Tag Archives: Legislature

#261: A Small Victory for Pro-Life Advocates

This is mark Joseph “young” blog entry #261, on the subject of A Small Victory for Pro-Life Advocates.

The United States Supreme Court has ruled in National Institute of Family and Life Advocates v. Becerra 585 U. S. ____ (2018), in favor of pro-life Crisis Pregnancy Centers who, under the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), were required to communicate to their clients that the State of California was ready to assist them in obtaining abortions.

It should be understood up front that the Court did not actually rule that the FACT Act was unconstitutional.  That was technically not what was on appeal.  The National Institute for Family and Life Advocates, NIFLA, had raised a challenge to the law and requested an injunction preventing its enforcement while the case was being heard.  The lower courts ruled that NIFLA probably could not win and so was not entitled to an injunction; the Supreme Court granted the injunction, stating that NIFLA probably could win on the merits and so enforcement should be stayed until the case had been heard.

Justice Thomas wrote the opinion of the court, joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch.  He observed that the law appeared to be targeted specifically at clinics and similar services which focused on alternatives to abortion and attempted to encourage women to give birth to their babies, often providing prenatal and post-natal care for such mothers.  Clinics run by licensed professionals or run under a state license were required to deliver a notice consisting, in English, of forty-two words (one hyphenated) plus a phone number (top notice in the picture), informing clients that the State of California was ready to help them kill their unborn babies if they so wished.  This notice had to be prominently posted in large letters within the facility, included as a full-sized document with any papers given to clients, and included in any advertising.  Further, this notice had to be delivered in every language recognized by the local county as a major spoken language within the county–at least English and Spanish, and in Los Angeles County thirteen distinct languages.

Thomas observed that this was requiring an organization whose very purpose was to reduce the number of abortions to communicate the reverse message, that abortions were readily available elsewhere.  He further observed that this was a controversial message, and that the weight of the requirement was excessive–if such a licensed organization decided to post a billboard in Los Angeles County that said “Choose Life” with a phone number, that billboard would also have to have that forty-two word notice in thirteen languages in the same sized print as the core message, overwhelming the intended message with what amounts to paid advertising for their competition.

It would be something like requiring all politicians of any party to include in their paid advertising equal space promoting each other candidate in the same race.

Facilities serving the same purpose that were not licensed or run by licensed personnel were required similarly to post a shorter notice, again in all the same ways and places, stating that California has not licensed them as medical care providers.  Again, it was to be posted prominently, included in all advertising, and given to clients in printed form.  Further, the legislation was worded such that the requirement would only apply to pro-life organizations.

So egregious was this animosity toward pro-life organizations that Justice Kennedy wrote a concurring opinion, joined by Chief Justice Roberts and Justices Alito and Gorsuch, attacking the “viewpoint bias” of the law.  The legislative history made it clear that legislators were attempting to force opponents of abortion to publish material contrary to their views.  He observed that the official history included a self-congratulatory statement that the Act was part of California’s legacy of “forward thinking”, and then wrote,

[I]t is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977).

That amounts to religious/political discrimination, and again a violation of the First Amendment.

*****

Writing the dissent, and joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Breyer makes several significant points.

The fact is we regularly require organizations to post informational signs at least obliquely relevant to their purpose.  One example leaps to mind.  A few years back New Jersey had a problem, that several newborn babies were rescued from public trash cans because young parents did want them and could not care for them.  Today, all emergency rooms and many other care clinics have signs on the walls informing anyone who enters the building that there are safe drop points where you can abandon a child no questions asked.  Obviously that notice is irrelevant to the majority of clients in those facilities; just as obviously such locations are good choices for reaching persons who need that information.  We might debate whether such a program fosters teen-aged irresponsibility (a mother who would never dream of putting her baby in a trash bin might abandon it at a safe drop point if made aware of such, and so free herself of the task of caring for the child), but creating and promoting the option saves lives.  Other notifications are posted; the lawfully-required notices on tobacco products and in tobacco ads are clearly counter to the interests of tobacco companies.

However, Breyer attempts to sweep away the aspect that these laws were carefully tailored to target pro-life organizations.  He tells us that organizations that are not pro-life don’t need to be required to tell women about the availability of abortions, as they are probably already doing so.  That’s hardly a sufficient basis for a distinction regarding compelled speech.

For the moment, all that NIFLA has won is a delay, that the law cannot be enforced until the case has been heard.  However, the majority opinion and the significant concurrence are filled with good reasons for the law to be overturned, and as the case returns to the lower courts NIFLA has a good chance winning, probably without another Supreme Court intervention.

#259: Saying No to Public Employee Union Agency Fees

This is mark Joseph “young” blog entry #259, on the subject of Saying No to Public Employee Union Agency Fees.

Four decades ago the Supreme Court handed down a decision in a case entitled Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).  In it the Court ruled that it was not a violation of constitutional rights for unions representing public employees to charge what was called an “agency fee” to all public employees who were not members of the authorized public employees’ union.  Since the law required that the union represent such non-members equally with members (that is, same pay, benefits, and protections), the rule was intended to prevent “free riders” who got the benefits of union representation, union pay and benefits, without paying for it.

This year, in Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., 585 U. S. ____ (2018) they announced that they were wrong, and overturned the precedent.

This is not entirely unknown, but it is rare.  The Court has a rule it calls a doctrine and names stare decisis, which in essence means the decision stands.  It happens sometimes, but usually the Court puts a lot of work into making it possible for any previous decision to still be enforceable in narrower circumstances and new rules to apply to most cases.  That did not happen this time.  Janus overturned Aboud.  According to the Court, requiring persons who do not agree with union policies to pay to support the union is a First Amendment violation, because it compels such persons to support speech with which they disagree.

To begin to understand this, we need to recall that money is fungible–something we discussed in our second web log entry nearly five years ago, and which the majority opinion mentions.  To recall the example, if I have a dollar and I’m going to go to the corner store to buy candy and comic books, it’s likely that I’ll wind up with fifty cents’ worth of each.  If, though, my mother gives me another dollar, and tells me that I am not to spend any of the money she gives me on candy, I will spend her dollar on comic books and my dollar on candy, and now I have twice as much candy because she paid for the comic books enabling me to rebudget my own funds to cover more candy.  In much the same way, the money given by non-members to cover the “costs of negotiating”, even if our bookkeeper tells us that all of it went to that purpose, probably frees funds to go for other purposes we might not approve.

Abood was not so naive as that.  It required unions to do an accounting, separating “chargeable” from “non-chargeable” costs, and bill non-members only for their share of the “chargeable” costs.  Political spending was to be “non-chargeable” and anything that was part of enabling the union to negotiate was “chargeable”.  In practice, however, “non-chargeable” had come to mean contributions to political candidates, and anything else was lumped into “chargeable”.  In the present case, the union billed non-members for costs ranging from lobbying for legislation to paying for the member convention (which presumably non-members did not attend).  Non-members were entitled to sue if they believed something non-chargeable had been included, but the summaries provided by the unions were so lacking in detail that it would require thousands of dollars in attorney and accountant fees just to determine what was and was not charged.

