SCOTUS Gets It Right

Last week's decision by the Supreme Court disallowing patents for naturally occurring genes represents the final triumph of common sense.

So how come the patent office has been granting such patents for 30 years?

One thing the case shows is that foolish government actions can be overurned in our court system, but only if someone complains.

Long live complainants (otherwise known as plaintiffs).

They Said You Can't Fight City Hall: Yes, You Can

You might not necessarily win, even if you are right. But it is possible to fight City Hall.

It would be better to persuade City Hall to do the right thing in the first place. I didn't succeed at that. This is an example of the kind of thing I've been writing for the past year and a half.

I lost at the first level of Superior Court. The Judge dismissed my complaint. But I have the right to appeal and have filed my notice of appeal. I have also filed a new complaint about the Town's action closing South Avenue.

I don't know if this qualifies as "David v. Goliath," or a lesser struggle. I suspect it is the latter.

In any event, it isn't just my struggle. I have consulted with a couple of dozen very knowledgeable citizens at each step of the way.

It will be long and expensive to try to stop the Town's sale or barter of public rights of way and to protect public access to North Carolina's Public Trust Waters. Just yesterday I spent more than $220 ordering a verbatim transcript of the hearing on the Town's motions to dismiss.

Anyone wanting to contribute to the protection of streets leading to the water can contribute to: ONC Protect Streets, P.O. Box 236, Oriental, NC 28571.

We could easily be at it for another year or more.

Cox v. Town Of Oriental

Sometime in the next two days, I will file a notice of appeal of the judge's dismissal of my complaint against the Town of Oriental. The complaint concerned Avenue A and the Town's contract to exchange two dedicated and accepted rights of way for a parcel of real estate. In other words, I opposed the Town Board's desire to sell or barter an asset they only hold in trust for the public.

So far the Town says it has spent $30,000 for the motion to dismiss.

What was really at issue? The Town wants to be free to sell or otherwise dispose of the newly-acquired waterfront property whenever they see fit, for whatever reason.

In other words, they want the right to flip the real estate, including any of the Town's rights of way. No irrevocable dedication. "Don't tie our hands."

The Court of Appeals will not uphold the Town's position.

For those who think I am making this up after the fact, I refer to my blog post of last June 14, before the July 3 public hearing. "What Do I Really Think?" the post asked.

I think the Town's position jeopardizes all of our rights of way, especially those leading to the water.

This is not just my fight. It is the fight of everyone who values public access to the water.

The effort to continue the appeal will take more money and effort. If possible, we need to hire an attorney. In the meantime, there are filing deadlines for the appeal process.

I have established a bank account in the name of: ONC Protect Streets. I am accepting donations. Mail contributions to ONC Protect Streets, P.O. Box 236, Oriental, NC 28571. All unused contributions will be returned.

This is about Oriental's future.

Cox v. Town Of Oriental: I Have Not Struck My Colors

I have been asked recently whether I will appeal Judge Alford's dismissal of my complaint against the Town.

The answer is: Appeal is one of several measures under consideration.

Plainly, to go forward with any options will realistically require retention of counsel. I have already received a number of contributions to the effort and will need more.

I have opened a bank account in the name "ONC Protect Streets" to accept deposits for legal expenses to support the effort.

Anyone wishing to contribute can send donations to ONC Protect Streets at 409 Academy Street, Oriental, NC 28571.

I am also working on a web site to provide background information and to explain how important the effort is to protect public access to public trust waters.

It's all about the water.

No, The Judge's Ruling in Cox v. Town of Oriental Hasn't Been Entered

Those of you who checked today to see what the Town's agenda is for next week may be wondering. Has the Judge in the case of Cox v. Town of Oriental entered his order? Not yet.

After he enters the order, the plaintiff has a window of 30 days to file a notice of appeal. That sets in motion a process that could last 10 months or more.

What about the "exchange" the Town plans?

Who knows? That might cause a second suit.

Right Of Way Decision

Residents keep asking me what I plan to do about Judge Alford's dismissal of my complaint against the Town.

