Terra Extraneus

The United States Court of Appeals for the DC Circuit held yesterday in an employment case that it is unconstitutional for the government to tax damages paid for damage to reputation by an employer. Murphy v. Internal Revenue Service (DC Cir 08/22/2006). Hat tip to Professor Ross at LawMemo.com.

There are other instances in employment law where the fangs of the tax vampire are blunted. 26 USCA §62(e)(18) expressly excludes attorney fees and costs from taxable income in many income recovery cases. I suspect many tax practitioners do not latch on to this because they have to scroll so far down to see the text, which reads: “Any provision of Federal, State, or local law, or common law claims permitted under Federal, State, or local law–(i) providing for the enforcement of civil rights, or (ii) regulating any aspect of the employment relationship, including claims for wages, compensation, or benefits, or prohibiting the discharge of an employee, the discrimination against an employee, or any other form of retaliation or reprisal against an employee for asserting rights or taking other actions permitted by law.” Paragraph (ii), “regulating any aspect of the employment relationship,” brings numerous statutes and common law claims within reach of this exclusion from taxable income.

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Unlike many of my family members, I cannot recite every word from every conversation I hear or every movie I see. Indeed, I find both skills annoying because verifying the asserted memory is often pointless or inconvenient. But, one line I remember from the movie version of the Fellowship of the Ring was when the rapidly aging hobbit Bilbo Baggins confides in his young friend and heir, Frodo Baggins, that he feels like “too little butter spread across too much bread.”

That seems to be a cause of the demise of many wonderful organizations. They lose focus to ego driven goal setting, they lose effectiveness by squandering the good will accumulated by years of toil and hardship, and in the end they continue as increasingly fainter, shallower, and quieter organizations until finally they are gone.

This seemed to happen in the 2000 elections when the mighty PAC (“political action committee”), Campaign for Working Families, founded by Gary L. Bauer, was turned over to a caretaker director while Bauer ran for the presidency. His stated goal was to inject the abortion debate into the political thought of the time, but his PAC had already been very successful raising funds, and in elections, that was enough to raise the issue.

During his campaign for the presidency, he tried to use the contributors and mailing lists of the PAC in his campaign. I remember telling one of the many staffers that telephoned me to obtain a contribution that Bauer needed to stand in line for PAC money like every other candidate. But, clever as I thought that was, the staffer did not understand what I meant. It was a short conversation. I lost all interest even before Bauer had to install a glass door on his office to ward off accusations of fraternization with one of this campaign staffers, because the PAC was no longer focused on its mission, and Bauer’s chances in the election were never credible. I have never again supported Bauer’s work.

The same thing seems to be happening to Jay Sekulow’s American Center for Law and Justice. Originally founded as a para-church ministry to act as a “Christian public interest” law firm, the organization seems to have tired of its focus on legal issues and is spreading shallowly like spilled water in all directions. One day the ACLJ is writing briefs, but the next it is circulating petitions to support Israel’s struggle to survive (which needs to be done but by somebody else with that focus), or issuing “news of the day” analyses about what is being taught by university professors (with a thin or non-existent explanation of the data used to found the conclusions reached). ACLJ’s website is becoming a cacophony of issues, many of which are not before any court, or not before any court in any case in which ACLJ appears to have entered an appearance.

Is Sekulow primping for a run for national office? That would be a shame. Continuing Legal Education authors and speakers often mention him when they are name dropping about cases involving constitutional questions relating to the Establishment Clause. But, will he forfeit that distinction and reputation and attempt to become recognized as a news commentator or even a foreign policy advisor? Is Sekulow’s ego forcing him to joust at windmills instead of slaying the dragons that hound Christians in school districts, counties and cities? Like Bauer, will he fail, or at least be set back, because he became too little spread too far?

My fear is that just as Bauer probably felt that his contribution to the national debate was growing too slowly or reaching too few people, causing him to imagine he could by the force of his personality influence a national presidential election, Sekulow may have conceded to himself that he can only take so much ground in the Establishment Clause and similar cases. From that conclusion, has he begun to cast about for new issues and new sources of support to propel himself to another “plane of existence?”

The work of the ACLJ is too valuable to abandon. Just as the impoverished must have the Legal Services Corporation (“legal aid”), Christians desperately need a similar organization on watch and on call. Most local churches simply do not have the resources, much less the expertise or will, to fight these critical trench warfare battles without the ACLJ. Bauer did not get it. His PAC was, and still could be, vital in the battle to keep the abortion debate alive so that it might reach a just conclusion. Even if Roe v. Wade was abandoned as national policy tomorrow, there would still be decades of legislative work and litigation to be done, but Bauer seemed to abandon it all in favor of his personal run for the presidency. If Sekulow makes similar poor choices, the ensuing loss of ACLJ will likely be a culture war disaster of the first magnitude resulting in the further erosion of freedoms for Christians.