More fundamentally, though, Janus argued that the very act of negotiating with the government for pay and benefits is itself a fundamentally political action and thus a form of political speech.  Janus says that he is not of the opinion that the State of Illinois where he works should raise salaries for unionized public employees; the state has the lowest credit rating of any state in history because of its overspending and indebtedness.  Janus opposes the union’s argument that the state needs to raise taxes to increase salaries and benefits for state workers.  He thus highlights the fact that asking for money from the state is fundamentally political speech, and being required to subsidize the bargaining process makes him party to that speech against his will.

The Court agreed.

For what it’s worth, almost immediately upon the release of the opinion, many liberal lobbying groups sent emergency funding requests to supporters, claiming that they will have to make up for the shortfall they expect to incur since public sector unions will have less money to give them–this according to the New York Times (as cited by Investors.com).  It is of course possible that these groups are lying to their supporters, that in fact the unions have not been misusing non-member money to support political causes and there will be no reduction in such support, but the fear of it makes a good campaign motivator to bring in more.  Preferring to think better of them, we are forced to face the possibility that indeed the union has been using non-member agency fee money to support political causes and lying about it in their accounting (or perhaps believing that they have very little chance of being taken to court over it and at least a fair chance of winning the case if they are).  So one way or another, the liberals appear in a bad light:  either they have been lying about the inappropriate use of non-member money to support political objectives, or they are lying now about anticipating a reduction in the money available for such objectives.

Or perhaps they’re expecting to lose revenue due to a mass exodus of union members.  Why, though, would that be?  If people believe in the union, would they not want to support the union and be part of the union process?  Or is it the case that vast numbers of public employee union members feel coerced into membership because it has cost nearly as much not to belong as it did to belong?

Or maybe they’re just confused.

It has also been reported that a Democratic New York State Senator is proposing legislation to end-run this by permitting the public employee unions to include in negotiations payment from the state to cover the costs of representing non-members.  Seriously, if it is an impingement on free speech to require non-member public employees to pay costs of the union which benefits them in negotiations, it must be far more so to require it of taxpayers whose only connection to this is that they have to pay the amount given to the union.  They seem confused to me.

Justice Kagan’s dissent culminates in an insistence that Abood should stand primarily because of stare decisis, and because of the extensive reliance on the decision.  She notes that at least twenty-two states are going to have to legislate new laws regarding their public service unions, and thousands of contracts relying on agency fees will have to be renegotiated.

Before she reaches that point, she in essence reargues Abood, asserting that it is good law well founded and that the majority overturned it merely because the majority didn’t like it.

The fundamental point of Abood was always that it is to the benefit of the government’s ability to manage its employees to have them represented by exclusive negotiators, unions, which are well-funded and independent of government.  Agency fees were considered a reasonable way to achieve that.  She further argues that (application aside) the Abood distinction between political spending and costs of bargaining and contract management is a clear one.  She objects outright to the notion that the question of whether governments should give their public employees more in salary and benefits is a political one within the context of the employer-employee relationship, because it is essential to that relationship.  She further forecasts a gloomy future in which the number of “free riders” increases as union members recognize how much they can save by leaving the union coupled with the fact that the union must continue to represent them equally whether they are members or not.

Wait a minute.  Did I already say that?

It is not at all clear that unions will be unable to function without the agency fee support.  It is certainly the case that unions have abused the “chargeable/non-chargeable” distinction of Abood (is it really credible that three quarters of the cost of union membership goes exclusively to union contract negotiation and administration costs?).  It is also the case that public sector unions appear to operate successfully in states which do not permit agency fees.

I am not persuaded that this will cause all the chaos predicted.  It does not change the exclusive negotiator rule, that is, if you are not a union member but are in a public employee union shop the union is still your exclusive representative for negotiations.  Nor will it completely eliminate union membership, since one must be a union member to have any impact on policy.  It will weaken unions some; they will have less money to spend on their political pursuits.  However, there is a serious issue concerning whether public employee unions ought to be involved in political pursuits at all, and if we believe that the unions as a whole have a right to speak on issues of public concern, we must also believe that public employees individually have the right not to support those entities with which they disagree.

#255: On Sveen: Divorcees, Check Your Beneficiaries

This is mark Joseph “young” blog entry #255, on the subject of On Sveen:  Divorcees, Check Your Beneficiaries.

It’s a good thing it’s summertime, because the Supreme Court is taking us back to Minnesota, this time for Sveen et al. v. Melin and the first look at the Contracts Clause of the Constitution in a quarter of a century.  Sound dull and esoteric?  Well, no–it cost Kaye Melin a substantial amount of money, and might similarly impact an unknown number of divorcees throughout the country.  As Ambrose Bierce once said, “Death is not the end; there remains the litigation over the estate.”

Let’s start with the facts.

In 1997 Mark Sveen, father of two children by a previous marriage, married Kaye Melin.  The next year he bought a life insurance policy, naming her as beneficiary and his two children as contingent beneficiaries.  The ordinary expectation with life insurance is that it is a contract, that upon the death of the insured a sum of money will be paid to the primary beneficiary or beneficiaries, but in the event that the primary beneficiary predeceases the insured the money will be paid to the contingent beneficiary or beneficiaries; if they have also died, the money is paid into the estate to be distributed in accordance with the will or by the laws applying to intestate estates.

In 2007 the couple divorced, apparently amicably.

In 2011 Mark Sveen died.

Apparently neither of them had been made aware that in 2002 the Minnesota legislature passed a law stating that when a couple divorces each divorced spouse is automatically removed as beneficiary from any legal documents of the other.  It was apparently a surprise to Melin.  She claims that she and Sveen specifically left her as beneficiary on that policy partly because they were still friends and partly because the payments were made from their joint account.  However, the stepchildren claimed the money was theirs, based on this law.

The trial court agreed with the stepchildren, the Circuit Court overturned in favor of the divorced spouse, and the Supreme Court has just restored the original judgment.  Women’s groups are aghast, and Melin appears to have been cheated of her reasonably expected benefit by the stroke of a legislative pen of which she had no notice.

Justice Gorsuch is on the side of the women.  He says that there is absolutely no way that the application of this law in this situation can survive even modest scrutiny under the Contracts Clause of the United States Constitution.

The Contracts Clause appears in Article I Section 10 Clause 1.  It reads “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”  The critical point is the “Law impairing the Obligation of Contracts”.  Everyone agrees that this was because early state legislatures were often passing private legislation excusing influential citizens of debts to foreign creditors, and the Federal government (particularly the Federalist party) saw the danger that such unilateral cancelations of loan contracts would impede much-needed foreign capital investment in the new nation.