All I can say is, I don't know. I haven't seen the draft of the Judge's order. So, although I know what I heard during the hearing, I don't know what the written order will say.

So I'm holding off on a decision until I read the order.

I'll let everyone know as soon as the order is entered.

Disappointed But Not Discouraged

A little after 10:00 this morning, I received Judge Alford's decision in the case of Cox v. Town of Oriental. Here is what the judge said:

"Defendants' Motions to Dismiss the Action For Declaratory Judgment and their Motion For Judgment On The Pleadings are allowed. I would ask Mr. Wright (counsel for Defendants) to draft the Orders, share them with the plaintiff and email them to me as a Word Document for printing, signing and return.

My best to all.

Benjamin G. Alford
Senior Resident Superior Court Judge
3B Judicial District"

I am now reading the NC Rules of Appellate Procedure. Should I decide to appeal, I have 30 days after the Judge's order is entered to file a Notice of Appeal.

Pamlico County Superior Court March 4

Just a quick report. Both sides in my complaint against the Town of Oriental presented their arguments. The Town argued for dismissal. I argued against dismissal. The judge remained pretty impassive and promised a decision later this week.

I thought the Town made some valid points, but also made some very specious arguments.

What really counts is what the judge thought.

We'll know later.

Oriental Land Swap - Or Is It?

Anyone curious about what I have been up to lately can get a good idea by reading today's article in Town Dock. I think it's a fair summary of the whole issue, starting several years ago.

My role in the Town's lawsuit against a local landowner was actually modest. The Town decided in 2002, nearly four years before I moved here, to file the suit. Much of the information in the Town's complaint was researched by Grace Evans, a local citizen and former member of the Town Board and many other boards, who uncovered records in the Town minutes and actually caused those minutes to be preserved.

The case goes before Judge Alford at the Pamlico County courthouse Monday morning, March 4th, to hear motions by the Town to dismiss my complaint and an amendment thereto. The court will open at 10:00 to hear motions.

When Homeowner's Associations Get Out Of Hand

This is a Fairfax County, Virginia case, but is probably of interest elsewhere. Turns out even HOA's have to follow the law. Worth reading.

Public Alcohol: Don't Scare The Horses!

It is revealing to read letters to Town Dock concerning recent proposals to allow consumption of alcoholic beverages on Town property under some circumstances. I'm not sure what it reveals, but I'm sure Commissioner Summers was surprised at the vehement opposition to what he thought was a modest proposal.

I am reminded of a remark by a highly fashionable lady concerning another sort of activity:

"My Dear!" she said, "I don't care what they do so long as they don't do it in the street and frighten the horses!"

Former Chief Justice Warren Burger: Second Amendment

Warren E. Burger, Chief Justice of the United States (1969-86) had this to say in an article in Parade Magazine, January 14, 1990, page 4:

"The Constitution of the United States, in its Second Amendment, guarantees a "right of the people to keep and bear arms." However, the meaning of this clause cannot be understood except by looking to the purpose, the setting and the objectives of the draftsmen. The first 10 amendments -- the Bill of Rights -- were not drafted at Philadelphia in 1787; that document came two years later than the Constitution. Most of the states already had bills of rights, but the Constitution might not have been ratified in 1788 if the states had not had assurances that a national Bill of Rights would soon be added.

"People of that day were apprehensive about the new "monster" national government presented to them, and this helps explain the language and purpose of the Second Amendment. A few lines after the First Amendment's guarantees -- against "establishment of religion," "free exercise" of religion, free speech and free press -- came a guarantee that grew out of the deep-seated fear of a "national" or "standing" army. The same First Congress that approved the right to keep and bear arms also limited the national army to 840 men; Congress in the Second Amendment then provided:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

"In the 1789 debate in Congress on James Madison's proposed Bill of Rights, Elbridge Gerry argued that a state militia was necessary:

"to prevent the establishment of a standing army, the bane of liberty ... Whenever governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia in order to raise an army upon their ruins."

Plainly the goal of the Second Amendment was to prevent the establishment of a large standing army. That endeavor failed more than a century ago. We now maintain the second largest standing military force in the world. Only China's is larger.

