Is the American Bar Association Accusing George W. Bush of being a Fascist?

Ever since GWB was appointed to the presidency, he has been compared to Hitler and other notables who are fascist. Each time, the GWB political machine cries foul and his "base" goes ballistic. I think the following article may give those accusations some credence.

July 24, 2006
Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills By ROBERT PEAR

WASHINGTON, July 23 - The American Bar Association said Sunday that President Bush was flouting the Constitution and undermining the rule of law by claiming the power to disregard selected provisions of bills that he signed. In a comprehensive report, a bipartisan 11-member panel of the bar association said Mr. Bush had used such "signing statements" far more than his predecessors, raising constitutional objections to more than 800 provisions in more than 100 laws on the ground that they infringed on his prerogatives.

These broad assertions of presidential power amount to a "line-item veto" and
improperly deprive Congress of the opportunity to override the veto, the panel
said.

In signing a statutory ban on torture and other national security laws, Mr. Bush reserved the right to disregard them.

The bar association panel said the use of signing statements in this way was "contrary to the rule of law and our constitutional system of separation of powers." From the dawn of the Republic, it said, presidents have generally understood that, in the words of George Washington, a president "must approve all the parts of a bill, or reject it in toto."

If the president deems a bill unconstitutional, he can veto it, the panel said, but "signing statements should not be a substitute for a presidential veto." The panel's
report adds momentum to a campaign by scholars and members of Congress who want to curtail the use of signing statements as a device to augment presidential
power.

At a recent hearing of the Senate Judiciary Committee, the chairman, Arlen Specter, Republican of Pennsylvania, said Mr. Bush seemed to think he could "cherry-pick the provisions he likes and exclude the ones he doesn't like." Senator Patrick
J. Leahy of Vermont, the senior Democrat on the committee, said the signing statements were "a diabolical device" to rewrite laws enacted by Congress.

Justice Department officials dismiss such criticism as unjustified. "President Bush's signing statements are indistinguishable from those issued by past presidents," said Michelle E. Boardman, a deputy assistant attorney general. "He is exercising a legitimate power in a legitimate way." Michael S. Greco, the president of the bar association, who created the study panel, said its report highlighted a "threat to the Constitution and to the rule of law."

At its annual meeting next month, in Hawaii, the association will consider several policy recommendations, including a proposal for judicial review of signing statements. The panel said, ''Our recommendations are not intended to be, and should not be viewed as, an attack on President Bush." The panel said it was equally concerned about the precedents being set for future chief executives.

The panel acknowledged that earlier presidents, including Andrew Jackson, Ulysses S. Grant, Theodore Roosevelt and Franklin D. Roosevelt, had occasionally asserted the right to disregard provisions of a law to which they objected. Under Bill Clinton, the Justice Department told the White House that the president could "decline to execute unconstitutional statutes."

But the panel said that Mr. Bush had expressed his objections more forcefully, more often and more systematically, "as a strategic weapon" to influence federal agencies and judges.

In his first term, the panel said, Mr. Bush raised 505 constitutional objections to new laws. On 82 occasions, he asserted that he alone could supervise, direct and control the operations of the executive branch, under a doctrine known as the "unitary executive."

Whenever Congress directs the president to furnish information, Mr. Bush reserves the right to withhold it. When Congress imposes mandates and requirements on the executive branch, the president often says he will read them as advisory or "precatory." When Congress tries to define foreign policy for example, on Russia, Syria, North Korea or Sudan Mr. Bush objects. Even if he agrees with the policy, he asserts that the Congressional directives impermissibly interfere with the president's constitutional authority to conduct foreign affairs.

Whenever Congress prescribes qualifications for presidential appointees, Mr. Bush complains that this is an intrusion on his power, even if Congress merely requires that the appointee know about the field for which he will be responsible. When Congress requires outreach or affirmative action for women or members of certain
racial or ethnic groups, the president demurs, saying such provisions must be
carried out "in a manner consistent with the requirements of equal protection
under the Due Process Clause of the Fifth Amendment to the Constitution."

The panel said Mr. Bush's signing statements often used the same formulaic language, with "no citation of authority or detailed explanation." It urged Congress to pass a law requiring the president to "set forth in full the reasons and legal basis" for any signing statement in which he says he can disregard or decline to enforce a statute.

In another recommendation, the panel suggested legislation to provide for judicial review of signing statements. It acknowledged that the Supreme Court had been reluctant to hear cases filed by members of Congress because lawmakers generally did not suffer the type of concrete personal injury needed to create a "case or controversy." But the panel said that "Congress as an institution or its agents" should have standing to sue when the president announces he will not enforce parts of a law.
The issue has deep historical roots, the panel said, noting that Parliament had condemned King James II for nonenforcement of certain laws in the 17th century. The panel quoted the English Bill of Rights: "The pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal."

