Amendments, Canaries, Coal Mines

The Scene from Whitewater, Wisconsin

                    Embed from Getty Images

I wrote yesterday about two proposed amendments to Whitewater’s Landmarks Commission ordinances (Items O-1 and O-2 on the 10.3.17 Council agenda). See Amendments Concerning the Landmarks Commission. Last night, Council unanimously passed O-1, and amendment O-2 died for lack of a second vote to move consideration of it.

A few quick points about all this – and what it likely says about more serious matters.

1. Contentious, Not Dangerous. The most important point about the proceedings last night is that they may have been the consequence of disputes and contentions over a challenge to the Landmarks Commission’s authority, but there was nothing of danger in any of this. These were not matters of public safety, where lives and property might be immediately and grievously threatened.

That’s why it made sense to let the matter unspool on its own, ending yesterday’s post on the subject with ‘We’ll see.’ Nothing was at risk by waiting and watching without further comment. Indeed, one sometimes observes the course of an event for months before writing on it.

2. A Preference Against Change. All considered – all meaning events both near and far – I wouldn’t have proposed any changes to these existing ordinances. There are ordinances and policies in Whitewater I’d like to see changed; the existing Landmarks provisions of our municipal code would not have been among them.

3. A Protest. This may not have been my cause, so to speak, but it’s encouraging to see a pre-meeting protest before City Hall. Old Whitewater (a state of mind, rather than a person or chronological age) has for years expected a heads-down-eyes-averted approach to town notables’ ideas and actions. There’s never been a reason for that in an American town, that don’t-you-know-who-I-am expectation of self-declared leading figures. (No one should yield to imposed expectations like that.)

Residents in Whitewater can protest without the sky falling. Actually, they just did, last night.

4. Sharp Residents, All Around Us. Whitewater’s filled with sharp people. All communities are — society wouldn’t be able to function without large majorities of capable people performing myriad challenging tasks each day. Critiques are seldom if ever about intelligence (it’s not in question); critiques are typically over perspective, over ways of learning to see things.

5. Item O-1. Item O-1 was the more interesting, although the less contentious, of the two proposed amendments. Consider Section 1 of the amendment:

SECTION 1. Whitewater Municipal Code Chapter 17.12, Designation of Landmarks,
Landmark Sites and Historic Districts is hereby amended as follows:
Sub-Section 17.12.040 (e) is created to read:

Before the Landmarks Commission explores a city owned property as a
potential landmark, the Commission shall notify the City Manager with a
notice of intent….

There one finds a simple error of drafting, that might easily have been avoided, and if avoided, would have produced a far better amendment.

“Before the Landmarks Commission explores….” The obvious point is that explores is so nebulous and susceptible of multiple meanings that it’s too vague to be in a properly worded ordinance. Indeed, explores is nowhere present in Whitewater’s Municipal Code, not once in usage, let alone as a definition.

One knows what it means to explore (Roald Amundsen reaching the South Pole comes to mind), but that definition of exploration is inapplicable here. Does explore mean first to think about the matter, to raise the subject, first to debate it as a commission, first to vote on it, etc.? One sees the point: explores cannot mean never consider – because if one does not consider at all, how is one to contemplate what might be a desirable proposal for the commission?

An ordinance isn’t merely for the moment, but for years yet to come, when those now part of a present question or controversy have long passed from the political scene. The ordinance has to be clear for them, too. Explores doesn’t offer the clear definition that an ordinance needs to be enduringly useful.

Note what this means: a clear definition is in everyone’s interest, to prevent future uncertainty and disputes that would arise from it.

6. An Easy Fix. Instead of explores, one would set the trigger of notifying Council to a specific, concrete event: before the commission votes on any proposal, after a single meeting’s discussion but before any other action, etc. There are many possibilities that would make the ordinance clearer, and so more useful to avoid disputes now and in the future (when new members have to look at these provisions with fresh eyes).

7. Why Someone Writes This Way. Someone writes this way (using explores) to come to a consensus between parties in the present – to find language that satisfies them. That’s the important work of conflict resolution, to be sure. It’s not an easy task – it is an admirable one. One could easily list city officials who would be skilled at conflict resolution. That contention isn’t meant as a backhanded compliment – it’s acknowledge meant to a vital skill.

It’s just that – as with so many divisions of labor – it’s not the only skill that matters. Someone else on council or in the local government, not part of a conflict-resolution outreach, should have been able to see that the ordinance needed improvement, to make it an even better expression of the parties’ and city’s interests.

Perhaps there was a concern that, having reached a solution, it was risky to offer further suggestions that might upset that immediate solution. That’s too cautious – having gone so far, one could have gone a bit farther (and done even better) by showing what good drafting can do.

8. Canaries, Coal Mines. So why a picture of a canary in a coal mine? Because after this present dispute fades, there will still be a need in this community for public and private institutions to develop a stronger grasp of risk and opportunities under the law. City, school district, university – this community doesn’t have a professional class that inculcates in its members an correct understanding of what’s possible and what’s not.

Like the ACLU (of which I am a member), this libertarian has no interest in representing government’s interests. (Government is the one client the ACLU never represents.) There are many people in the city who can care for government’s interests ably, if only they’d broaden their perspective, beyond the immediate and transitory.

There are many reasons for this lacking: a smaller number of transactions in a small town, a small professional class (of any profession), a distance from a plaintiff’s bar that would otherwise be noticing events even more closely (than a few ADA deficiencies) on which to litigate, etc.

Draft amendment O-1 is a like a sentinel species, a canary in a coal mine. Its condition – its quality of drafting, in this case – tells something worrying about what may lie ahead, if one looks farther, and deeper, into the workings of the community’s principal public institutions.