Robert Bork: 1927-2012

Robert Bork was a brilliant professor and one of the most divisive figures in recent American history.

He also has been described as a person with a large brain and a small mind. Conservatives who mourn the fact that Bork was not confirmed as a justice on the Supreme Court don't often point out that six Republican senators voted against his confirmation. And two Democratic senators voted for. That was on the floor vote. In the committee on judiciary, Republican Senator Simpson also voted "no."

Here is a link to a segment of Bork's senate confirmation hearing. The exchange is between Bork and Senator Kennedy. The intellectual level of exchange far exceeds anything we hear these days.

Lawyer, author and legal analyst Jeff Toobin expresses a less-favorable picture of Robert Bork.

Reverence Or Sacrilege?

Kountze, Texas (Hardin County). A group of high school cheerleaders painted Bible verses on large paper "run-through" banners that the high school football team runs through at the beginning of every football game.

The Kountze school district prohibited use of the banners, but a state district court judge has ruled they may continue this practice for the rest of the season. Gov. Rick Perry and Attorney General Greg Abbott came to the cheerleaders’ defense. They called the efforts by the Kountze school district to prohibit the banners “a great insult” that was out of step with a state law requiring districts to treat student expression of religious views in the same manner that secular views are treated.

According to the New York Times, the case has "galvanized" Christians in East Texas and has upset some of the usual suspects such as the Anti-Defamation League.

My question: are there any genuine Christians in East Texas? Let me get this straight: young cheerleaders mark up large paper banners with Bible verses, so that football players will run through them and destroy them? This is supposed to demonstrate religious fervor and devotion? Why not encase a bible in plastic and throw it around the field in a game of ultimate frisbee?

Has anyone caught up in this madness looked up the word "sacrilege?"

I have often wondered, in a similar fashion, about taking our symbols of worldly wealth or "mammon" and imprinting on those symbols the phrase "in God we trust." Is this intentional or merely unintentional mockery of God?

What has become of our sense of the sacred?

Pot

I confess. I have never smoked a joint - or whatever they are being called these days. For that matter, I have never smoked a cigarette. Not once.

Doesn't mean I never smoked tobacco. I used to smoke a pipe and an occasional cigar. Gave that up thirty-five years ago. The smoke irritated my eyes and didn't do much good for my chronic sea sickness. Not great for a ship captain.

I always thought alcohol was the most dangerous drug. But I drink alcoholic beverages.

I did my best to keep alcohol off my ship. And marijuana. And other illegal drugs.

In my years at sea, I never saw a sailor who was unable to perform his duties because he smoked marijuana on liberty. But there were many times I saw sailors unable to get the ship underway because they were drunk when they got back to the ship.

I went to college in a state with statewide prohibition on the sale of distilled beverages. But very cleverly, the state had a tax on illegally sold beverages. That's called having your cake and eating it, too.

Interesting article in today's New York Times about marijuana laws. It seems the states of Washington, Oregon and Colorado have provisions on their November 6 ballots to legalize marijuana. The one in Washington might even pass.

Lawmen are among the supporters of legalization.

It's worth a look.

Town Of Oriental Response To Appeal

Oriental Update Street Closing Dispute

I have received a copy of a request from Oriental's Town Attoney to the Superior Court requesting a thirty day extension to the time for filing a response to my appeal. I did not object.

Federal Court Strikes Down Texas Voter ID Law

This just in - a three judge federal judicial panel has struck down Texas' new photo ID law. Here is a summary of the decision as reported in the New York Times.

"In its unanimous 56-page ruling, the federal judges found that the fees and the cost of traveling for those voters lacking one of the five forms of ID disproportionately affected the poor and minorities. “Moreover, while a 200 to 250 mile trip to and from a D.P.S. office would be a heavy burden for any prospective voter, such a journey would be especially daunting for the working poor,” the decision read"

Look And Feel: Software Patents

Yesterday a federal court jury decided in favor of Apple and against Samsung in a lawsuit over patents in the smart phone industry. The real target, though, is apparently Google and its Android software. The claim, upheld by the jury, is that the Samsung phone copied the "look and feel" of Apple's iPhone.

