We learned soon after the Germanwings crash that it appeared to have been intentional.
The movie Dr. Strangelove immediately came to mind.
In the movie, US Air Force general Jack D. Ripper, undergoing an apparent mental health crisis, launched a first strike attack on the Soviet Union with disastrous consequences.
The movie was a black comedy, but was viewed by some experts as "a documentary," in that it depicted very realistically a scenario of what could happen if one demented individual were to take over the procedural machinery of launching a nuclear attack.
In the movie, General Ripper made use of a "safety" procedure to allow a retaliatory strike even if the central command authority had been destroyed.
That's exactly what Andreas Lubitz did, making use of the safety device designed to keep hijackers out of the cockpit.
In the real world of nuclear weapons control, there were two control mechanisms in place to prevent unauthorized release of nuclear weapons: (a) the Personnel Reliability Program (PRP) and (b) the two-man rule.
The PRP identified every person with a role in the handling and release of nuclear weapons. Both personnel and medical records were flagged so that administrative and medical personnel were aware of the PRP members. Medical personnel were expected to take immediate action to bring any such person going through a mental health crisis to attention of the command. No worries about privacy. Too much at stake.
It appears that Lufthansa and Germanwings had no such program. Plainly, passenger safety must override any concern for privacy of pilots and other flight deck personnel.
It also appears that Lufthansa had no rules prohibiting a single person in the cockpit in a position to crash the aircraft. This needs to be changed immediately.
Saturday, April 4, 2015
Dr. Strangelove, Andreas Lubitz and General Jack D. Ripper
Topic Tags:
government,
management
Tuesday, March 31, 2015
David Cox Letter To Oriental Town Commissioners
On January 26, I sent a letter to Oriental's Town Commissioners that, among other things, proposed options for protecting the public and private interests of Oriental property owners in the new Town Dock. I had made similar suggestions in 2012 before filing my suit. In 2012, the Mayor's answer was "we don't want to tie our hands." In January the answer was a flat rejection.
The purpose of rule of law instead of arbitrary authoritarianism is precisely to "tie the hands of government."
In January, the Town Board simply rejected my proposals.
Here is the letter:
The purpose of rule of law instead of arbitrary authoritarianism is precisely to "tie the hands of government."
In January, the Town Board simply rejected my proposals.
Here is the letter:
"January 26, 2015
From: David
Cox
To: Commissioners,
Town of Oriental
Subj: South
Avenue
Dear
Commissioner:
As
you are aware, I have filed an appeal of the Superior Court’s
recent orders dismissing my challenge of the Board’s decision to
close South Avenue.
I am
writing to explain my appeal, to assess the current status and
potential future paths for my challenge, and to describe a proposal I
am submitting to the Town’s attorneys.
First,
I must explain that my challenge to the Board’s closure of South
Avenue is not identical to my challenge of Avenue A. If it were
identical, I would not pursue the South Avenue challenge after the
Court of Appeals decision in Avenue A, and I certainly would not
appeal the case to the same court which upheld dismissal of the
Avenue A case.
The
difference between the two cases is that in Avenue A I complained of
infringements on “public rights,” while in South Avenue I also
complain of infringements on my private property rights. To
understand the importance of this difference, it is helpful to look
closely at what the Court of Appeals decided in Avenue A and what it
did not decide.
The
Court of Appeals limited its decision to determining whether my
complaint and arguments qualified me as “a person aggrieved” as
that undefined term is used in the appeal provision of the street
closure statute.
My
basic argument in the Avenue A case was that I was a “person
aggrieved” because:
1) the closure of Avenue A infringed on the rights of the public to
use the public right of way;
2) I am a member of the public; and
3) I am “aggrieved” in the dictionary meaning of the term
(“discontented”) with the closure.
The
Court of Appeals did not accept this argument. Instead, the Court
borrowed from cases defining the term “aggrieved parties” in
zoning cases to decide that “any person aggrieved” in the street
closure statute means:
“one who can either show an interest in the property affected, or
if the party is a nearby property owner, some special damage,
distinct from the rest of the community, amounting to a reduction in
the value of his property.”