Gorsuch agrees that it would be possible for Minnesota to pass such a law which going forward impacted future insurance contracts.  That is, once the law is on the books it is presumed that anyone buying a life insurance contract is made aware that divorce will alter the beneficiary status, because the law exists.  However, the point of the Contracts Clause is to prevent states from altering contracts retroactively–that is, whatever Sveen believed he was contracting at the time he purchased the policy is what Sveen should get, and that means that since he named Melin as beneficiary and had no notice at the time that this would be changed without his knowledge or explicit consent, he should get what the contract says, and that means his primary beneficiary Melin should receive the proceeds.

Justice Kagan, writing for the 8-member majority, disagrees.  She says that the State is simply creating by law what it perceives to be the normal expectation of divorcees, that if they have failed to remove their divorced spouse as beneficiary on their policies it is undoubtedly an oversight.  Melin’s claims to the contrary in this case are immaterial, and the law certainly permitted Sveen to contact his insurer and reinstate his divorced wife as beneficiary, so it was a simple matter to correct.  Indeed, had the life insurance policy been included in the divorce settlement decree, that would have overridden the effect of the law.  Further, Sveen has lost nothing because the insurance policy was paid to his contingent beneficiaries; he has gotten what he wanted.  No significant term of the policy was altered.

If that sounds like garbage to you, it did to Gorsuch, too.  Even the majority admits that the beneficiary is a significant part of the contract, and Gorsuch would say the most significant part.  There was evidence that Sveen did not “change” the policy to “restore” the initial primary beneficiary because he was unaware that any such change was necessary–his copies named Melin, and Melin’s testimony suggests that this was what he wanted.  The notion that failing to remove a divorced spouse as beneficiary would be a simple oversight but that failing to restore such a spouse to that position without any notice that it had changed could not possibly be an oversight is completely incomprehensible.

However, even the dissent agrees that laws such as the one in Minnesota can affect subsequently purchased policies and trusts and similar financial instruments, and the majority has stated that they can be retroactive.  Quite a few states have such laws, which are an ordinary part of state regulation of the interpretation of the intent of a decedent where any point is unclear.

Thus the short version is this warning:  if you have gotten divorced and you have any legal instruments by which one spouse has named the other as beneficiary, and these have not been specifically assigned in the divorce decree, check to be sure that these will be treated according to your expectations and not cancelled by a state law of which you are unaware which is attempting to enforce what the legislature presumes is your actual intent despite your contractual statement otherwise.

#251: Voter Unregistration Law

This is mark Joseph “young” blog entry #251, on the subject of Voter Unregistration Law.

As I was reading the majority opinion of Husted, Ohio Secretary of State v. A. Philip Randolph Institute et al., 584 U. S. ____ (2018), I wondered how anything so obvious could possibly have been a controversial five-to-four decision along ideological lines.

Then I read the dissent, and realized that this was not a simple case, and it is not a mystery why it kept flip-flopping its way up the ladder to the Supreme Court.  Ultimately, though, it comes down to whether when we read the statute we read it as and or or.

Here’s the background.  Prior to 1993–which for some of you seems like ancient history, but is really not that long ago–state governments had a lot of ways of removing voters from the registration lists so that they couldn’t vote.  One of the most egregious was that if you missed an election one year the system concluded that you had either moved or died, and removed your name from the lists with the result that if you arrived the next year you would discover that you weren’t registered and couldn’t vote.  To remedy this, the Clinton administration passed the National Voter Registration Act (NVRA), which both required states to maintain current voter registration lists (which included removing ineligible voters) and limited how they could remove persons from the list.  It was tweaked a bit in 2002 when Bush (the second Bush) signed the Help America Vote Act (HAVA), which attempted to clarify some of the statements in the previous law.  Ohio has a system which it maintains is consistent with the requirements of those laws, by which it removes persons from the voter lists based on a multi-step process.  The majority agrees; the dissent disagrees.

It will help significantly to look at the statutes themselves, large portions of which Justice Breyer appends to his dissenting opinion.

The focus of discussion begins with §8(b) of the NVRA

Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—

(2)

shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote.

The HAVA modifies that to say solely by reason of the person’s failure to vote, probably because of confusion with §8(d).  That section lays out a somewhat complicated process for verifying that a voter has moved out of the voting district in which he is registered.  The simple way is for the registrant to confirm in writing that he has moved.  The law recognizes that a lot of people won’t do that, and so provides an alternate method involving sending (by forwardable mail) a postpaid return card which permits the recipient to respond confirming that he still lives at the stated address or that he does not.  If the card is returned, the registrar of voters accepts the statement as true and the matter is resolved.  If the card is not returned and the voter does not vote in the next two federal elections he may be removed from the list.  (Federal elections occur every other year because terms for The House of Representatives are two-year terms.)

At issue is under what circumstances such a card can be sent.  §8(c) specifies that if the state obtains change of address information from the Post Office, it must verify that information by following the procedure just outlined.  However, §6(d) specifies that the same confirmation process should be used if voter registration materials are sent to a registrant by non-forwardable mail and are returned as undeliverable.  It thus appears that there is more than one way by which the registrar of voters might have reason to believe that a voter has left the voting district, triggering the §8(d) process.

Here is where it gets tricky.

Ohio’s system works like this.  If a registered voter fails to vote for two consecutive years, or to engage in any other voter-related activity such as signing petitions, a forwardable post-paid return card is sent to that voter’s registered address.  If the card is returned, that’s the end of the matter.  If the the card is not returned, Ohio gives four additional years (covering at least two Federal elections at least one of which is a Senate race and one a Presidential race) to vote or engage in other voter activity, after which the non-voting voter is removed from the voter registration list.

The majority says that this is a reasonable method, perfectly in keeping with §8(d).  The failure to vote alerts the registrar of voters that this person might not live here anymore, and because the person fails to respond to the return card confirming their presence and at least two additional Federal elections pass in which they do not vote, they can be removed.  The majority takes the language in §8(b)(2) to put an end to the practice of removing voters solely for failure to vote by requiring the confirmation process of §8(d).  They note that some states send such cards regularly or randomly to confirm addresses, and Ohio’s system complies with their understanding of the §8(d) process.

The dissent says that such cards are for confirmation of information gained by some other means, such as from the Post Office (§8(c)) or through a different mailing verification process (§6(d)).  They assert that the point of §8(b)(2), that no one should be removed soley for failure to vote, means that failure to vote cannot be the trigger to send the returnable card.  They claim that the §8(d) confirmation process must be triggered by something other than failure to vote.

Perhaps the strongest point in favor of the dissent’s position is that one of the stated purposes of these two laws is to increase voter registration and prevent eligible voters from being removed from the list inappropriately.  The fact that someone doesn’t vote for a couple years does not mean they are no longer in residence in the district, and the fact that they fail to return a postpaid card confirming that they are present is not a particularly telling confirmation of anything.  As the dissent argues, the majority of people probably won’t bother returning such a card.

The majority points to the statute on that, noting that both the Federal legislature and the State of Ohio believed that the non-return of such a card would be an adequate indicator that the person has moved.  The argument is that a person who does not vote and does not return the card is not being removed “solely” for failing to vote, but for failing to vote over the course of six years and failing to return a confirmation card.  The question is whether the state can send the confirmation card based on two years of failure to vote, or whether that constitutes removing them “solely” for failing to vote.