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Lawyers are sometimes hypocrites. It would be okay for the board of the American Bar Association to spend lawyer and law firm dues on expensive meetings and meals but if the Legal Services Corporation, which in part survives on contributions from lawyers and in part on funds allocated by the Congress, serves something better than diet soda and Subway sandwiches at a board meeting, there are lawyers that will criticize the Legal Services Corporation, but not the ABA. The reason, of course, is that the LSC represents poor people and prejudice against the poor permeates the legal profession as it does most other layers of society.

The Legal Services Corporation, a governmental corporation which provides free legal services to the poor in the United States, was reported by CBS and AP as guilty of spending exorbitant amounts on meetings of its board of directors, exorbitant amounts on travel expenses for its officers, and abuse of expense accounts. My summary of the news allegations makes them sound more impressive than the allegations themselves actually were.

CBS and AP, on a slow news day, alleged they had a “whistleblower” that confirmed “tax dollars [were] used for questionable trips to foreign countries ….” Certainly, no Congressman has ever been accused or guilty of that! The LSC does attend an international conference on providing legal services to the poor every other year and has been doing so since 1994. Surely, a GAO audit would have discovered it at least once during the six prior trips during the prior twelve years.

CBS and AP alleged that officers of LSC were traveling in first class. That was true. It happened once in the last three years when on short notice Congress summoned an officer to testify. Are Congressmen unaware that if they summon an officer of a governmental agency on short notice that the only seat available might be in first class? Does the Congress allow people it summons to testify to fly stand by and forgive them if they are late or keep the Congressmen waiting?

CBS and AP alleged that LSC’S governing board, composed largely of lawyers, met in “resort spots like Puerto Rico ….” One board meeting was held there, but LSC is required to provide services there and the board tries to conduct its meetings where it is required to provide services, so eventually, the meeting would have to be conducted in Puerto Rico. LSC claimed it was the only board meeting ever held there, where LSC claims 45% of the population lives in poverty.

Each allegation was answered in similar fashion and can be reviewed completely here. The gist of the allegations was extravagance. Any expense that seemed to be more than diet soda and Subway sandwiches was extravagance. If the one tenth of one percent of LSC’s budget used on board meetings was so extravagant, why didn’t the ABA donate the price of one of its board meetings?

What amazed me was how quickly lawyer bloggers, see one here, picked up and endorsed the allegation without considering LSC’s response (it is not mentioned or linked in any of the posts I saw as of Friday night) or the extent to which the allegations by CBS and AP were clearly overstated and the actions of LSC condemned without comparison of those actions to objective criteria. The allegations were not compared to GAO audits or reports on LSC. Indeed, CBS and AP acted as if they were unfamiliar with governmental budgetary controls on the federal level.

Or, was it that they acted as if they did not care? Were they catering to the prejudice against the poor? Did the lawyer bloggers likewise react driven by prejudice?

Certainly, LSC is not perfect; what governmental unit of that size and complexity could be? If these allegations are the best the news media can come up with, then LSC is better run than many governmental agencies. If the response by lawyer bloggers cannot be better than traditional news media, then why are the lawyers reporting it? What are they adding to the discussion except a knee jerk reaction based on poverty prejudices? I do not know many lawyers that would donate their time to serve on a board that required travel and a serious time commitment that would not feel slighted if at least reasonable creature comforts were not provided.

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Since this post, the debate has continued on the blog sites linked above. One thing that colors my own view is my years of service on non-profit boards and public school boards of education. Adding all my years together, I have spent fifteen years on secular boards and about as many on church and ministry boards. I have served in one elected board position. I have served on as many as five boards simultaneously, all without compensation or without material compensation (one board provided a stipend for travel reimbursement) and I was out of pocket on all of them to one degree or another. I did not mind because I thought the mission or the ministry was worth it. I never received any business as a result of any engagement, wtih one minor but interesting exception. I cannot imagine being responsible as a board member for an organization as large or controversial as the LSC on such shoestrings as required by my board engagements. I am presently serving on no boards anywhere.

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What’s your favorite Oklahoma City area attraction, amusement, facility or feature? Good comments from Charles Hill (of Dustbury), Michael Bates (of Batesline) and Nita Cearley (a TerraX charter commenter). Read their comments here: “OKC’s Transformation Amazing” – and add your own comment about what OKC has to offer.

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The free expression of religious speech has received another setback from a Des Moines federal court when it squelched a Prison Fellowship program in a state prison. The decision is nonsensical; inmates who had no fear about breaking criminal laws would have no difficulty refusing to participate in a Prison Fellowship program.