As one would always prefer sound workings over unsound ones, there’s reason for concern.

Amendments Concerning the Landmarks Commission

The Scene from Whitewater, Wisconsin Even during the most difficult national conditions, there are likely to be local conflicts. A dispute in Whitewater over the powers of the city’s Landmarks Commission is one such conflict: a purely local matter. Proposed changes to Whitewater’s Municipal Code, Title 17, Landmarks Commission, are before Common Council tonight. See Whitewater, Wisconsin, Municipal Code § 17.04.010 et seq.

There are two proposed changes to the existing ordinances – both draft amendments are embedded below, at the end of this post. News of opposition to these changes reached me last week, along with information on a rally at City Hall (to be held immediately before tonight’s council session). One can easily guess that I’m not part of the groups either favoring or opposing these changes.

I am curious about the amendments, however, and I do find coverage of them interesting.

There are two amendments, not one. While a local politician’s website lists opposition to one of the amendments (Agenda Item O-2: “Ordinance Amending Chapter 17.12.040 to create section authorizing the Common Council authority to rescind Landmarks designations for City of Whitewater owned Landmarks (Councilmember Grady Request)”) it omits discussion of another amendment entirely (Agenda Item O-1: “Ordinance Amending Chapter 17.12.040 to add requirement for advance Common Council review of proposed Landmark Designation for Property owned by City of Whitewater. (Councilmember Grady Request).”

That’s curious, because while there may be policy arguments for or against either amendment, the ordinance draft for Agenda Item O-1 raises not only policy questions, but to be blunt, questions of basic legal drafting.

Indeed, if the longstanding members of the Whitewater Common Council cannot spot the obvious defect in the Agenda Item O-1 amendment, then failure to do so calls into question what years on the Whitewater Common Council might teach, if anything.

In this way, an unexpected controversy over Whitewater’s Landmarks Commission may yet tell residents something about the quality of local governance.

We’ll see.

Proposed amendments following — 

Download (PDF, 90KB)

One City, Two Presentations of the Same Regulation

local scene Small towns are meant to be (or at least are depicted in Hollywood as) simple, unassuming places. That’s not always true, to be sure — the same information can be presented in more than one way. There’s a place for look and feel, for style and manner, for how a town presents itself to its own residents and the world beyond.

No better illustration of the difference between Old and New Whitewater (states of mind, not ages or individuals) is found than in how the City of Whitewater and the Banner, a politician-publisher’s website, present information on a regulation against temporary signs. (Quick note: here I’m addressing style of presentation, not the underlying merit or stated motivations for the regulation.)

Each image expands into a larger window when clicked

Here’s how the municipal government presented a sign regulation on its website:

Here’s how the longtime politician’s website presented the city’s sign regulation:

These aren’t, to be sure, the same message, and illustrate the way that presentation changes meaning. Style affects communication: go, Go, GO, GO, and GO convey different meanings.

Indeed, there’s a way in which the older style leaves in doubt the success of the city’s efforts to project a more modern, business-standard presentation.

Lindsey Graham and Jennifer Rubin are Right About Healthcare

There’s a difference between disliking – strongly – a federal intrusion into the marketplace like the Patient Protection and Affordable Care Act and the policy & politics of a replacement (if any).

Republican Sen. Lindsey Graham outlines the policy problem with changes to the ACA:

“Once you say that everybody should be covered, can’t be denied coverage because they are sick – which most Americans would agree with that – you put yourself in a box. Insurance is about young people who are healthy buying insurance like you all to pay for me and him,” Sen. Lindsey Graham (R-SC) said, pointing to the oldest reporter in the scrum. “If you don’t have to buy insurance until you get sick, most people won’t. That’s where the mandate becomes important.”

Graham added: “Somebody’s got to work through this problem. If we’re going to accept the proposition that you can never be denied coverage because you’ve been sick, then somebody’s got to create a system where people participate.”

The political problem is on conservative Jennifer Rubin’s mind:

If the GOP votes to end Obamacare with no concrete plan in place, it will freak out millions of people, the very working-class voters who chose President-elect Donald Trump, and hand the Democrats the perfect vehicle for regaining majorities. Indeed, it is remarkable that Hillary Clinton did not tell voters over and over again — in response to Trump’s “What do you have to lose?” argument — that one thing they risked losing was health care.

For many Republicans, the Republican House and Senate majorities’ failure to pass a comprehensive alternative to Obamacare was a never-ending source of frustration. In truth, that alternative, as a political matter, is rather difficult to achieve.

That doesn’t mean that the ACA shouldn’t be changed, or replaced. It means that for those who voted for repeal but also want key provisions of the law to continue, there’s either going to be a sacrifice of some of their desires or a lot of creative work to be done.  Promising an easy repeal and an acceptable replacement was easy only in the promising; there’s no legislative solution that won’t disappoint many.

For a look at some solutions (although ones that neither conservatives nor liberals may ever accept), see Replacing Obamacare: The Cato Institute on Health Care Reform (2012) and Cato’s more recent writings on the subject.

It has been easier to turn away from the marketplace for Democrats (2010) and Republicans (now) than it has been to find a legislative plan that won’t upset millions of people whose expectations are very high.

Institute for Justice Fights Anti-Competitive Ban on Baked Goods

Wisconsin is lousy with anti-competitive statutes, designed to protect incumbents from free-market competition. One would prefer that private parties did not have to file lawsuits to protect their economic rights.  Unfortunately, some laws (and some official actions) compel private citizens to seek redress from the courts to protect their liberties.  Fortunately, the Institute for Justice is willing to file suit to make Wisconsin’s markets a bit freer:

Anyone with an oven and a recipe should be able to have a baking business—but that is not the case in Wisconsin, where selling baked goods made in your home kitchen is punishable by up to $1,000 in fines or six months in jail. Wisconsin is one of only two states (the other being New Jersey) to ban the sale of home-baked goods.