In favor of the majority, though, if §8(b)(2) means what the dissent claims it means, it is poorly worded.  The majority reading is not at all awkward or implausible, and the Ohio system appears to fit the §8(d) requirements with room to spare.  Despite the ranting of the minority, the majority opinion does seem the more natural reading of the text.

The upshot is that the Ohio system stands, and many other states with similar systems will not be challenged.  Removal from the voter rolls solely for failure to vote is not permitted, but it can be the trigger that leads to an inquiry by mail as to whether the voter still lives in the district.

#241: Deportation of "Dangerous" Felons

This is mark Joseph “young” blog entry #241, on the subject of Deportation of “Dangerous” Felons.

The United States Supreme Court decided a case entited Sessions v. Dimaya (84 U. S. ____ (2018)) which has created a bit of a stir.  The basics of the case are that the defendant/respondent Dimaya (pictured) is a long-time legal resident alien twice convicted of burglary under California law, and Immigration and Naturalization Services decided to deport him under a law that permits the deportation of any non-citizen who commits an “aggravated felony”, as defined by 18 U. S. C. §16, which includes the wording “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”  The majority opinion, written by Justice Kagan, held that that provision was “void for vagueness”, relying on a previous case which considered similar language in another statute.

What has the legal news world buzzing is that Justice Gorsuch concurred with most of that opinion, and with the judgment, although he also wrote a separate concurring opinion explaining his position.  Chief Justice Roberts and Justice Thomas both wrote dissenting opinions, and the court split five-four, Gorsuch viewed as the swing vote in a ruling that otherwise had the liberal members of the court in the majority.

There is much about the case that is interesting, and some that is at least confusing, as it raises many varied legal issues and viewpoints.

The argument of the majority seems to be that there is no way to tell whether burglary is an aggravated felony.  The majority says that the statute would require the court to consider not the elements of the crime itself, nor the specifics of the facts of the case, but the “ordinary case”, and then demonstrates how foolish it is to attempt to identify the “ordinary case” of a wide range of serious felonies.  For example, is the ordinary case of kidnapping an armed ruffian grabbing a victim off the street at gunpoint and forcing him into a van to hold for ransom, or a non-custodial parent quietly picking up a child from school?  It becomes impossible to tell, they maintain, whether any given crime, in the “ordinary case”, is necessarily likely to be violent.

Already I am confused.

When I was prepping for the bar exam a quarter century back, I had to learn a list of what was I think ten “dangerous felonies”.  I remember the list, which included both actual and attempted versions of each crime, as including murder (intentional homicide), robbery (theft by force or threat of force), assault (threat of force), arson, rape, and riot–six out of ten, not too bad, and was burglary one of the ones I missed?  A quick internet search finds a felony murder list (well described at that link) to include kidnapping, rape, arson, robbery, and, yes, burglary.  It sounds to me like the Common Law recognizes burglary as a potentially dangerous felony.

Of course, therein lies part of the rub.  Burglary has a Common Law definition, but also a myriad of statutory definitions.  The Court seemed to think that the California statute under which Dimaya was convicted was broad enough to cover dishonest door-to-door salesmen, and that the question of whether such crimes were typically violent was extraordinarily difficult.

What, though, is burglary?  It’s complicated, because it’s what we call a double-intent crime.

If you were working on, say, a rooftop billboard, and you fell and crashed through a skylight into someone’s apartment, you would not be guilty of anything save perhaps some negligence.  You never intended to enter the apartment, and assuming you don’t then form the intent to stay there or commit a crime while on the premises, it’s just unfortunate.

If a storm is coming and you break into an abandoned warehouse for shelter, you’re guilty of breaking and entering and trespass, but as long as that’s all you do you’re not guilty of burglary.

Burglary, legally, means unlawful entry with the intent to commit a felony.  It is that second intention that makes it a serious crime.  Usually the felony is theft, and in the Dimaya case that was the felony involved.  Burglary is considered a violent felony in part because many of the crimes with which it is associated (to commit murder, rape, arson, et cetera) are violent, and in part because it is considered a risk that someone unlawfully entering a residence might encounter the resident leading to a violent confrontation.

However, noting that in the present case the issue involves a conviction for burglary as defined by a statute with a very broad sweep, the majority decided that it would be impossible for a judge to determine reliably what the “ordinary case” would be, and how great the potential risk of violence would be, and then that the standard itself is an ill-defined threshold, and thus identifying whether a particular case meets that requirement is an entirely subjective matter.  That, they assert, creates a Fifth Amendment Due Process issue.  Due Process of Law includes that citizens be on notice of exactly what is and is not illegal, and not be subject to the caprice of police, prosecutors, juries, and judges to decide what is and is not a violation.  Dimaya could not have known that his actions would count as violent felonies rising to the level required by the deportation statute, and thus he was not afforded the protection of due process.  Gorsuch agreed.

Roberts disagreed.  He argued that the text was not vague, and that any judge ought to be able to determine the degree of risk of violence in the ordinary case of a specified crime.  It’s not clear that he overcame the examples offered by the majority.

Thomas also dissented, but at a much deeper level.  He first asserts that “vagueness” doctrine is not consistent with the original meaning of Due Process, but does not pursue that far enough to overcome Gorsuch’ explanation as to why it is.  Thomas then states that the “ordinary case” analysis was something the Court itself invented and read into the previous statute, and that since it makes this statute unconstitutional to so read it but it is not actually in the statute, it is the Court’s fault and the Court should read it otherwise.  He says that the wording of the statute requires a specific circumstance analysis, that is, whether the person was convicted of a crime which under the facts of the case had a high risk of violence.

This is interesting, because as we noted the California burglary statue covers a lot of non-violent crimes and a lot of potentially violent ones.  Arguably residential burglary with the intent to commit theft stands a fairly high risk of a violent encounter with a resident homeowner–but Dimaya specifically targeted vacant residences, significantly reducing the probability of violence, and there was no indication that violence was ever even close to being used.  Thus the facts in the Dimaya case suggest that his particular burglaries were never more potentially violent than simple trespass, unless you count violence to property.  You can only call them dangerous felonies if you base it on some notion of the “ordinary case” that asserts these are more violent on average than his were.  That’s the analysis Thomas would reject.  However, he then wants to uphold the deportation, saying that the statute was not vague because at the time courts were unanimous in the opinion that burglary was a violent felony (which does not take into account the fact that Dimaya’s were not, which was the analysis Thomas was saying we should use).  So it does not appear that Thomas manages to give solid support to the outcome he wants.

However, the genuinely interesting contribution in this case is that of Gorsuch.  After arguing that Due Process requires fair notice, and thus that laws must be clear in their intent, and so agreeing with the majority that this law is not, he delves into a much deeper issue.  He asserts that the Separation of Powers doctrine requires that crimes must be defined by the legislature, the body of persons elected by and accountable to the people most directly, and not by the judiciary.  The legislature is not allowed to ignore this responsibility by telling judges or juries to decide whether any particular action is a crime; it must give specific parameters for what does and does not constitute one.

