Lately we have been treated to various threats and statements from several sources, many from Texas and other parts south, who are again enamored of the idea of seceding from the United States. The presidency of Barack Obama seems to be fueling some of this nonsense. There was also a group of white, land- and slave-owning males back in the mid-1800’s in the American South who thought secession from the United States was a good idea. The latter-day secessionist saints also seem to be mostly white, mostly male and fairly encumbered with property, if not wealth. Unfortunately for some of them, slave-owning is now illegal.
The shared circumstance in both instances seems to be much dissatisfaction with the Fearless Leaders of the federal government in Washington. Many in the Planter Class back in the mid-1800’s were ready to abandon their presumed allegiance to the United States if Abraham Lincoln became President. Many today are rather annoyed at Barack Obama, the first “black” President in the “White” House. Some recent hotheads have associated both the Swastika and the Hammer & Sickle with images of Obama sporting a Hitler-like “toothbrush” mustache. But, we have their assurances they are not racist. Whatever. Maybe they are just dingleberries.
As a Vietnam-Era draft-dodger and life-long Southerner, gratefully if not proudly descended from a long line of non-combatant Southerners who cleverly managed to avoid wartime dangers I have, nevertheless, come to some conclusions about secession and what is generally known hereabouts as the “War of Northern Aggression.” I did have a couple of ancestors who participated in that conflict on behalf of the Confederacy, and the Confederacy is generally thought of as the entity which the Southern states created and joined after “they” seceded from the Union. But, it is well to remember that it was not the people generally who voted to secede from the Union; it was merely the antebellum Southern legislatures that declared secession, and those bodies were selected by, and representative of white, male landowners EXCLUSIVELY! "Nigras," women and redneck sharecroppers need not apply.
I marvel at the way in which the “neo-Confederates" out there today swagger around, clutching their virtual cod-pieces and declaring in manly voices what they are gonna do if whatever does not happen! I think that most of them, though, have no more of a clue of what real deprivation and loss is about (or even war) than did the land- and slave-owning Planter Class of the mid-1800’s, standing around "harrumphing" in their drawing rooms, swilling French brandy and bragging about what THEY were gonna do when "Marse Robert" kicked some Yankee ass. Meanwhile, the poor redneck schmucks who did the actual fighting and dying in the Confederate Army were marching around in wool uniforms in summer and barefoot in winter, enjoying the very real deprivation produced for them by the Noble Cause. It is probably a good thing for the continuation of Confederate myth that THEY never had a vote!
Now, let’s consider the recent ravings of those who, perhaps like Texas Gov. Rick Perry, are thinking about having that state secede from the United States. We have been treated to much ado about the brief Texas history as an independent republic. Do modern-day Texas proto-secessionists really think they will get to retain all those Texas-based federal assets (like Ft. Hood & the Houston Space Center) for free? Just imagine the size of the tax load on Texans to pay for Ft. Hood! It is HUGE! They should have to pay for that stupid border fence, too, and all the post offices! Cash on the (oil) barrel-head! NOW!
What about Texas exports to the remaining US? They just might face heavy tariffs, That way, we in the US can tax their britches off and they'd have no representation in Congress whatsoever! Doesn’t seem like such a good idea to me. What if their oil just pooled around their proud Texas bodies like the waist-level water in Dilbert's Elbonia if they don't sell it to us? We'd also be rid of John Cornyn in the Senate, and no chance of Tom deLay coming back to the House, either. Elderly Texans might also be a bit dismayed to be summarily cut off from Social Security and Medicare. (SS and Medicare just might become solvent again!) So, instead, they can all pilgrimage out to the Alamo to sing "The Yellow Rose of Texas" in unison! Of course, they could always declare war on the US, then immediately surrender and get bailed out, like the Grand Duchy of Fenwick!
I think the "War of Northern Aggression" was about the stupidest thing the Southern legislatures ever foisted on the unrepresented masses. In the end, the Confederacy, Jefferson Davis & Robt. E. Lee were a cruel joke. Some less worshipful historians regard Lee as a liar, a traitor, and a mediocre commander who arrogantly and witlessly gave in to his unbridled ego, manifest in the fiascoes of Gettysburg & Antietam. After all the blood, sweat & tears shed by others, Lee got to slink off to Lexington to become president of Washington College (later Washington & Lee University), from which I graduated with a law degree back in the early 1970’s.
Robert E. Lee was a graduate of West Point and a US Army officer for a long time prior to the Civil War. A lot of my fellow Southerners and W&L Alumni will be very angry for my asking, but is not Lee a traitor for violating his solemn oath as a US military officer to support and defend the US against all enemies, foreign AND DOMESTIC? Is not Lee very lucky he avoided prison and got to move to Lexington instead? Apparently, Lee never explained his rationale for taking up arms against the nation he was sworn to defend. I asked a book-writing historian about that once. The revisionist historical hagiography we have been subjected to over the years has effectively protected the legend of Robert E. Lee as a principled gentleman warrior who was merely out-gunned.
I am not anti-Lee; I think he was a very interesting person. But I am not a worshipful Southerner, either. If Lee is as great as most Southerners think, then he ought to be able to withstand some objective examination. For a change.
Secession may seem like a good idea if, as I frequently am, one is very annoyed with a government that often seems unresponsive to one’s concerns. But it is a really stupid idea, and it is an idea best not visited out loud lest one be mistaken for an idiot.
Friday, October 23, 2009
Thursday, October 15, 2009
UNH! GOOD GOD!
(The following is substantially derived from a recent e-mail to a friend, 10/15/09.)
It is hard to believe that James Brown is now dead. When I went to see James at the "Pavilion" in Charlottesville, Virginia just before his death in or about 2007, he was 77 years old, and he was so frail by then, it was obvious he could not drop to the stage singing "Please, Please!" nor do the "James Brown" anymore. I waited in vain, but I can't do those dances anymore, either.
As a randy teenager, I was crazy about James Brown, and I would go see him anytime he was appearing in Richmond, Virginia where I finished high school back in the early 1960's, and even later. James even appeared at my college one weekend. I spent many a night up in the "nosebleed" section of the Mosque balcony in Richmond, being one of about 10 white folks in the whole place, watching James, dropping to his knees, sweating like a horse, with his shirt off and screaming "Please, Please!" into the mike, and the crowd is going apeshit!
Then, one of his sidemen would come from offstage with James's cape, put it gently around his shoulders and help him up off the stage, then assist him pitifully hobbling offstage. As James would reach the side of the stage, he'd FLING the cape off, run back to the mike, grab it and pull it down onto the stage in a kneeling position again, again hollering "Please, Please!" into the mike. This would happen three or four times, and by the end there was such a frenzy in the audience that I feared the balcony would collapse!
I kid you not!
About 25 years before James died, some friends and I were sitting in the bar of the Richmond Marriott one evening having a drink. My friends had fixed me up on a blind date with a friend of theirs. (She did not even have a seeing-eye dog!) We noticed that James Brown was giving an interview nearby. He was to do a show at the Richmond Coliseum later that evening.
I was fidgeting and gibbering about getting James's autograph. About 20 years earlier, I had seen James Brown in the Atlanta airport and had forfeited an opportunity to get his autograph then. At the time, wearing an absolutely beautiful gabardine tan suit and matching cape that contrasted with his extraordinary dark skin, he was surrounded by a bevy of middle-aged black women who were fawning all over him, and this white boy knew better than to intrude on that scene. James was grinning from ear to ear, and I was not going to try to get in the middle.
So when the interview was over at the Marriott, I went over with a pen and Marriott cocktail napkin to ask James Brown for his autograph. There was this very long, deadly pause while James just stared at me with glittering eyes! It was eerie! He seemed stoned "out of his gourd" on something. FINALLY, after an excruciatingly long pause, he moved in slow-motion, took my pen and the napkin and scrawled his signature thereon, appending the phrase "Rocky III" or something like that, being the movie he had then recently completed with Sylvester Stallone wherein he had debuted his song, "Living In America." I quickly excused myself and went back to our table, but my blind date was EXTREMELY nonplussed by my groupie adulation and, needless to say, we never got together again. It seemed she could not wait for the evening to end thereafter, but I had James Brown's autograph, so I did NOT GIVE A DAMN!
Michael Jackson ripped James off with his vaunted "Moonwalk," which was nothing more than a warmed-over "James Brown" or "Camel Walk" that James perfected. A performance by James Brown in his prime was just amazing stuff. I have most of his records and CD's. I saw it all. I was there. I am so eternally glad I was. Many times.
There will NEVER be anyone like James Brown ever again. Not even close. He was a true musical pioneer.
UPDATE: I have performed karaoke a couple of times yet have never tried to do so seriously. I know that my straightforward rendition of a good song would never measure up to the expectations of any audience, regardless of the amount of alcohol it might have consumed! But I have, in fact, performed Madonna's first hit, "Like A Virgin" in the style of James Brown, and it has been rather well received!
Unh! Good God!
It is hard to believe that James Brown is now dead. When I went to see James at the "Pavilion" in Charlottesville, Virginia just before his death in or about 2007, he was 77 years old, and he was so frail by then, it was obvious he could not drop to the stage singing "Please, Please!" nor do the "James Brown" anymore. I waited in vain, but I can't do those dances anymore, either.
As a randy teenager, I was crazy about James Brown, and I would go see him anytime he was appearing in Richmond, Virginia where I finished high school back in the early 1960's, and even later. James even appeared at my college one weekend. I spent many a night up in the "nosebleed" section of the Mosque balcony in Richmond, being one of about 10 white folks in the whole place, watching James, dropping to his knees, sweating like a horse, with his shirt off and screaming "Please, Please!" into the mike, and the crowd is going apeshit!
Then, one of his sidemen would come from offstage with James's cape, put it gently around his shoulders and help him up off the stage, then assist him pitifully hobbling offstage. As James would reach the side of the stage, he'd FLING the cape off, run back to the mike, grab it and pull it down onto the stage in a kneeling position again, again hollering "Please, Please!" into the mike. This would happen three or four times, and by the end there was such a frenzy in the audience that I feared the balcony would collapse!
I kid you not!
About 25 years before James died, some friends and I were sitting in the bar of the Richmond Marriott one evening having a drink. My friends had fixed me up on a blind date with a friend of theirs. (She did not even have a seeing-eye dog!) We noticed that James Brown was giving an interview nearby. He was to do a show at the Richmond Coliseum later that evening.
I was fidgeting and gibbering about getting James's autograph. About 20 years earlier, I had seen James Brown in the Atlanta airport and had forfeited an opportunity to get his autograph then. At the time, wearing an absolutely beautiful gabardine tan suit and matching cape that contrasted with his extraordinary dark skin, he was surrounded by a bevy of middle-aged black women who were fawning all over him, and this white boy knew better than to intrude on that scene. James was grinning from ear to ear, and I was not going to try to get in the middle.
So when the interview was over at the Marriott, I went over with a pen and Marriott cocktail napkin to ask James Brown for his autograph. There was this very long, deadly pause while James just stared at me with glittering eyes! It was eerie! He seemed stoned "out of his gourd" on something. FINALLY, after an excruciatingly long pause, he moved in slow-motion, took my pen and the napkin and scrawled his signature thereon, appending the phrase "Rocky III" or something like that, being the movie he had then recently completed with Sylvester Stallone wherein he had debuted his song, "Living In America." I quickly excused myself and went back to our table, but my blind date was EXTREMELY nonplussed by my groupie adulation and, needless to say, we never got together again. It seemed she could not wait for the evening to end thereafter, but I had James Brown's autograph, so I did NOT GIVE A DAMN!
Michael Jackson ripped James off with his vaunted "Moonwalk," which was nothing more than a warmed-over "James Brown" or "Camel Walk" that James perfected. A performance by James Brown in his prime was just amazing stuff. I have most of his records and CD's. I saw it all. I was there. I am so eternally glad I was. Many times.
There will NEVER be anyone like James Brown ever again. Not even close. He was a true musical pioneer.
UPDATE: I have performed karaoke a couple of times yet have never tried to do so seriously. I know that my straightforward rendition of a good song would never measure up to the expectations of any audience, regardless of the amount of alcohol it might have consumed! But I have, in fact, performed Madonna's first hit, "Like A Virgin" in the style of James Brown, and it has been rather well received!
Unh! Good God!
ULTRA VIRES
(The following is taken substantially from an e-mail recently sent to a friend about the health-insurance bill emerging from the US Senate Finance Committee.)
ULTRA VIRES.
That is a Latin legal phrase referring to unauthorized conduct, usually in the context of a charity not acting in a charitable manner. I use it here to raise the issue of whether or not the Senate Finance Committee has gone "off the rails" in its zeal to pass a bill that allegedly provides "universal" health insurance coverage by mandating, under penalty of law, that all persons initiate and carry private health insurance at their own expense.
Over the years, we Americans have become conditioned to the US Congress pretty much doing whatever it wishes in regard to passing laws. So many of us, this writer included, have occasionally thought that merely stamping one's foot or snapping one's fingers is all that is needed to justify federal legislation to remedy some perceived problem.
However, the Founders were quite concerned (with much energy focused from the former Colonies) that the central government to be created by the US Constitution be restrained and limited in its powers to act. It was not until the later 1930's that the US Supreme Court began to allow the US Congress wide latitude in asserting its authority under the enumerated power to regulate interstate commerce (the so-called "Commerce Clause"). It was not until 1913 that the Congress could levy nonapportioned (income) taxes by virtue of the ratification of Amendment XVI.
Thus, the rumors recently circulating about the Senate Finance health-insurance bill are troubling to me. Supposedly, it will REQUIRE each of us to maintain private insurance, and most people will just go along with that because they think it sounds like a good idea. Last I heard, however, the health-insurance mandate will be enforced by the IRS, with the same penalties attached thereto as for tax evasion, INCLUDING imprisonment! Taxpayers will have to declare, under penalty of law, their health-insurance status when they file Form 1040. I can hear it now:
"Well, golly, Festus, at least evr'body will HAVE health insurance!!"
Universal coverage. Yee-hah. It's what everyone wants, right? Who would object to that? So Congress will pass the law that President Obama will sign, and--SHAZZAM!--it happens like magic! Like the law criminalizing the consumption of alcohol by college students. Not a very effective law, I daresay. Part of my concern is with the many who cannot afford private health insurance yet won't qualify for a subsidy and will thus be in violation of that penal mandate if it passes. They go to jail if they don't have health insurance or they go to jail if they lie about it. Catch-22. The well-to-do and those with good jobs need not worry.
I fail to understand how that provision will pass constitutional muster. I find no such authorization in the Constitution for the Congress to levy such a private-benefit "tax." I also fail to understand why this issue has not been raised by the cheerleading pseudo-journalists out there. Many would dismiss this as a typical lawyer esoteric rant, but many of those pseudo-journalists allegedly have law degrees. Another part of their problem is that they also have big fat health insurance programs furnished by their employers, so they don't need to share the worry with the rest of the world.
I think it is quite a stretch to say the health-insurance penal mandate is authorized under the (interstate) Commerce Clause. If that be the case, as insurance has been traditionally regulated by the states as a NON-federal matter, does that now mean the states have been thus pre-empted from insurance oversight? If so, we should lobby for application of the federal antitrust laws to insurance companies. Their recent unified declared threat to spike insurance premiums if the Senate bill passed is ample evidence to me of illicit collusion. The states have utterly failed to prevent that collusion because most health-insurance companies are so big and strong they can "steamroll" state regulatory agencies.
This is all just amazing to me. That this criminal penalty has apparently been reported out of the Finance Committee, and NO ONE bothers to ask what is its constitutional authority just overwhelms me. Not one single pseudo-journalist nor Senator bothered to ask within my hearing. It really upsets me that this country is full of knuckle-dragging, mouth-breathing Bobbing Heads just going along with any nonsense that comes down the congressional pipeline, if it seems like a "good idea."
ULTRA VIRES.
That is a Latin legal phrase referring to unauthorized conduct, usually in the context of a charity not acting in a charitable manner. I use it here to raise the issue of whether or not the Senate Finance Committee has gone "off the rails" in its zeal to pass a bill that allegedly provides "universal" health insurance coverage by mandating, under penalty of law, that all persons initiate and carry private health insurance at their own expense.
Over the years, we Americans have become conditioned to the US Congress pretty much doing whatever it wishes in regard to passing laws. So many of us, this writer included, have occasionally thought that merely stamping one's foot or snapping one's fingers is all that is needed to justify federal legislation to remedy some perceived problem.