Wisconsin’s home-baked-good ban has nothing to do with safety. The state bans home bakers from selling even food the government deems to be “not potentially hazardous” such as cookies, muffins and breads. The state also allows the sale of homemade foods like raw apple cider, maple syrup and popcorn, as well as canned goods such as jams and pickles. In addition, the state allows nonprofit organizations to sell any type of homemade food goods at events up to 12 days a year.

The ban is purely political. Commercial food producers like the Wisconsin Bakers Association are lobbying against a “Cookie Bill”—which would allow the limited sale of home baked goods—in order to protect themselves from competition. Assembly Speaker Robin Vos, who owns his own commercial food business, even refused to allow the Assembly to vote on a Cookie Bill last session, despite bipartisan support.

That’s why on January 13, 2016, three Wisconsin farmers joined with the Institute for Justice in filing a constitutional lawsuit in state court against Wisconsin’s State Department of Agriculture. The lawsuit will ask the court to strike down this arbitrary home-baked-good ban and allow home bakers to sell home-baked goods—like muffins, cookies and breads—directly to their friends, neighbors and other consumers.

Via Wisconsin Baked Goods Ban: Wisconsin Farmers Challenge State Ban on Selling Home-Baked Goods @ Institute for Justice.

See, also, a copy of the plaintiffs’ complaint, embedded below:

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SUNY Stony Brook Failed Sarah Tubbs


Video Link: Sarah Tubbs of Montrose talks about her ordeal after she says she was sexually assaulted at Stony Brook University, and then forced to prosecute her own attacker. Updated with video as link, 3.4.15.

Sarah Tubbs attended (and was graduated from) SUNY Stony Brook, part of New York’s state university system. It’s part of a public university system not unlike the UW System. (Commonly called just ‘Stony Book,’ the school is about twice as large as UW-Whitewater, but similar in many other respects.)

When Ms. Tubbs sought recourse under federal law after being sexually assaulted, she found that Stony Brook met her rights with an inadequate – indeed a perverse – remedy:

She’s had nightmares, flashbacks and panic attacks since being sexually assaulted last year at Stony Brook University.

Yet when Sarah Tubbs sought the university’s help to proceed with disciplinary charges against her alleged attacker, officials required her to personally prosecute him, she said. Tubbs has no legal training. Yet she had to question and be cross-examined by the man she claims sexually assaulted her in his dorm room.

Tubbs, 22, of Montrose, is suing Stony Brook, which is part of the State University of New York system, and her alleged attacker in violation of Title IX, the federal law that prohibits discrimination on the basis of gender at schools that receive federal funding. Under the law, such discrimination can include sexual harassment, rape and sexual assault.

Her lawsuit, filed last month in federal court in White Plains, seeks monetary damages and a court order abolishing the practice of having sexual-assault victims “prosecute their own cases and to cross-examine and be cross-examined by their assailants.”

The alleged attack occurred nearly a year before State University of New York campuses adopted a more comprehensive sexual assault policy in December 2014 at the urging of Gov. Andrew Cuomo. Tubbs wants the new policy broadened to specifically prohibit victims from having to prosecute their own attackers at student disciplinary hearings.

See, SUNY grad says school made her prosecute her own sex attacker @ Gannett’s Lower Hudson website.

When Ms. Tubbs submitted to a university hearing as was her right, that hearing did not even consider adequately – in a case about sexual assault – whether she had given consent:

Tubbs was granted an appeal by the university in August, based on a finding that the disciplinary board didn’t properly consider the definition of consent to weigh whether the sex was consensual.

A university official, Jay Souza, wrote in a letter to Tubbs that “he found no evidence that the Hearing Board considered the definition of consent” as spelled out in the university’s student conduct code or applied that definition to “the facts of this case,” the lawsuit says.

Souza said in the letter that Tubbs would be contacted by the university about the next steps, but Tubbs said she hasn’t heard anything, despite her own efforts to reach school officials….

There Sarah Tubbs found herself at a campus hearing – entitled by federal and state law, but by her university denied representation, and afforded a process so paltry that officials did not consider something as fundamental as lack of consent.

Sarah Tubbs has now filed a federal lawsuit against Stony Brook, but the school she attended – as a citizen with rights under state and federal law – compounded an assault with institutional indifference and further harm. For it all, she’s still resolute:

“I don’t think it’s the rape that makes the person a victim,” said Tubbs. “I think it’s the systemic failure that makes someone from a survivor to a victim. … I can honestly say I won’t stop fighting until those systems change.”

Because, you know, it’s government’s job to manipulate results among private businesses

The presumptions of a local government pol:

This ordinance has been an attempt to require the food trucks to put some skin in the game,” [Fort Atkinson city councilmember] Lescohier said. “That skin is through a fee structure, through an appropriate place for them to operate and to control the noise. Right now if you have a food truck, the deck is stacked in your favor to operate in Fort Atkinson. It is inexpensive and you have your pick of the location.”

‘Skin in the game,’ as though it were his place to decide what this commitment means. (This has become a common – but already tired – demand of some conservatives, among others. They want to collect additional fees from the poor, new businesses, etc., on the theory that this shows those businesses’ commitments.  All it really does is enrich the state, at the expense of some businesses and of consumer choice.)  