What is most interesting about this position is that were it consistently applied, it would undermine nearly all of our administrative law, from the IRS to the EPA to the FCC, because it nearly always involves Congress effectively stating broad parameters of an objective and executive branch agencies writing the actual regulations to be enforced.  By Gorsuch’ view, this would be unconstitutional, as such regulations were not written by the legislature but by the executive.  Such delegation of authority is not authorized by the Constitution, and thus would not be enforceable.

There is a serious question concerning whether it would even be possible for a modern state to function entirely by legislation without administrative agencies empowered to create and enforce regulations.  On the other hand, Gorsuch has a strong point, and just because an existing system is efficient and effective doesn’t mean we should overlook the fact that it might be unconstitutional.  Gorsuch may be laying the groundwork for an assault on that system–and libertarians and conservatives who favor smaller government will probably applaud those efforts.  It will be an interesting battle as it unfolds in the years ahead.

Meanwhile, Dimaya gets to stay in the country, because it can’t be determined whether burglary under the California statute ordinarily involves a high risk of violence or not.

#231: Benefits of Free-Range Parenting

This is mark Joseph “young” blog entry #231, on the subject of Benefits of Free-Range Parenting.

I was completely stunned by an article reporting that Utah had passed a law protecting what is apparently called free-range parenting.  I posted it to my Facebook page and got some feedback which jarred a memory and got me thinking.  So here are some of those thoughts.

To clarify, “free-range parenting” means that children are not constantly monitored, but are given freedom to move about alone.  To view it from the negative, what the Utah law does is state that it is not criminal child neglect or abuse to permit a child to ride a bicycle to school, walk to a park unattended, or wait in a car while a parent runs into the store for a few things.  As one of my sons observed, his childhood would have been rather different had it been necessary for one of us to be watching him and his four brothers constantly.  I don’t think my mother could have raised the four of us and maintained the house if she had been required to be able to see us at all times–and I’m sure we never would have been able to play outside with other neighborhood kids, never mind play in the woods.

One of those commenting suggested that this requirement of constant monitoring (which, he asserted, is very real) causes children to stay home using their electronic devices to communicate instead of meeting in the real world, and is helping raise a generation of people who cannot make decisions for themselves.  That was the comment that jarred my memory, recalling for me another article on a very loosely related subject, about a study of primates.

I think the subjects were chimpanzees; they might have been a breed of monkeys.  What researchers observed about their charges is that there were two types of mothers.  One type paid very little attention to her children except when it was time to feed them, checking on them rather irregularly, just satisfying herself that they were somewhere nearby and not in danger.  The other type was constantly keeping the children near, in sight, within arm’s reach, becoming concerned as soon as the child vanished for a moment.

Following from this, they noted that as the children grew, those who were given freedom of movement became bold and assertive, willing to try new things and explore new places, while those who had been raised by protective mothers became cautious and restrained, risk-averse.  They became fearful, and in their turn became highly protective parents.

My first thought was that we want adults who are willing to explore, not afraid of the unknown.  Then I remembered another unrelated but useful bit of information.  It seems that the sensitivity of our gustatory sense (taste) does not follow a bell curve, as we might expect.  That is, most people do not have median powers of tasting with some better and some worse.  Rather, we have more of a horseshoe, that there is a group of people with highly superior gustation and a significantly larger group with very poor gustation, and almost no one in the middle.  The source from which I learned this stated that this was good from an evolutionary perspective, because in an environment in which most things are edible a species that is highly social and communicative needs only a few members who can identify food that is bad, and the rest of us can simply eat what they approve.

How is that relevant?

Another of the commenters noted that he would not want his children wandering free in the neighborhood in which he was raised, at least as it is today.  It is certainly the case that some of us live in rather dangerous places, while others live in relatively safe places.  Granted that no place is completely safe and no place completely unsafe, the survival of the species is enhanced by having some members willing to take risks and explore while others are more cautious and protective.  I know people who were kids on the streets of New York City and survived, who never really gave a thought to the notion that this was a dangerous place to live.  Not every kid makes it to adulthood no matter where he lives.  That some parents raise frightened cautious adults and some raise bold experimental ones is in that sense good for humanity.  I might prefer to see more bold experimental people, but we need the cautious ones, too.

The problem is that our society has been moving toward a place where the government itself is becoming too protective, and so raising frightened cautious citizens.  We attempt to coerce parents into being overly protective of their children, on the threat of sending them into foster care (which no one believes is safe).  As I mentioned in my original comments, the worst thing you can do to a family in New Jersey is make allegations to what is perhaps not inappropriately called Die Fuss, that is, DYFS, the Division of Youth and Family Services.  The intrusive investigations that follow from such allegations are always tinged with the threat that children might vanish into “the system” forever, giving them to paid child care workers in order to protect them from loving but not always fully capable parents.  As another commenter observed, parenting is mostly a guessing game in any generation.  We believe that our parents did some things right and some things wrong, and we attempt to do better, but also have to face public and official opinion concerning appropriate versus inappropriate childraising practices.

Utah has taken a positive step in the right direction here.  Let’s make it clear that parents who give their children more independence at a younger age are not being neglectful or abusive, but are helping them grow into responsible and courageous adults.  To do otherwise might be to deprive the next generation of the kind of people willing and able to lead us into the future.

#229: A Challenge to Winner-Take-All in the Electoral College

This is mark Joseph “young” blog entry #229, on the subject of A Challenge to Winner-Take-All in the Electoral College.

We have frequently discussed the Electoral College, the system by which States send Electors to select a President of the United States.  Much of that explanation appears in the page Coalition Government, compiled of several previous related articles.  That discussion included the suggestion that the “winner-take-all” system for choosing Electors, adopted by forty-eight States and the District of Columbia, should be replaced, on a State-by-State basis, with a proportional system–and why such a change was unlikely to be made by any of them.  (We more recently noted an opposite movement, an attempt to replace the State vote with a national vote that effectively eliminates the significance of any state, in web log post #203:  Electoral College End Run, an idea having a much better chance of passing but which is probably unconstitutional.)

Now an organization called Equal Citizens has decided that there might be another way to eliminate the winner-take-all system and replace it with proportional representation:  have the winner-take-all system declared unconstitutional.  To this end, they have filed lawsuits against the practice in California, Massachusetts, Texas, and South Carolina.

That might seem like overkill.  After all, wouldn’t one successful lawsuit fix the problem?  However, it probably wouldn’t.

Suppose they filed in Texas and won in Texas.  There are four Federal District Courts in Texas, any one of which would do, and victory would mean it was illegal to assign all thirty-eight of that State’s electors to the candidate winning the majority vote–in Texas.  At that point they have to hope that the State appeals the decision to the Fifth Circuit Federal Court of Appeals, and that they win there.  If they do, it will be illegal not only in Texas but also in Louisiana and Mississippi.  However, it will still be legal in the rest of the country.