However, the Founders were quite concerned (with much energy focused from the former Colonies) that the central government to be created by the US Constitution be restrained and limited in its powers to act. It was not until the later 1930's that the US Supreme Court began to allow the US Congress wide latitude in asserting its authority under the enumerated power to regulate interstate commerce (the so-called "Commerce Clause"). It was not until 1913 that the Congress could levy nonapportioned (income) taxes by virtue of the ratification of Amendment XVI.
Thus, the rumors recently circulating about the Senate Finance health-insurance bill are troubling to me. Supposedly, it will REQUIRE each of us to maintain private insurance, and most people will just go along with that because they think it sounds like a good idea. Last I heard, however, the health-insurance mandate will be enforced by the IRS, with the same penalties attached thereto as for tax evasion, INCLUDING imprisonment! Taxpayers will have to declare, under penalty of law, their health-insurance status when they file Form 1040. I can hear it now:
"Well, golly, Festus, at least evr'body will HAVE health insurance!!"
Universal coverage. Yee-hah. It's what everyone wants, right? Who would object to that? So Congress will pass the law that President Obama will sign, and--SHAZZAM!--it happens like magic! Like the law criminalizing the consumption of alcohol by college students. Not a very effective law, I daresay. Part of my concern is with the many who cannot afford private health insurance yet won't qualify for a subsidy and will thus be in violation of that penal mandate if it passes. They go to jail if they don't have health insurance or they go to jail if they lie about it. Catch-22. The well-to-do and those with good jobs need not worry.
I fail to understand how that provision will pass constitutional muster. I find no such authorization in the Constitution for the Congress to levy such a private-benefit "tax." I also fail to understand why this issue has not been raised by the cheerleading pseudo-journalists out there. Many would dismiss this as a typical lawyer esoteric rant, but many of those pseudo-journalists allegedly have law degrees. Another part of their problem is that they also have big fat health insurance programs furnished by their employers, so they don't need to share the worry with the rest of the world.
I think it is quite a stretch to say the health-insurance penal mandate is authorized under the (interstate) Commerce Clause. If that be the case, as insurance has been traditionally regulated by the states as a NON-federal matter, does that now mean the states have been thus pre-empted from insurance oversight? If so, we should lobby for application of the federal antitrust laws to insurance companies. Their recent unified declared threat to spike insurance premiums if the Senate bill passed is ample evidence to me of illicit collusion. The states have utterly failed to prevent that collusion because most health-insurance companies are so big and strong they can "steamroll" state regulatory agencies.
This is all just amazing to me. That this criminal penalty has apparently been reported out of the Finance Committee, and NO ONE bothers to ask what is its constitutional authority just overwhelms me. Not one single pseudo-journalist nor Senator bothered to ask within my hearing. It really upsets me that this country is full of knuckle-dragging, mouth-breathing Bobbing Heads just going along with any nonsense that comes down the congressional pipeline, if it seems like a "good idea."
Tuesday, October 13, 2009
BUSTA MARS!
NASA is on a giddy spending spree. NASA has lots of help. Ever since President George W. Bush triumphantly declared (like “Mission Accomplished”) that the United States was “going to Mars,” the fist-pumping, chest-thumping, hyper-patriotic, yee-hah yayhoos have been addled by the jingo-bells going off in their heads and enthusiastically, if witlessly, serving as the “Amen” chorus for such a venture. Media types have also been caught up in the frenzy, morphing into pom-pom cheerleaders right before our eyes, and not many politicians, journalists or voters are willing to go out on a limb and suggest that the Emperor is buck-nekkid.
Americans (like George W. Bush) are still bloviated over the accomplishments of the Apollo missions. Most Americans seem to believe that a trip to Mars is just a bit longer than a trip to the Moon, and we have already done that, so no big deal, right? Yet, the lessons of Apollo 13 are utterly lost on us despite the fine movie of it made not too long ago. “Bidness” as usual. Failure (despite Apollo 13) is not an option for America.
NASA is a giant vampire tick that should have been pulled off the US tax-paying “dog” and burned a long time ago. NASA has been understandably fretting about the waning days of the shuttle missions, but Bush breathed new life therein with the Mars mission proposal, enabled by the know-nothing appropriating complicity of the Congress. Just how much taxpayer money has been spent to date on the manned mission to Mars? Does anyone REALLY know? Does it matter? President Obama has so much other controversy on his plate right now, that giving NASA a reality check is not likely high on his priority list, PLUS it won’t make him very many friends if he were to do that. NASA occupies almost deity status in the United States, and any politician who takes that agency on does so at his or her peril.
What is going on here? The mission has been officially declared, so the only thing left to do is to figure out how to build the technology to get ‘er done. It seems that no one (besides myself) has sat down and calculated just how long it will take for a manned mission to go to Mars, visit the planet for 3-4 days, then turn around and come home. There seems to be no appreciation for the realities, the main one being that such a mission will likely take between 18 and 32 months, given an average traveling speed of about 30,000 mph, and no one, it seems, has asked the basic, simple question of how can 3-6 people of disparate backgrounds live together in harmony for that period of time in a space the size of my bedroom, if that big?
I don’t know any THREE people I could spend 18 months with in such a confined space without KILLING them, if they had not already killed me first! I can hear it now: “Tom, if you fart one more time, I will beat your brains out!”
Get real! This mission is utter nonsense! There are no people on this planet who can go through the rigorous astronaut training and manage to accomplish such a mission. No one has the guts to simulate such an environment without fearing imprisonment for torture. Perhaps we should ask some of the Islamic detainees (ALLEGED terrorists) to volunteer for the mission in return for their freedom, like the “Dirty Dozen.” They are about the only humans anywhere who have experienced the likely conditions of confinement in a small space that would simulate what the Mars mission would be. “Gitmo” to Mars!
Congress needs to drive a big stake through the heart of NASA—now. The American taxpayer needs to be relieved of this run-a-MUCK agency that desperately searches for ways to piss away hard-earned tax dollars on nonessential stuff. The various LEGITIMATE scientific efforts being pursued through NASA space missions can be accomplished by out-sourcing them to other agencies or to the private companies that will be allowed to exclusively profit from those discoveries at taxpayer expense anyway.
There will NEVER be a successful manned mission to Mars. NEVER! How much taxpayer money is the Congress going to spend to find out this fundamental truth?
Americans (like George W. Bush) are still bloviated over the accomplishments of the Apollo missions. Most Americans seem to believe that a trip to Mars is just a bit longer than a trip to the Moon, and we have already done that, so no big deal, right? Yet, the lessons of Apollo 13 are utterly lost on us despite the fine movie of it made not too long ago. “Bidness” as usual. Failure (despite Apollo 13) is not an option for America.
NASA is a giant vampire tick that should have been pulled off the US tax-paying “dog” and burned a long time ago. NASA has been understandably fretting about the waning days of the shuttle missions, but Bush breathed new life therein with the Mars mission proposal, enabled by the know-nothing appropriating complicity of the Congress. Just how much taxpayer money has been spent to date on the manned mission to Mars? Does anyone REALLY know? Does it matter? President Obama has so much other controversy on his plate right now, that giving NASA a reality check is not likely high on his priority list, PLUS it won’t make him very many friends if he were to do that. NASA occupies almost deity status in the United States, and any politician who takes that agency on does so at his or her peril.
What is going on here? The mission has been officially declared, so the only thing left to do is to figure out how to build the technology to get ‘er done. It seems that no one (besides myself) has sat down and calculated just how long it will take for a manned mission to go to Mars, visit the planet for 3-4 days, then turn around and come home. There seems to be no appreciation for the realities, the main one being that such a mission will likely take between 18 and 32 months, given an average traveling speed of about 30,000 mph, and no one, it seems, has asked the basic, simple question of how can 3-6 people of disparate backgrounds live together in harmony for that period of time in a space the size of my bedroom, if that big?
I don’t know any THREE people I could spend 18 months with in such a confined space without KILLING them, if they had not already killed me first! I can hear it now: “Tom, if you fart one more time, I will beat your brains out!”
Get real! This mission is utter nonsense! There are no people on this planet who can go through the rigorous astronaut training and manage to accomplish such a mission. No one has the guts to simulate such an environment without fearing imprisonment for torture. Perhaps we should ask some of the Islamic detainees (ALLEGED terrorists) to volunteer for the mission in return for their freedom, like the “Dirty Dozen.” They are about the only humans anywhere who have experienced the likely conditions of confinement in a small space that would simulate what the Mars mission would be. “Gitmo” to Mars!
Congress needs to drive a big stake through the heart of NASA—now. The American taxpayer needs to be relieved of this run-a-MUCK agency that desperately searches for ways to piss away hard-earned tax dollars on nonessential stuff. The various LEGITIMATE scientific efforts being pursued through NASA space missions can be accomplished by out-sourcing them to other agencies or to the private companies that will be allowed to exclusively profit from those discoveries at taxpayer expense anyway.
There will NEVER be a successful manned mission to Mars. NEVER! How much taxpayer money is the Congress going to spend to find out this fundamental truth?
Friday, October 9, 2009
MANNYBOYZ' CERTAINTY PRINCIPLE
(The following is substantially taken from an October 9, 2009 e-mail to a friend who shared two recent book reviews from the NY Times by Emily Bazelon and Alan Dershowitz.)
I found Emily Bazelon's NY Times review of Barry Friedman's book about the US Supreme Court, The Will of the People, interesting. She seems to concur with the notion that it is OK for the Supreme Court to align itself with popular opinion over time. Perhaps I am misinterpreting that, and I do not disagree that happens, but it should not be the defining OBJECTIVE for the Court.
Lately there has been a lot of sturm und drang over the issue of expansion vs. contraction of individual liberties. I was watching a recent TV show about the issue of "gay" rights and was reading about it in the paper, too. Going through the courts in Texas now is a case concerning a gay couple married in Massachusetts seeking a legal divorce in Texas where they now live. Gov. Rick Perry and Sen. Kay Bailey Hutchinson are OPPOSING the divorce, thus seeking to force the gay married couple to remain married in Texas, where gay marriage is otherwise illegal. The ironies abound. Perry and Hutchinson say the Texas constitutional provision limiting MARRIAGE to "hetero" men and women prohibits the Texas courts from taking up a divorce action. The trial court rejected this argument, saying that it was a denial of equal protection, but the Texas Attorney General has intervened and is appealing.
Given that ALL states have ratified the US Constitution, I fail to see how any state can now assert a POWER over any person in the US (citizen or not) to deprive him or her of equal protection and due process of law, REGARDLESS of sexual preference. Legally recognized marriage is a state civil proceeding subordinate to the US Constitution, though it might also be a private religious proceeding free of such legal considerations. However, many secular "rights" and privileges pertain to married couples that mere "partners" don't enjoy, like joint tax return filings and attendance at medical bedsides. I think that homosexuals already have a right to civil marriage, same as any other person. I don't think a state can prohibit two unrelated consenting adult humans wishing to marry, and I don't think the Constitution needs any amendment, UNLESS the US Supreme Court fails to properly enforce the Constitution, as it so miserably failed in KELO vs. NEW LONDON, the eminent domain case that has everybody clucking. I decided to actually look up and read the KELO case. Justice John Paul Stevens wrote the majority Opinion, and he based it on an earlier Supreme Court decision allowing the seizure of private property on the island of Oahu in Hawaii, the MIDKIFF case.
Now, no one who has EVER expressed an opinion about KELO to my knowledge, orally or in writing, has EVER mentioned MIDKIFF. MIDKIFF flew completely "under the rader" when it was decided. Nobody raised a stink then, and it involved approximately the IDENTICAL issues that the KELO case presented. So, I read MIDKIFF, too.
It could be argued that the KELO majority were EXACTLY RIGHT to assert that the judicial precedent of MIDKIFF was controlling. It held it was OK for government to seize private property and turn it over to other private interests (paying "market value" for it, of course), SO LONG AS a public PURPOSE" was being served. MIDKIFF involved the State of Hawaii breaking up what was described as an "oligarchy" of private ownership of land on Oahu, where only 10-15 families owned about 75% of the island. So, the ownership of those lands was forcibly redistributed, and the US Supremes said that was a permissible use of the "takings" clause (5th Amendment).
The logic used by the majorities in both MIDKIFF and KELO sought to equate that wishy-washy "public PURPOSE" with the express constitutional standard of "public USE." I personally think the Founders were literate enough to have known the difference, and I think they did not use "purpose" on purpose! Unfortunately, that does not prevent modern-day semi-literates from trying to "improve" on their works.
So, in KELO, not a single alleged "liberal" on the Supreme Court voted to protect Mr. Kelo's home from being seized by the City of New London, Connecticut and being torn down for a PRIVATE (not "public") "redevelopment" project that never got built! They all outvoted the alleged "conservatives," and Mr. Kelo lost his home.
Ironically, one of those "conservatives," Justice Clarence Thomas, sided with Mr. Kelo and said that MIDKIFF was bad law and should be overturned. I agree with him, though that's probably the only time I will likely do so!
This absurdity was nullified by many legislative acts later on.
One of the most trifling, reprehensible acts ever committed by President George W. Bush concerned his support for amending the US Constitution to prohibit gays from getting married. As a TV speaker noted, it was the first time in the history of our country (other than, arguably, the institution of Prohibition) that the amending process had sought to take away rights rather than to expand them. Over the years, the Supreme Court had become ever more hostile to personal liberty. Until Ronald Reagan became President, there was a pretty solid history of expansion of personal liberties and of secular government. Not anymore, and that, to me, is the telling aspect of the evolution of constitutional interpretation. Retrenchment of personal liberty is unbecoming to the United States of America.
Justice Antonin Scalia has been in the news lately regarding the case of the war memorial cross out in the Mojave Desert. He said on "First Monday" [October 5, 2009] during oral argument that, amazingly, he did not see that cross as being some overt Christian symbol, that it was "merely" a war memorial, no big deal. The Jewish lawyer for the ACLU said he'd been in some Jewish war-dead cemeteries and had seen no crosses there, and Scalia got pissed off! He sarcastically noted that it was impractical to create some hodge-podge amalgam of religious symbols as proper memorials, so why not a "mere" cross? How could ANYBODY object to that? Scalia, being the arch-conservative intolerant bigot that he is, fails to consider the OBVIOUS solution, to put up a secular-type memorial instead, such as an obelisk, which happens to be an ancient Egyptian religious fertility symbol abstracting a penis!! (Maybe Scalia does not like obelisks because they imply him being a dickhead!)
I find Antonin Scalia to be a Wrong-Wing, hyper-Catholic bigot. However, he may well be the smartest Justice on the Court, but he is a pernicious, evil influence thereon. He thus gives credence to the observation by Bazelon that "judicial review [may well] alter the meaning of the Constitution...." Though John Marshall observed in MARBURY vs. MADISON that the Supreme Court says what the law "is," I have always wanted to believe that the Court did not change the meaning of the Constitution so much as to change people's notions of what it says and means, but Scalia tries my patience! (So did Sandra Day O'Connor!)
There are now five devout Catholics on the Supreme Court: Scalia, Roberts, Thomas, Kennedy and Alito. I think this was intentional on the part of "alleged" conservatives who put them there, and it is very dangerous. Only Kennedy (now considered the "center"!!) seems to have any inclination to preserve civil liberties. The rest usually will back the state against the individual most any time (though some did not do so in KELO).
As I have ranted many times, the 10th Amendment (the so-called "states' rights" amendment, a phrase and concept that appears NOWHERE in the US Constitution) recites only acknowledgment and allocation of LIMITED powers for the United States; the 9th Amendment recites that there may well exist other RIGHTS besides those enumerated in the Constitution. It seems to me that, analogous to Werner Heisenberg's "Uncertainty Principle" regarding quantum energy states (momentum) and quantum matter states (position), a power and a right cannot occupy the same legal "space" at the same time, so powers must ALWAYS defer to rights, as the latter preceded the former in time and importance, according to most of the Enlightenment thinkers. We in the US celebrate the notion that the government's democratic POWERS are derivative of the RIGHTS of the people who, as individuals, have collectively chosen to be so governed. I shall, henceforth, refer to this as the "MannyBoyz' Certainty Principle"!
Bazelon observes that there is an "argument that judicial review is bad for democracy." I think too many people nowadays obsess about the US being a "democracy," implying that the majority is always right and can do whatever it pleases. The Founders were smart enough to create not an out-and-out "democracy" but a republic based on democratic principles, thus forcing the majority to assert its will through a layer of representatives with minds of their own, sworn to support the Constitution, but SUBJECT TO limitations on the power of the majority to enforce its will on "lesser" beings. An unelected co-equal branch of government, the judiciary, serves to check the power of the majority which controls the other two branches of government, by enforcing those checks and limitations. Unlike what George W. Bush seemingly thought, "democracy" is not an end unto itself but is merely a tool to be used to enable our manner of governance. I think that is a critical distinction that is lost on too many people. Sometimes, the majority does NOT get to do what it wants. Thankfully. The idea that the majority might be so limited is anathema to a lot of ignoramuses.
