense Sec. Leon Panetta, the cuts “will hollow out the military.”
  2. According to Sen. Inhofe, more than 26,000 workers in Oklahoma will have to be furloughed as a result of the cuts in defense spending mandated by the sequester.
  3. Bridenstine’s own carrier crew – he loves talking about his carrier crew -- has already had to reduce drug interdiction flights because of the spending cuts.
  4. “Our national security is being compromised at this very minute” because of the cuts.
  5. The U.S. is 24th in the world when it comes to defense spending.  He then clarified that this is based upon percentage of GDP.

Before we even get to the answer to my question, some fact-checking is in order.  The “sequestration” refers to a triggered reduction of expenditures mandated by the Budget Control Act, should the House and Senate fail to agree upon an alternative plan for reducing the annual deficit.  The reduction of expenditures is to be $1.2 trillion OVER TEN YEARS.  (Despite the wailing over this "draconian" measure, it actually does very little to control the debt.  That's how bad things have gotten.)  Of that, $216 billion will come from assumed debt service savings, so we are really talking about $984 billion in cuts. Of the $984 billion in cuts, $492 billion will be defense cuts and the other $492 will be non-defense cuts.

That means that on average, the Defense Department will have to make do with $49.2 billion a year less than it would have otherwise received.  So does this constitute a “hollowing out of the military”?  For 2012, the budget for the DoD was $530.6 billion, up from $528.2 billion for 2011.  Oh, but that does not include spending on the undeclared wars in Iraq and Afghanistan.  (War costs are treated as a separate category of spending, as if war is not within the mission of the DoD.)  If you include war spending, then the budget for 2011 was around $700 billion.  So that means that a $49.2 billion cut would be a 7% reduction.  "The Pentagon will still be spending more in 2013 after sequestration than it did in 2006, at the height of the Iraq war," noted Lawrence Korb, who served as assistant defense secretary under President Reagan.

Consider some other comparisons.  Over 10 years, under sequestration, defense increases 18 percent (vs. 20 percent without sequestration).  In nominal terms, cumulative nonwar defense spending over the FY2012-FY2021 period will increase to $4.8 trillion with sequestration, as opposed to $5.3 trillion without it. Notice this is "nonwar" spending.  According to the Congressional Budget Office, over the same period, the Department of Defense will also spend an additional $400 billion on war. (How much would it be if we didn't have a Nobel peace prize-winner as president?)

Even if we exclude war spending, defense spending has almost doubled over the past decade.  As you can see from the above chart, the sequestration will result in a slight dip before the upward trajectory resumes.  This is not a "hollowing out" of our military.

As for Congressman Bridenstine's claim that defense cuts are already compromising our national security, I would challenge him to identify these "cuts."  Separate and apart from the sequestration, the Budget Control Act called for spending caps that have already gone into effect, but these are caps on the rate of increase.  Even with the caps in place, the DoD budget continues to grow at the rate of inflation.  This means there have been "cuts" only in the government weasel language of D.C., where a reduction in the rate of increase is called a "cut." Please tell me Congressman Bridenstine hasn't adopted the lingo of the appropriators in his first month in office.

 As for Sen. Inhofe's assertion that sequestration will result in 26,000 furloughs in Oklahoma, this is a number he pulled out of the air, or it was fed to him by DoD folks who are in crisis mode, cranking out as many scary scenarios as they can.  Furloughs have become the weapons of mass destruction of the budget debate.    The prediction assumes there is no fat to be cut at DoD.  Maybe Sen. Inhofe needs to read Sen. Coburn's report on waste in the Defense Department.

Even if the sequester results in a large number of furloughs, or even terminations, this not an argument against the sequester.  The Defense Department's mission is to defend the nation -- not to employ the nation.

Congressman Bridenstine's assertion that 23 other countries spend more on defense was the biggest canard of the night.  First, it should be noted that he's using percentage of GDP as his measurement.  Why that is a relevant measurement was not explained.  I guess one could argue that the more stuff you have, the more need you have for protection -- people in mansions have high fences and security systems.  But does that really extend to a nation state?  Do we need to double defense spending every time our GDP doubles?  Our GDP decreased, last quarter, so does that mean defense spending should go down?

Also, it should be noted once again that we are talking about nonwar defense spending.  We must be, otherwise I have no idea where Bridenstine is getting his figures.  Here is Wikipedia's listing of military budgets by country.  The number for the U.S. includes war spending, resulting in a figure of 4.7% of GDP.  You can see that only about 7 other countries have a higher percentage.  Among these countries are Israel (whose spending includes billions of dollars that the U.S. gives to them), Oman, and Eritrea.  Should we feel vulnerable because any of these countries spend a greater percentage of their GDP on their military than does the U.S.?

It should also be noted that the numbers for the U.S. include only the money flowing to DoD.  There are other billions of dollars that get spent on "defense" but do not flow through DoD, so they don't get counted.  I'm thinking of veteran affairs, intelligence gathering, and the Department of Energy's overseeing of our nuclear weapons stockpile.

Now consider actual dollars.  Look again at the Wikipedia page, or look at this chart:

The U.S. spends 41% of the world's total.  My question to Congressman Bridenstine was premised upon the assertion that the U.S. spends more than the next 10 countries combined, but it is much worse than that. U.S. military spending is three times larger than the combined spending of NATO’s other 27 members.  Just who is it that we are frightened of?  Maybe it is time to recognize that no other foreign country or alliance can pose a serious military threat to the U.S.  Today, true danger lies elsewhere.

Now for Congressman Bridenstines' answer to my question . . .

He conceded that there is room to make cuts to military spending, pointing out that the military is inefficient and wasteful just like all other segments of the government.  (This was inconsistent with all of his other rhetoric up until this point.)  But he went on to say that he opposes sequestration because "it cuts defense singularilly [sic]."  Of course, this just isn't so.  It is true that a disproportionate amount of the cuts will hit defense, but certainly not all.  Half the cuts will be to defense spending and half will be to non-defense spending.  Maybe the congressman was simply exaggerating in his speech.  In any event, I took his reasoning to be an insincere prop for his position.  If cuts to non-defense spending were to be increased so as to make the percentage cuts to defense more proportional, I'm sure he would still be opposed, based upon his earlier statements.

The "peace dividend" we were promised at the end of the Cold War proved to be elusive.  Now, despite President Obama's constant bragging about "winding down two wars," military spending must still go up and up.  Anything less, it seems, would be "hollowing out" our military.

(Maybe it's a good policy for Bridenstine to not allow rebuttals or follow-up questions.  I doubt that I would have been able to get in all of the above.)