Go back in time twenty-five years.

In 1987, Lotus Corporation, whose 1-2-3 spreadsheet dominated the PC industry under the MS-Dos operating system, sued three smaller software companies for having copied the "look and feel" of the Lotus spreadsheet. The three companies were Paperback Software, whose low cost "VP Planner" had significant functional improvements over other spreadsheets, including 1-2-3 and Excel; Mosaic, and Borland's Quattro.

I had used three of the four spreadsheets involved, and at the time was using VP Planner for my own spreadsheets. VP Planner had introduced a "three dimensional" feature to spreadsheets and was significantly better at printing spreadsheets on dot matrix printers than 1-2-3. Borland's product, too, was more convenient for users than 1-2-3.

Lotus, in turn, had clearly appropriated the look and feel of the Visicalc spreadsheet as it operated under the CP/M operating system.

I thought at the time that "look and feel" was a defective concept and I resented Lotus' attempts to protect market share by lawsuit rather than by improving the product. Although Lotus won against Paperback Software, who went out of business, they lost the case against Borland. I suspect Borland won, not because their case had more merit, but because their pockets were deeper. Anyhow, I never again purchased a Lotus product.

Don't get me wrong. I'm all for protection of intellectual property, but I think in important respects patent law has got out of hand. When a company can patent a person's blood cells because they did research on them, that's out of hand. When companies get to patent icons that are common representations, that is out of hand.

Shame on you, Apple!

Seventy Years Ago: The Home Front

The latest Tea Party/Libertarian/Anarchist whine is about the TSA conducting security checks of attendees at a Paul Ryan political event in Florida last weekend.

I never cease to be amazed at the organized paranoia of these people. Just for information, Secret Service, FBI and state and local authorities have been cooperating for over a century in providing security for appearances by presidential and vice presidential candidates. And for presidents. Example: April 14 2005 season's opener in DC of the Washington Nationals. I was there. But I didn't get to see George W. Bush throw out the first ball. Not enough TSA agents and the equipment wasn't reliable. It was the third or fourth inning before I took my seat.

So what was government like when we had a real war?

January 1942: automobile production ended for the duration. Sale of rubber tires to civilians ended. Anyone with more than five tires had to turn in the extras. Steel, copper, and aluminum were placed under wartime controls;

February: Daylight savings time (to conserve energy), rationing of canned meat and fish;

March: Fresh meat, butter and cheese rationed; two ration books issued to every man, woman and child - blue for two pounds of canned fruit and vegetables per month, red for 28 ounces of meat and 4 ounces of cheese per month; shield seaward facing lights within 12 miles of the coast; marriage increased 300% over 1941 (some in expectation of separation, some to avoid the draft); GM produced 28,728 Browning machine guns;

April: Price Control Act - 60% of foods maximum price set at level in March;

May: Iron, more steel, zinc under wartime controls; War Ration Book One issued - the sugar book; gasoline rationing - 2 1/2 gallons per month sugar rationed 1/2 lb. per month; Meat 7 lb., butter, coffee 1 lb. per month; civilian production banned on 136 items, including refrigerators, vacuums, vending machines, small appliances;

June: V-mail to the troops (microfilm);

July: milk, ice and bread delivery switch to horse-drawn wagons; metal products banned;

August: German U-boats sink a ship every four hours;

September: Fair Employment Commission reports 50% of all defense jobs remain closed to Negroes;

October: Meatless Tuesday initiated; draft age lowered to 18;

November: War Labor Board allows employers to raise pay for women 20 cents per hour if necessary to get employees (average 40% less than men); coffee rationing one cup per day;

December: Gasoline rationing with A, B, C stickers 4 gallons per month.

All prices were controlled by the Office of Price Administration.

Rationing ended in 1946.

Popular songs in 1942 include: "Praise the Lord and Pass The Ammunition," based on an incident aboard USS New Orleans during the attack on Pearl Harbor.

No one doubted we were all in the war together.