The panel was headed by Neal R. Sonnett, a criminal defense lawyer in Miami. Members include former Representative Mickey Edwards, Republican of Oklahoma; Bruce E. Fein, a Justice Department official in the Reagan administration; Harold Hongju Koh, the dean of Yale Law School; William S. Sessions, a former director of the Federal Bureau of Investigation; Kathleen M. Sullivan, a former dean of Stanford Law School; and Patricia M. Wald, former chief judge of a federal appeals court.

While the American Bar Association is careful not to single out Mr. Bush, clearly the organization is extremely concerned about the new level to which Mr. Bush has employed the use of "signing statements."

While I personally would stop short of calling Mr. Bush and out and out fascist, I think the manner in which he has employed these so-called "signing statements" gives some credence to others who say so about Mr. Bush.

What do you think?

My Response to Ohio Learn & Earn's Comment to My Post

Below is Todd Hoffman's (Online Communications Director for OLE) comment (in bold) that appeared today on my recent post "Analysis of Ohio Learn & Earn Amendment" along with my responses to Mr. Hoffman's comment.

***Parental Advisory*** I have totally failed at maintaining equanimity with this post. Toward the end, I even get downright snarky. I think it's deserved. In any event, I beg your pardon.

Hello Roger, I have a few responses to your questions and concerns.

First, this issue must be presented as a constitutional amendment. The Ohio Constitution includes detailed provisions regulating legal gambling, including the horse tracks and the Ohio lottery. To legalize slot machines, you must introduce an
amendment to the Constitution.

I agree that a constitutional amendment is the only way to legalize slot machines. However, OLE's proposed amendment does much more than that. 1) The amendment creates a "statutory" like scholarship/grant program for education funding, which is specifically what I objected to in my post; so your rebuttal in this regard is a non-starter. 2) The amendment confers legal rights to own and operate slot machines to specific people, i.e. existing race-track owners and owners of certain parcels of property located along the Cuyahoga River in the flats of Cleveland. I'll use this analogy: when Congress and the President enacted a law to protect a specific person (Terri Schiavo) that was bad enough. What OLE is proposing is to amend our state's constitution to benefit a small, specific group of people.

In addition, putting this in the Constitution prevents legislators from raiding the funds as they did with the Ohio Lottery and Tobacco settlements.

As far as I am concerned Mr. Hoffman's first statements only prove the point that OLE's amendment is about gambling first and education funding is merely an after-thought. Let's not sugarcoat this anymore, OLE exists for the primary purpose of making gambling palatable in Ohio, not to fund higher education. The players behind OLE are admittedly the race-track owners and the property owners in Cleveland. No one from higher education is involved in OLE. Mr. Hoffman, do you honestly expect us to believe that a bunch of race-track owners and property developers got together one day and said: "How can we fix the higher education funding problem in Ohio? And from that impetus, the idea of allowing slot gambling was born? That's simply ridiculous on its face. Of course it was the other way around. The proponents behind OLE have been racking their brains for YEARS trying to figure out away to get slots. I honestly don't have an opinion about slot machines per se one way or another. But I have a strong opinion about the law, honestly, and feel it is my duty as a member of the bar to point out when advocates of a particular public policy or initiative are engaging in acts of misrepresentation.

If the amendment is passed the committee will have six months to develop the program.

What committee? The Gaming Integrity Commission or the Ohio Board of Regents or some other committee that isn't even mentioned in the language of the amendment? In any event, with all due respect Mr. Hoffman, this is not what the amendment says at all. The only reference to any deadline in the amendment is to the deadline by which laws have to be passed to implement the program. Laws are not passed by the Board of Regents or the "committee" Mr. Hoffman. Most seventh graders could tell you that. All the amendment says with regard to the timing of the start of scholarships is as follows: . . .the Ohio Board of Regents shall award undergraduate higher education scholarships and tuition grants for United States citizens who are residents of this state commencing with the first high school class graduating two years following the approval of this amendment. Please point out for me the language in the amendment that sets a six month deadline for the "committee" to develop the program. Please also clarify what "committee" you are talking about.

Thus the scholarship fund will start in 2007-2008 school year.

Very tricky Mr. Hoffman. Yes, the scholarship FUND may start immediately after the adoption of the amendment, but the scholarships will not be distributed to anyone prior to the first high school class graduating two years following the approval of the amendment. That is the "plain" language of the amendment I quoted from a copy of the amendment I printed off of OLE's web-site.

Starting this year everyone will get a partial scholarship . . .

The amendment simply does not provide for this. The amendment says: For the first twelve such high school graduating classes, uniform tuition grants, in an amount not to exceed (read that: could be less) the average undergraduate tuition charged by Ohio public universities, shall be awarded to the top five percent of students at each accredited public or non-public high school in this state, and contribute to public life though voluntary civic activity, and who attend any public or independent not-for-profit institution of higher education (read that: private college) authorized by the Ohio Board of Regents and that has its principal office within this state.