Now I’m a resident of Whitewater, not Fort Atkinson, so my concern is a secondary one: that ideas like these don’t damage our marketplace as it will theirs.  That a politician is a voice for incumbents to the detriment of others in Fort Atkinson is not my concern; that Whitewater needn’t make this same mistake is my concern. 

I’d suggest that there are arguments against these restrictions from economics, consumer choice, and economic liberty (as a legal argument). 

Resting on a foundation of those arguments would be the opportunity for a press-focused campaign against these restrictions.  (This is proof that a politician can have a background in politics and the press, but still an approach on this issue that’s pinched and small.) 

It’s easy for a councilmember to pick on a few working people, and rely on a sycophantic local press, but he’d look different if one expanded the focus farther afield. Campaigns against food truck restrictions are often successful, and cause regulators to look foolish in the eyes of a more sophisticated, cosmopolitan audience. 

But Fort Atkinson is not Whitewater, and my interest here is merely as an observer (with an eye to my own city’s policies, not another town’s bad choices).  Their mistakes will only make Whitewater more competitive by contrast.

If this were happening in Whitewater, I would have different feelings. 

Beyond all that, truly, there are other concerns in Whitewater that are both near at hand and of greater scope. 

Last Night’s Zoning Rewrite Meeting (Residential Sections)

Beginning at 7 PM last night, after an immediately prior Planning Commission meeting, Common Council and the Planning Commission held a joint public hearing to consider proposed changes to Whitewater’s residential zoning code.  

The meeting lasted until about ten, with further consideration of the changes scheduled for Tuesday, March 18th.  

A few remarks, below, on last night’s meeting.  

A well-organized, public process.  Tuesday’s meeting was well-organized, orderly, civil, and transparent.  That’s true of this entire process of rezoning: it’s been publicly announced, commented on, and advanced over a multi-year period in a transparent way.  

It’s simply false to imply (as did the Banner‘s publisher on Monday) that this has been a process-deficient effort.  Nothing’s been hidden, nothing’s been rushed.   

A process like this is proof that Whitewater can deliberate over contentious issues thoroughly and civilly.

Unfounded pre-hearing worries over students at the public hearing.  One sometimes reads, but more often hears, all sorts of narrow, provincial fear about students or student housing.  Among those concerns, consider this absurd gem, again from the Banner:

….In addition the Whitewater Student Government (WSG) Senators evidently have been invited to this meeting – From WSG Facebook “We will have a special meeting tomorrow at 6:30 p.m. Afterwards every senator and board member will head downtown to City Hall for the Whitewater Zoning Rewrite meeting at about 7 p.m. We want to ensure Whitewater students are represented”….

Got that?  Someone invited the Visigoths inside Rome’s city walls.  Oh dearie me, there goes the empire… 

These remarks are both condescending and unbecoming of a free place.

First, they assume that representatives of student government needed to be invited, as though they were incapable of reading the City of Whitewater’s website and following developments in the city in which they reside on their own initiative.  

(It’s even stranger that those who have earned a salary at UW-Whitewater think so little of the students who attend, and who are, after all, the means of their very sustenance.)

Second – and more significantly —  those who reside in the city have a right under law to attend a municipal public meeting.  They don’t need an invitation – the failure to provide one cannot serve as a basis for exclusion from a public meeting.  

Attendance is a right, and it matters not in the least what a local publisher thinks or frets about the matter.  

A sensible decision to continue the meeting.  It was a long night, because many exercised their right to speak, and then participants reviewed methodically the contents of the proposed changes.  Continuing the remainder of the review again soon is a practical decision.   

It’s contradictory to complain (erroneously) that this process has been a closed one and then whine that the open meetings involved are taking too long.  

Understanding the consequences of market changes.  Some of those who spoke last night recognized that although they would have preferred more single family homes in their neighborhoods, market changes in those areas now mean that it’s economically advantageous to sell their homes as apartment residences.  

That’s rational, and follows a similar pattern on Tratt Street.  

Parties favoring restrictive zoning overlays.  I’m strongly opposed to allowing those not advocating restrictions for their own neighborhoods to impose restrictions on others’ neighborhoods.  Property owners in a neighborhood should be the ones to propose encumbering their properties and others’ homes – petitions should not come from the city manager, politicians in town, etc., not feeling the weight of those restrictions themselves (there and then, in that petition).

The Right’s problem in Whitewater  I’m a libertarian, and so neither Republican nor Democrat, neither of the Left nor Right.  

Although the Right in Whitewater hasn’t asked, I’ll offer them some sincere advice: you’re going to need a new generation of local voices on the Web, because your current right-of-center publication just can’t carry a political argument well, in either reasoning or composition.  

Whitewater will always do better with many rather than few.  I have always hoped for, and believed in, a city of many diverse opinions.  

It doesn’t matter that they’ll differ from mine – it matters first that people may express themselves, and second that by doing so they’ll enrich the city.  

Whitewater is not one thing, it’s many things.  

I find the idea of trying to sum the city into one number sometimes rigid, often silly, and always unworthy of an American marketplace of ideas.  

Still, conservatives, on politics you very much need new standard-bearers in the city.  You and others will both be better for it.  

But of last night’s meeting – well done, I’d say.  

The Leaves on the Streets PSA

Whitewater has a public service announcement about leaf collection, to remind residents not to sweep their leaves into the street.  

It’s a short, clever video.  It does government a lot of good to remind someone of a policy without doing it in a heavy-handed way, but with a more light-hearted approach.

This does the trick nicely.      

Leaves On The Streets? No! – PSA from Whitewater Community TV on Vimeo.

Why Plan?

All people make plans for the future, even if that should be no farther ahead than for later the same day.