As
the Court noted, I did not allege in my Avenue A complaint that the
closure of that street caused any personal injury to my private
property rights or damage my property value, but instead alleged only
violations of “broad, public rights.” Given the Court’s
definition of the term, it found that my “public rights”
complaints did not qualify me as a “person aggrieved” under the
statute.
The
Court did not decide whether the Town’s deal with Mr. Fulcher and
the closing of Avenue A pursuant to that deal was a lawful exercise
of the Town’s legal authority.
The
Court did not adopt the Town’s arguments that only abutting
property owners may challenge street closures. If the Court believed
that, it would have defined “person aggrieved” as including only
persons owning property abutting the closed street.
The
only thing the Court of Appeals determined was that because I
had not included in my complaint any allegations that I had suffered
personal injury to any private property interests of my own, I
did not qualify as a “person aggrieved” within the meaning of the
statute which establishes the procedure for appealing town street
closures.
The
Court went out of its way to note (twice) that it was not
ruling on my separate challenge to the South Avenue closure. In
addition, the Court made it clear that if I did include allegations
and arguments showing personal injury to my own private property
interests in the South Avenue challenge I could qualify as a “person
aggrieved” with standing to pursue that separate challenge.
Because
I have alleged the South Avenue closure caused injury to my
private property interests, and because I am arguing in this
case, based on a long line of North Carolina Court of Appeals and
Supreme Court decisions, that my property interests include a private
property right in the South Avenue right of way, my South Avenue
challenge satisfies the elements the Court of Appeals found lacking
in the Avenue A challenge.
Unfortunately
the Superior Court ignored the central ruling of the Court of
Appeals’ Avenue A decision and the fact that my South Avenue
challenge includes the elements required to show I am a “person
aggrieved” with standing to appeal the South Avenue closure. This
is unfortunate because it will now require an appeal to the Court of
Appeals before the case can proceed to the next steps.
Keep
in mind that the question before the courts right now is not whether
the town acted within its authority in closing South Avenue. The
question at this point is simply whether I am a person who can ask
the courts to determine whether the town did act within its
authority. I am confident that the Court of Appeals will find that
my South Avenue complaint meets the requirements that Court set out
in its Avenue A decision for establishing the right to have the
courts review the closure.
While
I believe that upon review of the Board’s closure vote, the courts
will find that the Board did not comply with the statutory
requirements for closing a street, at this point the issue under
appeal is my right to have a court review whether the closure
complied with the statute, and not the “merits” of whether it did
comply with the statute.
That
said, I am increasingly dismayed at the amount of taxpayer money
which is being invested in delaying a trial on the merits of my
challenge.
Though
I would prefer that South Avenue be returned to its status as a
street because I believe it is a superior open space and water access
point compared with the “net-house” property, I do wish to
present the Board with a proposal to end further legal proceedings.
I am
therefore separately forwarding to the Town’s attorneys a proposal
which would satisfy my most serious concerns about the Town’s deal
with Mr. Fulcher, and also allow the Town to use the new property as
a “replacement” public space and water access park.
My
proposal would permit the kinds of plans the Board has been
considering for the property, including attendant buildings and
service potential. It would require that promises which the Board
has already made about the property, but which have not yet been put
into effect, be fulfilled.
In
order to help you understand why I continue to challenge the South
Avenue closure, and the purpose of some elements of my proposal, here
is an abridged version of the arguments I will make to the Court of
Appeals if we are unable to reach a settlement.
My
Private Property Rights in South Avenue
The
Town’s attorneys have argued to the courts that the Town has a
right to close public rights of way. I agree that a town may close a
public right of way, if, and only if, the requirements of the closure
statute are met. Obviously I do not agree that the statutory
requirements were met in the closures of either Avenue A or South
Avenue, or I would not have brought legal proceedings seeking to
reverse those closures.
As
explained above, however, the question I am currently appealing is
only whether I have a right to seek a court determination of that
question.
The
Court of Appeals ruled in the Avenue A case that to establish my
right to seek such a determination, I must complain that the closure
injures my personal property interests.
