Category Archives: rights

Good Idea, Bad Law

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It’s useful for a jurisdiction to control property use through zoning laws—whether to keep unsavory but legal businesses away from children, to preserve an historical building/neighborhood, and so on—provided those restrictions don’t get too onerous or too intrusive on the property rights of the owner(s).

Sometimes, though, a well-intended law has unintended consequences.

In a precedential decision, Motley v. Borough of Seaside Park, No. A-3214-11, the Appellate Division [of New Jersey] found a house that had been gutted to a shell to accomplish repairs was totally destroyed and so lost its status as a grandfathered nonconforming use under local zoning laws.  The panel strictly construed a statute that says a nonconforming use or structure may be restored or repaired if partially destroyed but total destruction terminates it.

Contaminating this seeming miscarriage of justice, though [emphasis added],

In August 2009, [property owner Daniel] Motley requested and obtained a permit to repair and renovate the house and replace the air-conditioning unit.  The permit carried a notation that siding, shingles and windows could be added, but no bumpouts were allowed and the structure could not be expanded.

Once work began, however, the building, not lived in for some time, was found to be in worse shape than expected and uninhabitable.  Among other problems, the roof and water system leaked, part of the first floor ceiling had collapsed, floor beams were rotted and the main center beam was sagging.

This has implications for homeowners attempting to repair/rebuild their homes and businesses in the aftermath of Hurricane Sandy: the storm’s destruction of buildings will cancel any variances granted, even though these buildings will have been continuously occupied and the spirit of the variances honored throughout.

New Jersey’s Appellate Division ruling on essentially destroyed property thus seems counterproductive; however, the court made the correct ruling: being unable to strike the law as unconstitutional, it applied the law as written.  The failure is in the law itself, not in the ruling.

Now it’s on the New Jersey legislature to correct this evident injustice.

It’s Onerous to Become a Citizen?

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Dan Siciliano, a Stanford Law School professor, thinks so.

People think it’s automatic, short and easy.  [In reality] the pathway to citizenship is onerous.

Here are the requirements for becoming a citizen:

  • the immigrants must a $680 fee
  • pass an oral exam
  • present five years’ worth of tax returns
  • submit to a background check for things such as criminal convictions.
  • pass an interview with an immigration officer who tests their ability to speak, read and write English

Yeah, that’s onerous.  The fee serves as a (light) screen against the indigent.  Current immigration law makes it illegal to allow in those who will be burdens on our society, who can’t earn a living.  The five years of having paid income taxes provides current, empirical evidence of the immigrant’s ability to earn his own way and to contribute to his new community.

Any nation has the right to keep out other nations’ criminals—that’s what the background check does.

It’s a hard concept, but English is the language of the United States.  Not Spanish, or French, or Arabic, or Farsi, or….  Businesses are foolish to stand on ceremony and demand their customers speak only English.  But the preservation of American society and culture—that which made us a great nation—demands that political speech be done in English.

Police Surveillance

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Little Rock, AR, is expanding the surveillance capability and power of its police patrols:

A police car with a device that photographs license plates moves through the city and scans the traffic on the streets, relaying the data it collects to a computer for sifting. Police say the surveillance helps identify stolen cars and drivers with outstanding arrest warrants.

It also allows authorities to monitor where average citizens might be at any particular time. That bothers some residents, as well as groups that oppose public intrusions into individual privacy. The groups are becoming more alarmed about license plate tracking as a growing number of police departments acquire the technology.

More (worse?) [emphasis added]:

Little Rock Police Chief Stuart Thomas said the law enforcement benefits outweigh any concerns about possible abuse of the information, which, as a public record, is legally available for anyone to see.  He said the department may get more of the devices.

No irony there at all.  Nosirree.  Thomas went on:

Should that potential of misuse therefore eliminate the capacity of law enforcement to collect data which has a legitimate purpose for the safety of our officers or the appropriateness of enforcement actions?  I don’t think so[.]

But he misses the point.  This isn’t a private citizen, for whom prior restraint constraints are properly illegal—there has to be a crime committed (of which conspiracy is one, but which requires probable cause to interrupt).  This is a government, which is hard enough to control.  Prior restraint of government is a necessary precondition for freedom.  It’s why probable cause and warrants are a for restraining governments.