Do you see anything in that language that says the other 95% of students who meet the requirements will get a partial scholarship? I don't. Mr. Hoffman, and with all due respect, you either cannot read, or you are a liar.

Actually, what I think you are trying to say is that everyone will start earning toward scholarships when they graduate. In any event, it does not change the fact that 95% of students will not get full scholarships until at least the year 2020. A point I made in my prior post that you never directly address in your comment.

. . .and the top 5% will get full scholarships equal to the average college tuition in the state.

Close, Mr. Hoffman. But, as we say, "close" only counts in horseshoes, hand grenades, and bombs. The amendment says that the top 5% will get scholarships not exceeding the average college tuition in the state. Could be less, just can't be more. Why did you use the phrase "equal to" instead of "not exceeding" which is what is in the amendment? Have you been drinking the kool-aid, or are you're misstatements intentional?

In the first 12 years the partial scholarships will be determined by points earned by grade levels passed in Ohio public, private, charter or home schools. Thus a student graduating in 2008 would only receive points for one year, but an elementary school student in 2008 will receive a nearly full scholarship. For instance they may have accrued points for 9 of the 12 possible years.

Points?!?!?! Please point out (pun intended) for me where in the proposed amendment the word "points" even appears. It doesn't. This is sort of what I meant when I wrote: If you're going to create a detailed scholarship program in the constitution, you darn well better pay attention to the details. It's easy to add technical amendments to statutory law; bit harder to do it to constitutions. (**SIGH** This is what happens when non-lawyers get involved in legal stuff.)

The criteria specified in the amendment is very simply: 1) A student must have taken the core academic courses as defined by the Ohio Board of Education. These courses are accomplished in most schools by taking the "college prep" route. 2) A student must be accepted and attend an Ohio technical school, community college, private college or state university.

No. No. No. Again, please point out for me where in the amendment the words "as defined by the Ohio Board of Education" appear. They don't. The amendment only ever references the Ohio Board of Regents. It does not even once mention the State Board of Education. Incidentally, given your current job, you should probably be aware that there are two state level educational bodies in Ohio: State Board of Education and the Ohio Board of Regents. You seem to be under the impression they are one body. They are not.

You asked: What if poorer urban and rural school districts don't or can't offer the core and advanced academic courses and/or college readiness, assessment and testing that the Ohio Board of Regents requires in order for a student to "earn" for his or her account? While I am not an expert, I believe every district provides the core classes. Advanced courses are recommended for any student, but not necessary.

Mr. Hoffman, it is becoming quite apparent that you are not an expert. But I'll grant you that the core courses are probably offered at most schools. However, the amendment that OLE is supporting does not make advanced courses recommended, but not necessary; it says the following: Such scholarships and grants shall include only the following: Individual learn and earn scholarship accounts for current and future students who, prior to enrolling in college, take core and advanced academic courses. . . You may not be aware, Mr. Hoffman, that when interpreting legal documents words have to be given meaning. The amendment does not say that core courses are required and advanced courses are only recommended but not necessary. It says what it says: scholarships shall include only learn and earn accounts for students who take core and advanced academic courses. It's what we lawyers call conjunctive, not disjunctive -- which means you have to do BOTH to qualify. So, my question still stands.

For example, OL&E will not require Advanced Calculus, but a student should have taken Algebra. This is one reason why you don't write all the details into an amendment.

Whoa!!! OL&E will not require?!?!?! This amendment does not give OL&E the power to poop in the woods, let alone require or not require anything from anybody. OL&E is not even mentioned in the amendment. Details, details. So, what you're really saying is that you don't write in any details so you can make it up as you go along. Great. This is exactly how I like my constitutional amendments.

The Board of Regents, Ohio Department of Education and the committee will work to determine the details and even work with students on an individual basis if they have extraordinary circumstances. The program needs to be flexible so that it can work for many students coming from different educational backgrounds.

Again, please tell me where the Ohio Department of Education is even mentioned in the amendment. The amendment gives ALL the authority to the Board of Regents. And what's with this "committee"? Clearly you are referring to another entity. Do you mean OL&E? Also not mentioned in the amendment. Or is there some other surreptitious group out there, also not mentioned in the amendment. No offense, Mr. Hoffman, but if you're going to, you know, go around promoting constitutional amendments you should, you know, understand a little bit about the law and constitutions.

Speaking of flexibility, you never addressed my concern about the "committee" (for those of us who came of age during the end of the cold war, that term has special meaning, by the way) exploiting the loophole in the amendment that if the program isn't implemented the slots go on under the Lottery Commission; and the built in incentive for the financially interested parties to sabotage the whole program in order to keep more of the proceeds from the slots.

Feel free to contact me anytime if you have questions.

Yeah. 'Cause you have all the answers.

Thanks,Todd Hoffman

Online Communications Director

Ohio Learn and Earn

todd.hoffman@ohiolearnandearn.com

This concludes CEP's respite from equanimity. We now return you to regular programming.