Unlike
my Avenue A complaint, my South Avenue challenge does allege that the
closure injures my personal property interests. That complaint is
supported by innumerable North Carolina court decisions over the
course of more than 100 years which establish:
“It is a settled principle that if the owner of land,
located within or without a city or town, has it subdivided and
platted into lots and streets, and sells and conveys [any of] the
lots … with reference to the plat… he thereby dedicates the
streets, and all of them, to the use of the purchasers, and those
claiming under them, and of the public.”
“Purchasers of [such subdivision] lots … acquire vested
rights to have all and each of the streets shown on the
map kept open.”
“To have deprived those who purchased lots with reference to
the original map, and those claiming under them, of appurtenant
rights in and to the streets, for the purpose of vesting such
rights in another merely for private use would run counter to
provisions of the Constitution of North Carolina, Art. I, Sec. 17,
and to the 14th Amendment to the
Constitution of the United States.”
Town of Blowing Rock v. Gregorie, 243 NC 366 (1956)(emph.
added)
The
“vested right” in subdivision streets acquired by subdivision lot
purchasers are usually described as an “easement appurtenant” –
this means property interest is an “easement” which is
“appurtenant” (attached) to the purchased lot. The right not
only belongs to the original lot purchaser – it is passed as
part of the lot to subsequent heirs or purchasers of that lot.
While
the above quotes from the Gregorie case describe these rights as
arising when a subdividing landowner sells lots with reference to a
plat, the same rights arise when the subdividing landowner sells lots
bordering on streets which are actually laid out and marked on the
ground, or by reference to a map of streets adopted as an official
town map. The principle is the same – when the landowner sells the
lots according to a plan of streets, the right to use the planned
streets is an inducement to purchase the lot, and is part of the
value for which the lot purchaser pays.
The
courts have also recognized that these rights to all of the planned
streets arise when multiple landowners sell lots out of their
respective lands according to a common street plan. A purchaser of a
lot from one landowner’s property obtains rights in the planned
streets which cross the other landowners’ properties if both
landowners are selling according to the same street plan.
This
is what happened in Oriental in 1899. All of the owners of
properties within the original town sold lots according to a plan of
streets laid out and marked on the ground, and later surveyed and
mapped by the Town. Oriental’s founding landowners agreed in
concert to develop their properties according to this common plan.
Because all of Oriental’s founding landowners cooperated in selling
lots according to that plan, all lot purchasers obtained appurtenant
easements in all of the planned streets, including the portion of
South Avenue leading to Raccoon Creek.
Mr.
Clark Wright, representing the Town, acknowledged to the Superior
Court that subdivision purchasers obtain such rights. Mr. Wright,
however, asserted that these rights simply do not apply when a town
closes a street, and that I therefore do not have standing to
challenge the closure. I believe Mr. Wright is incorrect and his
assertion is not supported by case law.
As
for the merits of the case, should we ever reach that point, in
certain limited circumstances a town may close a street even though
the closure interferes with private appurtenant easements. Otherwise
there would be no purpose to the street closure statute. For
example, in the 1965 case of Wofford v. NC State Highway
Commission, the North Carolina Supreme Court recognized a
narrow “public interest” exception to “takings” claims, based
on legitimate exercise of the state’s police powers .
This
narrow “public interest” exception is the source of the “public
interest” language in the street closure statute. As Professor
David Lawrence points out, the purpose of the statute is to prohibit
towns from closing streets if such closures would give rise to
compensable takings in violation of the U.S. and North Carolina
statutes.
You
may disagree with my position that the closure of South Avenue was
not within the “public interest” exception allowed by the closure
statute. It may be that the courts ultimately disagree with me on
that question. But that question is not related to whether I have
standing to have a court determine the matter.
The
purpose of the appeal provision of the closure statute is to allow a
court to review whether the closure complies with the provisions of
the closure statute, including the “public interest” provision.
The Court of Appeals’ Avenue A decision held that the question of
whether or not I have standing is determined by whether or not I have
claimed a property interest in the “affected property” or damage
to my property value that is different from the rest of the
community, not whether the Town has the right to close a
street despite such property interest or damage.