The other side of the coin is “ecclesiastical privilege,” the body of law that prevents government and courts from intruding into church governance. Two recent court decisions demonstrate the breadth of the “flipside” of the Establishment Clause’s present abusive application. The “other side” of the Establishment Clause might even be a fair offset to decisions like the one in Des Moines. But is it?

In a case involving a United Methodist church, a case which can be read on the Oklahoma State Courts Network (at 2006 OK CIV APP 79), the defamation claim of the youth minister was dismissed under the doctrine. In a Texas case which also involved a Methodist church, the Third Circuit Texas appellate court also dismissed the defamation claim of a youth minister.

In the Oklahoma case, the senior minister told a member of the congregation, a young person, that the reason for the youth minister’s termination was because the youth minister was “questioning his sexuality.” The allegation was shocking, and the fact that a senior minister felt free to communicate it to a “young member,” as reported in the opinion, was equally shocking.

In the Texas case, the youth minister’s dating life was subjected to scrutiny, as well as accusations that he was putting his arm around some “girls” in the church. Apparently the rumors were sufficiently troubling that two more senior ministers were considering terminating him. One of the ministers took notes of the meeting between them, and the youth minister found the notes on the photocopy machine. Such a lapse, leaving the notes on the copy machine, also seems shocking and unprofessional. Like the Oklahoma court, the Texas court dismissed the defamation claim.

Other than a sad commentary on the lack of professionalism in the salaried clergy, and other than a sad commentary on the abrupt and callous handling of youth ministers, which are typically younger, less experienced, and new to ministry, both churches and their ministers had free reign without civil law accountability. Maybe this is as it should be in churches, in order to fully effectuate the Establishment Clause. Most business people would like to have the same shield.

These published appellate opinions have shed some light on personnel problems that churches should address differently, and probably with greater professionalism as well as more compassion. Also, in both instances, there was the availability of denominational resources, some of which should be devoted to Human Resources management and training.

The “right” of the matter cannot be determined in either case merely from the appellate opinions, but what is clear is that enormous resources in legal fees were probably wasted by both sides, tithed resources, no doubt, that could have been better spent solving the problems. If someone is indeed not cut out for the ministry, the amount spent in legal fees would still have been less than severance or retraining resources for youth ministers unready or unqualified for the mission.

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The Oklahoma Court of Civil Appeals in Thompson v. Krantz (2006 OK CIV APP 60, at www.oscn.net, Slip Op., May 9, 2006, J. Reif), recently affirmed the decision of a trial court that may have recognized, at least sub silento, that Internet research may be just as persuasive to jurors as news media were once presumed to be.

The juror in question researched the medical questions presented in a case she was hearing and reported some of her findings to other members of the jury panel. The plaintiff won a verdict at trial, but after the trial, discussion among jurors about the Internet research became known, and the defendant sought and received a new trial. The plaintiff could not prove to the appellate court “beyond all reasonable doubt” that the trial court’s decision to grant a new trial was an abuse of discretion, so the order vacating the jury verdict was affirmed.

During my legal career, jurors were not allowed to take notes of proceedings, but that rule has mostly gone by the wayside (although some judges will not allow jurors to take their notes into deliberations). So it is important to note that in this case, the appellate court carefully looked at the potential impact the orally reported Internet research had on jury deliberations before it affirmed the trial court’s decision to treat it as significant in deliberations.

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Tulsan Michael Bates (of Batesline) took his 10-year-old son on a short vacation trip to — Oklahoma City. Highlight of the trip was a day at Frontier City. Despite living in Oklahoma for decades, Bates had never been. Bates says they had a great time — even in 104 degree heat. If you have a kid or grandkid, you might be interested in Bates’ account of their Frontier adventure.

Michael, I hope you and your son can come back soon to see more of what Oklahoma City has to offer. Oklahoma City’s transformation from boring cow town to regional vacation destination is amazing. Bricktown is more fun when it’s not so hot. Come on a day when the Redhawks are in town so you can visit one of the best minor league ballparks in the nation. The National Memorial and adjacent museum is a must see. The zoo is excellent. It’s fun to walk or bike the perimeter of Lake Hefner. There are several excellent museums. A few minutes in one of the Mexican grocery stores on SW 29th is an interesting experience.

OKC residents — what attractions am I leaving off the list?

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UPDATE: Just came across another blogger on the TerraX blogroll who has visited OKC recently. My old friend David Fish, a professor at Ozark Christian College in Joplin, MO, who writes Random Thoughts From a Fish, passed through OKC recently. He and his family spent some time in Bricktown and visited the Memorial.

I live just about 4 hours away, but I had never visited. As I walked onto the grounds, where the Oklahoma City bombing took place…I was deeply moved. As I began to look at the names engraved on wall displays, my eyes teared up. Generally I can rein my emotions in fairly well, but I was overcome with extreme sadness.