One Reason Why People Hate Lawyers

For the record, I would have NEVER taken on this case . . .

From the Plain Dealer

DUI driver's family sues over her escape, in which she died
Thursday, July
20, 2006
Karen Farkas
Plain Dealer Reporter

The family of a woman stopped for drunken driving who was hit and killed by a car on the Ohio Turnpike after escaping from a State Highway Patrol cruiser has sued the agency for failing to lock the car doors.

A handcuffed Francina Pugh of Cleveland was running free in the dark before the trooper driving back to his post even realized she was missing, the claim states.
Pugh's family seeks more than $25,000 in its wrongful death case in the Ohio Court of Claims.

Pugh, 53, was stopped by Trooper Jason Turner at 10:12 p.m. March 30 as she drove west on the turnpike in Freedom Township in Portage County, according to news releases from the patrol at the time of the incident. She was arrested for driving under the influence, handcuffed and placed in the back of his cruiser.

The release says that at 10:52 p.m., as Turner was completing an inventory of Pugh's car, he discovered she had gotten away, and troopers immediately began a search, the patrol said. The patrol said Pugh eluded troopers who saw her around 11 p.m. and ran into the woods.

But the lawsuit claims the trooper did not see Pugh leave the car and began driving back to the Hiram Post before he noticed she wasn't in the back seat.

Troopers got a call at 11:13 p.m. that a pedestrian had been struck in the middle of the westbound lanes. Pugh was hit by a Ford Focus drivea by a 19-year-old Streetsboro woman about a half-mile from where she had been arrested. The woman told officials that she was driving around 68 mph and Pugh "came out of nowhere" from the left side.

The Portage County Coroner's Office reported Pugh's blood alcohol content was 0.23 percent, according to a report given to the patrol.

The wrongful-death claim was filed July 12 by Pugh's sister, Miriam Gilliam of Richmond Heights. Pugh is also survived by a son, Curtis, 24, and her mother. They and their attorney would not comment Wednesday.

On June 20, Turner was disciplined and suspended for three days, according to the patrol.

To reach this Plain Dealer reporter:

kfarkas@plaind.com, 800-628-6689

A now for a lighter note . . .

I chuckled at this PD article on cleveland.com.

It's refreshing to see Clevelanders standing up for their city. We need a lot more of that.

At A Loss . . .

I have been reluctant to post on this out of respect for the Fisher, Beck and Lerner families. But my sadness and grief has been slowly turning to anger and rage; and I need to get it out of my system.

As a father of two daughters (ages 2 and 1), I simply cannot comprehend the apparent breakdown of parental responsibility that led to the death of a six-year old child.

Rather than espousing to you what I instinctively know about how much a six-year old child should be supervised, I refer you to a Centers for Disease Control pamphlet called "Positive Parenting Tips for Healthy Child Development: Middle Childhood (6-8 years old)." Pay particular attention to page 2 and the section called "Child Safety First."

A six-year old child. Operating a motorized go-cart. Left alone. On 300 acres.

Incomprehensible to me.

I weep for the child. As for the adults, I vacillate between sympathetically trying to imagine the anguish and guilt of losing a child in such a fashion and being barely able to contain my contempt for those who were responsible for her care.

Schools versus Prisons . . .

Mary Beth Mathews of Street Smarts offered this interesting post on comparative statistics of prisons and schools.

I've had a pretty radical solution to this problem in the back of my mind for a long time:

Let's pass an amendment to Ohio's constitution that requires schools to be fully funded from the state general fund and make the prisons subject to local control and require them go to the voters to pass levy's for their operating and capital improvement expenses.

Anyone wanna bet that the trend in the stats cited at Street Smarts will reverse?

Cleveland Fire Company Levels Still Dangerously Low

On July 14, 2006, there was a 3-car motor vehicle accident at the corner of Fulton Road and Delora Avenue. (Map) There were a total of 10 people in the three vehicles.

Cleveland Fire Department units Engine 42 and Ladder 23 were dispatched at 7:42 p.m. as "first responders." Engine 42 responded from here. Ladder 42 would have also responded from the same place had it been in service instead of being browned out.

Instead, Ladder 23 responded from its station at W 97th and Madison. It took 19 minutes for Ladder 23 to get from its station to the accident scene at Fulton & Delora. Here are Google Directions from the station to the scene showing one possible route.

What if the call was a house fire at Fulton Road & Delora Avenue? What if there were people trapped inside?

Sit and watch your clock for 19 minutes while imagining that you are trapped in your house and it's on fire.

This is no way to run a city.

Update@ 9:38 p.m.: Fixed the Mapping Links.

WTAM's Mike Trivisonno Disses Blogs and Bloggers

I was driving along early yesterday evening listening (as I occasionally do) to the Mike Trivisonno show on AM 1100.

I kind of tuned out for a bit to interact with the kids when I heard Mike talking about blogs and bloggers. It was not flattering to put it mildly.

