Bicycle Safety is highly underrated
It’s never a good sign when you get up in the morning to find a message in your inbox from someone you don’t know: “urgent message about $friend. please call me at xxx-xxxx as soon as possible.”
It’s an even worse sign when, a little bit later, you have another message from someone you do know, who you know to be one of $friend’s closest friends, saying the same thing.
And then when he doesn’t want to tell you online but insists on talking on the phone, you know, even though you don’t admit it to yourself.
Maybe it’s better that way; maybe it’s better to have the blow cushioned, to have the phone call come not as a surprise but as a reaffirmation of a fact that you’ve already discovered: that your friend has been killed in an accident.
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The second day of law school, one of my classes – a small class of about 20, the seminar which was supposed to teach us all how to research and write like lawyers (something it failed at), the prof of the class had us all give a capsule summary of our life story – where we went to school, some defining moment in our lives, etc. After that section, Erik came up to me, and asked me if I knew $third_party_friend; it turned out that $third_party_friend, an ex co-worker friend of his, was the man who should have been the best man at my wedding.
Calling him this afternoon was one of the hardest things I’ve ever done.
Erik and I weren’t close, in the sense of a deep personal bond which transcended everything; but we were close enough. He was a smart man, and a kind one, and we ended up gravitating towards each other a bit because our paths were so similar: he was a tech industry dropout turning to the law out of the hope that he could use it to do good in the world; in many ways he was a more committed man on the same path that I was, for the same reasons, at the same time. A peer, in a very real sense, unlike any other I’ve had.
I will miss him.
And I can’t help but pondering: jesus fuck. What a terrible way to die:
Fitzpatrick hit the car door, then bounced off it into the back of the bus, Johnson said. He was pinned under the bus, Johnson said. Police said the bus drove over him.
He began to ride eastbound on MacArthur when he swerved to avoid running into a car door that a 42-year-old Manteca motorist had opened, said police and AC Transit spokesman Clarence Johnson.
I hope it wasn’t as painful as I’m imagining it must have been.
So close, but no cigar.
The proponents of a measure to require that “any change in state statute which results in any taxpayer paying a higher tax” be approved by a 2/3 vote, and which provides a strong legal barrier around the definition of a ‘fee’, have submitted their petition to the Secretary of State. They are wildly optimistic about its success; it will fail to qualify.
The number of signatures required to qualify an initiative varies from year to year based on turnout in the preceding gubernatorial election. Currently, to qualify an initiative constitutional amendment, you need 694,354 valid signatures.
The process for checking the signatures is as follows:
(a) the county elections offices do a raw count of the signatures and transmit that number to the Secretary of State. If the raw count is below the number needed to qualify, the measure fails.
(b) the counties then validate a random sample, determine what percentage of the random sample are valid, multiply the raw count by that percentage, and communicate to the secretary of state. If the random sample count is more than 110% of the number needed, the measure qualifies; if it is less than 95% of the number needed, the measure fails. If it is between 95% and 100%, the counties then verify each and every signature.
Normally between 70% and 80% of the submitted signatures end up being valid.
The two-thirds-vote-for-all-taxes measure was submitted with a raw count of 701,730 signatures.
To qualify, it would need a 98.9% valid signature rate.
This is possible but so extremely unlikely as to not be worthy of consideration.
Seems kind of pointless and a bit of a waste of money to gather this many signatures without actually gathering enough to qualify. A massive organizational failure, at best.
Civil Commitment for sex criminals
The Supreme Court today held that the Congress has the power under the Constitution to authorize the indefinite civil commitment of mentally ill prisoners who have committed certain sex crimes (either violent ones or molestation) and are considered likely to do so again in the future.
The argument was that:
- The Necessary and Proper Clause grants Congress a broad authority to enact any law which is “convenient or useful”, or “conducive”, to the exercise of some other granted authority.
- All that the NPC requires is that the law in question be rationally related to the implementation of an enumerated power.
- Congress has a broad authority to enact criminal laws in furtherance of its enumerated powers
- Congress has a broad authority to build prisons to hold federal criminals
- Congress has a broad authority to regulate the life of federal prisoners, including providing for their health and well-being
- As the custodian of its prisoners, the government has the Constitutional power to protect nearby communities from the dangers posed by federal prisoners – and, in fact, has a duty to exercise reasonable care to protect the community from prisoners.
- Confining dangerous people beyond the end of their sentence is reasonably related to the power to act as a responsible custodian of prisoners.