It
is very clear under North Carolina case law that I own a vested
private property interest in the South Avenue right of way. The
elimination of that right of way necessarily reduces the value of my
property interest, particularly considering the water access rights
included in that right of way. This meets the Court of Appeals’
definition of a “person aggrieved” with standing to bring an
appeal of the street closure.
In a
series of protracted court battles, subdivision owners with private
appurtenant easement rights in the public streets of the Town of Oak
Island successfully challenged that town’s attempts to misuse
subdivision water-front street ends for non-street purposes
(construction of parks), and I believe the Court of Appeals will
apply the same reasoning and hold that I have standing to challenge
Oriental’s closure of South Avenue.
Whether
the Town acted lawfully in closing the street pursuant to its deal
with Mr. Fulcher will then be directly before the courts.
Because
the Town closed the street in order to benefit Mr. Fulcher and to
acquire valuable real property which the Town may at any time close
off to the public, or lease or sell to private interests in order to
raise revenue, I believe the closure constitutes an unlawful taking
of my Constitutionally-protected property rights without due process
and compensation.
While
I could seek compensation for that taking in inverse condemnation
proceedings, I instead prefer to have South Avenue continue to be
available, which is why I have sought a reversal of the Board’s
closure vote.
My
Proposal for Settlement of Litigation
The
agreement between the Town and Mr. Fulcher stated that after the
closure of South Avenue, Mr. Fulcher would “rededicate” a portion
of South Avenue leading to the new property acquired by the Town. So
far as I can tell, this has not been done. The deed transferring the
new property to the Town describes the entire parcel as a fee simple
conveyance to the Town, including former portions of South Avenue.
Dedication and acceptance of public amenities would tie the Town’s
hands. Three years ago, the mayor informed me he didn’t want the
Town’s hands tied.
The
Board unanimously adopted a resolution declaring its intent “that
any property obtained by the Town of [Oriental on] Raccoon Creek, as
a direct or indirect consequence of closing the right of way on South
Avenue, will be dedicated as a public park, with public Water Access
on Raccoon Creek.” No dedication has occurred, and the resolution
appears without legal effect on the future of the property. The Town
has argued (citing Watts v. Valdese) that regardless of any past use
or how acquired, a Town has complete discretion to sell or exchange
any real property it owns. I agree. But there are ways to preserve
amenities for future generations, typically through dedication and
acceptance. That should have been done at the time of the transfer.
If
these matters were properly addressed in a way to preserve the
amenities for the future, I might be willing to abandon further
litigation. Such measures should include at least :
1.
Proper dedication of the new property to the public and acceptance by
the Town on the public’s behalf;
2.
Dedication of the property as an easement appurtenant to all
properties within the original borders of the Town;
3.
Abandonment by the Town of all efforts to seek sanctions under rule
11.
This
proposal will not only effectuate promises already made by the Board,
but will ensure enforceable public and private rights to use the
property for water access purposes for future generations.
David
R. Cox
Cc:
The Honorable Bill Sage, Mayor"
Topic Tags:
town government,
water access
Monday, March 30, 2015
Only Two Doolittle Raiders Left
April
18, 1942, 16 US Army B-25 Medium Bombers took off from the Navy Carrier
Hornet to attack the Japanese home islands. This was one of the most
remarkable military operations in history. It happened only four months
and eleven days after the attack on Pearl Harbor. The raid didn't do
much damage, but it showed Japan they were vulnerable and changed the
course of the war. If you haven't seen the movie Thirty Seconds Over
Tokyo, put the movie on your list.
Retired
Lt. Col. Robert Hite, one of the famed World War II Doolittle Tokyo
Raiders, has died. He was 95 and had Alzheimer's disease .
LA Times
Sunday, March 29, 2015
Town Of Oriental v. Lacy Henry (Highlights)
Remember the previous South Avenue Case? The Town spent tens of thousands of dollars to win clear control over the terminus of South Avenue.
TOWN OF ORIENTAL, Plaintiff,
v.