I can't quote what he said, but the upshot was that bloggers have no idea what they are talking about, it's all wild opinion not based on any facts and they can't be trusted.

At first, I was mildly amused because I take everything Mike says with large grains of salt; until I remembered that Mike Trivisonno is a radio talk show host who, with great frequency (double entendre intended) spouts off wild opinions not based on any facts and he can't be trusted.

Hmmm.

I started listening to Mike to learn more about Cleveland sports and sports in general. (I am an admitted sports retard.) In recent years, however, Mike's show is less and less about sports and more and more about politics, current issues, government, public policy, etc. When listening to Mike on these subjects, I often find myself wishing that I could say the following to him on the air:

"Mike, shut up about this stuff, you have not the first clue what you are talking about -- If I called your show and tried to talk sports you'd scream that I am an idiot and don't know what I am talking about and that you had spent your entire life following sports, so -- you are the expert and I should go away until I learn something. Well, pal, I have spent a lifetime following and studying politics, government, current issues, public policy, etc. and you have no idea what you are talking about when it comes to these issues, you are an idiot and you should go away until you learn something."

Bottom line: Mike Trivisonno's opinion, commentary and discussion on events of the day (not related to sports) is about as valuable as my opinion commentary and discussion on sports. Stick to what you know Mike and leave the serious stuff to the people who really understand what's going on.

All the crap you said about blogs and bloggers is just further proof that you are out of touch and out of your league when it comes to serious issues. You are in the same league with Dick Fleagler.

Equanimous Philosopher Scoops Dorothy Fuldheim?

At the risk of offending the queen of the dead bloggers society, Dorothy Fuldheim, my sources (who shall remain anonymous) inform me that that ex-Mayor Jane and the Episcopal Priest will be, sooner or later, departing together (in every sense of the word) on a one-way trip to either Boston or Great Britain, ne'er to be seen again in Cleveland?

I've been sitting on this info for a while now (and during that time have had double indepent anonymous source confirmation) and have been waiting for Dorothy to jump on it.

Sorry Dorothy. Love you babe. Please don't haunt me.

Analysis of Ohio Learn & Earn Amendment

This is a follow-up to my recent post on Ohio Learn & Earn.

For anyone who hasn't heard yet -- There is a petition drive afoot to put an Ohio Constitutional amendment to the voters that would allow casino slot machines at all existing race track facilities in Ohio, as well as at two locations in the City of Cleveland: one each on the East and West Banks of the Flats.

To "entice" voters to support this initiative, the proponents have put in this amendment that 30% of the "gross" revenue will be set aside for college scholarships for Ohio students.

For tonz of background and other commentary on this topic, I refer you to the following resources (in no particular order): Meet the Bloggers Discussion; Pho’s Akron Pages; Ohio Learn & Earn web-site; Google Search.

My commentary/analysis will be limited to attempting to reconcile what I have “heard and seen” about the Amendment and the proposed Amendment itself.

First, generally speaking, I feel constitutional provisions should be limited to broad concepts and legal precepts, not detailed scholarship programs.

Second, if you want to constitutionalize a detailed higher education scholarship program, you darn well better pay attention to the details. This proposed amendment utterly fails in that regard. Moreover, it is usually not good to have sections of state constitutions fraught with ambiguities and internal conflicts as the Learn and Earn amendment is.

Let's take it apart.

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 1. Internal Conflicts. Does the amendment set out the criteria for awarding the scholarships or does the Ohio Board of Regents get to do that? The amendment is unclear and contains the following conflicting language:

Eligibility criteria for such scholarships and grants, and the amounts, shall be established solely by the Ohio Board of Regents. Such scholarships and grants shall include only the following: [. . .] [various ambiguous restrictions follows (more on that next)].

So, does the Board of Regents get to establish the criteria, or is the criteria established by the amendment itself? Trust me, this language leaves a big enough hole for the Ohio Board of Regents to say: "we are solely responsible for the criteria and any restrictions in the amendment are so ambiguous that it must have been the intent that the Board of Regents gets to decide the criteria." This issue would then have to be litigated.

The "restrictions" put on the Ohio Board of Regents in establishing the criteria are disturbingly ambiguous. For example:

Individual learn and earn scholarship accounts for current and future students who, prior to enrolling in college, take core and advanced academic courses, participate in college readiness programs, assessment, and testing in any accredited public or non-pubic high school in this state, and contribute to public life through voluntary civic activity, and who attend any public or independent not-for-profit institution of higher education authorized by the Ohio Board of Regents and that has its principal office within this state.

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 2. Accounts. If you listen to the Meet the Bloggers pod-cast with representatives from Ohio Learn & Earn, you will hear that individual accounts will be set up for every Ohio student and as they Learn (meeting certain criteria) moneys (from slot gambling) will be deposited into the Students’ account (this is the “earn” part) toward college tuition.

However, as you can see from the above language, the amendment only makes a vague reference to accounts without any of the details (and benefits) claimed by the proponents.

