Here at the Show-Me Institute, we have been following the North Face / South Butt lawsuit with great interest. Many of us know the father of the South Butt founder’s line of fine clothing, and think the entire lawsuit by North Face to be ridiculous. So, last month on my annual family ski trip to Colorado, I could not resist getting a few pictures taken of me in my South Butt T-shirt. Needless to say, the North Face store in Beaver Creek seemed the perfect location to snap a few photos. Enjoy, and I hope everyone at the South Butt keeps up the fight for truth, justice, and humorous relaxation.

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The U.S. Supreme Court heard arguments today in McDonald v. Chicago, otherwise known as the Chicago gun ban case. The court’s decision in this case will determine whether the Fourteenth Amendment means that the Second Amendment right to bear arms should prevent state and local governments from prohibiting citizens’ possession of functional firearms in their homes.

This is a very, very important case — but maybe not for readily apparent reasons. The central question is not so much the meaning of the Second Amendment — that was largely decided by last year’s D.C. gun ban case. Rather, this case concerns the meaning of the Fourteenth Amendment.

When it was drafted and ratified, the first section of the Fourteenth Amendment was intended to do several things: First, to ensure that United States citizenship would be universal for those born within the country, and that no state could deny state citizenship to someone who is an American citizen; this was a pressing concern given that the recently Confederate states might well have denied citizenship to freed slaves. Second, to ensure that all citizens were assured of a certain baseline of liberty that could not be denied by any state or local government, because some state governments, when left to their own devices, had previously refused to offer the same protections for liberty enshrined in the U.S. Constitution. Under the new amendment, states were required to afford all U.S. citizens the “privileges and immunities” protected under the U.S. Constitution — including a right to travel freely across state lines, a right to earn a living in a common profession, etc. And, finally, the amendment was intended to ensure that all citizens must be treated equally under the law, so that no state could fashion laws that would discriminate against newly freed slaves or other “outsiders.”

Very shortly after the amendment’s ratification, however, the U.S. Supreme Court handed down The Slaughterhouse Cases. At issue was a law in New Orleans that created a butchering cartel controlled by the city, limiting the number of people permitted to practice the profession. The law made it so that citizens could only practice the profession with the city’s permission, and then only at a time and place of the city’s choosing. The city’s butchers sued, claiming that the Fourteenth Amendment prevented a state or local government from infringing upon their right to practice their profession. The Supreme Court responded with a ruling that the vast majority of legal scholars now consider one of the least-defensible in the court’s history (see p. 11 of the brief in the preceding link).

The court couldn’t negate the provision establishing universal citizenship, but its decision in Slaughterhouse completely eviscerated (so to speak) the other provisions of the first section — leaving the states free to limit access to professions, set up sweetheart deals for favored business interests and industries, institute poll taxes or other requirements that disenfranchised targeted segments of the population, and pass the Jim Crow–era segregation laws. Had the Fourteenth Amendment been properly applied from the outset, there might have been no need for a civil rights movement because segregation would never have been permitted in the first place, and freed slaves (as well as new immigrants) would have had easier access to self employment in entry-level professions.

Over time, the Supreme Court realized the evils that states were perpetrating against their citizens and so they came up with the doctrine of “substantive due process” as a way of selectively applying the Bill of Rights to strike down illegitimate state laws. It’s an absolute legal fabrication, but it has allowed the court to address issues of constitutional freedom in the way it has seen fit, without admitting that the court got Slaughterhouse wrong. So, almost the entire Bill of Rights has now been “incorporated” into the idea of substantive due process (meaning that 140 years later, the court has almost completely accomplished the original purpose of the Fourteenth Amendment), but several of the most important “privileges and immunities” — such as the right to earn a living — remain on the outside looking in. For whatever reason, the court has continued to hesitate in taking the final, proper, liberty-respecting step.

Taking that step would mean that federal courts could strike down state laws in violation of the privileges and immunities that have been neglected for all this time – but that is not only what the Constitution requires, it is inherently a good thing for liberty! Getting the history and constitutional theory correct would simply re-anchor the methods of analysis to their historical underpinnings, instead of allowing the unprincipled free-for-all that sometimes becomes apparent in the way the court addresses constitutional freedoms. I can’t help but think it would be a good thing, both at the philosophical and the practical level.

[NOTE: Since the original publication of this blog entry, additional information has been released about the filmmakers accused of purchasing personal vehicles using Iowa's film tax credit program. From the Iowa Republican:

We would like to emphasize that these are separate filmmakers from those involved in production of the film The Scientist, also referenced in the blog entry below.]

Three companies and three individuals that were involved in the production for the film The Scientist have been charged with inflating and falsifying expenses in order to obtain more than $1.85 million in tax credits through Iowa’s film tax credit program.

According an article in the Des Moines Register:

Weiner Runge, a 44-year-old film-maker and resident of St. Louis Park, Minn., is accused of a felony for reportedly inflating values of expenses on applications to the state for tax credits. Over the course of the project, Weiner Runge inflated the cost of making the film from $767,250 to almost $1.8 million, according to the Attorney General’s office. [...]

Saunders, 37, [...] provided free services that were used to claim $2.5 million in credits. Saunders also faces felony theft charges.