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Two “college students” broke NCAA and University rules and were “dismissed” from the football team of the University of Oklahoma this week. The state and local media have been overrun with stories about it and from the drying ink you would think a crisis of devastating consequences had been addressed.

Because I did not attend either OU or OSU, although I paid for someone else to obtain a degree from OU and I am paying for someone else to do the same at OSU, I have never been able to comprehend fully the emotions that seem to attach to these local teams. However, some of the most ardent fans, and sometimes the most annoying, also did not attend either school. Confront one of these fans about the reason(s) for their loyalty or fervor with great trepidation. I have theorized that some of this emotion is somehow linked to state pride rather than school pride. But, in any case, it is a great mystery.

Given the amount of money OU and OSU consume, the return on investment has been less than one might reasonably have expected. Given the economies of scale businesses, governments and the military have been able to achieve in Oklahoma through lower operating costs due to cheaper land, water, energy and labor, OU and OSU should have accomplished more than just a football heritage.

Neither OU nor OSU has ever won a national debate championship. Academic competition teams and research writing competitions are either not reported or are not being won. In either event, expectations should be high given the economics possible in Oklahoma and given their budgets. Oklahoma’s smaller regional universities have managed to be successful in these areas, and they assuredly have less budgetal depth than OU and OSU.

Thus, while the new scars on Oklahoma’s football powers will likely heal, and fans will likely be faithful in that eternal mantra of all sports fans, that next year will be the year, one has to wonder if it should ever be so for schools? Rather than ever and only worrying about whether a football player might succumb to temptation and sink the team or the program, should not, in the media and the public mind, these two schools be required to justify their budgets and their preeminence academically? Should not this justification be required often rather than only as an after thought?

I did not attend any of Oklahoma’s private universities, so there may be a rational limit to the theory, but should not anything non-academic achievable by private universities, including training NFL recruits, be left to them and the taxpayers relieved of the duty? I am not suggesting that sports programs are not legitimate educational program, indeed, to the contrary, we probably need them now more than in the past. But, we do not need government funded universities to compete for television contracts by recruiting football players rather than students.

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Wanna be more popular? It’s easy. Surf over to Popularity Dialer and sign up for a free call. You pick the date and time – like when you’re going to be at a party, elbow-to-elbow with people who will be really impressed that you actually got a call. At the specified time, your phone rings with a taped dialog. You ad lib your half of the conversation and Voila! You’re popular!

This is a joke, right? Not exactly. Popularity Dialer is a real deal. It is the project of two students at New York University’s ITP. ITP? Interactive Telecommunications Program. Am I going too fast? You didn’t even know there was a field of study called “interactive telecommunications?” From ITP’s website:

ITP is different. More than just a graduate school, ITP is a creative ecosystem - a living and interdependent flow of people, projects, ideas and applications all dedicated to exploring and expanding the ability of real people to use media to connect to one another and influence the world around them.

NYU-ITP offers classes on such subjects as “Rapid Protyping for Social Software,” “Social Weather,” “Interactive 3D and Virtual Spaces,” “Internet Civilization,” and “Cellphonia.” You know, a couple of those classes actually sound pretty interesting. I wanna play. Guess you could say ITP is the intersection of geekdom and cool.

But I’m not so sure about Popularity Dialer. Looks to me like most people’s phones already ring enough. It never occurred to me that a ringing phone indicates popularity. When I see/hear somebody’s cell phone ring, my thoughts run to:
* Does the spouse keep you on a pretty short lease?
* Are you a sales profession?
* Time to pay your cell phone bill, huh?
* Could you possibly have chosen a more annoying ring tone?

One thought that never crossed my mind is, “Gee, you sure are popular!” Guess that’s the difference between my 50-ish perspective and that of two kids at NYU.

(Hat Tip: Lifehacker)

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Charles Hill at Dustbury does the math to establish that it cost him 59 cents/mile to drive a new car for six years. (Dustbury fans know that Hill recently said a tearful goodbye to his old car, after an auto-deer highway collision, and is now tooling around town in a newer model).

Hill’s calculations are based on his expenses from 2000-2006, during which he estimated that gasoline cost an average of $2/gallon, and he got 24 miles/gallon. Today, of course, gasoline is right around $3/gallon. So that’s going to up the ante even more, right? Well, actually, in Hill’s formula, the extra dollar per gallon would increase his cost only 4 cents/mile. That’s based on about 9300 miles/year.

One conclusion from above: The higher cost of gas is not as big a deal in the whole scheme of things as it may seem. Most of our driving expense is tied up in the cost of the car. Here’s how it breaks down in Hill’s numbers: 52%: automobile, 22%: insurance, 14%: gasoline, 12%: tax, tag, repairs, miscellaneous.

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