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 3. Vague Requirements for “Earning”. . . . The proposed amendment restricts earning in these accounts to: students who, prior to enrolling in college, take core and advanced academic courses, participate in college readiness programs, assessment, and testing . . . and contribute to public life through voluntary civic activity.

The amendment leaves it up to the Ohio Board of Regents (a 9 member board, appointed by the Governor with minimal accountability to the voters) to define what constitutes “core and advanced academic courses”; to determine what is a “college readiness program;” to define what “assessment” and “testing” means; and to decide what “contribute to public life through voluntary civic activity” means.

For me, this raises at least two serious questions (which may have been asked in the Meet the Bloggers pod-cast.)

1. What if poorer urban and rural school districts don’t or can’t offer the core and advanced academic courses and/or college readiness, assessment and testing that the Ohio Board of Regents requires in order for a student to “earn” for his or her account?

2. If this is the case, won’t this proposal just re-enforce and aggravate the existing inequities in our statewide system of school funding and achievement?

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 4. 95% of Students won’t get college tuition until after the year 2020. The amendment states as follows:

The Ohio Board of Regents shall award [the scholarships and grants] commencing with the first high school class graduating two years following the approval of this amendment. [* * *] For the first twelve such high school graduating classes, uniform tuition grants, in an amount not to exceed the average undergraduate tuition by Ohio public universities, shall be awarded to the top five percent of students at each accredited public or non-public high school in this state . . .

Gloria Ferris told me that the proponents of this amendment are claiming that the money from the proceeds of slot gambling will be available immediately for students, implying that students will start to get money to use toward college right away. Hmm. I think they’re leaving a few details out.

First, be aware that NO students will receive any money from slot gambling until the first high school class graduates two years after the approval of the amendment. The language is confusing and misleading. It sounds like if the amendment were passed today, July 17, 2006, that the first eligible students would be in the class of 2008, two years from now. However, the amendment really states that two years have to go by after the approval of the amendment before the first graduating class can receive money. So, in reality, if the amendment were adopted today, July 17, 2006, two years from now would be July 17, 2008, but the 2008 graduating class will have already graduated, so the first eligible graduating class to get grants would be the class of 2009. (This is also the first year that kindergarten students can begin “earning” college tuition.)

Even more surprising is the language restricting grants to the top 5% of high school graduates for the first twelve graduating classes, which means that, under my above example, even if the amendment became effective today, it won’t be until the year 2020 that ALL Ohio students receive college tuition – a fact that is conveniently absent from Ohio Learn & Earn’s campaign web-site and t.v. and radio commercials. Given the fact that my time example is based on the amendment being adopted today, 95% of Ohio students will not receive college tuition until sometime after the year 2020.

Beginning no sooner than 2009, the top 5% of students at each school will receive grants not to exceed the average college tuition for Ohio public higher ed. Institution. So, if one of these students wanted to go to a college that cost more than the average, they would have to somehow make up the difference in tuition – another fact conveniently absent from Ohio Learn & Earn’s campaign web-site and t.v. and radio commercials.

[If you’re concerned about “lottery” type loopholes in this proposal, pay attention to the next 2 Holes]

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 5. They get to keep their slots even if the tuition scholarship program isn’t put into effect. According to the amendment itself, the Ohio General Assembly has to pass laws to make this proposal operational and the Governor and other elected officials must appoint members to a Gaming Integrity Commission (established by the amendment). However, the amendment also provides that if the Ohio General Assembly fails to pass the necessary laws, or if the appointers fail to appoint the members to the Gaming Integrity Commission, the promoters of this amendment still get to run their slot machines.

Read the following language from the propose amendment:

The General Assembly shall pass laws within six months of the effective date of this amendment to facilitate the operation of this amendment. If the General Assembly fails to pass such laws within six months of the effective date of this amendment, or the members of the Gaming Integrity Commission have not been appointed as provided in this section, the games authorized in this section may be conducted on and after that date under the supervision of the Lottery Commission, which shall retain such supervisory authority until the General Assembly has passed laws to facilitate the operation of this amendment and the members of the Gaming Integrity Commission have been appointed as provided in this section.

Note that the language here does not require, in this event, that the slot proceeds are still subject to the provisions of the amendment. This can be read as a huge “out” for the slot owners. At the risk of sounding like a conspiracy theorist, this language actually sets up an incentive for the promoters of this Amendment to lobby against passage of the necessary laws and appointment of the necessary commission members in order for them to run their slots under supervision of the lottery commission and avoid paying anything for tuition scholarships. While that would certainly create a large enough outcry from the public to get the General Assembly to pass the laws, it could substantially delay the implementation of the tuition scholarships and accounts, allowing the slot owners to keep more of the profits.

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 6. The attempt to avoid the “lottery problem.”