In order for it to become unconstitutional nationwide, the Supreme Court of the United States would have to decide the case.  That means getting the Court to hear the case, and as we know the Court is rarely forced to hear any case and might prefer to stay out of this one.  The best shot at getting Certiorari at the Supreme Court for a case like this is to get decisions in more than one Circuit which hold opposing positions.  That is, they need one court to say it is constitutional and another to say it’s unconstitutional, so that the Supreme Court will see that it is necessary for it to resolve the matter for everyone.  That means in filing four lawsuits they are hoping to win at least one and lose at least one, at the appellate level.

In theory, they could win an effective victory if they won all four suits, as States might see that as an indication that other circuits would agree and avoid a lawsuit by complying with the change.  However, compliance would only be mandated in those circuits where the decisions were made, and additional lawsuits might be needed to change some recalcitrant States.

So how can a practice that is so nearly universal (only Maine and Nebraska do not follow it, and they both use district voting, that is, the state is divided into sections each of which picks a representative elector) be unconstitutional?

The argument is based on the XIVth Amendment, and specifically the Equal Protection Clause, which states that every citizen of legal age is to be treated equally by the States in all matters of law and politics.  That means, according to the Amendment, one person, one vote.  The claim is made that in a winner-take-all system, if fifty thousand voters pick one candidate but fifty thousand one voters pick the other, fifty thousand voters are disenfranchised when the entire electoral vote goes to the other candidate.  In order for their votes to be protected, the electoral vote should be divided based on the proportion of voters supporting each candidate–in this case, equally, or slightly in favor of the majority candidate.

So is it a good argument?

Maybe.

The XIVth amendment is one of the Reconstruction amendments following the Civil War.  The “Original Intent” of its reference to one person, one vote was to prevent discrimination against black men specifically; it was amending the section of the Constitution that counted slaves as partial persons by giving the emancipated slaves voting power equal to their white counterparts.  In that sense, it has nothing to do with the method of selecting Electors for the College.  However, as often happens, what the Framers of the Amendment wrote has been applied beyond what they intended.  This clause is the basis for all those lawsuits over reapportionment:  the claim that one party has by drawing the district lines given itself an unfair advantage by disenfranchising voters in certain geographic areas.  The connection is obvious:  if white government officials can set up districts such that blacks are always in the minority in every district (that is, by identifying black neighborhoods and apportioning them into several predominantly white surrounding neighborhoods) they can smother the voice of black voters.  Thus “gerrymandering” to oppress racial voting blocks is a violation of the Equal Protection Clause.

Yet the Equal Protection Clause would itself be inequitable if it only protected blacks or other racial minorities.  If it is a constitutional violation to stifle the representation of any one voter, it is equally a violation to stifle the representation of any other voter.  Arguably winner-take-all voting does exactly that, and on that basis could be ruled unconstitutional.

On the other hand, as we have noted in previous articles, the Framers of the Constitution did not intend for Presidents to be chosen by democratic process.  Quite the contrary, they expected that the Electoral College would always be hopelessly deadlocked and so serve effectively as a nominating committee offering a slate of candidates from which the legislature would select the one they believed would best serve them.  As we noted in #172:  Why Not Democracy?, that has happened exactly once.  However, the process was intended to empower the States as States, not so much the individual voters save as they are citizens of their respective States.  If we look at the Original Intent of the Constitution, it is evident that Electors are to be chosen by the States, by methods determined individually by each State.

Of course, the XIVth Amendment changed that at least in part.  The question is, in doing so did it mean that a State’s Electors had to be representative of all the voters proportionately, or is it sufficient for a State’s Electors to represent the majority of the State’s voters?  Are Presidents to be selected by the people, or by the States?

If winner-take-all Elector voting is deemed unconstitutional on that basis, it probably means that district apportionment is similarly unconstitutional, and electoral votes would have to be assigned based entirely on the proportion of the total vote in the state.  Israel uses such a system to elect its Parliament, and it is not an unworkable system.  If implemented, it would move us slightly closer to a President elected by the majority.

It is certainly worth considering.

As a footnote, in researching this article I stumbled upon this interesting toy which permits the user to experiment with various methods of choosing Electors and see their impact on the most recent two Presidential elections.  What intrigued me was that of eight possible methods (including the current one), Trump won the Electoral College in all but that one specifically rigged to give the Democrats the most electoral votes (that is, by using winner-take-all in states they nominally won and proportional in states they nominally lost).  That caused me to wonder how that could be if, as is often claimed, Clinton took the majority of the popular vote.  The answer seems to be in part that despite the fact that Trump took more votes in California than in any other state but two, Clinton took enough votes in that state to tip the balance of the popular vote, but not of the Electoral vote, because California is underrepresented in the Electoral College (because it is underrepresented in the House of Representatives).  That in turn reminded me that in the aforementioned web log post I commented that we did not want California to be the big bully that dictates the law to the rest of us.  The other part of the answer is simply that Trump took more states, and because of the “plus two” Electors each state gets, the geography worked for him:  the fact that Presidents are on some level chosen by the States, not the people, meant that having more states choose Trump gives him more Electors.

#220: The Right to Repair

This is mark Joseph “young” blog entry #220, on the subject of The Right to Repair.

When I was considerably younger, I did a small amount of electronics troubleshooting and repair.  My father was an electronics engineer who encouraged and assisted this, and my focus was primarily on audio equipment used by my band.  Back then you could buy components through RadioShack® and its sister catalog company Allied Electronics®, and through Lafeyette Electronics® and probably several other outlets.  Sometimes we ordered replacement parts directly from manufacturers, among whom Ampeg® deserves special mention for its support.

Nowadays modern electronics have gotten away from me.  I’ve got a rough understanding of transistors, and read an early book explaining integrated circuts, but microminiaturization is too difficult for my weak eyes and clumsy hands, and “negative feedback bass boost” and “RCL circuit” are more vague concepts in the back of my mind than real knowledge.  I have enough trouble wiring footswitches and jacks for my own home-designed equipment.  Computers and cellular phones are beyond me, and I almost always take them to professionals for work.  However, I usually take them to local professionals, not manufacturer repair services.  They’re cheaper, and I tend more to trust that they’re not going to try to sell me something I don’t need.

The problem faced by many of these repair services is that some manufacturers (the list starts with “A”) won’t provide what they need to make repairs–information such as schematics and programming data, parts, repair instructions.  Home handymen like me can’t get these, either.  The manufacturer doesn’t want you to be able to repair your device.  It wants you to have to pay it inflated rates to repair it, or replace it with a new device it is ready to sell you.  Thus for even so simple a problem as a cracked screen, the company is not going to sell you a replacement screen nor provide you the installation instructions for it.  You either buy a new device or pay them to fix the old one.

The State of New Jersey thinks this shouldn’t be permitted.  The legislature is reportedly considering a bill, the Fair Repair Act, which will require manufacturers to make parts and information available for independent and home repairs of electronic devices.  As one who has benefited from the availability of such technology in the past, and who utilizes the services of independent repair outlets, I much favor this bill, and encourage you to support it if you live in New Jersey.