Lacy HENRY and wife, Judy
B. Henry, Defendants.
No. COA08–896.
Court of Appeals of North Carolina.
July 7, 2009.
Background: Town filed suit against purported owners of portion of street that was
never paved or used for vehicular traffic,
seeking to clear title to property. Defendants filed motion to dismiss for failure to
state a claim upon which relief can be
granted. Town filed motion for summary
judgment. The Superior Court, Pamlico
County, Kenneth F. Crow, J., denied
town’s motion, treated defendants’ motion
as one for summary judgment, and granted summary judgment to defendants.
Town appealed.
Holdings: The Court of Appeals, Stephens, J., held that:
(1) unpaved portion of street that was never paved or used for vehicular traffic
remained dedicated to public use;
(2) withdrawal of dedication of portion of
street that was never paved or used for
vehicular traffic by its former owner
was ineffective; and
(3) purported owners were not permitted
to acquire possession of the property
by adverse possession.
Reversed and remanded.
1. Appeal and Error O893(1)
Standard of review for summary judgment is de novo.
2. Dedication O19(5), 29, 31
Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open; [There is more, but this is pertinent to Cox v. Town]
Appeal by Plaintiff from order entered 2
May 2008 by Judge Kenneth F. Crow in
Pamlico County Superior Court. Heard in
the Court of Appeals 29 January 2009.
Wheatly, Wheatly, Weeks & Lupton, P.A.,by Stevenson L. Weeks, Beaufort, and Davis,Hartman, Wright, PLLC, by Michael ScottDavis, New Bern, for Plaintiff.Lee, Hancock & Lasitter, PA, by Moses D.Lasitter, and McAfee Law, P.A., by Robert
J. McAfee, New Bern, for Defendants.
TOWN OF ORIENTAL, Plaintiff,
v.
Lacy HENRY and wife, Judy
B. Henry, Defendants.
No. COA08–896.
Court of Appeals of North Carolina.
July 7, 2009.
Background: Town filed suit against purported owners of portion of street that was
never paved or used for vehicular traffic,
seeking to clear title to property. Defendants filed motion to dismiss for failure to
state a claim upon which relief can be
granted. Town filed motion for summary
judgment. The Superior Court, Pamlico
County, Kenneth F. Crow, J., denied
town’s motion, treated defendants’ motion
as one for summary judgment, and granted summary judgment to defendants.
Town appealed.
Holdings: The Court of Appeals, Stephens, J., held that:
(1) unpaved portion of street that was never paved or used for vehicular traffic
remained dedicated to public use;
(2) withdrawal of dedication of portion of
street that was never paved or used for
vehicular traffic by its former owner
was ineffective; and
(3) purported owners were not permitted
to acquire possession of the property
by adverse possession.
Reversed and remanded.
1. Appeal and Error O893(1)
Standard of review for summary judgment is de novo.
2. Dedication O19(5), 29, 31
Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open; [There is more, but this is pertinent to Cox v. Town]
Appeal by Plaintiff from order entered 2
May 2008 by Judge Kenneth F. Crow in
Pamlico County Superior Court. Heard in
the Court of Appeals 29 January 2009.
Wheatly, Wheatly, Weeks & Lupton, P.A.,by Stevenson L. Weeks, Beaufort, and Davis,Hartman, Wright, PLLC, by Michael ScottDavis, New Bern, for Plaintiff.Lee, Hancock & Lasitter, PA, by Moses D.Lasitter, and McAfee Law, P.A., by Robert
J. McAfee, New Bern, for Defendants.
Topic Tags:
private property rights,
town government
Friday, March 27, 2015
Cox Surrenders to Town Government's Taking
This
is to let readers of my blog know that I have formally surrendered in the court
case of Cox v. Town of Oriental in what I still view as a swindle.
I call it a swindle because when Town Government closed the terminus of South Avenue, they took my personal property right (and the right of other property owners in the Village) to an easement in that street and gave it to another citizen. Not because I say so, but because more than a hundred years of NC Supreme Court decisions say so. The Court of Appeals spelled it out in the second paragraph of their 2009 opinion in the case of Town of Oriental v. Henry: "Generally," the Court said, "where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open...."