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As for Alan Dershowitz's review of the thus-titled book about Supreme Court Justice Louis Brandeis by Melvin Urofsky, it is hard for me to read anything written by über-Zionist Dershowitz and not start foaming at the mouth. He is utterly repugnant, even when I agree with him! I wonder how much Brandeis, a self-proclaimed Zionist, would approve of Zionism today if he could witness what is now going on in the West Bank. I am just amazed that Israeli Prime Minister Netanyahu and the Likud have once again assumed power in Israel, though they do not now enjoy the support of a clear majority and must make coalitions with other interests.
I know very little about Brandeis, but I do believe that there is a paucity of "mere" lawyer representation on the Supreme Court. Way too many people and politicos and pundits believe that one must have judicial experience to be on the Court. I think Lewis Powell was the last pure lawyer on the Court, but he was a "corporatist" suspect, I am sorry to say. He did live to regret his decision upholding the Virginia "crimes against Nature" statute against homosexuals, not that his ex post facto regret served to end the hate and discrimination against homosexuals. Thurgood Marshall also made his reputation primarily as a lawyer, and he was the last (& only recent) justice to have defended a death-penalty case as a lawyer. We have too many judges on the Court as it is. We do need more lawyers thereon.
I would hope that a lawyer of Brandeis's stature who gained a position on the Court these days might be an aggressive defender of civil liberties, but given the current complexion of the US Senate, with worthless, invertebrate piffle like Virginia's Mark Warner there (self-described "raging moderate"--ha-ha), I doubt we shall see any counterbalance to Antonin Scalia's fascist influence anytime soon.
Thursday, October 1, 2009
THOUGHT FOR THE DAY, 10/1/09
We all have pieces of our miserable, stupid hearts buried in the forgotten graveyard of lost opportunities.
Sunday, June 28, 2009
TO WHAT DEGREE?
(The following was published by the Richmond Times-Dispatch as "Correspondent of the Day" on Sunday, June 28, 2009. The writer holds a BA degree from Randolph-Macon College, 1968, a JD (law) degree from Washington & Lee Univ., 1973, was a teacher of elementary science and math, 1968-69, a teacher of "Real Estate Law" at Germanna Community College, ca. 1981, 1983 and holds a Certificate in "Auto Mechanics" (summa cum laude) from J. Sargeant Reynolds Community College, 2007.)
I generally agree with the conclusions and recommendations of Heywood Fralin and Thomas Farrell in their June 21 piece about state support of "higher education," in which they include colleges, universities and, most importantly, community colleges. I specifically agree that the number of persons schooled in math, science, engineering, healthcare and other technical disciplines should be a state priority.
I have three reservations, however, about their recommendations. First, I am leery of too much direct business involvement in basic research if businesses choose to fund such. We must all be concerned that such funding sometimes influences the outcome of the research, and that is unacceptable.
Second, not everyone is suited for matriculation to a bachelor's degree, and there are electricians, plumbers and other technicians without bachelor's degrees who are making good money and providing much-needed services. I think Fralin and Farrell emphasize the attainment of a "degree" too much, though I agree about cutting the costs thereof. There are engineers and other advanced technically-trained people who cannot find jobs now, which certainly makes no sense to me. In addition to associates' degrees, the community colleges also offer "certificates" (referenced in their article) that consist of valuable and useful technical training for many who don't care to get a degree.
Third, we must break the self-serving monopoly that the education schools now hold over public-school teacher licensing. All public-school teachers, regardless of their level of education or expertise, must complete various "education" courses and periodically take them in summers in order to qualify for and maintain their licenses. EVERYONE I know who is familiar with these courses deems them a joke, and it is absurd that someone with a masters degree in math cannot be automatically licensed to teach in the public schools unless and until he or she completes the requisite "education" courses.
Thank you.
I generally agree with the conclusions and recommendations of Heywood Fralin and Thomas Farrell in their June 21 piece about state support of "higher education," in which they include colleges, universities and, most importantly, community colleges. I specifically agree that the number of persons schooled in math, science, engineering, healthcare and other technical disciplines should be a state priority.
I have three reservations, however, about their recommendations. First, I am leery of too much direct business involvement in basic research if businesses choose to fund such. We must all be concerned that such funding sometimes influences the outcome of the research, and that is unacceptable.
Second, not everyone is suited for matriculation to a bachelor's degree, and there are electricians, plumbers and other technicians without bachelor's degrees who are making good money and providing much-needed services. I think Fralin and Farrell emphasize the attainment of a "degree" too much, though I agree about cutting the costs thereof. There are engineers and other advanced technically-trained people who cannot find jobs now, which certainly makes no sense to me. In addition to associates' degrees, the community colleges also offer "certificates" (referenced in their article) that consist of valuable and useful technical training for many who don't care to get a degree.
Third, we must break the self-serving monopoly that the education schools now hold over public-school teacher licensing. All public-school teachers, regardless of their level of education or expertise, must complete various "education" courses and periodically take them in summers in order to qualify for and maintain their licenses. EVERYONE I know who is familiar with these courses deems them a joke, and it is absurd that someone with a masters degree in math cannot be automatically licensed to teach in the public schools unless and until he or she completes the requisite "education" courses.
Thank you.
Friday, June 26, 2009
ALIEN PRESIDENT
(The following was sent as an e-mail response to YET ANOTHER idiot rant about Obama's birth circumstances being not "natural born" as required under the US Constitution. A blurb about the DONOFRIO v. WELLS case was circulated this 6/26/09 and a question was raised about a scholarship application at Occidental College. It was asserted that Associate Justice Antonin Scalia had recently announced that the US Supreme Court would hear the DONOFRIO case, and that Obama had used the name "Barry Soetero" to apply for a foreign-born scholarship at Occidental College.)
Be advised as to the following:
1--Individual Supreme Court justices do not officially announce the docket. That is handled by the office of public information or the Clerk. If Scalia was saying it OUGHT to be heard, then that is just wishful bleating on his part.
2--The Supremes dismissed the Donofrio case back in December (12/8/08).
3--The information about the filing and deliberation of the Donofrio case is from last year.
FURTHER:
4--the burden of proof CLEARLY has been on those asserting that Obama was born in another country. Despite repeated challenges to do so, no one ever raising this issue of Obama's suspect birth circumstances has ever produced ANY documentation to contradict the Hawaiian birth certificate (see above) published on the Web about a year ago.
I do agree that the issue of a candidate's birth circumstances is legally relevant if there is ANY reasonable question about it. I do find it interesting that no one challenging Obama's constitutional qualifications has ever raised or acknowledged the same issue (to my knowledge) with regard to the FACT that John McCain was born in the vicinity of the Panama Canal Zone when his parents were living there. Somehow, somewhere, that was "deemed" (I know not by whom) to be a "natural born" place, though it is CLEARLY outside of the contiguous boundaries of the US. Foreign-born children of US service personnel and diplomats are USUALLY considered NOT "natural born," even though they are US citizens. The Panama Canal Zone did not exist when Article II (Section 1) of the Constitution was written! I don't believe there was even a standing army then! I don't believe the US Supreme Court has ever ruled on the "natural born" validity of births in the Panama Canal Zone because I think McCain is the first candidate young enough to have been born there.
Why did John McCain REPEATEDLY get a "pass" on this issue all last year but Obama did not? Might it have had something to do with SKIN COLOR???? I certainly think so, based upon the people who were raising the issue in my presence.
I'd be interested in seeing the arguments that Panama Canal Zone births are "natural born."
5--There will also have to be affirmative proof of some sort that Obama was the person who applied for financial aid under the name "Barry Soetero." I have heard of this issue, but I have never seen any such proof. If someone else by that name surfaces, then all of those who have raised this issue will have to eat a big bowl of shit, and I am going to feed it to them! If Obama is guilty of scholarship fraud, then let the chips fall where they may. Seems to me that examination of the Occidental College yearbook for the year in question ought to disclose either a student by that name or none at all. Have the desperate whiners tried to FIND a "Barry Soetero"? Not that I have heard about. What do the folks running Occidental College have to say about this? I have not heard any confirmation. All you report is the circumstances of a transcript in the name of "Barry Soetero." BFD.
THIS NONSENSE ABOUT OBAMA'S BIRTH CIRCUMSTANCES IS UTTER RACIST TRIPE. YOU AND ALL THE DESPERATE TWITS NEED TO PROVE IT OR QUIT CIRCULATING THIS CHICKENSHIT. Find something meaningful AND SUBSTANTIVE to criticize, like Obama's refusal to release the tortured detainee photos, or his ridiculous continuation of "faith-based" taxpayer fundings. Only the American people have been blissfully ignorant of the multiple crimes committed by, and the rancid incompetence of the Bush Admin. There is plenty real stuff out there.
Monday, June 8, 2009
UNDECLARED WAHRUH
(The following was originally submitted as a letter to the editor in response to an article in the Louisa, Virginia Central Virginian, but it never ran. It has been slightly modified since.)
With regard to the undeclared War On Terror conducted, first, by President George Bush and now by President Barack Obama, it must be recognized that the United States is supposed to be governed strictly by laws and not by the whim of a mere majority of politicians, or even voters, The US Constitution MUST control how war is waged by our country, regardless of the methods used by other nations. War involves death and injury to persons and property. Those are drastic, lasting consequences, not to be taken lightly by those of us privileged to avoid them.
The events of the past 6 or 7 years in Iraq and Afghanistan, though heavily funded by Congress, are not declared wars. As many argue, those conflicts may well be "war," but they are patently illegal, just as the Vietnam "War" and the Korean "War" were also illegal. The last declared war involving the United States was World War II, almost 70 years ago. Only the Congress has the power to "declare war" under Article I. There is no explicit power under Article II for the President to "conduct" war.
The US Supreme Court ruled during the Vietnam conflict that the military funding of that conflict by the Congress was the "equivalent" of a declaration of war. Our Supreme Court gets to define what the law "is," as Chief Justice John Marshall said long ago, but the "equivalency" analysis is still utter nonsense. Powerful political arguments about terrorism and Communism, in due course, have been raised in support of those undeclared wars. Even if valid, those arguments are utterly irrelevant to a constitutional analysis of what is empowered under the Constitution and what is not.
The Tenth Amendment (*) makes it clear to me that there are no implied powers for the President nor for the Congress. That Amendment has been frequently (and mistakenly) regarded as the "states' rights" amendment, but it is totally silent as to "rights." Powers are either granted to the Federal government or they are not. While military personnel certainly have the "right" (or power) of self-defense in an emergency situation, sustained conflict amounting to war, especially in a foreign place, cannot be lawfully conducted by the President under the rubric of the "commander-in-chief" clause in Article II, absent a congressional declaration of war. That is just rank imperialism, and the people of other countries know it to be so.
So long as the power structure in our government continues to "bless" these noxious lies, as it has so far, it will be so. We, the people cannot do a thing about it if the courts are unwilling to "call a spade a spade, and not a shovel." Our sole remedy is to vote out those who disregard the Constitution, but these current "wars" are popular, so long as they do not jeopardize or personally involve the comfortable and the powerful. To oppose these conflicts is to be branded a coward or traitor for not "supporting the troops." These conflicts vicariously feed a powerful "playground" instinct in us civilians for revenge and world dominance. The Usual Suspects will continue to be re-elected, and undeclared imperialistic "wars" will continue, to our ultimate regret I predict. Meanwhile, thousands of our troops and civilians in other lands will continue to be killed or maimed for life, needlessly. That is not "support" for the troops.
I also firmly believe that the reported multiple instances of wanton, indiscriminate torture of detainees whose individual guilt has not been determined were not really for the purpose of extracting information but instead for imposing harsh and brutal and vengeful punishment on the detainees merely because they are "different," and especially because they are not "Christian." Recent polls of many vicious Americans still supporting torture confirm this. America is predominantly a mean, nasty, hypocritical pseudo-Christian culture, rotten to the core.
Those who approve of the current foolishness going on in the Middle East, need to read (and vote) the Constitution. That is the unavoidable starting point. We should "support the troops" by bringing them all home. Now.
(*) AMENDMENT X: The powers not delegated to the United State by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
With regard to the undeclared War On Terror conducted, first, by President George Bush and now by President Barack Obama, it must be recognized that the United States is supposed to be governed strictly by laws and not by the whim of a mere majority of politicians, or even voters, The US Constitution MUST control how war is waged by our country, regardless of the methods used by other nations. War involves death and injury to persons and property. Those are drastic, lasting consequences, not to be taken lightly by those of us privileged to avoid them.
The events of the past 6 or 7 years in Iraq and Afghanistan, though heavily funded by Congress, are not declared wars. As many argue, those conflicts may well be "war," but they are patently illegal, just as the Vietnam "War" and the Korean "War" were also illegal. The last declared war involving the United States was World War II, almost 70 years ago. Only the Congress has the power to "declare war" under Article I. There is no explicit power under Article II for the President to "conduct" war.
The US Supreme Court ruled during the Vietnam conflict that the military funding of that conflict by the Congress was the "equivalent" of a declaration of war. Our Supreme Court gets to define what the law "is," as Chief Justice John Marshall said long ago, but the "equivalency" analysis is still utter nonsense. Powerful political arguments about terrorism and Communism, in due course, have been raised in support of those undeclared wars. Even if valid, those arguments are utterly irrelevant to a constitutional analysis of what is empowered under the Constitution and what is not.
The Tenth Amendment (*) makes it clear to me that there are no implied powers for the President nor for the Congress. That Amendment has been frequently (and mistakenly) regarded as the "states' rights" amendment, but it is totally silent as to "rights." Powers are either granted to the Federal government or they are not. While military personnel certainly have the "right" (or power) of self-defense in an emergency situation, sustained conflict amounting to war, especially in a foreign place, cannot be lawfully conducted by the President under the rubric of the "commander-in-chief" clause in Article II, absent a congressional declaration of war. That is just rank imperialism, and the people of other countries know it to be so.
So long as the power structure in our government continues to "bless" these noxious lies, as it has so far, it will be so. We, the people cannot do a thing about it if the courts are unwilling to "call a spade a spade, and not a shovel." Our sole remedy is to vote out those who disregard the Constitution, but these current "wars" are popular, so long as they do not jeopardize or personally involve the comfortable and the powerful. To oppose these conflicts is to be branded a coward or traitor for not "supporting the troops." These conflicts vicariously feed a powerful "playground" instinct in us civilians for revenge and world dominance. The Usual Suspects will continue to be re-elected, and undeclared imperialistic "wars" will continue, to our ultimate regret I predict. Meanwhile, thousands of our troops and civilians in other lands will continue to be killed or maimed for life, needlessly. That is not "support" for the troops.
I also firmly believe that the reported multiple instances of wanton, indiscriminate torture of detainees whose individual guilt has not been determined were not really for the purpose of extracting information but instead for imposing harsh and brutal and vengeful punishment on the detainees merely because they are "different," and especially because they are not "Christian." Recent polls of many vicious Americans still supporting torture confirm this. America is predominantly a mean, nasty, hypocritical pseudo-Christian culture, rotten to the core.
Those who approve of the current foolishness going on in the Middle East, need to read (and vote) the Constitution. That is the unavoidable starting point. We should "support the troops" by bringing them all home. Now.
(*) AMENDMENT X: The powers not delegated to the United State by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Wednesday, May 6, 2009
BEST ENGLISH "O"-WORDS
The three best “O"-words in the English language are:
OBSEQUIOUS—2. Servilely attentive; compliant to excess; cringing; fawning….
ODIOUS—Deserving of or provoking hatred or repugnance….
OLEAGINOUS—Of the nature or quality of oil …; oily; unctuous.
(Ref. Webster’s New International Dictionary, 2d Ed., Unabridged (G. & C. Merriam, 1957, 1959).)
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UPDATE--Consider also:
OBSTIPATION--Extreme constipation.
ORDURE--Evoking excrement.
Odious olfactory onslaught! Pee-yew!
OBSEQUIOUS—2. Servilely attentive; compliant to excess; cringing; fawning….
ODIOUS—Deserving of or provoking hatred or repugnance….
OLEAGINOUS—Of the nature or quality of oil …; oily; unctuous.