Why specifically, though, should government plan?  Every city has plans for development, plans for budgeting, and many (as we do in Whitewater) have a public commission with lawful authority to approve or reject certain private construction or mercantile proposals.  

Whitewater’s Planning Commission, I think, has a choice before it: will you establish fair rules by which private parties can engage in entrepreneurial activity, or will you pick and choose who succeeds and fails, at the outset?  

It’s the oft-repeated distinction between planning for others to compete and planning to control competition.  Watching Whitewater’s Planning Commission, it’s clear that some commissioners would like merely to establish fair rules, and others feel a right to engineer specific results, including preventing entrepreneurs from building and creating in response to consumer demand.

Commissioners who feel they have a right to stop projects based on their personal preferences, or even the authority to stop projects because as appointees they may decide the destiny of others rather than allowing consumers to decide for themselves, overstep legitimate, responsible authority.

Hayek, among so many others since, saw the difference between government planning to facilitate any number of private, voluntary possibilities and planning of a few to compel particular outcomes.  Here, from his Road to Serfdom, are succinct expressions of his views:

“PLANNING” owes its popularity largely to the fact that everybody desires, of course, that we should handle our common problems with as much foresight as possible. The dispute between the modern planners and the liberals is not on whether we ought to employ systematic thinking in planning our affairs. It is a dispute about what is the best way of so doing. The question is whether we should create conditions under which the knowledge and initiative of individuals are given the best scope so that they can plan most successfully; or whether we should direct and organize all economic activities according to a “blue-print,” that is, “consciously direct the resources of society to conform to the planners’ particular views of who should have what.

One might describe this as a case for limited planning, and for expansive private activity.  Hayek draws this distinction:  

It is important not to confuse opposition against the latter kind of planning [of state-mandated outcomes] with a dogmatic laissez faire attitude.

The liberal argument does not advocate leaving things just as they are; it favors making the best possible use of the forces of competition as a means of coordinating human efforts. It is based on the conviction that, where effective competition can be created, it is a better way of guiding individual efforts than any other. It emphasizes that in order to make competition work beneficially a carefully thought-out legal framework is required, and that neither the past nor the existing legal rules are free from grave defects.

Liberalism is opposed, however, to supplanting competition by inferior methods of guiding economic activity. And it regards competition as superior not only because in most circumstances it is the most efficient method known but because it is the only method which does not require the coercive or arbitrary intervention of authority.

The case for a liberal, private order rests on arguments of efficiency and morality.  

Conditions are better, in both ways, when one is free.  

Whitewater will be more prosperous when planning returns to its proper, limited, responsible role. We’ll not have broad-based growth – we’ll not be both hipper and more prosperous – until then.  

Many can achieve here, but only under conditions of political and regulatory restraint.  

Update: Victory for the Entrepreneurial Monks of Saint Joseph Abbey in Louisiana

Over three years ago, I posted about Louisiana’s attempt to prevent the monks of Saint Joseph Abbey from making and selling handmade caskets.  Their products were of fine craftsmanship and durability, and so sought-after. Despite the quality of their work, Louisiana insisted that only a state-licensed funeral director could sell caskets, and that it was a crime for the monks to do so.

This year, a federal appellate court (the Fifth Circuit) overturned Louisiana’s regulatory requirement, and now the United States Supreme Court has declined to hear an appeal from Louisiana.  This assures that the lower court decision will stand, and so the abbey has, at last, its long-sought vindication. 

See, from 2010, Institute for Justice: Free the Monks and Free Enterprise.

(Licensing requirements like this have the obvious consequence of protecting incumbent manufacturers or sellers from competitors who, despite the quality of their products, find themselves denied licenses or burdened with heavy regulatory fees.)

I’ve republished a video from the Institute for Justice, a non-profit law firm that represented the monks, and also the IJ’s latest press release about their win.

A case like this isn’t just important for Louisiana, or Saint Joseph Abbey, or the abbey’s customers.  It’s encouraging for small and independent artisans from one side of the country to another, who’d like a chance to offer good and valued products to willing, satisfied purchasers. 

Press release, 10.15.13:

Arlington, Va.—Today, the Benedictine monks of Saint Joseph Abbey won the final battle of their five-year confrontation with the State of Louisiana when the U.S. Supreme Court rejected the petition of the Louisiana State Board of Embalmers and Funeral Directors seeking to overturn the brothers’ landmark constitutional victory.  In March, the 5th U.S. Circuit Court of Appeals struck down Louisiana’s law requiring a funeral director’s license to sell a casket, affirming the constitutional right to earn an honest living without unreasonable government interference.

This case arose when the brothers of Saint Joseph Abbey, a century-old Benedictine monastery in Covington, La., began to sell their handmade caskets in late 2007 to support the monks’ educational and healthcare expenses.  The Louisiana State Board of Embalmers and Funeral Directors moved to shut down the fledgling business before it sold even one casket because it was a crime in Louisiana for anyone but a government-licensed funeral director to sell caskets to the public.  The monks brought suit in federal court on the ground that this arbitrary restriction served no legitimate public purpose and existed only to funnel money to the funeral-director cartel. 

“The U.S. Supreme Court’s denial of review puts the final nail in the coffin for the state board’s protectionist and outrageous campaign against the monks,” said Institute for Justice Senior Attorney Scott Bullock.  “The Abbey’s victory in this case will not only protect their right to sell caskets, but the rights of entrepreneurs throughout the country.” 

The monks’ victory is one of only a handful of cases since the 1930s in which federal courts have enforced the constitutional right to economic liberty. 