I didn't surrender because the Town had the right to close South Avenue - they didn't. I surrendered because I no longer have the material and emotional resources to continue the fight, even though the prospects for a win at the Court of Appeals were excellent. But I had to face the possibility that even after a win I might face additional years of litigation.
I call it a swindle because when Town Government closed the terminus of South Avenue, they took my personal property right (and the right of other property owners in the Village) to an easement in that street and gave it to another citizen. Not because I say so, but because more than a hundred years of NC Supreme Court decisions say so. The Court of Appeals spelled it out in the second paragraph of their 2009 opinion in the case of Town of Oriental v. Henry: "Generally," the Court said, "where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open...."
I didn't surrender because the Town had the right to close South Avenue - they didn't. I surrendered because I no longer have the material and emotional resources to continue the fight, even though the prospects for a win at the Court of Appeals were excellent. But I had to face the possibility that even after a win I might face additional years of litigation.
I'm sorry the elected officials of the Town spent so much money on the effort to keep the legal issues from being ruled on by the Court of Appeals. I'm sorry the Town Government has done nothing to protect future public access to and ownership rights of the new Town Dock, as I urged them repeatedly to do.
From 2002 to 2009 the
Town Government spent tens of thousands of dollars to defend its
control of South Avenue and to defend the rights of its citizens to use that public way to access public trust waters. That effort sought to bring legal issues before the Court of Appeals. Now
the Commissioners claim to have spent more than 80 thousand to abandon the fruits of
that victory for the Town's citizens and property owners. This time the Town Government's purpose in the court fight was to keep the issues away from the Court of Appeals.
I
am grateful to the Court of Appeals for spelling out in its opinion on
Avenue A what I needed to do to win on South Avenue. I am also
grateful to the Court that it did not affirm a single one of the Town's
claims to have lawful authority to do what they did.
That
being said, I could easily foresee two or three more years of effort to oppose this taking,
with an uncertain outcome. I have other things to do.
I have abandoned the court fight, but I will not abandon my concern for public access to public trust waters.
Thanks for your support.
David Cox
Topic Tags:
law,
private property rights,
town government
Friday, March 20, 2015
Town of Oriental Press Release
Readers of The Pamlico News will know about the lengthy screed published on the front page of Wednesday's edition. The lead in paragraph described the screed as the "settlement agreement" between the Town and me.
It is not.
The document, described as a "Press Release," was forwarded to local press by Town Hall, with the following message:
"From: Town Manager <Manager@townoforiental.com>
Date: Tue, Mar 17, 2015 at 12:42 PM
Subject: PRESS RELEASE
To: editor@thepamliconews.com, Jeff@compassnews360.com, Charlie Hall <charlie.hall@newbernsj.com>, Town Dock <info@towndock.net>
David Cox Comment: The Town's "Press Release" is quoted below. I have been told by a usually reliable source who wrote the document, but until the author has the fortitude to sign it, I prefer to call the author "anonymous" or "concealed."
David Cox Comment:
I urge any member of the public having questions about the document to follow the instructions and call Mayor Bill Sage.
It is not.
The document, described as a "Press Release," was forwarded to local press by Town Hall, with the following message:
"From: Town Manager <Manager@townoforiental.com>
Date: Tue, Mar 17, 2015 at 12:42 PM
Subject: PRESS RELEASE
To: editor@thepamliconews.com, Jeff@compassnews360.com, Charlie Hall <charlie.hall@newbernsj.com>, Town Dock <info@towndock.net>
Good Afternoon,
Please see attached Press Release. Any further comment from the Town can be solicited from Mayor Bill Sage at 252-670-8227.
David Cox Comment: The Town's "Press Release" is quoted below. I have been told by a usually reliable source who wrote the document, but until the author has the fortitude to sign it, I prefer to call the author "anonymous" or "concealed."
PRESS
RELEASE
FOR
IMMEDIATE RELEASE—March 17, 2015—Oriental, NC
To
paraphrase Gerald Ford, “Our long David Cox nightmare is over.”