The proponents of this amendment knew that its opponents and to some degree the voters in general would raise the “lottery problem” – how can we be sure that the money will really go to the schools and that the government won’t just use this additional money to replace other money and now we have slot machines with no net increase in school funding.

The proponents attempted to get around this problem by including the following language:

The amounts paid to the state pursuant to this section do not diminish the General Assembly’s constitutional obligations. The money’s expended hereunder on scholarships and grants shall supplement, not supplant, per-student state resources appropriated for post-secondary educational programs and purposes prior to or after the approval of this amendment.

I have some as yet unresolved questions regarding this language that I’ll try to track down for a follow-up post.

1. Does the General Assembly have any constitutional obligations with regard to funding post-secondary (college) education programs? I know there are constitutional obligations for secondary education (k-12), but I was not aware of any for post-secondary (college) education. If there are, in fact, no such constitutional obligations, then this provision becomes totally meaningless.

2. Does the General Assembly even provide funding for post-secondary education on a per-student basis? I don’t believe that Ohio’s public colleges are funded on a per-student basis, like k-12. If not, then, again, this attempt to avoid the “lottery problem” is totally meaningless and could be read by Ohio Courts has having no effect whatsoever.

LARGE HOLE YOU CAN DRIVE TRUCKS THROUGH NO. 7. Won’t cash-strapped colleges just increase their tuition and admission standards?

Economic theory would suggest that this program will increase the demand for higher education, thereby increasing its price. Have the proponents of this program factored this into their revenue and expense models? I don’t think so. What happens if the slot revenue projections are off, or fluctuates and doesn’t generate enough revenue to meet the programs obligations?

Moreover, what is the proponents’ purported dream was realized and every high school student qualified to go to college? There are only so many slots for college, and unless we’re going to build more colleges, many of these students will simply not be able to “get-in” because the admission standards will go higher and higher. This is not a bad thing in the abstract; however, what about the individual student who met all the requirements of the Learn & Earn program, has a decent sized account, but can’t get admitted anywhere in Ohio? What happens to the funds in his account? There is no provision for that likely scenario in this proposed amendment.

FINAL THOUGHT

In a previous post, I stated that “there are enough holes in the language of the proposed amendment to drive all of ODOTs snow removal trucks through – simultaneously.”

If you thought I was exaggerating or engaging in hyperbole, I think the foregoing analysis demonstrates that I did neither.

Thumbs Down for Ohio Learn & Earn

I finally got around to looking at the Ohio Learn and Earn proposal for myself. I looked at what their web-site said the Amendment would do and then I read the text of the proposed Amendment myself. Ugh.

In short, there are enough holes in the language of the proposed amendment to drive all of ODOTs snow removal trucks through -- simultaneously!

Stay-tuned, I'm working an a future post that will explain what I mean in more detail and provide some specific examples of my concerns.

Ladder 42 -- Promises Are Made To Be Broken?

I have it from several reliable and independent sources that the Cleveland Fire Department is planning to ignore Mayor Frank Jackson's promise to re-open Ladder 42 while the Fulton Road Bridge is closed.

I am told that the Cleveland Fire Department Administration is "laughing at us from downtown" and thinking they can get away with it because the public is no longer interested in this issue.

Wow! What arrogance.

Ward 16 Councilman Kevin Kelley declared a victory on this issue because of the Mayor's promise to re-open Ladder 42 while Fulton Road was closed. Even then, that "victory" sounded quite hollow to me. Now, its beginning to look like a mirage.

I think it's time to start calling Mr. Kelley's office (216) 351-7077 and the Mayor's Action Line (216) 664-2900 to explain to them that we are VERY MUCH STILL INTERESTED IN THIS ISSUE! And, that we expect the Mayor to keep his promises.

Cleveland.com/PD Reports Bush to Help Blackwell

Saw this tonight . . .ugh!

Bush to help Blackwell

President Bush is officially jumping in the Ohio governor’s race August 2 by appearing at a fund-raiser for fellow Republican and gubernatorial candidate Ken Blackwell. Bush will join Blackwell at a reception at the Kirtland Hills home of businessman Ed Crawford. His visit could help raise more than $1 million for Blackwell’s campaign, if Bush’s visits on behalf of other politicians is any indication. Blackwell is charging supporters $1,000 per person to enter the event -- $10,000 if they want to get a picture with the president. The host committee includes Attorney General Jim Petro, who lost to Blackwell in the primary, and numerous big-party donors such as insurance executive Umberto Fedeli. But one host-committee member stands out, at least for his hair: boxing promoter Don King, also owns Cleveland’s black newspaper, the Call and Post. To play to the President’s Texas roots, the campaign’s invitation notes “Cowboy boots optional.” -- Mark Naymik

Ohio Supreme Court Compares Injured Workers to Prisoners?