(Ref. Webster’s New International Dictionary, 2d Ed., Unabridged (G. & C. Merriam, 1957, 1959).)
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UPDATE--Consider also:
oafish, obdurate, obfuscate, oblivious, obloquy, obscenity, obsession
OBSTIPATION--Extreme constipation.
obstreperous, obstinate, obnoxious, obtrusive (extreme intrusiveness), obtuse
ocker, odiferous, odorous, offal, offensive, officious, onslaught, opinionated,
oppressive, opprobrious
orgiastic, ornery, ossified, ostentatious, ostracize, otiose, outrageous
Sunday, March 22, 2009
PUBLIC PRAYER RIGHTS
[The following ran in the Richmond (Va.) Times-Dispatch on March 22, 2009.]
As a proud card-carrying member of the ACLU, I have followed with interest the efforts to compel allowance of strongly sectarian prayers by state police chaplains. Your editorial of March 9 helped to focus my thinking.
To be sure, a KKK member offering a prayer for the advancement of whites only would be repugnant almost beyond belief. You noted that the Nebraska Supreme Court upheld the firing of a state trooper who belonged to an arguably related organization. Presumably, the trooper challenged his firing on the rights of "assembly" and "expression" guaranteed in the First Amendment. He did not offer a public prayer extolling white supremacy, as your hypothetical posited.
I am struggling with the outcomes in both instances, not because I defend the conduct or associations but because I MUST defend the First Amendment. It is similar to the conflict I feel about smoking in restaurants, which I personally abhor, but I have my concerns about government prohibitions.
In the prayer situations you understandably raise, no one seems to ask what to me is a much more important question, one that questions why prayer is being offered in a public context in the first place? Prayer has no place in a secular governmental context whatsoever. If there were no such prayers, there would be no such conflict. The Wiccan priestess who incredibly (but predictably) lost her case before the Catholic-majority US Supreme Court a couple of years ago would have had no issue if there had been no prayers allowed at all at supervisor meetings.
About 6 years ago, the US Supreme Court upheld congressional content regulation of art displays funded by tax dollars. Most people applauded that predictable decision, and it brought home to me the realization that there is no "free lunch" and that all money has strings attached. The unasked question there is why should taxpayers forcibly fund any arts or humanities at all? If there were no such public funding, there could be no discrimination. Why also do we have taxpayer-funded religious chaplains?
If prayer (or comment or art display) is allowed in a public context or on public property, then I believe a government may not regulate it. I must cast my lot with the First Amendment.
As a proud card-carrying member of the ACLU, I have followed with interest the efforts to compel allowance of strongly sectarian prayers by state police chaplains. Your editorial of March 9 helped to focus my thinking.
To be sure, a KKK member offering a prayer for the advancement of whites only would be repugnant almost beyond belief. You noted that the Nebraska Supreme Court upheld the firing of a state trooper who belonged to an arguably related organization. Presumably, the trooper challenged his firing on the rights of "assembly" and "expression" guaranteed in the First Amendment. He did not offer a public prayer extolling white supremacy, as your hypothetical posited.
I am struggling with the outcomes in both instances, not because I defend the conduct or associations but because I MUST defend the First Amendment. It is similar to the conflict I feel about smoking in restaurants, which I personally abhor, but I have my concerns about government prohibitions.
In the prayer situations you understandably raise, no one seems to ask what to me is a much more important question, one that questions why prayer is being offered in a public context in the first place? Prayer has no place in a secular governmental context whatsoever. If there were no such prayers, there would be no such conflict. The Wiccan priestess who incredibly (but predictably) lost her case before the Catholic-majority US Supreme Court a couple of years ago would have had no issue if there had been no prayers allowed at all at supervisor meetings.
About 6 years ago, the US Supreme Court upheld congressional content regulation of art displays funded by tax dollars. Most people applauded that predictable decision, and it brought home to me the realization that there is no "free lunch" and that all money has strings attached. The unasked question there is why should taxpayers forcibly fund any arts or humanities at all? If there were no such public funding, there could be no discrimination. Why also do we have taxpayer-funded religious chaplains?
If prayer (or comment or art display) is allowed in a public context or on public property, then I believe a government may not regulate it. I must cast my lot with the First Amendment.
POWERS vs. RIGHTS
[The following was sent to the Richmond (Va.) Times-Dispatch around March 19, 2009. It would not run because the later piece about public prayer was published earlier.]
In his vitriolic March 17 rant against the collectivist sins of the 56-day-old Obama Administration, DeWitt Taylor Brooks lectures us about the multiple violations of the US Constitution.as he (mis)understands it. He sternly warns us that "the 10th Amendment states anything [my emphasis] not delegated specifically to the United States ... are [sic] reserved to the states and to the people!" He further declares that "I've found nothing about giving the District of Columbia a voting seat in the House of Representatives. In fact, the Constitution specifically forbids this action."
These and other statements in his pathetic letter betray a profound ignorance of the Constitution that is, unfortunately shared by a large number of people who should know better. This ignorance is most often represented by frequent and common assertions that government officials have a presumed "right" to do a particular thing when, in fact, our Founders took great pains to draw a clear distinction between the expansive "rights" of individuals and the limited "powers" exercised by governments and their minions. Governments (and officials) do not have "rights" as such. Only people have "rights." Governments either have "powers" or they do not.
Yet, there is widespread evidence of the presumption of government POWER to act and a concurrent notion that RIGHTS are limited unless specifically expressed. This is exactly backward. The 10th Amendment does not use the word "anything" but instead makes it clear that POWERS not specifically granted to the United States are reserved to the states and to the people, and the 9th Amendment says that the enumeration of certain RIGHTS in the Constitution shall not disparage other unstated rights retained by the people.
DC residents should not need a specific grant of their congressional representation under the Constitution, nor should they need statehood either. The residents of what was originally laid off as the "District of Columbia" incorporated both citizens of Maryland and of Virginia. The area south of the Potomac River was ceded back to Virginia in the late 1700's and became Arlington County, and its citizens continue to enjoy full congressional representation, though the County was initially part of the District of Columbia. One needs only to look at the map to see that.
Section 8 of Article I of the Constitution empowers the Congress "to exercise exclusive Legislation [not jurisdiction] ... over such District (not exceeding ten Miles square) as may, by Cession of particular States ... become the Seat of the Government...." Our Founders were very precise in their use of language, so we should not arrogantly infer meanings not expressed in their writings. There is nothing whatsoever in there about the people residing in that District surrendering their congressional representation, so Mr. Brooks's assertion that "the Constitution specifically forbids" that is utter nonsense.
I would suggest that not only do the residents of the District have the unfettered right to have a voting representative in the House, but also that they are entitled to continue voting for Maryland's two senators since neither Congress nor the State of Maryland ever had any POWER to revoke their congressional representation. Conventional wisdom, even if 222 years old, can be still wrong.
In his vitriolic March 17 rant against the collectivist sins of the 56-day-old Obama Administration, DeWitt Taylor Brooks lectures us about the multiple violations of the US Constitution.as he (mis)understands it. He sternly warns us that "the 10th Amendment states anything [my emphasis] not delegated specifically to the United States ... are [sic] reserved to the states and to the people!" He further declares that "I've found nothing about giving the District of Columbia a voting seat in the House of Representatives. In fact, the Constitution specifically forbids this action."
These and other statements in his pathetic letter betray a profound ignorance of the Constitution that is, unfortunately shared by a large number of people who should know better. This ignorance is most often represented by frequent and common assertions that government officials have a presumed "right" to do a particular thing when, in fact, our Founders took great pains to draw a clear distinction between the expansive "rights" of individuals and the limited "powers" exercised by governments and their minions. Governments (and officials) do not have "rights" as such. Only people have "rights." Governments either have "powers" or they do not.
Yet, there is widespread evidence of the presumption of government POWER to act and a concurrent notion that RIGHTS are limited unless specifically expressed. This is exactly backward. The 10th Amendment does not use the word "anything" but instead makes it clear that POWERS not specifically granted to the United States are reserved to the states and to the people, and the 9th Amendment says that the enumeration of certain RIGHTS in the Constitution shall not disparage other unstated rights retained by the people.
DC residents should not need a specific grant of their congressional representation under the Constitution, nor should they need statehood either. The residents of what was originally laid off as the "District of Columbia" incorporated both citizens of Maryland and of Virginia. The area south of the Potomac River was ceded back to Virginia in the late 1700's and became Arlington County, and its citizens continue to enjoy full congressional representation, though the County was initially part of the District of Columbia. One needs only to look at the map to see that.
Section 8 of Article I of the Constitution empowers the Congress "to exercise exclusive Legislation [not jurisdiction] ... over such District (not exceeding ten Miles square) as may, by Cession of particular States ... become the Seat of the Government...." Our Founders were very precise in their use of language, so we should not arrogantly infer meanings not expressed in their writings. There is nothing whatsoever in there about the people residing in that District surrendering their congressional representation, so Mr. Brooks's assertion that "the Constitution specifically forbids" that is utter nonsense.
I would suggest that not only do the residents of the District have the unfettered right to have a voting representative in the House, but also that they are entitled to continue voting for Maryland's two senators since neither Congress nor the State of Maryland ever had any POWER to revoke their congressional representation. Conventional wisdom, even if 222 years old, can be still wrong.
Saturday, March 7, 2009
FAIR-MARKET MERCANTILISM
[The following was sent as an e-mail to Princeton Professor & Nobel Laureate Paul Krugman.]
I am concerned that the continuing "worship" of "free-market capitalism" by both Republicans and Democrats is going to cost our economic future dearly. We do not and never have had in this country a so-called "free market," at least not since the late 1800's (except for perhaps the past 8 years or so). I think it is past time to prick that balloon and let it disappear. Markets are inherently greedy. They are supposed to be greedy. That is why they must NEVER be unregulated, as you have argued.
It seems to me that the pundits in the US should instead recognize and promote "fair-market mercantilism," by which I mean the process of selling what is actually made to ready buyers in a fairly regulated market.
We are NOT in a capital crisis, we are in a mercantile crisis! Stuff ain't selling!
We must return to aggressive enforcement of the antitrust laws which have been mostly neglected since the Carter Administration. We must purge American industry of its bean-counter CEO's and MBA's who are screwing our manufacturing base into the ground with their bottom-line tunnel vision and cashflow myopia. We must elevate engineers and technicians to CEO status (as do Asian and Euro industries) to let them actually run American industries because they know how to actually make things that people want to buy, rather than trying to manipulate the markets to trick people into buying what the bean-counters decree they should want.
The American vehicle-manufacturing industry is a bleeding case in point and an issue I know something about: while Toyota and others are run by engineers who inherently know what people want, the US is controlled by these know-nothings trying to figure out what kind of cars people OUGHT to want. These twits are brainwashed in business schools to believe that all industry is generic and that they can run anything. Their paper credentials sadly intimidate those who actually know what to do but don't have the paper to prove it.
The notion of trickle-down tax cuts for the wealthy goes hand-in-glove with the fraud of "free-market capitalism." As I understand it, we should cut taxes on the wealthy so that they will invest their engorged wealth and deign to allow us peons to catch the chump change dripping from their pockets as they waddle to the Mercedes or Rolls-Royce dealer.
I am very angry that the working stiffs in this country, who cannot deduct the rent they pay for an apartment, are paying absolutely higher percentages of their gross income in taxes now (including FICA) than the wealthy, who get not one but two mortgage deductions, pay no FICA on salaries over $100K and pay only 15% tax on capital gains and dividends. That is absurd. The workers need some relief. They spend almost 100% of their incomes, and they are the future of mercantile recovery, NOT the wealthy. Not even Pres. Obama seems to understand this distinction, as he and that worthless Secy. Geithner continue to shovel cash to the very idiots who have already gobbled up our seed corn.
The median household income in this country is around $60K, and it is utterly absurd to proffer tax relief for those making over $100K. The median contemplates TWO workers each earning around $30K, like most of my friends, who are struggling. That is ridiculous. It may make political sense, but it is outrageously unfair.
"Generic Management 101"
(my palindrome)
A BMW; a rake--EGAD! A geek! A raw MBA.
I am concerned that the continuing "worship" of "free-market capitalism" by both Republicans and Democrats is going to cost our economic future dearly. We do not and never have had in this country a so-called "free market," at least not since the late 1800's (except for perhaps the past 8 years or so). I think it is past time to prick that balloon and let it disappear. Markets are inherently greedy. They are supposed to be greedy. That is why they must NEVER be unregulated, as you have argued.
It seems to me that the pundits in the US should instead recognize and promote "fair-market mercantilism," by which I mean the process of selling what is actually made to ready buyers in a fairly regulated market.
We are NOT in a capital crisis, we are in a mercantile crisis! Stuff ain't selling!
We must return to aggressive enforcement of the antitrust laws which have been mostly neglected since the Carter Administration. We must purge American industry of its bean-counter CEO's and MBA's who are screwing our manufacturing base into the ground with their bottom-line tunnel vision and cashflow myopia. We must elevate engineers and technicians to CEO status (as do Asian and Euro industries) to let them actually run American industries because they know how to actually make things that people want to buy, rather than trying to manipulate the markets to trick people into buying what the bean-counters decree they should want.
The American vehicle-manufacturing industry is a bleeding case in point and an issue I know something about: while Toyota and others are run by engineers who inherently know what people want, the US is controlled by these know-nothings trying to figure out what kind of cars people OUGHT to want. These twits are brainwashed in business schools to believe that all industry is generic and that they can run anything. Their paper credentials sadly intimidate those who actually know what to do but don't have the paper to prove it.
The notion of trickle-down tax cuts for the wealthy goes hand-in-glove with the fraud of "free-market capitalism." As I understand it, we should cut taxes on the wealthy so that they will invest their engorged wealth and deign to allow us peons to catch the chump change dripping from their pockets as they waddle to the Mercedes or Rolls-Royce dealer.
I am very angry that the working stiffs in this country, who cannot deduct the rent they pay for an apartment, are paying absolutely higher percentages of their gross income in taxes now (including FICA) than the wealthy, who get not one but two mortgage deductions, pay no FICA on salaries over $100K and pay only 15% tax on capital gains and dividends. That is absurd. The workers need some relief. They spend almost 100% of their incomes, and they are the future of mercantile recovery, NOT the wealthy. Not even Pres. Obama seems to understand this distinction, as he and that worthless Secy. Geithner continue to shovel cash to the very idiots who have already gobbled up our seed corn.
The median household income in this country is around $60K, and it is utterly absurd to proffer tax relief for those making over $100K. The median contemplates TWO workers each earning around $30K, like most of my friends, who are struggling. That is ridiculous. It may make political sense, but it is outrageously unfair.
"Generic Management 101"
(my palindrome)
A BMW; a rake--EGAD! A geek! A raw MBA.
GAY MARRIAGE
[The following was sent as an e-mail to a columnist who opined against discrimination against gays.]
As a Recovering Homophobe myself, I used to be somewhat skeptical of the "notion" of gay marriage. After all, as comedian Bill Maher has said, I really don't want to contemplate at length how gay men enjoy themselves.
But, I have evolved enough in my thinking to believe that the unbridled and arbitrary power of the state is a bigger threat to me than gay marriage.
Given the clear language of the 14th Amendment regarding "equal protection" of the law (ratified by all the states), I fail to see anywhere in the Constitution that any government--state or federal-- has the power to deny access to marriage, per se, to any consenting adult human. Or, for that matter, to discriminate against homosexuals in the military. "Don't ask/don't tell" is one of Bill Clinton's everlasting shameful legacies.
It is not about "creating special rights" for anyone--all rights exist all the time and always have--it is about whether or not there is a "rational basis" for recognizing a "special" government POWER to engage in such discrimination. I fail to see any. Most of this homophobic crap is utterly IRRATIONAL.
Marriage is an important legal relationship--federal tax and Social Security laws, for example, allow certain tax and benefit privileges ONLY to marital spouses, like filing joint tax returns. No state "domestic partner" law can affect the reach of federal law, so the creation of "domestic partnerships" at the state level is utterly irrelevant for purposes of interpreting FEDERAL laws. Also, under the current rubric of the foolishly titled "Defense of Marriage Act," one who is badly injured in a state where no recognition of domestic partnership is allowed would be denied the succor and attendance of a loved one who just happened to be a gay partner and, therefore, NOT a "family member" or spouse. Look at the outrage of the ongoing custody battle between the two lesbians fighting over child visitation between the courts of Virginia and Vermont. That is just absurd. The supposedly "cured" Virginia partner is seeking to deny all child contact and visitation with the "uncured" former lover. That is appalling and saddening to me.