One of the arguments against this syllogism is that the link between some enumerated power (and note that the court hasn’t identified the enumerated power at issue here) and civil commitment is too attenuated; the justification is basically a set of inferences which follow each other in such a fashion as to render the result which is almost entirely conjured out of thin air. But apparently there’s precedent for this: in 1955, the Court said that civil commitment of a mentally incompetent defendant who had been accused of robbing a post office was rationally related to the power to “Establish Post Offices and Post Roads”. That case seems to be structurally identical to this one.
This decision seems to place the state’s duty to third parties above its duty to the confined individual, but the decision explicitly wasn’t answering the question of that second duty; it assumed that civil commitment provided “due process of the law” to the confinee and simply addressed the question of the federal government’s authority to authorize such commitment. (It’s apparently already been decided that civil commitment doesn’t interfere with the rights of the confinee, as long as procedural safeguards are met – and the law at issue here (a) places the burden of proof on the state, and (b) provides the confinee with a full hearing, including legal representation and cross examination of the state’s witnesses. I’m not persuaded that civil commitment isn’t in essence criminal punishment for mental illness, but that issue isn’t under discussion, either).
Justices Thomas and Scalia object: the Necessary and Proper Clause only authorizes legislation to carry into execution an enumerated power – and neither the government nor the court have identified a specific enumerated power which justifies civil commitment.
Justice Alito tried to get around this by saying that the commitment is necessary and proper to carry out whichever enumerated power justified the underlying criminal statute – a dodge which assumed that the underlying criminal statute was necessary and proper to carrying out some unnamed enumerated power. As a procedural matter, it seems to me that someone should have provided an underlying enumerated power which justified these specific convictions and commitments, but that didn’t happen. Fundamentally, I think the problem is that the underlying conviction may have been for something entirely unrelated to sex crimes – which is to say, someone arrested for robbing a post office, but who is mentally ill, had previously raped someone, and is judged likely to rape again, can be confined. The court seems to be saying that this confinement is justified because having incarcerated the person for robbing a post office, the federal government has assumed a responsibility to protect people from the person; the dissent is saying that since the grounds used to justify further confinment – propensity to carry out sex crimes – are not legitimate grounds for federal action, the federal government has no power to authorize continued detention.
The dissent also objects to the Court’s characterization of the duty to protect third parties from prisoners: they believe that the duty expires at the end of the legal basis for custody.
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I tend to agree with the dissent on this. The argument that the duty to third parties compels the government to not release these individuals could logically be extended to impute a duty to never release any criminal who is considered likely to commit another serious crime, regardless of the sentence imposed after trial. Such a system would make a mockery of the sentencing process. Moreover, I’m convinced by the argument that the duty expires when the legal basis for incarceration expires; at that point, the state is no longer responsible for the individual and cannot possibly have a duty to protect other people from him. (It might be different if the time the prisoner spent incarcerated had independently created a risk to third parties by making the prisoner substantially more likely to commit serious crimes).
That said, I’m generally amused by the decision, because I’m reasonably certain that if the question were does the state have the authority to civilly detain terrorists indefinitely, both the dissent and many of the justices in the majority would be singing a different tune … and yet the issue of the federal power to do so ought to be the same in both cases.
What was that, again?
Dan Walters has a rant in today’s Sacramento Bee about downtown pedestrian malls (streets without traffic and parking which have been converted to pedestrian use only) and how they appear to have accelerated the economic decline of the districts in which they were seated.
Bizarrely, though, he didn’t mention Santa Monica’s wildly successful Promenade, which somewhat makes his argument useless: if he can’t acknowledge Santa Monica’s existence and present a theory for why it succeeded while Fresno and Sacramento failed, he doesn’t really understand the forces driving those failures.
[I can't articulate the theory; I don't have the necessary data. But I don't need a theory of my own to be able to spot the emptiness in his.]
Why does the AFL-CIO care about this?
The South Bay AFL-CIO Labor Council COPE sent my husband and me an attack ad trashing Palo Alto Mayor Yoriko Kishimoto in fairly vicious terms.
Their complaint?
It’s not, as you might expect, that she’s done something horrible for Palo Alto’s labor relations, or that she threatens to do something similar in the future to the state’s labor relations.
It’s that she “campaigned to stop BART from serving our communities” and “continues to obstruct high-speed rail.”
So, that’s why I’m probably not going to vote for her: Palo Alto’s obstruction of high speed rail – it’s demand that the line either be tunnelled, stopped in San Jose, or built through the Altamont alignment, and it’s bizarre insistence that nobody knew when they voted for the measure that it would run up the peninsula – irritates me, and she’s been one of the people leading the charge.
But … the AFL-CIO? Really? Isn’t this issue somewhat outside of their scope?
This year’s Proposition 13 is a minor technical revision to the California Constitution; it’s so minor, and so technical, that it’s generated virtually no controversy (nobody submitted an argument against), and it wouldn’t even be on the ballot had the authors of a previous proposition not required that any modifications get voter approval.