Recieved this by e-mail today:

Press Release From
The Ohio Academy of Trial Lawyers

395 East Broad Street,
Suite 200, Columbus, Ohio 43215
For Immediate Release

Wednesday, July 12, 2006


Supreme Court Overrules Injured Workers’ Rights

(Columbus) – The Ohio Supreme Court took the disheartening step of removing constitutional protection from those who need it the most - the victims of workplace injuries and disabilities, The Ohio Academy of Trial Lawyers (OATL) said today. In a 4-3 decision, the Court said that injured workers do not have the fundamental right to testify in person before a jury of their peers to explain how their injuries occurred in the case Arrington v. DaimlerChrysler Corp.

"I am outraged that the Supreme Court has held that injured workers are second-hand citizens and are not entitled to a right which our Constitution says is inviolate. To compare an injured worker to a prisoner, as the court did, is an insult to every injured worker in Ohio," said Philip J. Fulton, Past-President of OATL and author of the workers' compensation treatise, Ohio Workers' Compensation Law. Mr. Fulton teaches workers' compensation law at Capital University Law School.

Justice Terrence O’Donnell concurred with Justice Paul E. Pfeiffer’s dissenting statement, in which he wrote “that the only limitation the Ohio Constitution puts on the right of a jury trial in civil cases is the number of jurors necessary to decide a case, not the very right to have a matter tried before a jury,” according to a release from the Supreme Court. Justice Alice Robie Resnick authored her own dissent.

The Ohio Academy of Trial Lawyers is the state’s largest victims-rights advocacy association, comprised of approximately 2,000 lawyers committed to promoting the public good through efforts to secure safe products, a safe workplace, a clean environment and quality health care.

Read the Supreme Court’s decision at http://www.sconet.state.oh.us

www.oatlaw.org

Ladder 42 Update -- Fire Safety Impact

Old Brooklyn's Ladder 42 has been browned out for several weeks now. My sources in the Cleveland Fire Department provided me with some examples of recent fire truck coverage shortages that made my hair stand on end.

The following are examples of truck coverage shortages on Cleveland's West side from the early morning hours following the 4th of July. I have not independently confirmed these yet, but I trust my source.

In reading the following, recall that a "box alarm" means a reported possible structure fire and the National Fire Protection Association regulations requires the following initial response from the Cleveland Fire Department: Two Engine Companies, One Ladder Truck, One Rescue Squad, and One Battalion Chief. This minimum response must be on scene within 8 minutes to be in compliance with NFPA Standards.

The following is a written description of alarm and response scenarios that occured in the early morning hours of July 5, 2006.

01:50 am - Box Alarm for Battalion(B)-4 - Response is Engine(E)-20, Ladder(L)-20 & E-24. No rescue squad.

Few minutes later - Box Alarm for Battalion 3 - response is E-23, L-23 & E-4 No rescue squad.

01:54 am - Alarm office calls Battalion 3 to free up units from their Box Alarm and go to another Box Alarm at 3563 W 63rd Street. Only E-4 and L-23 responded initially and this alarm turned out to be an actual fire. E-24 is then released and sent to W 63rd fire. This response is not in compliance with NFPA Standards, which the Fire Chief told us could still be met with L-42 browned-out.

At this point in time, all Battalion 4 units are on assigments except E-42; and Battalion 3 units were all on assignments including E-38, E-23, L-23, and E-2.

At 02:00 am there was a Box Alarm at 2136 W 31st Street. Because all of the above west-side units were on assignments, the units that responded to this fire alarm were all from the eastside, as follows:

Battalion 2 from E 49th & Broadway
L-9 from E 67th & Woodland
Tac-5 from E 37th & Woodland
E-13 from E 49th & Broadway

This is a full response, but all thse units are responding to a fire on W 31st Street!!! This turned out to be an acutal fire and these units were kept on scene on the west-side (leaving the near eastside exposed) until the following times:

B-2 until 02:19 am
E-13 until 02:07 am
Tac-5/L-9 until 02:29 am

02:08 am - Box Alarm for 1300 Kennelworth -- only units that responded were B-2 and E-20. Response is short an Engine, a Truck and a Rescue Squad.

02:15 am - Box Alarm for Professor Avenue (Tremont) -- only unit responding was L-13 (from eastside) Response is short 2 Engines, Battalion Chief, and Rescue Squad.

02:24 am - Box Alarm for 5208 Memphis -- only unit to respond was E-42. Response is short an Engine, a Truck and a Rescue Squad.

During this same time another Box Alarm came in on the eastside that was an actual fire and it tied up the following units: E-36, L-36, E-6.

During this same time period the following units were tied up on motor vehicle accidents: E-1, L-1, E-2, and Rescue Squad 4 (the only Rescue Squad covering the who west-side and should have been responding on all these box alarms to be in compliance with NFPA.)

These actual scenarios depict fire department coverage that was DANGEROUSLY low on the night of July 4, 2006 -- a night that, one would imagine, there may be a significant number of fire call do to holiday activities.

Public Safety, including fire protection, must be JOB 1 of our city government. These scenarios scared the living daylights out of me and they should scare you too.