Most unthinking people see these issues as the "creation" of "special rights." That is unfortunate. The pain and heartbreak are real, sad and totally unnecessary. And, there is this astounding Catch-22 that gay people have no business "living in sin" (lack of marriage) when the governments won't allow gay marriage! Irony is not the strong suit of most political leaders including, unfortunately, our current President.
As a Recovering Homophobe myself, I used to be somewhat skeptical of the "notion" of gay marriage. After all, as comedian Bill Maher has said, I really don't want to contemplate at length how gay men enjoy themselves.
But, I have evolved enough in my thinking to believe that the unbridled and arbitrary power of the state is a bigger threat to me than gay marriage.
Given the clear language of the 14th Amendment regarding "equal protection" of the law (ratified by all the states), I fail to see anywhere in the Constitution that any government--state or federal-- has the power to deny access to marriage, per se, to any consenting adult human. Or, for that matter, to discriminate against homosexuals in the military. "Don't ask/don't tell" is one of Bill Clinton's everlasting shameful legacies.
It is not about "creating special rights" for anyone--all rights exist all the time and always have--it is about whether or not there is a "rational basis" for recognizing a "special" government POWER to engage in such discrimination. I fail to see any. Most of this homophobic crap is utterly IRRATIONAL.
Marriage is an important legal relationship--federal tax and Social Security laws, for example, allow certain tax and benefit privileges ONLY to marital spouses, like filing joint tax returns. No state "domestic partner" law can affect the reach of federal law, so the creation of "domestic partnerships" at the state level is utterly irrelevant for purposes of interpreting FEDERAL laws. Also, under the current rubric of the foolishly titled "Defense of Marriage Act," one who is badly injured in a state where no recognition of domestic partnership is allowed would be denied the succor and attendance of a loved one who just happened to be a gay partner and, therefore, NOT a "family member" or spouse. Look at the outrage of the ongoing custody battle between the two lesbians fighting over child visitation between the courts of Virginia and Vermont. That is just absurd. The supposedly "cured" Virginia partner is seeking to deny all child contact and visitation with the "uncured" former lover. That is appalling and saddening to me.
Most unthinking people see these issues as the "creation" of "special rights." That is unfortunate. The pain and heartbreak are real, sad and totally unnecessary. And, there is this astounding Catch-22 that gay people have no business "living in sin" (lack of marriage) when the governments won't allow gay marriage! Irony is not the strong suit of most political leaders including, unfortunately, our current President.
Wednesday, March 4, 2009
Liberty & Justice For All
[The following was sent as an e-mail to President Obama on 2/26/09.]
Dear President Obama:
I am already seriously concerned about your re-election in 2012, given that you were elected to make a clean break with the horrific, unconstitutional practices of the Bush Administration.
It appears that you and your Justice Dept. have, in support of the former Bush Administration, taken the position in a recent filing in US District Court that "war" detainees being held incommunicado at the US Bagram Air Base in Afghanistan are not entitled to civil-liberties protections, presumably including "due process" (also guaranteed in the 5th Amendment, not merely in the 14th) and habeas corpus. This is flat wrong.
[See NY Times:
http://www.nytimes.com/2009/02/22/washington/22bagram.html?scp=4&sq=detainees&st=cse
FIRST: by no legitimate means may those detainees be described as "war" detainees since there is no legitimate "war" pending, the Congress not having "declared war" as is its exclusive province under Article I of the US Constitution, the same entity that you and Mr. Eric Holder, your Attorney General, are sworn to uphold and defend. (BTW: you are NOT sworn to uphold and defend "the United States," according to the oath prescribed in Article II of the Constitution).
SECOND: notwithstanding whatever nonsense a five-person majority on the US Supreme Court may decide, the natural rights of humans (including "due process" and habeas corpus) are surely universal and not limited merely to US citizens.
THIRD: because those rights are universal, the US Constitution makes it abundantly clear in the 10th Amendment that the POWERS of the US government (including yours) are limited and specifically prescribed; otherwise, they simply do not exist. The US government and its minions do not and cannot magically gain powers not otherwise enjoyed merely because the US government is operating offshore. The 10th Amendment does not acknowledge in any respect that the POWERS of the US government are thus expanded.
FOURTH: the RIGHTS already universally enjoyed by everyone are properly and legally a prior and superior restraint that circumscribe even legitimate government POWER. They are not, as someone else has observed, "dispensations from a benevolent government" to be handed out or withheld, as with candy and children. The violation of our universally-held rights can never be legitimized, not even by the United States government. In fact, as the Constitution is the sine qua non-creating document for the very existence of the United States and its government, the powers of the United States can NEVER, under any circumstances, exceed what is SPECIFICALLY granted thereunder, REGARDLESS of whatever any other country or government has ever done. Thus, the past military experiences of other governments are simply not instructive nor do they serve as valid precedents for actions taken or not taken by the US government. In short, what you and your Administration are proposing is exercising (as did George W. Bush) brute military force in an ultra vires manner. Nor are there any legitimate IMPLICIT powers under our Constitution, notwithstanding what some other self-serving dunce may conclude.
The LEGITIMATE powers of the United States government (regardless of any other government that has ever existed) are thus circumscribed by the universal rights of all people everywhere, even offshore. The recognition of those universal rights antedates the existence of the United States and its government, as you may remember, by several hundred years.
In examination of the real civil-liberties elements of your Administration and that of former President George W. Bush, the similarities I personally now see are frightening. You should not buy into the politically convenient yet illicit conversion of what happened in 2001 (the destruction of the World Trade Center in New York City) from a civil criminal matter into a phony, unauthorized military exercise fraudulently labeled a "war." Afghanistan may well become your Vietnam, I suspect, Osama bin Laden's machinations notwithstanding.
Now that you have moved into the White House, have you become informed of something that you did not know before to justify these deplorable actions? That is unlikely.
You will surely be the recipient of many accolades for your well-intended (if somewhat mis-allocated) efforts to reverse our pathetic economic fortunes, and perhaps in your list of priorities, those immediate, scary issues far transcend the "rights" of swarthy "towel-heads" in far-off Afghanistan. You may even achieve re-election in 2012 (despite the possible bloody disaster-to-come in Afghanistan), but you are seriously risking the loss of support by which you won the last election from those of us who are deeply concerned about individual rights and government restraint. Please don't proceed in such fashion.
I am not a believer but Jesus did say, I think, that "inasmuch as ye do unto the least of my bretheren ye do also unto me." That is my take on the Bill of Rights.
Dear President Obama:
I am already seriously concerned about your re-election in 2012, given that you were elected to make a clean break with the horrific, unconstitutional practices of the Bush Administration.
It appears that you and your Justice Dept. have, in support of the former Bush Administration, taken the position in a recent filing in US District Court that "war" detainees being held incommunicado at the US Bagram Air Base in Afghanistan are not entitled to civil-liberties protections, presumably including "due process" (also guaranteed in the 5th Amendment, not merely in the 14th) and habeas corpus. This is flat wrong.
[See NY Times:
http://www.nytimes.com/2009/02/22/washington/22bagram.html?scp=4&sq=detainees&st=cse
FIRST: by no legitimate means may those detainees be described as "war" detainees since there is no legitimate "war" pending, the Congress not having "declared war" as is its exclusive province under Article I of the US Constitution, the same entity that you and Mr. Eric Holder, your Attorney General, are sworn to uphold and defend. (BTW: you are NOT sworn to uphold and defend "the United States," according to the oath prescribed in Article II of the Constitution).
SECOND: notwithstanding whatever nonsense a five-person majority on the US Supreme Court may decide, the natural rights of humans (including "due process" and habeas corpus) are surely universal and not limited merely to US citizens.
THIRD: because those rights are universal, the US Constitution makes it abundantly clear in the 10th Amendment that the POWERS of the US government (including yours) are limited and specifically prescribed; otherwise, they simply do not exist. The US government and its minions do not and cannot magically gain powers not otherwise enjoyed merely because the US government is operating offshore. The 10th Amendment does not acknowledge in any respect that the POWERS of the US government are thus expanded.
FOURTH: the RIGHTS already universally enjoyed by everyone are properly and legally a prior and superior restraint that circumscribe even legitimate government POWER. They are not, as someone else has observed, "dispensations from a benevolent government" to be handed out or withheld, as with candy and children. The violation of our universally-held rights can never be legitimized, not even by the United States government. In fact, as the Constitution is the sine qua non-creating document for the very existence of the United States and its government, the powers of the United States can NEVER, under any circumstances, exceed what is SPECIFICALLY granted thereunder, REGARDLESS of whatever any other country or government has ever done. Thus, the past military experiences of other governments are simply not instructive nor do they serve as valid precedents for actions taken or not taken by the US government. In short, what you and your Administration are proposing is exercising (as did George W. Bush) brute military force in an ultra vires manner. Nor are there any legitimate IMPLICIT powers under our Constitution, notwithstanding what some other self-serving dunce may conclude.
The LEGITIMATE powers of the United States government (regardless of any other government that has ever existed) are thus circumscribed by the universal rights of all people everywhere, even offshore. The recognition of those universal rights antedates the existence of the United States and its government, as you may remember, by several hundred years.
In examination of the real civil-liberties elements of your Administration and that of former President George W. Bush, the similarities I personally now see are frightening. You should not buy into the politically convenient yet illicit conversion of what happened in 2001 (the destruction of the World Trade Center in New York City) from a civil criminal matter into a phony, unauthorized military exercise fraudulently labeled a "war." Afghanistan may well become your Vietnam, I suspect, Osama bin Laden's machinations notwithstanding.
Now that you have moved into the White House, have you become informed of something that you did not know before to justify these deplorable actions? That is unlikely.
You will surely be the recipient of many accolades for your well-intended (if somewhat mis-allocated) efforts to reverse our pathetic economic fortunes, and perhaps in your list of priorities, those immediate, scary issues far transcend the "rights" of swarthy "towel-heads" in far-off Afghanistan. You may even achieve re-election in 2012 (despite the possible bloody disaster-to-come in Afghanistan), but you are seriously risking the loss of support by which you won the last election from those of us who are deeply concerned about individual rights and government restraint. Please don't proceed in such fashion.
I am not a believer but Jesus did say, I think, that "inasmuch as ye do unto the least of my bretheren ye do also unto me." That is my take on the Bill of Rights.
DC Voting Rights
[The following was submitted as a post to the "Congress.org" Website on 2/19/09.]
I support a seat for Washington, D.C. in the House of Representatives in Congress because the constitutional provision respecting the creation of the "exclusive" jurisdiction for the District of Columbia could not lawfully disenfranchise DC residents (formerly residents of the State of Maryland). The 5th Amendment's "due process" requirements protects those persons.
No mere act of Congress can abrogate voting rights for citizens of a state. How is it that the citizens of Arlington County, Virginia were automatically restored to full voting rights while their (former) District counterparts on the north side of the Potomac were not? That is patently unconstitutional, regardless of the passage of time that the constitutional error has been allowed by feckless twits to stand.
The creation of exclusive federal jurisdiction for the District was not ever intended to disenfranchise those residents, but only to allocate administrative responsibilities.
FURTHER: DC residents should be allowed to STILL vote for Maryland's two senators, since they could not be lawfully disengaged therefrom without "due process."
These are much better results (and politically more likely) than creating a separate state out of the District of Columbia.
(See post 10/6/14)
I support a seat for Washington, D.C. in the House of Representatives in Congress because the constitutional provision respecting the creation of the "exclusive" jurisdiction for the District of Columbia could not lawfully disenfranchise DC residents (formerly residents of the State of Maryland). The 5th Amendment's "due process" requirements protects those persons.
No mere act of Congress can abrogate voting rights for citizens of a state. How is it that the citizens of Arlington County, Virginia were automatically restored to full voting rights while their (former) District counterparts on the north side of the Potomac were not? That is patently unconstitutional, regardless of the passage of time that the constitutional error has been allowed by feckless twits to stand.
The creation of exclusive federal jurisdiction for the District was not ever intended to disenfranchise those residents, but only to allocate administrative responsibilities.
FURTHER: DC residents should be allowed to STILL vote for Maryland's two senators, since they could not be lawfully disengaged therefrom without "due process."
These are much better results (and politically more likely) than creating a separate state out of the District of Columbia.
(See post 10/6/14)
Israel, Palestine
[The following was submitted as a letter to The Nation magazine on 2/4/09.]
So many people on both sides of the debate over Israeli policies and Palestinians cannot break free of the "he said/she said" ping-pong match that generates way too much heat and very little light.
While I have my own opinions about who did what in the past, those sorts of analyses are mostly irrelevant. Israel IS the government on the ground in most of Palestine, for better or worse. That is the reality. Its military superiority says so, regardless of who may be "right" or "wrong."
Israel is a country with an established government and court system. Hamas (or even Al-Fatah) is a mere political organization. Or a terror organization. It does not really matter because, as a government with a court system, Israel is obliged to render "due process" to every person in the lands it controls at all times, regardless of the "legitimacy" debates about its territorial possessions.
To the extent that the government of Israel deprives ANYONE of due process, with injury, death or property destruction, it is a lawless, criminal violator of human rights. Its actions are NEVER redeemed nor justified by what certain individuals do under the rubric of Hamas or whatever. That is a ludicrous proposition, yet even the supporters of the Palestinian people have bought into that phony comparison argument with their refutations and denials about Israel's possessory legitimacy.
Human rights are universal, so Israel has no more legitimacy in violations of due process than does the United States, nor any other government. The doctrine of due process may be enshrined in our Bill of Rights, but as the recent Bush Administration demonstrated with its criminal behavior at Gitmo and Abu Ghraib, that doctrine should not be and is not limited by or to our Bill of Rights, nor to our borders. Certain majorities on our Supreme Court have been absurdly wrong about that.
Former Pres. Jimmy Carter was right to call Israel's policies "apartheid." Perhaps a thorough boycott of Israel is in order.
So many people on both sides of the debate over Israeli policies and Palestinians cannot break free of the "he said/she said" ping-pong match that generates way too much heat and very little light.
While I have my own opinions about who did what in the past, those sorts of analyses are mostly irrelevant. Israel IS the government on the ground in most of Palestine, for better or worse. That is the reality. Its military superiority says so, regardless of who may be "right" or "wrong."
Israel is a country with an established government and court system. Hamas (or even Al-Fatah) is a mere political organization. Or a terror organization. It does not really matter because, as a government with a court system, Israel is obliged to render "due process" to every person in the lands it controls at all times, regardless of the "legitimacy" debates about its territorial possessions.
To the extent that the government of Israel deprives ANYONE of due process, with injury, death or property destruction, it is a lawless, criminal violator of human rights. Its actions are NEVER redeemed nor justified by what certain individuals do under the rubric of Hamas or whatever. That is a ludicrous proposition, yet even the supporters of the Palestinian people have bought into that phony comparison argument with their refutations and denials about Israel's possessory legitimacy.
Human rights are universal, so Israel has no more legitimacy in violations of due process than does the United States, nor any other government. The doctrine of due process may be enshrined in our Bill of Rights, but as the recent Bush Administration demonstrated with its criminal behavior at Gitmo and Abu Ghraib, that doctrine should not be and is not limited by or to our Bill of Rights, nor to our borders. Certain majorities on our Supreme Court have been absurdly wrong about that.
Former Pres. Jimmy Carter was right to call Israel's policies "apartheid." Perhaps a thorough boycott of Israel is in order.
Agree To Disagree
[The following appeared as a letter to Liberty magazine published in the March-April, 2009 issue.]
As an "incidental" atheist of some 40+ years, I must declare my agreement with Clifford Goldstein's observations about the likely effect of the alleged words of prominent atheists about which he bitterly complains, that those words will be "the fertile fodder [provided to] the Christian Right." [Sept.-Oct., 2008.]
I think it is very important to observe that no atheist speaks for the beliefs of any other, just like no Baptist, or Methodist, or Seventh-Day Adventist speaks for any other of similar persuasion. Thus, I do not feel confined or defined by anything that may have been uttered or written by any of those excoriated by Mr. Goldstein.
I personally have no problem with anyone else's beliefs, so long as they don't try to control my supported government. I usually refrain from "proselytizing" that there is no deity out there, which is also a pretty absurd thing to do. I have no idea, really, but I also have no reason to suspect as much. Mr. Goldstein cannot prove me wrong.
Mr. Goldstein's article would have been far more credible if he had refrained from use of such extreme phrases describing atheist thought and words as "dystopia," "puerile," "elitist clique," "bizarre views" and warning us dreadfully of an atheistic "eternal blackness of a cold, dead universe." Is he serious?