Abbot Justin Brown, who heads the monastic community said, “Today is a good day for us at the Abbey.  Knowing that not only has our economic liberty been protected forever, but that we also helped secure the same rights for others makes this years-long battle worth it.”  

“Back in March, the 5th Circuit rejected economic protectionism as a legitimate state interest,” explained Jeff Rowes, an IJ senior attorney.  “With the Supreme Court’s denial of the funeral board’s appeal, the 5th Circuit’s ruling becomes final.”

“The government cannot require individuals to go through onerous licensing requirements just to sell a box,” said IJ Attorney Darpana Sheth.  “This victory opens the door to strike down other irrational licensing restrictions that really serve to protect industry insiders.”

“Arbitrary licensing laws crush the dreams of countless aspiring entrepreneurs across the nation,” said Institute President and General Counsel William Mellor.  “This precedent gives them hope that the day will soon come when government no longer stands in the way of honest enterprise.”

Read the Fifth Circuit Decision:

The End of the Beginning

After a British victory at the Second Battle of El Alamein, Churchill famously observed of the war in November 1942 that 

….Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning….

So it is, even locally, with the War on Drugs. Like many others, I don’t smoke and I seldom drink (all the more to savor an occasional drink recipe).  Like millions of others, though, I see that the Drug War has been too expensive, too ineffective, failing to prevent drug abuse while simultaneously abusing civil liberties. 

The problems of addiction are no better; headlines proclaiming supposed victories no longer command belief, these forty years on. 

When proponents of numbers policing chose to describe their efforts as a war, they might have thought more carefully about which war we’d be waging.  For all their good intentions, they gave us not the Second World War, but Vietnam.  

That’s part of the sadness of this effort, too: so many good, frontline people tied to an ineffectual  strategy that’s been unworthy of their participation.    

Close at home, one sees signs of the end of the beginning, from the Janesville Gazette‘s Friday editorial, “As marijuana gains ground, law enforcement faces decisions.” 

The editorial is available only in print or to online subscribers, but it’s telling.  Ever so hesitantly, cautiously, almost begrudgingly the Gazette‘s editorialist inches readers toward the truth of marijuana enforcement: that it’s been an expensive mistake.   

In Rock, Jefferson, and Walworth Counties, there will be furious insistence from the unreconstructed that nothing’s changing, and that nothing ever will. In some towns nearby, and particularly from the bench and Sheriff’s Office in Elkhorn, the last holdouts will rail against change until, finally, the laws they’ve so punitively enforced and sentences they’ve so punitively imposed are no more.  

To those few, who have been inveterate Drug Warriors, seeking punishment but not treatment: you will, not so long from now, see our nation’s rejection of your approach.  The Draconian laws on which you’ve relied will be repealed, your enforcement programs cancelled, and your funding for endless, pricey purchases cut.  

In place of all this, you’ll still have a useful role: as examples of what not to do, of yesterday’s approach, as exemplars of the ill-conceived.

Across America, states are liberalizing their marijuana laws, police officers are declaring against the Drug War, and there’s a growing effort to Regulate Marijuana Like Wine.  A majority nationally now favors decriminalization, and that political trend is only growing.   

We’re not at the end of a failed strategy, but we’re at least at the end of the beginning of that failed strategy. 

When the laws change (and they will), I’ll still not smoke, and I’ll still drink only occasionally.  Yet, on that day, I’ll raise a glass to those who fought for change, for a focus on treatment over punishment, and in memory of those whose lives were ruined through an expensive, decades-long, ineffectual strategy.

A Compromise on Zoning Restrictions

Of residential zoning restrictions in Whitewater (restricting residential occupancy to no more than two unrelated persons in an R-O overlay district), a few points may safely be made:

  1. We’ve been arguing about this for years.
  2. The last municipal administration – before this one – grandly declared housing the biggest issue in the city (yes, really).  I’ve contended it’s poverty.
  3. The most vociferous requests for restrictions have come from the self-titled Starin Park Historic Neighborhood.
  4. This neighborhood – of only a few blocks – sits near the university.
  5. By their own account, the Historic Starin Park Neighborhood Association advances residential zoning restrictions to ‘change the economics’ of buying and selling real estate in the neighborhood;  I think it will change the economics, but only in ways they don’t foresee, and to their own, long-term detriment.
  6. The current municipal administration supports extending these restrictions one block over, to Fremont Street.

Considering these circumstances, no matter how contentious they’ve been, I’ll offer a compromise: limit these sort of restrictions to this area, and to no other, for at least a decade.

I’ll support the municipal administration’s proposal here – even though I think it’s a mistake for the city and even the long-term selling prospects of the very residents of the neighborhood.

(It’s in the spirit of compromise, with warmth in my heart, that I offer today’s Monday-music post: Smash Mouth Covers Why Can’t We Be Friends?)

There are, to my mind, only two reasons one would support this proposal: (1) under a misguided understanding of what restricting long-term selling prospects will do to resale values a generation from now, or (2) to make a point.

Fair enough, and here’s my point: this is an inherited issue, that’s distracting the city from more important matters.  The sooner this municipal administration sets this matter side, and breaks with the policy of the last one, the better off the city will be (to spend time on other, more pressing matters).  There’s a chance to end this years-long issue, if only the administration commits to future restraint.

Let those who want this here, even if it should work to their long-term economic disadvantage, have their way – and then move on.

No Resolution

There was a Planning Commission meeting last night, and the principal topic was a proposal to extend a zoning overlay on North Fremont from the existing overlay in the Starin Park neighborhood (those few streets to the west of Fremont, and between Main and Starin). The zoning overlay would prohibit more than two unrelated persons from living in a residential home (the number permitted is now three).