There are other dangers of the police—the government—creating this particular database, also pointed out in the article.

[City Director Ken] Richardson said he didn’t hear about the device until after it had been collecting data for months.  He said he said he hasn’t heard many complaints.

“It’s hard for you to have a problem with something if you don’t know it’s going on,” he said.

So, Chief, why all the secrecy, if it’s so innocuous?

And as [Catherine, of the New York American Civil Liberties Union] Crump points out,

Given how few rules are currently on the books to protect our privacy, it’s plausible that private investigators and data-mining companies could acquire this location data[.]

And nefarious individuals posing as those.  This is a neat-sounding idea that’s highly dangerous.

2nd Amendment

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Fox News is reporting that Magpul Industries, a maker of accessories for firearms—magazines, sights, grips, and the like—has told the Colorado statehouse that if a bill to restrict the size of ammunition magazines is passed, the company will relocate out of the state.

It’s a bold threat from a company that, by its founder’s admission, has distanced itself from politics.

This company deserves our support.  Perhaps it should have been more political throughout its existence (Plato’s and Pericles’ admonishments apply to our businesses as well as to ourselves), but in the present case, the company’s focus on its business makes its stand the more principled.

Naturally, Colorado’s democrats are unimpressed.  State Senator Jessie Ulibarri (D) said

When you have the means available to you at every single corner to commit a horrendous act, we will continue to see what we’ve seen, which is the status quo, where unfortunately gun violence and violence in general is prevalent in our communities[.]

Ulibarri should look in a mirror.  Those acts include the party power to ramming through ill-considered legislation that addresses the wrong problem while deprecating individual rights.

It’s an idiotic bill, too, aside from an immoral one.  As Magpul’s Founder and President, Richard Fitzpatrick, pointed out,

smaller magazines can be easily connected to each other—magazines can be hooked up to make a 60-round magazine, for example—and the company fears it would legally liable if people were to do that.

The idiocy goes further: Fox News says

Democrats have tried to ease Magpul’s fears, amending the bill to make clear that the company can still manufacture magazines of any size, as long as they’re sold only out-of-state, to the military or law enforcement.

As if that’ll keep the offending magazines out of the state.

Like I said, this company deserves our support.

Yes, Virginia

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…the law applies to the Federal government, too.  At least to the SEC, as the Supreme Court has ruled.  In a case involving alleged special treatment for a mutual fund advisor—the fund supposedly allowed one investor to engage in frequent trading of the fund in violation of a rule that applied to all of the fund’s other investors—the SEC claimed it could alter, on its own recognizance, the statute of limitations for bringing an action against the trader.

As The Wall Street Journal described the matter,

The SEC faced a five-year statute of limitations on bringing a case.  The agency alleged the market timing took place between 1999 and 2002, but it didn’t bring a complaint until 2008.  The defendants, Marc J Gabelli and Bruce Alpert, argued the agency’s five-year clock ran from the time of the alleged offense, but the SEC said the clock should have started later, in late 2003, when it says it discovered the conduct.

The Supremes waved the BS flag at that claim.  Chief Justice John Roberts, writing for a unanimous Court, said

This Court, how­ever, has never applied the discovery rule in this context, where the plaintiff is not a defrauded victim seeking recompense, but is instead the Government bringing an enforcement action for civil penalties.

Roberts expanded on his statement:

There are good reasons why the fraud discovery rule has not been extended to Government civil penalty enforcement actions.  The dis­covery rule exists in part to preserve the claims of parties who have no reason to suspect fraud.  The Government is a different kind of plaintiff.  The SEC’s very purpose, for example, is to root out fraud, and it has many legal tools at hand to aid in that pursuit. The Gov­ernment in these types of cases also seeks a different type of relief.  The discovery rule helps to ensure that the injured receive recom­pense, but civil penalties go beyond compensation, are intended to punish, and label defendants wrongdoers.  Emphasizing the im­portance of time limits on penalty actions, Chief Justice Marshall admonished that it “would be utterly repugnant to the genius of our laws” if actions for penalties could “be brought at any distance of time.”

The opinion can be read here.