I know that some atheists are really "anti-theists," but I am not, and there is a difference. I slightly knew and did not like Madalyn Murray O'Hair, "the ultra-nasty den mother of American atheism." I think she was an "anti-theist," but I also know that she had been threatened and physically assaulted and was eventually murdered, so I think that her attitude was somewhat understandable, even if misguided. Mr. Goldstein should dial down his clueless scorn a bit.
As an "incidental" atheist of some 40+ years, I must declare my agreement with Clifford Goldstein's observations about the likely effect of the alleged words of prominent atheists about which he bitterly complains, that those words will be "the fertile fodder [provided to] the Christian Right." [Sept.-Oct., 2008.]
I think it is very important to observe that no atheist speaks for the beliefs of any other, just like no Baptist, or Methodist, or Seventh-Day Adventist speaks for any other of similar persuasion. Thus, I do not feel confined or defined by anything that may have been uttered or written by any of those excoriated by Mr. Goldstein.
I personally have no problem with anyone else's beliefs, so long as they don't try to control my supported government. I usually refrain from "proselytizing" that there is no deity out there, which is also a pretty absurd thing to do. I have no idea, really, but I also have no reason to suspect as much. Mr. Goldstein cannot prove me wrong.
Mr. Goldstein's article would have been far more credible if he had refrained from use of such extreme phrases describing atheist thought and words as "dystopia," "puerile," "elitist clique," "bizarre views" and warning us dreadfully of an atheistic "eternal blackness of a cold, dead universe." Is he serious?
I know that some atheists are really "anti-theists," but I am not, and there is a difference. I slightly knew and did not like Madalyn Murray O'Hair, "the ultra-nasty den mother of American atheism." I think she was an "anti-theist," but I also know that she had been threatened and physically assaulted and was eventually murdered, so I think that her attitude was somewhat understandable, even if misguided. Mr. Goldstein should dial down his clueless scorn a bit.
Sunday, January 25, 2009
VA RULES OF OPEN GOVERNMENT
A Primer
© January 23, 2009
All rights reserved.
Much controversy and uncertainty has been generated by the provisions of the open-government laws of Virginia, especially as they apply to meetings of local governing bodies. Here I will try to summarize what those laws are and how they work. The text of the most important sections follows at the end. This discussion primarily concerns local government though these laws, found in Title 2.2 (“Administration of Government”) of the Code of Virginia, are applicable to all levels of Virginia government. All sectional references are to the Virginia Code.
The “default” position of Virginia law is that all governmental meetings MUST be open and provide proper notice of such meetings UNLESS they fall into a specific statutory exception. See §2.2-3707. So, if a public body wants to meet in closed session, it must follow a prescribed procedure set forth in §2.2-3712, no exceptions.
CLOSED MEETING PROCEDURE:
1. To go into a closed meeting, there must be an AFIRMATIVE RECORDED VOTE in an OPEN meeting approving, IN ADVANCE, a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes SPECIFIC REFERENCE to the applicable exemption. A general reference to those provisions is not sufficient compliance. The Code does not specify that the motion must be in writing, but all of these requirements should be accurately memorialized in the Minutes with the specificity required. A failure of the Minutes to reflect such specificity might give rise to a presumption that proper procedures were not followed, if later reviewed in court. The same caveats would apply to the provisions requiring certain post-meeting procedures.
2. During the closed meeting, only the specified business may be discussed, nothing else. Minutes MAY be taken but are not required. No votes may be taken in closed meetings. No informal agreements or arrangements should be made or even discussed in closed meetings.
3. Once the closed meeting’s specified business has been concluded, the meeting must terminate and the governing body must immediately reconvene in an OPEN meeting. A roll call or other recorded vote SHALL be included in the minutes of that body, CERTIFYING that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), SHALL so state in the OPEN meeting prior to the vote. In my opinion, a failure to raise an alarm or to vote against the “certifying” motion could cause problems for such protesting members. However, a failure of the “certifying” vote shall not necessarily impair the validity of the closed meeting, but it obviously does present some risks.
4. Following the “certifying” roll-call vote, another roll call vote should be taken in the open meeting if there be any desired action, which must be “reasonably identified in the open meeting” and must have been properly noticed as required in §2.2-3707.
ALLOWABLE EXEMPTIONS:
§2.2-3711 sets forth certain specific itemized categories of exemptions to the requirements of open meetings. These exemptions are quite limited in nature and should not ever be cited generally. Basically, they all turn on the sensitive nature of matters that SHOULD be kept private, especially where specific individuals or businesses are concerned. Certain matters involving SPECIFIC litigation or other SPECIFIC legal matters concerning the local government are also grounds for exemption, but they must be SPECIFIC. And, they must be specifically cited when there is a motion made to go into closed session, as must also any sensitive negotiations or bargaining for the benefit of the local government. In these categories, there is an additional specific requirement for a detailed showing that to air such matters in an open meeting would be specifically detrimental.
1. The employment of individuals or the performance of existing governmental employees, or any discipline pertaining thereto, may be the subject of a closed meeting. Individual privacy may be the subject of a closed meeting.
2. The scholastic performance of a public-school student may be the subject of a closed meeting.
3. The acquisition or disposition of publicly owned REAL ESTATE may be the subject of a closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically affected. No vote or other agreement may be reached in such closed meeting.
4. Discussion of development or expansion of a proposed or existing business or industry may be had where no prior public announcements have been made. It appears that no closed meeting can be held IF there has been any sort of public announcement by anyone. Confidential proprietary information and trade secrets are exempt from disclosure and may be discussed.
5. Investment of public funds may be discussed in closed meetings, BUT ONLY if a bargaining or negotiating position of the locality would be specifically affected.
6. a. Actual, probable or threatened litigation may be discussed in closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically and adversely affected;
b. Any consultation with counsel about a specific legal matter may be held in closed meeting, but it must be specific; and
c. No general reference to “legal matters” seems sufficient; the mere presence of legal counsel is not enough to satisfy the Code.
7. The siting of hazardous waste may be discussed in closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically adversely affected.
8. Specific terrorist activities may be discussed in closed meetings.
9. The award of public contracts may be discussed in closed meetings, BUT ONLY if the bargaining or negotiating position of the locality would be specifically affected.
I doubt if there are any other exemptions available to local governments.
ENFORCEMENT:
§2.2-3713 sets forth the enforcement procedures. In my opinion, the deck is stacked against the locality if a violation is alleged. The liability for fines seems to be against the individual local governors, so they may not be reimbursed by the taxpayers. There are no jail penalties provided.
1. ANY PERSON may bring a complaint at any time, in the general district or circuit courts of the locality. The proper relief is to seek mandamus or injunction against the local governors.
2. The complaint Petition must provide a recital of the rights to open government supposedly violated, with “reasonable specificity” as to the failure of the exemption(s) supposedly claimed. Such information should be readily available from the public Minutes. As I indicated above, if the Minutes do not fully and accurately reflect the exemptions claimed, that might work against the interests of the governing body and its members.
3. The complaint must be accompanied by a sworn (notarized) affidavit demonstrating “good cause” for the claim. I would think that if the Petition itself is sworn, that would be sufficient to satisfy this requirement, so long as the Petition shows “good cause” and is sufficiently detailed.
4. The burden of proof is on the locality to show proper procedures were followed by a “preponderance” of the evidence.
5. The Petition should be heard by the court within seven days of its filing.
6. If the complainant “substantially prevails on the merits” in the eyes of the court, then the complainant may recover attorneys fees and costs from the locality, and the court may impose individual fines on the governors that I doubt may be reimbursed by the locality.
7. If the complainant substantially prevails, the publicity against the governing body will be absolutely rancid!
SUMMARY:
This is by no means a comprehensive recital of the procedures for closed meetings, but the statutes set forth below will speak for themselves. Local governments should be very careful about using closed meetings and, if they do, the complex requirements need to be followed to the letter. As I suggested, the deck is stacked against the locality, so caution is much required.
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The writer has been a practicing Virginia lawyer since 1973. All opinions expressed herein are his own.
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CODE OF VIRGINIA, 1950
(from CaseFinder CD-ROM, Aug. 2008)
Title 2.2 Administration of Government
Chap. 37 Virginia Freedom of Information Act, §§ 2.2-3700 — 2.2-3714
§ 2.2-3711. Closed meetings authorized for certain limited purposes. —
A. Public bodies may hold closed meetings only for the following purposes:
1. Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board.
2. Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any Virginia public institution of higher education or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board.
3. Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.
4. The protection of the privacy of individuals in personal matters not related to public business.
5. Discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community.
6. Discussion or consideration of the investment of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected.
7. Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.
8. In the case of boards of visitors of public institutions of higher education, discussion or consideration of matters relating to gifts, bequests and fund-raising activities, and grants and contracts for services or work to be performed by such institution. However, the terms and conditions of any such gifts, bequests, grants, and contracts made by a foreign government, a foreign legal entity, or a foreign person and accepted by a public institution of higher education in Virginia shall be subject to public disclosure upon written request to the appropriate board of visitors. For the purpose of this subdivision, (i) "foreign government" means any government other than the United States government or the government of a state or a political subdivision thereof; (ii) "foreign legal entity" means any legal entity created under the laws of the United States or of any state thereof if a majority of the ownership of the stock of such legal entity is owned by foreign governments or foreign persons or if a majority of the membership of any such entity is composed of foreign persons or foreign legal entities, or any legal entity created under the laws of a foreign government; and (iii) "foreign person" means any individual who is not a citizen or national of the United States or a trust territory or protectorate thereof.
9. In the case of the boards of trustees of the Virginia Museum of Fine Arts, the Virginia Museum of Natural History, and The Science Museum of Virginia, discussion or consideration of matters relating to specific gifts, bequests, and grants.
10. Discussion or consideration of honorary degrees or special awards.
11. Discussion or consideration of tests, examinations, or other records excluded from this chapter pursuant to subdivision 4 of § 2.2-3705.1.
12. Discussion, consideration, or review by the appropriate House or Senate committees of possible disciplinary action against a member arising out of the possible inadequacy of the disclosure statement filed by the member, provided the member may request in writing that the committee meeting not be conducted in a closed meeting.
13. Discussion of strategy with respect to the negotiation of a hazardous waste siting agreement or to consider the terms, conditions, and provisions of a hazardous waste siting agreement if the governing body in open meeting finds that an open meeting will have an adverse effect upon the negotiating position of the governing body or the establishment of the terms, conditions and provisions of the siting agreement, or both. All discussions with the applicant or its representatives may be conducted in a closed meeting.
14. Discussion by the Governor and any economic advisory board reviewing forecasts of economic activity and estimating general and nongeneral fund revenues.
15. Discussion or consideration of medical and mental records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.5.
16. Deliberations of the State Lottery Board in a licensing appeal action conducted pursuant to subsection D of § 58.1-4007 regarding the denial or revocation of a license of a lottery sales agent; and discussion, consideration or review of State Lottery Department matters related to proprietary lottery game information and studies or investigations exempted from disclosure under subdivision 6 of § 2.2-3705.3 and subdivision 11 of § 2.2-3705.7.
17. Those portions of meetings by local government crime commissions where the identity of, or information tending to identify, individuals providing information about crimes or criminal activities under a promise of anonymity is discussed or disclosed.
18. Those portions of meetings in which the Board of Corrections discusses or discloses the identity of, or information tending to identify, any prisoner who (i) provides information about crimes or criminal activities, (ii) renders assistance in preventing the escape of another prisoner or in the apprehension of an escaped prisoner, or (iii) voluntarily or at the instance of a prison official renders other extraordinary services, the disclosure of which is likely to jeopardize the prisoner's life or safety.
19. Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety; or discussion of reports or plans related to the security of any governmental facility, building or structure, or the safety of persons using such facility, building or structure.
20. Discussion by the Board of the Virginia Retirement System, acting pursuant to § 51.1-124.30, or of any local retirement system, acting pursuant to § 51.1-803, or of the Rector and Visitors of the University of Virginia, acting pursuant to § 23-76.1, regarding the acquisition, holding or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that such discussion (i) concerns confidential analyses prepared for the Rector and Visitors of the University of Virginia, prepared by the retirement system or provided to the retirement system under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity, and (ii) would have an adverse effect on the value of the investment to be acquired, held or disposed of by the retirement system or the Rector and Visitors of the University of Virginia. Nothing in this subdivision shall be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested or the present value of such investment.
21. Those portions of meetings in which individual child death cases are discussed by the State Child Fatality Review team established pursuant to § 32.1-283.1, and those portions of meetings in which individual child death cases are discussed by a regional or local child fatality review team established pursuant to § 32.1-283.2, and those portions of meetings in which individual death cases are discussed by family violence fatality review teams established pursuant to § 32.1-283.3.
22. Those portions of meetings of the University of Virginia Board of Visitors or the Eastern Virginia Medical School Board of Visitors, as the case may be, and those portions of meetings of any persons to whom management responsibilities for the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, have been delegated, in which there is discussed proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would adversely affect the competitive position of the Medical Center or Eastern Virginia Medical School, as the case may be.
23. In the case of the Virginia Commonwealth University Health System Authority, discussion or consideration of any of the following: the acquisition or disposition of real or personal property where disclosure would adversely affect the bargaining position or negotiating strategy of the Authority; operational plans that could affect the value of such property, real or personal, owned or desirable for ownership by the Authority; matters relating to gifts, bequests and fund-raising activities; grants and contracts for services or work to be performed by the Authority; marketing or operational strategies where disclosure of such strategies would adversely affect the competitive position of the Authority; members of its medical and teaching staffs and qualifications for appointments thereto; and qualifications or evaluations of other employees.
24. Those portions of the meetings of the Intervention Program Committee within the Department of Health Professions to the extent such discussions identify any practitioner who may be, or who actually is, impaired pursuant to Chapter 25.1 (§ 54.1-2515 et seq.) of Title 54.1.
25. Meetings or portions of meetings of the Board of the Virginia College Savings Plan wherein personal information, as defined in § 2.2-3801, which has been provided to the Board or its employees by or on behalf of individuals who have requested information about, applied for, or entered into prepaid tuition contracts or savings trust account agreements pursuant to Chapter 4.9 (§ 23-38.75 et seq.) of Title 23 is discussed.
26. Discussion or consideration, by the Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to § 56-484.15, of trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted by CMRS providers as defined in § 56-484.12, related to the provision of wireless E-911 service.
27. Those portions of disciplinary proceedings by any regulatory board within the Department of Professional and Occupational Regulation, Department of Health Professions, or the Board of Accountancy conducted pursuant to § 2.2-4019 or 2.2-4020 during which the board deliberates to reach a decision or meetings of health regulatory boards or conference committees of such boards to consider settlement proposals in pending disciplinary actions or modifications to previously issued board orders as requested by either of the parties.
28. Discussion or consideration of records excluded from this chapter pursuant to subdivision 11 of § 2.2-3705.6 by a responsible public entity or an affected local jurisdiction, as those terms are defined in § 56-557, or any independent review panel appointed to review information and advise the responsible public entity concerning such records.
29. Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body.
30. Discussion or consideration of grant application records excluded from this chapter pursuant to subdivision 17 of § 2.2-3705.6 by (i) the Commonwealth Health Research Board or (ii) the Innovative Technology Authority or a grant allocation committee appointed to advise the Innovative Technology Authority on the grant applications.
31. Discussion or consideration by the Commitment Review Committee of records excluded from this chapter pursuant to subdivision 9 of § 2.2-3705.2 relating to individuals subject to commitment as sexually violent predators under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2.
32. [Expired.]
33. Discussion or consideration of confidential proprietary records and trade secrets excluded from this chapter pursuant to subdivision 18 of § 2.2-3705.6.
34. Discussion or consideration by a local authority created in accordance with the Virginia Wireless Service Authorities Act (§ 15.2-5431.1 et seq.) of confidential proprietary records and trade secrets excluded from this chapter pursuant to subdivision 19 of § 2.2-3705.6.
35. Discussion or consideration by the State Board of Elections or local electoral boards of voting security matters made confidential pursuant to § 24.2-625.1.
36. Discussion or consideration by the Forensic Science Board or the Scientific Advisory Committee created pursuant to Article 2 (§ 9.1-1109 et seq.) of Chapter 11 of Title 9.1 of records excluded from this chapter pursuant to subdivision F 1 of § 2.2-3706.