All these years, and yet there’s still no solution to concerns about student residential housing. There’s a reason for that: there’s a demand for student residential housing. Whitewater is home to a large university campus with thousands of students.

The issue hasn’t been resolved, and will not be, until Whitewater’s housing market meets that demand. Changing the economics of residential housing in a neighborhood will not change the overall demand in the city.

That there’s an existing comprehensive plan that consigns student housing to one part of the city or another means – practically – next to nothing; if it meant something meaningful independent of demand, the city wouldn’t be having the same conversation again and again for these last several years.

Hoping to channel that demand into the northwest corner of the city (as a higher density neighborhood) will only work if there’s comparative gain in meeting demand through construction there.

Municipal planning, through zoning or enforcement, is a piker when compared against the housing demands of hundreds, if not thousands.

That’s why Whitewater’s not yet resolved this issue.

Wisconsin and Marijuana and the Drug War

Colorado and Washington State are backing away from the Drug War, having recently decriminalized minor marijuana offenses. The long-term prospects for widespread drug prohibition, of the kind we’ve had for a generation, aren’t good: it’s been too much money, and for no lasting gain.

It’s a fair guess that by the 2033, the hundred-year anniversary of federal Prohibition, a majority of states will have abandoned current anti-drug initiatives in favor of an approach that regulates marijuana like wine, reduces other narcotics’ criminal penalties, increases funding for addiction treatment, but costs less (overall) than the Drug War.

(I don’t smoke, and it’s an understatement to say that I’m not jonesing for a joint. Mine is a policy objection: the Drug War’s been ineffective at reducing use, left true & regrettable addiction unremedied, and wasted vast sums in the process.)

In this new framework, people won’t think drug use is a general good; they’ll just combat genuine addiction, where it exists, more directly. It will be a more healthful and yet less expensive approach.

Theses changes will reach us in Wisconsin, but they’ll probably reach Wisconsin after most of America has abandoned the Drug War. I think so on the basis of a post from Prof. Michael O’Hear of Marquette Law, entitled, “Why Does Wisconsin Arrest Twice as Many People for Marijuana Possession as Minnesota?”

O’Hear’s post isn’t about the future of the Drug War, but I think his observation that Wisconsin arrests more frequently (over 2x as often) than neighboring (and demographically similar) Minnesota for marijuana possession suggests that Wisconsin’s punitive approach will prove relatively intractable. (In fact, O’Hear notes that right now, the conventional War on Drugs is being fought in both Wisconsin and Minnesota.)

O’Hear writes that

It seems unlikely that differences in marijuana use could account for such a large difference in the arrest rates. Indeed, based on the National Survey of Drug Use and Health, it appears that marijuana use in Minnesota is, if anything, slightly higher than in Wisconsin. So, the differences in arrest rates probably result to a significant degree from differences in police behavior. What drives those differences is not immediately apparent from any data that I have seen.

As I have observed in earlier posts, differences in criminal-justice outputs between the two states cry out for justification because the two states are so similar in population size and crime rate.

Indeed, I began this series of occasional blog posts in order to try to better understand why it is that Wisconsin’s per capita incarceration rate is more than twice Minnesota’s.

Prof. O’Hear also observes – without ascribing motivation – the large disparity between the racial impact of marijuana arrests:

Whatever the cause of Wisconsin’s arrest rate, there is clearly a racial dimension to it, whether intentional or not. The marijuana possession arrest rate for black adults is nearly six times higher in Wisconsin than the rate for whites (1,255 per 100,000 residents versus 217). The racial disparity among juveniles is also quite pronounced (585 per 100,000 black; 189, white). Yet, surveys indicate that levels of marijuana use are at most only slightly higher for blacks than whites (e.g., 9.8% of blacks report using marijuana in the past month, as opposed to 8.5% of whites).

Similar rates of use, but six times the rate of arrests for black residents over that of whites.

I’d suggest that whatever motivates Wisconsin’s higher arrest rate, and also our disparate rate of arrest between blacks and whites, will prove an impediment to drug reform in our state. We’re starting out with a more punitive, and partial, stance over marijuana than elsewhere.

Current policies here will, over time, be discarded. (That’s a demographic certainty.)

It will just take more time here than elsewhere, I wouldn’t wonder.

Posted also at Daily Adams.

Reason’s 2012 Nanny of the Year

Below is a clip with scenes from Demolition Man (the film to which Balaker meant to refer) that depict violations of the ‘Verbal Morality Statute’ of that film.

(The film is rated R, and the supposed violations cited in the clip may be NSFW.)

Also posted at Daily Adams.

Whitewater note: I’ll get a message or two locally that I can’t post a video clip of actors using foul language. Actually, I can post a clip like that, and I have.

A few remarks: (1) Demolition Man is from 1993. Whatever troubles may have befallen America in the last twenty years’ time do not stem from this film. (2) Most of Whitewater is neither fragile nor squeamish; I’ll not pretend otherwise. (3) It’s a fun, if not serious, action film. (4) In any event, Sandra Bullock is fetching in uniform.

Common Council Session of 12.18.12: Backyard Chickens

Here’s my fourth post on last night’s meeting.

Approved unanimously, and waived from a second reading, Whitewater now has a backyard chicken ordinance. Not just an ordinance, but a fine, model one of which we should be proud.

This is a good idea, that’s come to Whitewater through the hard work of a thoughtful resident. His work (and that of those on our Planning Commission and in city government), for month after month of planning and review, benefits everyone.

We will be a lovelier, more interesting, greener, and freer city for it. For an earlier post in support of backyard hens, see A Model Ordinance.