Even if you don’t, this will be significant.  If companies are required to make this kind of support available in New Jersey, with today’s international market it effectively becomes available worldwide.  It will also be a boost to small businesses, as it becomes possible for them to repair electronic devices previously clouded behind company secrets.

It won’t be a complete revelation of everything.  Manufacturers will try to stop the bill, claiming that it will require them to reveal trade secrets.  However, New Jersey has a legislatively defined meaning of “trade secret”, and anything that falls within its parameters will be protected under the law.  What won’t be protected is the arbitrary creation of monopolies on repairs and replacement parts for cell phones and similar consumer electronics, and it’s past time to do it.

#219: A 2017 Retrospective

This is mark Joseph “young” blog entry #219, on the subject of A 2017 Retrospective.

A year ago, plus a couple days, on the last day of 2016 we posted web log post #150:  2016 Retrospective.  We are a couple days into the new year but have not yet posted anything new this year, so we’ll take a look at what was posted in 2017.

Beginning “off-site”, there was a lot at the Christian Gamers Guild, as the Faith and Gaming series ran the rest of its articles.  I also launched two new monthly series there in the last month of the year, with introductory articles Faith in Play #1:  Reintroduction, continuing the theme of the Faith and Gaming series, and RPG-ology #1:  Near Redundancy, reviving some of the lost work and adding more to the Game Ideas Unlimited series of decades back.  In addition to the Faith and Gaming materials, the webmaster republished two articles from early editions of The Way, the Truth, and the Dice, the first Magic:  Essential to Faith, Essential to Fantasy from the magic symposium, and the second Real and Imaginary Violence, about the objection that role playing games might be too violent.  I also contributed a new article at the beginning of the year, A Christian Game, providing rules for a game-like activity using scripture.  Near the end of the year–the end of November, actually–I posted a review of all the articles from eighteen months there, as Overview of the Articles on the New Christian Gamers Guild Website.

That’s apart from the Chaplain’s Bible Study posts, where we finished the three Johannine epistles and Jude and have gotten about a third of the way through Revelation.  There have also been Musings posts on the weekends.

Over at Goodreads I’ve reviewed quite a few books.

Turning to the mark Joseph “young” web log, we began the year with #151:  A Musician’s Resume, giving my experience and credentials as a Christian musician.  That subject was addressed from a different direction in #163:  So You Want to Be a Christian Musician, from the advice I received from successful Christian musicians, with my own feeling about it.  Music was also the subject of #181:  Anatomy of a Songwriting Collaboration, the steps involved in creating the song Even You, with link to the recording.

We turned our New Year’s attention to the keeping of resolutions with a bit of practical advice in #152:  Breaking a Habit, my father’s techniques for quitting smoking more broadly applied.

A few of the practical ones related to driving, including #154:  The Danger of Cruise Control, presenting the hazard involved in the device and how to manage it, #155:  Driving on Ice and Snow, advice on how to do it, and #204:  When the Brakes Fail, suggesting ways to address the highly unlikely but cinematically popular problem of the brakes failing and the accelerator sticking.

In an odd esoteric turn, we discussed #153:  What Are Ghosts?, considering the possible explanations for the observed phenomena.  Unrelated, #184:  Remembering Adam Keller, gave recollections on the death of a friend.  Also not falling conveniently into a usual category, #193:  Yelling:  An Introspection, reflected on the internal impact of being the target of yelling.

Our Law and Politics articles considered several Supreme Court cases, beginning with a preliminary look at #156:  A New Slant on Offensive Trademarks, the trademark case brought by Asian rock band The Slants and how it potentially impacts trademark law.  The resolution of this case was also covered in #194:  Slanting in Favor of Free Speech, reporting the favorable outcome of The Slant’s trademark dispute, plus the Packingham case regarding laws preventing sex offenders from accessing social networking sites.

Other court cases included #158:  Show Me Religious Freedom, examining the Trinity Lutheran Church v. Pauley case in which a church school wanted to receive the benefits of a tire recycling playground resurfacing program; this was resolved and covered in #196:  A Church and State Playground, followup on the Trinity Lutheran playground paving case.  #190:  Praise for a Ginsberg Equal Protection Opinion, admires the decision in the immigration and citizenship case Morales-Santana.

We also addressed political issues with #171:  The President (of the Seventh Day Baptist Convention), noting that political terms of office are not eternal; #172:  Why Not Democracy?, a consideration of the disadvantages of a more democratic system; #175:  Climate Change Skepticism, about a middle ground between climate change extremism and climate change denial; #176:  Not Paying for Health Care, about socialized medicine costs and complications; #179:  Right to Choose, responding to the criticism that a male white Congressman should not have the right to take away the right of a female black teenager to choose Planned Parenthood as a free provider of her contraceptive services, and that aspect of taking away someone’s right to choose as applied to the unborn.

We presumed to make a suggestion #159:  To Compassion International, recommending a means for the charitable organization to continue delivering aid to impoverished children in India in the face of new legal obstacles.  We also had some words for PETA in #162:  Furry Thinking, as PETA criticized Games Workshop for putting plastic fur on its miniatures and we discuss the fundamental concepts behind human treatment of animals.

We also talked about discrimination, including discriminatory awards programs #166:  A Ghetto of Our Own, awards targeted to the best of a particular racial group, based on similar awards for Christian musicians; #207:  The Gender Identity Trap, observing that the notion that someone is a different gender on the inside than his or her sex on the outside is confusing cultural expectations with reality, and #212:  Gender Subjectivity, continuing that discussion with consideration of how someone can know that they feel like somthing they have never been.  #217:  The Sexual Harassment Scandal, addressed the recent explosion of sexual harassment allegations.

We covered the election in New Jersey with #210:  New Jersey 2017 Gubernatorial Election, giving an overview of the candidates in the race, #211:  New Jersey 2017 Ballot Questions, suggesting voting against both the library funding question and the environmental lock box question, and #214:  New Jersey 2017 Election Results, giving the general outcome in the major races for governor, state legislature, and public questions.

Related to elections, #213:  Political Fragmentation, looks at the Pew survey results on political typology.

We recalled a lesson in legislative decision-making with #182:  Emotionalism and Science, the story of Tris in flame-retardant infant clothing, and the warning against solutions that have not been considered for their other effects.  We further discussed #200:  Confederates, connecting what the Confederacy really stood for with modern issues; and #203:  Electoral College End Run, opposing the notion of bypassing the Constitutional means of selecting a President by having States pass laws assigning their Electoral Votes to the candidate who wins the national popular vote.

2017 also saw the publication of the entirety of the third Multiverser novel, For Better or Verse, along with a dozen web log posts looking behind the writing process, which are all indexed in that table of contents page.  There were also updated character papers for major and some supporting characters in the Multiverser Novel Support Pages section, and before the year ended we began releasing the fourth novel, serialized, Spy Verses, with the first of its behind-the-writings posts, #218:  Versers Resume, with individual sections for the first twenty-one chapters.