37. Discussion or consideration by the Brown v. Board of Education Scholarship Program Awards Committee of records or confidential matters excluded from this chapter pursuant to subdivision 3 of § 2.2-3705.4, and meetings of the Committee to deliberate concerning the annual maximum scholarship award, review and consider scholarship applications and requests for scholarship award renewal, and cancel, rescind, or recover scholarship awards.
38. Discussion or consideration by the Virginia Port Authority of records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.6.
39. Discussion or consideration by the Board of Trustees of the Virginia Retirement System acting pursuant to § 51.1-124.30, or the Investment Advisory Committee appointed pursuant to § 51.1-124.26, or by any local retirement system, acting pursuant to § 51.1-803 of records excluded from this chapter pursuant to subdivision 25 of § 2.2-3705.7.
40. Discussion or consideration by the Department of Business Assistance, the Virginia Economic Development Partnership, the Virginia Tourism Authority, the Tobacco Indemnification and Community Revitalization Commission, a nonprofit, nonstock corporation created pursuant to § 2.2-2240.1, or local or regional industrial or economic development authorities or organizations of records excluded from this chapter pursuant to subdivision 3 of § 2.2-3705.6.
41. Discussion or consideration by the Board of Education of records relating to the denial, suspension, or revocation of teacher licenses excluded from this chapter pursuant to subdivision 13 of § 2.2-3705.3.
42. Those portions of meetings of the Virginia Military Advisory Council, the Virginia National Defense Industrial Authority, or a local or regional military affairs organization appointed by a local governing body, during which there is discussion of records excluded from this chapter pursuant to subdivision 12 of § 2.2-3705.2.
B. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.
C. Public officers improperly selected due to the failure of the public body to comply with the other provisions of this section shall be de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.
D. Nothing in this section shall be construed to prevent the holding of conferences between two or more public bodies, or their representatives, but these conferences shall be subject to the same procedures for holding closed meetings as are applicable to any other public body.
E. This section shall not be construed to (i) require the disclosure of any contract between the Intervention Program Committee within the Department of Health Professions and an impaired practitioner entered into pursuant to Chapter 25.1 (§ 54.1-2515 et seq.) of Title 54.1 or (ii) require the board of directors of any authority created pursuant to the Industrial Development and Revenue Bond Act (§ 15.2-4900 et seq.), or any public body empowered to issue industrial revenue bonds by general or special law, to identify a business or industry to which subdivision A 5 applies. However, such business or industry shall be identified as a matter of public record at least 30 days prior to the actual date of the board's authorization of the sale or issuance of such bonds. (1968, c. 479, § 2.1-344; 1970, c. 456; 1973, c. 461; 1974, c. 332; 1976, cc. 467, 709; 1979, cc. 369, 684; 1980, cc. 221, 475, 476, 754; 1981, cc. 35, 471; 1982, cc. 497, 516; 1984, cc. 473, 513; 1985, c. 277; 1988, c. 891; 1989, cc. 56, 358, 478; 1990, cc. 435, 538; 1991, c. 708; 1992, c. 444; 1993, cc. 270, 499; 1995, c. 499; 1996, cc. 855, 862, 902, 905, 1046; 1997, cc. 439, 641, 785, 861; 1999, cc. 485, 518, 703, 726, 849, 867, 868; 2000, cc. 382, 400, 720, 1064; 2001, cc. 231, 844; 2002, cc. 87, 393, 455, 478, 499, 655, 715, 830; 2003, cc. 274, 291, 332, 618, 703; 2004, cc. 398, 690, 770; 2005, cc. 258, 411, 568; 2006, cc. 430, 499, 518, 560; 2007, cc. 133, 374, 566, 739; 2008, cc. 626, 633, 668, 721, 743.)
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§ 2.2-3712. Closed meetings procedures; certification of proceedings. —
A. No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711. The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.
B. The notice provisions of this chapter shall not apply to closed meetings of any public body held solely for the purpose of interviewing candidates for the position of chief administrative officer. Prior to any such closed meeting for the purpose of interviewing candidates, the public body shall announce in an open meeting that such closed meeting shall be held at a disclosed or undisclosed location within fifteen days thereafter.
C. The public body holding a closed meeting shall restrict its discussion during the closed meeting only to those matters specifically exempted from the provisions of this chapter and identified in the motion required by subsection A.
D. At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public bod
E. Failure of the certification required by subsection D to receive the affirmative vote of a majority of the members of the public body present during a meeting shall not affect the validity or confidentiality of such meeting with respect to matters considered therein in compliance with the provisions of this chapter. The recorded vote and any statement made in connection therewith, shall upon proper authentication, constitute evidence in any proceeding brought to enforce the provisions of this chapter.
F. A public body may permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting.
G. Except as specifically authorized by law, in no event may any public body take action on matters discussed in any closed meeting, except at an open meeting for which notice was given as required by § 2.2-3707.
H. Minutes may be taken during closed meetings of a public body, but shall not be required. Such minutes shall not be subject to mandatory public disclosure. (1989, c. 358, § 2.1-344.1; 1999, cc. 703, 726; 2001, c. 844.)
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§ 2.2-3713. Proceedings for enforcement of chapter. —
A. Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause. Venue for the petition shall be addressed as follows:
1. In a case involving a local public body, to the general district court or circuit court of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied;
2. In a case involving a regional public body, to the general district or circuit court of the county or city where the principal business office of such body is located; and
3. In a case involving a board, bureau, commission, authority, district, institution, or agency of the state government, including a public institution of higher education, or a standing or other committee of the General Assembly, to the general district court or the circuit court of the residence of the aggrieved party or of the City of Richmond.
B. In any action brought before a general district court, a corporate petitioner may appear through its officer, director or managing agent without the assistance of counsel, notwithstanding any provision of law or Rule of the Supreme Court of Virginia to the contrary.
C. The petition for mandamus or injunction shall be heard within seven days of the date when the same is made. However, any petition made outside of the regular terms of the circuit court of a county that is included in a judicial circuit with another county or counties, the hearing on the petition shall be given precedence on the docket of such court over all cases that are not otherwise given precedence by law.
D. The petition shall allege with reasonable specificity the circumstances of the denial of the rights and privileges conferred by this chapter. A single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein. If the court finds the denial to be in violation of the provisions of this chapter, the petitioner shall be entitled to recover reasonable costs and attorneys' fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust. In making this determination, a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body's position.
E. In any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exemption by a preponderance of the evidence. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter.
F. Failure by any person to request and receive notice of the time and place of meetings as provided in § 2.2-3707 shall not preclude any person from enforcing his rights and privileges conferred by this chapter. (1968, c. 479, § 2.1-346; 1976, c. 709; 1978, c. 826; 1989, c. 358; 1990, c. 217; 1996, c. 578; 1999, cc. 703, 726; 2001, c. 844; 2007, c. 560.)
© January 23, 2009
All rights reserved.
Much controversy and uncertainty has been generated by the provisions of the open-government laws of Virginia, especially as they apply to meetings of local governing bodies. Here I will try to summarize what those laws are and how they work. The text of the most important sections follows at the end. This discussion primarily concerns local government though these laws, found in Title 2.2 (“Administration of Government”) of the Code of Virginia, are applicable to all levels of Virginia government. All sectional references are to the Virginia Code.
The “default” position of Virginia law is that all governmental meetings MUST be open and provide proper notice of such meetings UNLESS they fall into a specific statutory exception. See §2.2-3707. So, if a public body wants to meet in closed session, it must follow a prescribed procedure set forth in §2.2-3712, no exceptions.
CLOSED MEETING PROCEDURE:
1. To go into a closed meeting, there must be an AFIRMATIVE RECORDED VOTE in an OPEN meeting approving, IN ADVANCE, a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes SPECIFIC REFERENCE to the applicable exemption. A general reference to those provisions is not sufficient compliance. The Code does not specify that the motion must be in writing, but all of these requirements should be accurately memorialized in the Minutes with the specificity required. A failure of the Minutes to reflect such specificity might give rise to a presumption that proper procedures were not followed, if later reviewed in court. The same caveats would apply to the provisions requiring certain post-meeting procedures.
2. During the closed meeting, only the specified business may be discussed, nothing else. Minutes MAY be taken but are not required. No votes may be taken in closed meetings. No informal agreements or arrangements should be made or even discussed in closed meetings.
3. Once the closed meeting’s specified business has been concluded, the meeting must terminate and the governing body must immediately reconvene in an OPEN meeting. A roll call or other recorded vote SHALL be included in the minutes of that body, CERTIFYING that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), SHALL so state in the OPEN meeting prior to the vote. In my opinion, a failure to raise an alarm or to vote against the “certifying” motion could cause problems for such protesting members. However, a failure of the “certifying” vote shall not necessarily impair the validity of the closed meeting, but it obviously does present some risks.
4. Following the “certifying” roll-call vote, another roll call vote should be taken in the open meeting if there be any desired action, which must be “reasonably identified in the open meeting” and must have been properly noticed as required in §2.2-3707.
ALLOWABLE EXEMPTIONS:
§2.2-3711 sets forth certain specific itemized categories of exemptions to the requirements of open meetings. These exemptions are quite limited in nature and should not ever be cited generally. Basically, they all turn on the sensitive nature of matters that SHOULD be kept private, especially where specific individuals or businesses are concerned. Certain matters involving SPECIFIC litigation or other SPECIFIC legal matters concerning the local government are also grounds for exemption, but they must be SPECIFIC. And, they must be specifically cited when there is a motion made to go into closed session, as must also any sensitive negotiations or bargaining for the benefit of the local government. In these categories, there is an additional specific requirement for a detailed showing that to air such matters in an open meeting would be specifically detrimental.
1. The employment of individuals or the performance of existing governmental employees, or any discipline pertaining thereto, may be the subject of a closed meeting. Individual privacy may be the subject of a closed meeting.
2. The scholastic performance of a public-school student may be the subject of a closed meeting.
3. The acquisition or disposition of publicly owned REAL ESTATE may be the subject of a closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically affected. No vote or other agreement may be reached in such closed meeting.
4. Discussion of development or expansion of a proposed or existing business or industry may be had where no prior public announcements have been made. It appears that no closed meeting can be held IF there has been any sort of public announcement by anyone. Confidential proprietary information and trade secrets are exempt from disclosure and may be discussed.
5. Investment of public funds may be discussed in closed meetings, BUT ONLY if a bargaining or negotiating position of the locality would be specifically affected.
6. a. Actual, probable or threatened litigation may be discussed in closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically and adversely affected;
b. Any consultation with counsel about a specific legal matter may be held in closed meeting, but it must be specific; and
c. No general reference to “legal matters” seems sufficient; the mere presence of legal counsel is not enough to satisfy the Code.
7. The siting of hazardous waste may be discussed in closed meeting, BUT ONLY if the bargaining or negotiating position of the locality would be specifically adversely affected.
8. Specific terrorist activities may be discussed in closed meetings.
9. The award of public contracts may be discussed in closed meetings, BUT ONLY if the bargaining or negotiating position of the locality would be specifically affected.
I doubt if there are any other exemptions available to local governments.
ENFORCEMENT:
§2.2-3713 sets forth the enforcement procedures. In my opinion, the deck is stacked against the locality if a violation is alleged. The liability for fines seems to be against the individual local governors, so they may not be reimbursed by the taxpayers. There are no jail penalties provided.
1. ANY PERSON may bring a complaint at any time, in the general district or circuit courts of the locality. The proper relief is to seek mandamus or injunction against the local governors.
2. The complaint Petition must provide a recital of the rights to open government supposedly violated, with “reasonable specificity” as to the failure of the exemption(s) supposedly claimed. Such information should be readily available from the public Minutes. As I indicated above, if the Minutes do not fully and accurately reflect the exemptions claimed, that might work against the interests of the governing body and its members.
3. The complaint must be accompanied by a sworn (notarized) affidavit demonstrating “good cause” for the claim. I would think that if the Petition itself is sworn, that would be sufficient to satisfy this requirement, so long as the Petition shows “good cause” and is sufficiently detailed.
4. The burden of proof is on the locality to show proper procedures were followed by a “preponderance” of the evidence.
5. The Petition should be heard by the court within seven days of its filing.
6. If the complainant “substantially prevails on the merits” in the eyes of the court, then the complainant may recover attorneys fees and costs from the locality, and the court may impose individual fines on the governors that I doubt may be reimbursed by the locality.
7. If the complainant substantially prevails, the publicity against the governing body will be absolutely rancid!
SUMMARY:
This is by no means a comprehensive recital of the procedures for closed meetings, but the statutes set forth below will speak for themselves. Local governments should be very careful about using closed meetings and, if they do, the complex requirements need to be followed to the letter. As I suggested, the deck is stacked against the locality, so caution is much required.
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The writer has been a practicing Virginia lawyer since 1973. All opinions expressed herein are his own.
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CODE OF VIRGINIA, 1950
(from CaseFinder CD-ROM, Aug. 2008)
Title 2.2 Administration of Government
Chap. 37 Virginia Freedom of Information Act, §§ 2.2-3700 — 2.2-3714
§ 2.2-3711. Closed meetings authorized for certain limited purposes. —
A. Public bodies may hold closed meetings only for the following purposes:
1. Discussion, consideration, or interviews of prospective candidates for employment; assignment, appointment, promotion, performance, demotion, salaries, disciplining, or resignation of specific public officers, appointees, or employees of any public body; and evaluation of performance of departments or schools of public institutions of higher education where such evaluation will necessarily involve discussion of the performance of specific individuals. Any teacher shall be permitted to be present during a closed meeting in which there is a discussion or consideration of a disciplinary matter that involves the teacher and some student and the student involved in the matter is present, provided the teacher makes a written request to be present to the presiding officer of the appropriate board.
2. Discussion or consideration of admission or disciplinary matters or any other matters that would involve the disclosure of information contained in a scholastic record concerning any student of any Virginia public institution of higher education or any state school system. However, any such student, legal counsel and, if the student is a minor, the student's parents or legal guardians shall be permitted to be present during the taking of testimony or presentation of evidence at a closed meeting, if such student, parents, or guardians so request in writing and such request is submitted to the presiding officer of the appropriate board.
3. Discussion or consideration of the acquisition of real property for a public purpose, or of the disposition of publicly held real property, where discussion in an open meeting would adversely affect the bargaining position or negotiating strategy of the public body.
4. The protection of the privacy of individuals in personal matters not related to public business.
5. Discussion concerning a prospective business or industry or the expansion of an existing business or industry where no previous announcement has been made of the business' or industry's interest in locating or expanding its facilities in the community.
6. Discussion or consideration of the investment of public funds where competition or bargaining is involved, where, if made public initially, the financial interest of the governmental unit would be adversely affected.
7. Consultation with legal counsel and briefings by staff members or consultants pertaining to actual or probable litigation, where such consultation or briefing in open meeting would adversely affect the negotiating or litigating posture of the public body; and consultation with legal counsel employed or retained by a public body regarding specific legal matters requiring the provision of legal advice by such counsel. For the purposes of this subdivision, "probable litigation" means litigation that has been specifically threatened or on which the public body or its legal counsel has a reasonable basis to believe will be commenced by or against a known party. Nothing in this subdivision shall be construed to permit the closure of a meeting merely because an attorney representing the public body is in attendance or is consulted on a matter.
8. In the case of boards of visitors of public institutions of higher education, discussion or consideration of matters relating to gifts, bequests and fund-raising activities, and grants and contracts for services or work to be performed by such institution. However, the terms and conditions of any such gifts, bequests, grants, and contracts made by a foreign government, a foreign legal entity, or a foreign person and accepted by a public institution of higher education in Virginia shall be subject to public disclosure upon written request to the appropriate board of visitors. For the purpose of this subdivision, (i) "foreign government" means any government other than the United States government or the government of a state or a political subdivision thereof; (ii) "foreign legal entity" means any legal entity created under the laws of the United States or of any state thereof if a majority of the ownership of the stock of such legal entity is owned by foreign governments or foreign persons or if a majority of the membership of any such entity is composed of foreign persons or foreign legal entities, or any legal entity created under the laws of a foreign government; and (iii) "foreign person" means any individual who is not a citizen or national of the United States or a trust territory or protectorate thereof.
9. In the case of the boards of trustees of the Virginia Museum of Fine Arts, the Virginia Museum of Natural History, and The Science Museum of Virginia, discussion or consideration of matters relating to specific gifts, bequests, and grants.
10. Discussion or consideration of honorary degrees or special awards.
11. Discussion or consideration of tests, examinations, or other records excluded from this chapter pursuant to subdivision 4 of § 2.2-3705.1.