The urban chicken movement has grown considerably these last several years, yet still even a sound ordinance like this would not have been possible even a few years ago. I would not have expected one for years to come.

Yet here we are.

A super-smart friend sent me additional information on urban chickens before my last post on the subject, and from that kind message I learned more than I knew before. Although I am no one’s idea of a chickenologist, either amateur or professional, the sustainability of the movement has always impressed me. (Quickly, before someone writes: I don’t think ‘chickenologist’ is a real term – I just think it should be.)

Backyard hens aren’t the destination for a New Whitewater, but they’re a welcome marker on the journey.

Next: A New Councilmember.

A Model Ordinance

These last few months, beginning in September, Whitewater’s Planning Commission has heard, and subsequently considered, a proposal for an urban (backyard) chicken ordinance. The proposal is not mine; I have been a mere observer of this effort. One may write about a topic, but only after months of careful observation, as in this case.

I have watched this discussion with interest, these months since September.

Some time ago, I’d written in support (i, ii, iii) of hens as urban chickens, but there’s nothing of my effort in the months of careful work and preparation for Whitewater’s present proposal; the credit for that hard work lies only elsewhere.

There are many reasons to support this proposal, as an expression of sustainability, organic and healthful living, property rights, our agricultural heritage, and our sophisticated, upscale future. Urban chickens offer all these advantages for our community.

That’s not all, however, behind months of work: this proposal rests on a model ordinance, that Whitewater’s residents, Neighborhood Services Director, and Planning Commissioners have used as a starting point for considerable hours of work and review. That’s not just an effort, but an effort with the right beginning.

From an initial mention of a proposed ordinance on 9.10.12 (video from start to 4:03), to additional materials and discussion on 10.8.12 (video from 25:30 to 2:00:00), to a working session to consider a model ordinance based on best practices elsewhere on 11.12.12 (video from 34:45 to 1:35:22), to a unanimous recommendation to Council at the 12.10.12 Planning Commission meeting.

It’s an understatement to say that this was solid, capable, patient work. It’s not merely solid or capable and patient work for our city – but that it would be for any city.

That standard is, in the end, exactly the standard Whitewater deserves – the equal of the best practices of any other community.

This is a proposal easily worthy of Common Council’s full support.

The City of Whitewater’s 2013 Draft Budget: Downtown Whitewater

Under the 2013 draft budget, there’s the possibility of the City of Whitewater increasing the contribution for Downtown Whitewater, Inc., to compensate for the loss of funding via Tax Incremental District 4.

While I’d surely rather the city didn’t prop up businesses, and I’d rather it didn’t fund just one area at that, I candidly think additional funding for the next year is necessary until a combination of zoning and enforcement changes takes hold.

(There’s no good reason whatever to support even temporary funding for a large corporation – that’s not implicated here. These are small merchants.)

If the downtown goes under, the gaping hole will take years to fill, and would make any mere marketing effort on behalf of the city impossible to succeed.

The Importance of a Downtown. Our city has a small downtown, with another retail district on the west beyond the university. There were plans for residential expansion elsewhere (via the Bridge to Nowhere, a local monument to bad planning), but it’s really these two areas for retail.

Here’s Whitewater’s challenge: she’ll attract no one if the downtown goes under. I’ve traveled about this last year, through Wisconsin and places far beyond, but I’ve not once seen a successful small town without a thriving district of quaint shops.

If anyone else has, I’d be happy to hear of it. There are suburbs, naturally, without identifiable downtowns, but I’ve never seen a successful rural community without one. Struggling, half-dead communities, surely; successful vibrant ones, not yet.

Our downtown survived the last recession (no small feat), but it’s hardly thriving. It took considerable work to keep it going even as it is.

The Futility of Marketing (without a Thriving Downtown). You may have seen a marketing video, in the syle of a school’s NCAA promotional announcement, encouraging prospective newcomers to Choose Whitewater. It’s hard to over-emphasize how backwards it is to tout the features of a city if the city’s downtown descends into rows of empty storefronts and discarded beer bottles. One block from Main Street, on Center, we’ve problems even now.

No one will choose this city from a video over his or her personal impressions on a visit. No one will choose this city on a guided tour over his or her own explorations. People who think otherwise are mistaken. The best a marketing effort can do is encourage a visit, and (it’s to be hoped) bolster a positive impression a visitor has after his or her own explorations.

No one will choose from a video, story, or pamphlet alone.

The Longterm Solution. A combination of zoning changes and enforcement changes (different but complementary actions) can lift this city far beyond any marketing effort. Just as the best policy is a sound argument, so the best marketing is an open, dynamic city.

Unfortunately, the benefits of that approach will not take hold by January 2013. The zoning re-write is still in process, and improvements and modernization of enforcement policy will take hold gradually.

When those changes do take hold — and through strenuous promotion of actual policy improvements they will – we’ll have a thriving downtown without the need for municpal subsidies. The City of Whitewater should look ahead, and tentatively propose a tapering level of municipal funding for out years.

Who should promote and advertise these genuine improvements? It should be the business people and city officials who have benefitted from the changes or are responsible for enforcing them. A merchant considering a town cares little what someone unconnected to his immediate work thinks about something – he or she cares about the disposition and policies of those who will be directly connected to his or her own work.

In this way, the best advocates will be those who can say that they’ve made zoning or enforcement better, show how that’s been useful to actual merchants, and how it can be helpful to new ones.

Funding Downtown Whitewater in 2013 to include replacement funding lost via TID 4 is a reasonable bridge toward a place of reformed regulations and requirements.

One might even consider it, just perhaps, a Bridge to Somewhere.

Tomorrow: About funding for the Generac Bus.