A full release including a dismissal with prejudice of all lawsuits
and appeals filed against the Town by Oriental resident David Cox has
been executed by Cox and Oriental Mayor Bill Sage on behalf of the
Town. The long and expensive ordeal began when Cox challenged the
Town’s authority under state statutes to close the street
rights-of-way at South Avenue’s western terminus at Raccoon Creek
and all of Avenue A. Cox filed a lawsuit in August 2012 objecting to
the Town’s closing of Avenue A, which was done by order of the
Board of Commissioners after a public hearing in July 2012. After a
hearing in Pamlico County Superior, Senior Resident Superior Court
Judge Benjamin Alford, on April 6, 2013, dismissed all counts of the
complaint filed by Cox . Cox had represented himself, pro
se,
in the court hearing. Cox then obtained an attorney who filed an
appeal to the North Carolina Court of Appeals from Judge Alford’s
order dismissing the case.
After
the dismissal of the lawsuit, the Town entered an order to close the
western end of South Avenue to the waters of Raccoon Creek. The
order announced the intention of the Board to dedicate the property
as a park providing public access to Raccoon Creek and public
amenities to be constructed thereon. Picnic tables were purchased
and placed on the property as part of the process of making it a
first-class amenity for the Town citizens and visitors alike.
Notwithstanding
that his case had been dismissed and an appeal filed, Cox (again
acting pro
se)
filed a second lawsuit against the Town for the closing of a portion
of South Avenue. This meant that the Town had to pay its attorneys
not only for successfully obtaining dismissal of the first suit and
to fully brief the issues to the Court of appeals, but now also to
start the process again on the second lawsuit. The Town’s legal
bills began mounting to tens of thousands of dollars. The Town filed
motions similar to the earlier motions in the first case to dismiss
the second and for sanctions against Cox for filing the second suit.
Superior Court Judge John Nobles entered a stay of the second action
pending the outcome of the appeal, on the grounds that the appeal
would likely resolve the second case.
On
the first of July 2014, the Court of Appeals filed its opinion and
order affirming Judge Alford’s order dismissing the first lawsuit.
The opinion found that Cox had no standing to bring the first suit.
By this point, the Town had spent more than $60000 on the Cox
lawsuits and the Town’s attorneys invited Cox to dismiss his second
action in light of the Court of Appeals’ decision, to end the farce
once and for all, warning Cox that sanctions would be pursued if he
refused. Cox refused to take a dismissal and, therefore, the Town
was obliged to file yet another exhaustive brief to the Superior
Court and to renew its formal motions to dismiss. Judge Alford held
a hearing on November 24, 2014 on the motions and subsequently issued
his order dismissing all of the second lawsuit, another complete
victory for the Town, but at considerable additional cost. Cox then
did the unimaginable. He filed an appeal to the Court of Appeals of
Judge Alford’s order dismissing the second case.
Judge
Alford had indicated that the Town’s motion for sanctions was still
ripe and that he would hear a motion if the Town pressed it. Further
talks between the Town attorneys and Cox ensued and as deadlines at
the Court of Appeals approached and passed, Cox finally agreed to
dismiss the appeal and all matters and suits against the Town. The
Town merely agreed not to pursue sanctions any further. The release
and dismissal was signed and will be submitted to the Court this
week. The total cost to the Town of Oriental of David Cox’s
actions is likely to be in excess of $80000.
During
this expensive and lengthy process, the Town proceeded with
completing the partially built dock on the property obtained from Mr.
Fulcher. We now enjoy a beautiful new eighty-foot public dock for
visiting boaters to The Sailing Capital of North Carolina. In
addition, the Town applied for and has been awarded grants for the
construction of a public restroom facility on the property and for
acquisition and placement on the property of a waste pumpout station
for vessels visiting the new Town Dock Number Two. Plans are
approved and construction is proceeding. The old historic boathouse
on the property is to be fully renovated into a Visitors Center,
adding yet another much needed amenity to the Town assets for
visiting boaters and other tourists.