12. Discussion, consideration, or review by the appropriate House or Senate committees of possible disciplinary action against a member arising out of the possible inadequacy of the disclosure statement filed by the member, provided the member may request in writing that the committee meeting not be conducted in a closed meeting.
13. Discussion of strategy with respect to the negotiation of a hazardous waste siting agreement or to consider the terms, conditions, and provisions of a hazardous waste siting agreement if the governing body in open meeting finds that an open meeting will have an adverse effect upon the negotiating position of the governing body or the establishment of the terms, conditions and provisions of the siting agreement, or both. All discussions with the applicant or its representatives may be conducted in a closed meeting.
14. Discussion by the Governor and any economic advisory board reviewing forecasts of economic activity and estimating general and nongeneral fund revenues.
15. Discussion or consideration of medical and mental records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.5.
16. Deliberations of the State Lottery Board in a licensing appeal action conducted pursuant to subsection D of § 58.1-4007 regarding the denial or revocation of a license of a lottery sales agent; and discussion, consideration or review of State Lottery Department matters related to proprietary lottery game information and studies or investigations exempted from disclosure under subdivision 6 of § 2.2-3705.3 and subdivision 11 of § 2.2-3705.7.
17. Those portions of meetings by local government crime commissions where the identity of, or information tending to identify, individuals providing information about crimes or criminal activities under a promise of anonymity is discussed or disclosed.
18. Those portions of meetings in which the Board of Corrections discusses or discloses the identity of, or information tending to identify, any prisoner who (i) provides information about crimes or criminal activities, (ii) renders assistance in preventing the escape of another prisoner or in the apprehension of an escaped prisoner, or (iii) voluntarily or at the instance of a prison official renders other extraordinary services, the disclosure of which is likely to jeopardize the prisoner's life or safety.
19. Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety; or discussion of reports or plans related to the security of any governmental facility, building or structure, or the safety of persons using such facility, building or structure.
20. Discussion by the Board of the Virginia Retirement System, acting pursuant to § 51.1-124.30, or of any local retirement system, acting pursuant to § 51.1-803, or of the Rector and Visitors of the University of Virginia, acting pursuant to § 23-76.1, regarding the acquisition, holding or disposition of a security or other ownership interest in an entity, where such security or ownership interest is not traded on a governmentally regulated securities exchange, to the extent that such discussion (i) concerns confidential analyses prepared for the Rector and Visitors of the University of Virginia, prepared by the retirement system or provided to the retirement system under a promise of confidentiality, of the future value of such ownership interest or the future financial performance of the entity, and (ii) would have an adverse effect on the value of the investment to be acquired, held or disposed of by the retirement system or the Rector and Visitors of the University of Virginia. Nothing in this subdivision shall be construed to prevent the disclosure of information relating to the identity of any investment held, the amount invested or the present value of such investment.
21. Those portions of meetings in which individual child death cases are discussed by the State Child Fatality Review team established pursuant to § 32.1-283.1, and those portions of meetings in which individual child death cases are discussed by a regional or local child fatality review team established pursuant to § 32.1-283.2, and those portions of meetings in which individual death cases are discussed by family violence fatality review teams established pursuant to § 32.1-283.3.
22. Those portions of meetings of the University of Virginia Board of Visitors or the Eastern Virginia Medical School Board of Visitors, as the case may be, and those portions of meetings of any persons to whom management responsibilities for the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, have been delegated, in which there is discussed proprietary, business-related information pertaining to the operations of the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, including business development or marketing strategies and activities with existing or future joint venturers, partners, or other parties with whom the University of Virginia Medical Center or Eastern Virginia Medical School, as the case may be, has formed, or forms, any arrangement for the delivery of health care, if disclosure of such information would adversely affect the competitive position of the Medical Center or Eastern Virginia Medical School, as the case may be.
23. In the case of the Virginia Commonwealth University Health System Authority, discussion or consideration of any of the following: the acquisition or disposition of real or personal property where disclosure would adversely affect the bargaining position or negotiating strategy of the Authority; operational plans that could affect the value of such property, real or personal, owned or desirable for ownership by the Authority; matters relating to gifts, bequests and fund-raising activities; grants and contracts for services or work to be performed by the Authority; marketing or operational strategies where disclosure of such strategies would adversely affect the competitive position of the Authority; members of its medical and teaching staffs and qualifications for appointments thereto; and qualifications or evaluations of other employees.
24. Those portions of the meetings of the Intervention Program Committee within the Department of Health Professions to the extent such discussions identify any practitioner who may be, or who actually is, impaired pursuant to Chapter 25.1 (§ 54.1-2515 et seq.) of Title 54.1.
25. Meetings or portions of meetings of the Board of the Virginia College Savings Plan wherein personal information, as defined in § 2.2-3801, which has been provided to the Board or its employees by or on behalf of individuals who have requested information about, applied for, or entered into prepaid tuition contracts or savings trust account agreements pursuant to Chapter 4.9 (§ 23-38.75 et seq.) of Title 23 is discussed.
26. Discussion or consideration, by the Wireless Carrier E-911 Cost Recovery Subcommittee created pursuant to § 56-484.15, of trade secrets, as defined in the Uniform Trade Secrets Act (§ 59.1-336 et seq.), submitted by CMRS providers as defined in § 56-484.12, related to the provision of wireless E-911 service.
27. Those portions of disciplinary proceedings by any regulatory board within the Department of Professional and Occupational Regulation, Department of Health Professions, or the Board of Accountancy conducted pursuant to § 2.2-4019 or 2.2-4020 during which the board deliberates to reach a decision or meetings of health regulatory boards or conference committees of such boards to consider settlement proposals in pending disciplinary actions or modifications to previously issued board orders as requested by either of the parties.
28. Discussion or consideration of records excluded from this chapter pursuant to subdivision 11 of § 2.2-3705.6 by a responsible public entity or an affected local jurisdiction, as those terms are defined in § 56-557, or any independent review panel appointed to review information and advise the responsible public entity concerning such records.
29. Discussion of the award of a public contract involving the expenditure of public funds, including interviews of bidders or offerors, and discussion of the terms or scope of such contract, where discussion in an open session would adversely affect the bargaining position or negotiating strategy of the public body.
30. Discussion or consideration of grant application records excluded from this chapter pursuant to subdivision 17 of § 2.2-3705.6 by (i) the Commonwealth Health Research Board or (ii) the Innovative Technology Authority or a grant allocation committee appointed to advise the Innovative Technology Authority on the grant applications.
31. Discussion or consideration by the Commitment Review Committee of records excluded from this chapter pursuant to subdivision 9 of § 2.2-3705.2 relating to individuals subject to commitment as sexually violent predators under Chapter 9 (§ 37.2-900 et seq.) of Title 37.2.
32. [Expired.]
33. Discussion or consideration of confidential proprietary records and trade secrets excluded from this chapter pursuant to subdivision 18 of § 2.2-3705.6.
34. Discussion or consideration by a local authority created in accordance with the Virginia Wireless Service Authorities Act (§ 15.2-5431.1 et seq.) of confidential proprietary records and trade secrets excluded from this chapter pursuant to subdivision 19 of § 2.2-3705.6.
35. Discussion or consideration by the State Board of Elections or local electoral boards of voting security matters made confidential pursuant to § 24.2-625.1.
36. Discussion or consideration by the Forensic Science Board or the Scientific Advisory Committee created pursuant to Article 2 (§ 9.1-1109 et seq.) of Chapter 11 of Title 9.1 of records excluded from this chapter pursuant to subdivision F 1 of § 2.2-3706.
37. Discussion or consideration by the Brown v. Board of Education Scholarship Program Awards Committee of records or confidential matters excluded from this chapter pursuant to subdivision 3 of § 2.2-3705.4, and meetings of the Committee to deliberate concerning the annual maximum scholarship award, review and consider scholarship applications and requests for scholarship award renewal, and cancel, rescind, or recover scholarship awards.
38. Discussion or consideration by the Virginia Port Authority of records excluded from this chapter pursuant to subdivision 1 of § 2.2-3705.6.
39. Discussion or consideration by the Board of Trustees of the Virginia Retirement System acting pursuant to § 51.1-124.30, or the Investment Advisory Committee appointed pursuant to § 51.1-124.26, or by any local retirement system, acting pursuant to § 51.1-803 of records excluded from this chapter pursuant to subdivision 25 of § 2.2-3705.7.
40. Discussion or consideration by the Department of Business Assistance, the Virginia Economic Development Partnership, the Virginia Tourism Authority, the Tobacco Indemnification and Community Revitalization Commission, a nonprofit, nonstock corporation created pursuant to § 2.2-2240.1, or local or regional industrial or economic development authorities or organizations of records excluded from this chapter pursuant to subdivision 3 of § 2.2-3705.6.
41. Discussion or consideration by the Board of Education of records relating to the denial, suspension, or revocation of teacher licenses excluded from this chapter pursuant to subdivision 13 of § 2.2-3705.3.
42. Those portions of meetings of the Virginia Military Advisory Council, the Virginia National Defense Industrial Authority, or a local or regional military affairs organization appointed by a local governing body, during which there is discussion of records excluded from this chapter pursuant to subdivision 12 of § 2.2-3705.2.
B. No resolution, ordinance, rule, contract, regulation or motion adopted, passed or agreed to in a closed meeting shall become effective unless the public body, following the meeting, reconvenes in open meeting and takes a vote of the membership on such resolution, ordinance, rule, contract, regulation, or motion that shall have its substance reasonably identified in the open meeting.
C. Public officers improperly selected due to the failure of the public body to comply with the other provisions of this section shall be de facto officers and, as such, their official actions are valid until they obtain notice of the legal defect in their election.
D. Nothing in this section shall be construed to prevent the holding of conferences between two or more public bodies, or their representatives, but these conferences shall be subject to the same procedures for holding closed meetings as are applicable to any other public body.
E. This section shall not be construed to (i) require the disclosure of any contract between the Intervention Program Committee within the Department of Health Professions and an impaired practitioner entered into pursuant to Chapter 25.1 (§ 54.1-2515 et seq.) of Title 54.1 or (ii) require the board of directors of any authority created pursuant to the Industrial Development and Revenue Bond Act (§ 15.2-4900 et seq.), or any public body empowered to issue industrial revenue bonds by general or special law, to identify a business or industry to which subdivision A 5 applies. However, such business or industry shall be identified as a matter of public record at least 30 days prior to the actual date of the board's authorization of the sale or issuance of such bonds. (1968, c. 479, § 2.1-344; 1970, c. 456; 1973, c. 461; 1974, c. 332; 1976, cc. 467, 709; 1979, cc. 369, 684; 1980, cc. 221, 475, 476, 754; 1981, cc. 35, 471; 1982, cc. 497, 516; 1984, cc. 473, 513; 1985, c. 277; 1988, c. 891; 1989, cc. 56, 358, 478; 1990, cc. 435, 538; 1991, c. 708; 1992, c. 444; 1993, cc. 270, 499; 1995, c. 499; 1996, cc. 855, 862, 902, 905, 1046; 1997, cc. 439, 641, 785, 861; 1999, cc. 485, 518, 703, 726, 849, 867, 868; 2000, cc. 382, 400, 720, 1064; 2001, cc. 231, 844; 2002, cc. 87, 393, 455, 478, 499, 655, 715, 830; 2003, cc. 274, 291, 332, 618, 703; 2004, cc. 398, 690, 770; 2005, cc. 258, 411, 568; 2006, cc. 430, 499, 518, 560; 2007, cc. 133, 374, 566, 739; 2008, cc. 626, 633, 668, 721, 743.)
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§ 2.2-3712. Closed meetings procedures; certification of proceedings. —
A. No closed meeting shall be held unless the public body proposing to convene such meeting has taken an affirmative recorded vote in an open meeting approving a motion that (i) identifies the subject matter, (ii) states the purpose of the meeting and (iii) makes specific reference to the applicable exemption from open meeting requirements provided in § 2.2-3707 or subsection A of § 2.2-3711. The matters contained in such motion shall be set forth in detail in the minutes of the open meeting. A general reference to the provisions of this chapter, the authorized exemptions from open meeting requirements, or the subject matter of the closed meeting shall not be sufficient to satisfy the requirements for holding a closed meeting.
B. The notice provisions of this chapter shall not apply to closed meetings of any public body held solely for the purpose of interviewing candidates for the position of chief administrative officer. Prior to any such closed meeting for the purpose of interviewing candidates, the public body shall announce in an open meeting that such closed meeting shall be held at a disclosed or undisclosed location within fifteen days thereafter.
C. The public body holding a closed meeting shall restrict its discussion during the closed meeting only to those matters specifically exempted from the provisions of this chapter and identified in the motion required by subsection A.
D. At the conclusion of any closed meeting, the public body holding such meeting shall immediately reconvene in an open meeting and shall take a roll call or other recorded vote to be included in the minutes of that body, certifying that to the best of each member's knowledge (i) only public business matters lawfully exempted from open meeting requirements under this chapter and (ii) only such public business matters as were identified in the motion by which the closed meeting was convened were heard, discussed or considered in the meeting by the public body. Any member of the public body who believes that there was a departure from the requirements of clauses (i) and (ii), shall so state prior to the vote, indicating the substance of the departure that, in his judgment, has taken place. The statement shall be recorded in the minutes of the public bod
E. Failure of the certification required by subsection D to receive the affirmative vote of a majority of the members of the public body present during a meeting shall not affect the validity or confidentiality of such meeting with respect to matters considered therein in compliance with the provisions of this chapter. The recorded vote and any statement made in connection therewith, shall upon proper authentication, constitute evidence in any proceeding brought to enforce the provisions of this chapter.
F. A public body may permit nonmembers to attend a closed meeting if such persons are deemed necessary or if their presence will reasonably aid the public body in its consideration of a topic that is a subject of the meeting.
G. Except as specifically authorized by law, in no event may any public body take action on matters discussed in any closed meeting, except at an open meeting for which notice was given as required by § 2.2-3707.
H. Minutes may be taken during closed meetings of a public body, but shall not be required. Such minutes shall not be subject to mandatory public disclosure. (1989, c. 358, § 2.1-344.1; 1999, cc. 703, 726; 2001, c. 844.)
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§ 2.2-3713. Proceedings for enforcement of chapter. —
A. Any person, including the attorney for the Commonwealth acting in his official or individual capacity, denied the rights and privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a petition for mandamus or injunction, supported by an affidavit showing good cause. Venue for the petition shall be addressed as follows:
1. In a case involving a local public body, to the general district court or circuit court of the county or city from which the public body has been elected or appointed to serve and in which such rights and privileges were so denied;
2. In a case involving a regional public body, to the general district or circuit court of the county or city where the principal business office of such body is located; and
3. In a case involving a board, bureau, commission, authority, district, institution, or agency of the state government, including a public institution of higher education, or a standing or other committee of the General Assembly, to the general district court or the circuit court of the residence of the aggrieved party or of the City of Richmond.
B. In any action brought before a general district court, a corporate petitioner may appear through its officer, director or managing agent without the assistance of counsel, notwithstanding any provision of law or Rule of the Supreme Court of Virginia to the contrary.
C. The petition for mandamus or injunction shall be heard within seven days of the date when the same is made. However, any petition made outside of the regular terms of the circuit court of a county that is included in a judicial circuit with another county or counties, the hearing on the petition shall be given precedence on the docket of such court over all cases that are not otherwise given precedence by law.
D. The petition shall allege with reasonable specificity the circumstances of the denial of the rights and privileges conferred by this chapter. A single instance of denial of the rights and privileges conferred by this chapter shall be sufficient to invoke the remedies granted herein. If the court finds the denial to be in violation of the provisions of this chapter, the petitioner shall be entitled to recover reasonable costs and attorneys' fees from the public body if the petitioner substantially prevails on the merits of the case, unless special circumstances would make an award unjust. In making this determination, a court may consider, among other things, the reliance of a public body on an opinion of the Attorney General or a decision of a court that substantially supports the public body's position.
E. In any action to enforce the provisions of this chapter, the public body shall bear the burden of proof to establish an exemption by a preponderance of the evidence. Any failure by a public body to follow the procedures established by this chapter shall be presumed to be a violation of this chapter.
F. Failure by any person to request and receive notice of the time and place of meetings as provided in § 2.2-3707 shall not preclude any person from enforcing his rights and privileges conferred by this chapter. (1968, c. 479, § 2.1-346; 1976, c. 709; 1978, c. 826; 1989, c. 358; 1990, c. 217; 1996, c. 578; 1999, cc. 703, 726; 2001, c. 844; 2007, c. 560.)
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