Our Bible and Theology posts included #160:  For All In Authority, discussing praying for our leaders, and protesting against them; #165:  Saints Alive, regarding statues of saints and prayers offered to them; #168:  Praying for You, my conditional offer to pray for others, in ministry or otherwise; #173:  Hospitalization Benefits, about those who prayed for my recovery; #177:  I Am Not Second, on putting ourselves last; #178:  Alive for a Reason, that we all have purpose as long as we are alive; #187:  Sacrificing Sola Fide, response to Walter Bjorck’s suggestion that it be eliminated for Christian unity; #192:  Updating the Bible’s Gender Language, in response to reactions to the Southern Baptist Convention’s promise to do so; #208:  Halloween, responding to a Facebook question regarding the Christian response to the holiday celebrations; #215:  What Forty-One Years of Marriage Really Means, reacting to Facebook applause for our anniversary with discussion of trust and forgiveness, contracts versus covenants; and #216:  Why Are You Here?, discussing the purpose of human existence.

We gave what was really advice for writers in #161:  Pseudovulgarity, about the words we don’t say and the words we say instead.

On the subject of games, I wrote about #167:  Cybergame Timing, a suggestion for improving some of those games we play on our cell phones and Facebook pages, and a loosely related post, #188:  Downward Upgrades, the problem of ever-burgeoning programs for smart phones.  I guested at a convention, and wrote of it in #189:  An AnimeNEXT 2017 Experience, reflecting on being a guest at the convention.  I consider probabilities to be a gaming issue, and so include here #195:  Probabilities in Dishwashing, calculating a problem based on cup colors.

I have promised to do more time travel; home situations have impeded my ability to watch movies not favored by my wife, but this is anticipated to change soon.  I did offer #185:  Notes on Time Travel in The Flash, considering time remnants and time wraiths in the superhero series; #199:  Time Travel Movies that Work, a brief list of time travel movies whose temporal problems are minimal; #201:  The Grandfather Paradox Solution, answering a Facebook question about what happens if a traveler accidentally causes the undoing of his own existence; and #206:  Temporal Thoughts on Colkatay Columbus, deciding that the movie in which Christopher Columbus reaches India in the twenty-first century is not a time travel film.

I launched a new set of forums, and announced them in #197:  Launching the mark Joseph “young” Forums, officially opening the forum section of the web site.  Unfortunately I announced them four days before landing in the hospital for the first of three summer hospitalizations–of the sixty-two days comprising July and August this year, I spent thirty-one of them in one or another of three hospitals, putting a serious dent in my writing time.  I have not yet managed to refocus on those forums, for which I blame my own post-surgical life complications and those of my wife, who also spent a significant stretch of time hospitalized and in post-hospitalization rehabilitation, and in extended recovery.  Again I express my gratitude for the prayers and other support of those who brought us through these difficulties, which are hopefully nearing an end.

Which is to say, I expect to offer you more in the coming year.  The fourth novel is already being posted, and a fifth Multiverser novel is being written in collaboration with a promising young author.  There are a few time travel movies available on Netflix, which I hope to be able to analyze soon.  There are a stack of intriguing Supreme Court cases for which I am trying to await the resolutions.  Your continued support as readers–and as Patreon and PayPal.me contributors–will bring these to realization.

Thank you.

#214: New Jersey 2017 Election Results

This is mark Joseph “young” blog entry #214, on the subject of New Jersey 2017 Election Results.

The results are in, and there are perhaps no surprises, only disappointments.

We looked at the gubernatorial candidates last week.  Our new governor is Democrat Phil Murphy, former Golman Sachs investment banker and formerly National Finance Chair of the Democratic National Committee and United States Ambassador to Germany.  His running mate, Democratic Assemblywoman Sheila Oliver, is former Assembly Speaker.  The pair handily defeated Republicans Lieutenant Governor Kim Guadagno and Mayor Carlos Rendo, with 55% (1,065,706 votes) of the nearly two million votes cast, against 42% (811,446) for the Republicans.  New Jersey’s governor serves for four years, and can serve up to two consecutive terms.  Re-elections are perhaps the norm in the state, as everyone has heard the name of the governor.

The five third-party tickets each pulled less than one percent, with the leader, “Lower Property Taxes” party candidate former Long Hill Mayor Gina Genovese and running mate Derel Stroud leading with 9,830 votes, followed by Green Pastor Seth Kaper-Dale and Lisa Durden with 8,192, Libertarian Peter Rohrman and Karese Laguerre at 8,178, Constitution Party candidate Matt Riccardi with 5,614, and “We the People” candidates Vincent Ross and April Johnson with 4,252.

New Jersey voters almost always approve Public Questions, and did so again, with both the library bonds issue and the environmental lock box.

Looking at the State Senate, most but not all of the incumbents were re-elected.  In district 2, incumbent Democrat Colin Bell was defeated by Republican Chris Brown; in district 11, incumbent Republican Jennifer Beck was defeated by Democrat Vin Gopal.  Meanwhile, there were three districts in which incumbents did not run for re-election.  In district 13, previously held by Republican Joseph Kyrillos, Republican Declan O’Scanlon defeated Democrat Sean Byrnes.  In district 20, previously held by Democrat Raymond Lesniak, Democrat Joseph Cryan defeated Republican Ashraf Hanna.  There was a turnover in district 7, previously held by Republican Diane Allen, where Democrat Troy Singleton defeated Republican John Browne.

This increases the Democratic control of the State Senate by one seat (two votes), 25 to 15, but does not give them a “supermajority”.

Although as of this writing the two seats in district 8 are considered too close to call, it is clear that the Democrats have picked up at least two seats, at 54 (out of 80), while the Republicans are guaranteed at least 24.  Democrats in district 2 sent John Armato to replace Republican incumbent Chris Brown, who in turn defeated the Democratic incumbent to move to the Senate.  In district 13, where incumbent Declan O’Scanlon moved to the Senate, Republicans kept control of the seat with the election of Serena DiMaso.  Democrats picked up a seat in district 16, as Republican incumbent Jack Ciattarelli retired and was replaced by Democrat Roy Freiman.  Democrat Yvonne Lopez replaced her retiring Democratic colleague John Wisniewski in district 19.  In district 24, Republican Harold Wirths replaces his retiring Republican colleague Gail Phoebus.  Finally, in district 40 Republicans kept control of the seat, with Christopher DePhillips replacing a retiring David Russo.

In district 8, although it appears that incumbent Republican Joe Howarth has been re-elected (27,820 votes), and Republican Ryan Peters will probably replace his retiring Republican colleague Maria Rodriguez-Gregg (27,603 votes), Democratic candidates Joanne Schwartz (27,226) and Maryann Merlino (27,057) are close enough behind them that the race has not yet been officially decided.  If those results are certified, the Republicans will have 26 seats, a loss of 2 (4 votes) and less than a third of the Assembly, giving the Democrats a two-thirds supermajority in that house.

It is overall a dark day for Republicans, and a bright one for Democrats.