I will probably be voting for this measure, while grumbling about it being on the ballot at all.
The state constitution contains very specific rules for property taxes, including rules that govern how the taxable value of a property is determined. In general, the taxable value of existing construction does not change until the property is sold, but new construction triggers a revaluation.
That said, certain kinds of new construction are exempt, including two exemptions for earthquake-safety improvements: (1) “reconstruction or improvement to a structure, constructed of unreinforced masonry bearing wall construction” (emphasis added) is constitutionally exempt for fifteen years if it was “necessary to comply with any local ordinance relating to seismic safety”, and (2) the Legislature has the power to exempt “the construction or installation of seismic retroffiting improvements or improvements utilizing earthquake hazard mitigation technologies” entirely … except that such rules may not override the 15-year exclusion for unreinforced masonry.
Proposition 13 replaces both of these with a new constitutional exemption for: “that portion of an existing structure that consists of the construction or reconstruction of seismic retrofitting components, as defined by the Legislature.” This new exemption runs until the property is sold.
My reading of these suggests that it’s a weakening of the exemption: the constitutional exemption for masonry buildings is replaced with an exemption subject to legislative redefinition. That weakens the rule, as the legislature can arbitrarily define away “seismic retrofitting components” or, alternately, define them to be so broad as to encompass everything under the sun. The law has no limitations which I can see on how the legislature defines the term.
The tradeoff is that this allows owners of unreinforced masonry buildings to exclude improvements for a longer period. Aside from the unfairness of treating unreinforced masonry building owners disfavorably, I think the argument is that the potentially shorter-term treatment reduces the economic value of the exclusion and thereby reduces the exclusion’s effectiveness as a bribe: there are some number of unreinforced masonry buildings which are not being retrofitted because the owner has decided that the cost is too high, and a longer-term exclusion would reduce the costs enough to make the safety improvements economically viable.
Both of these strike me as being a stretch. It seems unlikely to me that the legislature would define away this exclusion (because that would be interfering with earthquake safety, an unlikely proposition) or arbitrarily broaden it (because that would reduce state revenue, something the state legislature would be reluctant to approve). I also find it unlikely that there are a substantial number of people who (a) are not fixing safety issues with their unreinforced masonry buildings because they think the expense is unjustified and (b) would be convinced to do it by changing a fifteen-year exclusion into an exclusion-until-sale. There may be some, but I can’t believe it’s a substantial problem.
Either way, this seems like an issue with minor risk and minor reward. It’s somewhat hard to care about, and extremely difficult to get worked up about. That said, there appears to be a benefit (at least one person will likely be motivated to repair their property because of it) and there doesn’t appear to be a harm … and, to the extent that I think this is the sort of thing which we hire representatives to thresh out for us, the fact that our representatives put it on the ballot unanimously (while not being able to agree on anything else) counsels me to vote for it.
Under reconstruction
After a period of quiescence, a change of machines, an accidental destruction of the UI files, and the passage of time, Bound in a Nutshell is back.
But at the moment it’s aborning; it might be a few weeks before it’s ‘right’ again.
What happens if the county elections office misspells a candidate’s name?
A Peace and Freedom party candidate for Governor is upset – and rightly so – that the state misspelled his name in the printed voter’s guide. It is too late to fix the problem without enormous expense, so the state isn’t going to; the window of opportunity for that has passed.
This brings to mind a more serious question, though: what is the effect if the name is misspelled on the ballot?
Section 13103 of the California Election code requires that the ballot contain “the names of all qualified candidates”, and Section 13104 requires the old name to be used when the candidate changes his name within one year of the election, unless the name change was the result of marriage or a court order.
Section 18401 makes it a misdemeanor to prints or circulates such a ballot a misdemeanor, but this isn’t helpful: the state isn’t going to prosecute all of the poll workers in the district for the ‘crime’ of handing out the ballot which the county elections office told them to hand out, and the punishment for a misdemeanor is hardly a deterrent to the kind of human error which could lead one to confuse ‘Mohammad’ and ‘Mohammed’.
This evidently hasn’t been an issue yet; I wasn’t able to find a single reported case in California in which a court ruled on the ballot misspelling of a candidate’s name.
Could a candidate who discovered this misspelling before the election sue, looking for an injunction ordering the ballots to be reprinted?
Could a candidate who discovered the misspelling after the election sue to void the election result (assuming he could demonstrate that voters were actually confused by this?)
Ideally you’d want both of these outcomes, but the Elections Code doesn’t seem to call for them; could a court, using equity power, interpose them anyhow?
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