The
Town Board of Commissioners and the Manager and her staff are about
to enter the budget process for the next fiscal year. But for Mr.
Cox and his lawsuits and appeals, there would be many more dollars
available for Oriental to use in providing facilities and services to
its citizens and visitors."
Diane H. Miller
Town Manager
Town of Oriental, NC
507 Church St PO Box 472
Oriental, NC 28571
Ph: 252.249.0555
Pursuant
to NC General Statutes Chapter 132, Public Records, this electronic
mail message and any attachments hereto, as well as electronic mail
message(s) that may be sent in response to it may be considered a public
record and as such are subject to request and review by anyone at any
time."David Cox Comment:
I urge any member of the public having questions about the document to follow the instructions and call Mayor Bill Sage.
Topic Tags:
town government
Wednesday, March 11, 2015
Good For David Boren
David Boren, President of the University oF Oklahoma, has a moral compass.
He also knows how to take decisive action. Would that more of our leaders take heed.
David Boren is not a household name in most of the country. In fact, no University President anywhere across our land is likely to be as well known as the football or basketball coach. Nobel laureates on the faculty? Who cares!
David Boren is unusual. Former governor of the state of Oklahoma, former senator from Oklahoma, he resigned his senate seat to accept the position as President of OU. In his campaign for Oklahoma governor, he defeated James Inhofe. Boren was a Rhodes Scholar.
As for decisive action, he has expelled two members of SAE who were ringleaders in the racist chant, closed the SAE fraternity and forced them to move out of their building on campus.
"Sooners aren't bigots," he announced.
He also knows how to take decisive action. Would that more of our leaders take heed.
David Boren is not a household name in most of the country. In fact, no University President anywhere across our land is likely to be as well known as the football or basketball coach. Nobel laureates on the faculty? Who cares!
David Boren is unusual. Former governor of the state of Oklahoma, former senator from Oklahoma, he resigned his senate seat to accept the position as President of OU. In his campaign for Oklahoma governor, he defeated James Inhofe. Boren was a Rhodes Scholar.
As for decisive action, he has expelled two members of SAE who were ringleaders in the racist chant, closed the SAE fraternity and forced them to move out of their building on campus.
"Sooners aren't bigots," he announced.
Topic Tags:
education
Tuesday, March 10, 2015
47 Senators Violate Logan Act
Is there something significant about the number 47? That's the same number Mitt Romney used to describe the percentage of Americans who weren't going to vote for him. Just sayin'.
Those curious about US law may have learned that the 47 Republican senators signing the letter to officials of Iran appear to have violated the Logan Act and be subject to 3 years in prison.
So who was Logan and why was the Act passed? Here's a good summary of the history of the Act. And it is a long history.
In 1798 a certain American citizen named Logan travelled to France and worked to improve US - French relations and to free Americans captured by France during the Quasi-War. Logan was a follower of Thomas Jefferson (of the Democratic-Republican party). President Adams, of the Federalist Party, was outraged. This was not just about Constitutional prerogatives - Adams sought improved relations with Great Britain while Jefferson sought improved relations with France.
So much for the idea that "politics stops at the water's edge."
It never did.
In more than two centuries, there has never been a prosecution under the Logan Act, though there have been some close calls.
Those curious about US law may have learned that the 47 Republican senators signing the letter to officials of Iran appear to have violated the Logan Act and be subject to 3 years in prison.
So who was Logan and why was the Act passed? Here's a good summary of the history of the Act. And it is a long history.
In 1798 a certain American citizen named Logan travelled to France and worked to improve US - French relations and to free Americans captured by France during the Quasi-War. Logan was a follower of Thomas Jefferson (of the Democratic-Republican party). President Adams, of the Federalist Party, was outraged. This was not just about Constitutional prerogatives - Adams sought improved relations with Great Britain while Jefferson sought improved relations with France.
So much for the idea that "politics stops at the water's edge."
It never did.
In more than two centuries, there has never been a prosecution under the Logan Act, though there have been some close calls.
Topic Tags:
diplomatic,
Europe,
history,
international
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