The following are specific examples of how they are accused of inflating the cost of the services and products that they consumed under the guise of the film tax credits.

Court records indicated Maximus Production Services filed claims for rental equipment that were significantly inflated, such as $225 each for a push broom, a hand broom, a metal rake, a pick axe and a sledge hammer, and two shovels for $450.

The invoices also included various sizes of step ladders that ranged from $900 each up to $1,125, and a 24-foot extension ladder reported to have been rented for $1,350.

As for the most egregious misuse of Iowa’s film tax credits, filmmakers involved in two other productions bought a Mercedes and a Land Rover for themselves. From the Des Moines Register again:

[S]tate officials found [movie]-makers had used the tax credit program to purchase two luxury vehicles worth more than $60,000 and other items later put to personal use.

If these filmmakers purchased their vehicles in Minneapolis, the combined state and county sales tax rate would have been 7.375 percent if not for the tax credit exemption. That means that the filmmakers avoided paying more than $8,850 in sales taxes on their combined vehicle purchases. This is the amount of money that the film producers saved buying the vehicles in Iowa under the guise of a film production, and it represents lost sales tax revenue for Minnesota. Filmmakers who live in Hollywood, Calif., would have an even greater incentive to buy luxury cars using film tax credits in other states because the combined state and county sales tax rate there is 9.75 percent. For a purchase of $120,000, then, a person would have to pay an additional $11,700 in sales tax.

Supporters of film tax credit programs say that the films have economic and fiscal impacts beyond the amount that the filmmakers spend in the state. We’ve discussed this concept in a previous post on this blog, in fact. I’d like to pose the following questions to these supporters: How much economic activity does the purchase of a luxury car generate in the state economy? How much extra output does it yield for the state? Will this motivate more people to move to the state? My answers are, in order, “not much,” “none,” and “no,” but I am eager to read their comments.

I worry that Missouri’s film tax credit program could be at risk of the same kind of fraudulent activity, because it has a structure similar to Iowa’s program. Under both programs, the tax credits are transferable. Iowa has since pulled the plug on its program to scrutinize its accounting, and Missouri would be better off doing the same.

Writing in the Missouri Record, Mizzou political science professor David Webber highlights some of the hard numbers behind Missouri Chief Justice William Ray Price’s call to lessen the criminal sanctions on nonviolent offenders:

Missouri has twice the number of nonviolent offenders in prison [as] it did in 1994. The number of new inmates in 1994 was 4,857; in 2009 it was 7,220. The cost per inmate is now $16,456 per year or about $45.00 per day. The total appropriation to the Department of Corrections in 1994 was $216 million now it is over $670 million—an increase of over 300 percent[.] Worse yet, Missouri’s recidivism rate is 41.4 percent within two years.

Price is also concerned with inconsistencies in sentencing across the state’s judicial circuits. The average sentence for the lowest sentencing circuit is 4.5 years and for the highest circuit is 9 years.

The Chief Justice shares the same opinion that most citizens have about crime—violent, dangerous criminals need to be incarcerated—but he doubts the effectiveness of locking up first-time offending drug and alcohol addicts. Price states boldly: “We also know that simple incarceration, no matter how expensive, does not cure addiction. Treatment with strict judicial oversight does.”

If newspaper editorials are any kind of indication, the idea that we need a cheaper and more humane way of dealing with drug offenders and the like is extremely popular. Hopefully, political inertia will not doom such a worthy cause.

The first round of arguments against a projected $8.1 billion development of the city of Saint Louis’ north side was made in court yesterday.

The bulk of the trial, which will continue on Feb. 25, was devoted to testimony by Washington University economist Michele Boldrin, who clearly doesn’t think much of the projections and forecasts developer Paul McKee used to persuade city officials that his development was viable and worthy of more than $390 million in tax increment financing (TIF).

“I find these numbers completely unbelievable,” Boldrin said. “Pie in the sky” was another frequent characterization.

And, later, “This is something that if an MBA student came up with this as a term paper, I’d throw him out of the office.”

Boldrin’s main argument, repeated many times, was that no justification was given for any of the especially rosy growth and employment estimates. For example, the development company, NorthSide Regeneration LLC, estimates:

1. That property value growth rates will be as high as 20 percent in 2010, and 15 percent in a number of following years.
2. That more than 20,000 new, permanent jobs will be created as a result of this development.
3. That there will be buyers for 6,000 new homes, valued at an average of more than $450,000.

Dave Roland, a policy analyst at the Show-Me Institute, testified briefly that the north side area, which you can explore here, is not as blighted as NorthSide asserts. He, and Terry Artis, the owner and founder of the River City Examiner, took video of some of the areas NorthSide had noted as being especially blighted. The video, which is a publicly available court record, is linked below.

Dave Roland – A Look at Purported Cases of North Side “Blight” in St. Louis from Audrey Spalding on Vimeo.

Click to Enlarge

Interactive NorthSide Map

Another round of challenges to the $8.1 billion development of the city of Saint Louis’ north side will be heard in court tomorrow.

If you’re about to skip reading this post because the word “development” seems boring, hold on a moment. The project, put forward by developer Paul McKee, is contentious because it’s enormous — about two square miles — and because it has been approved for a large amount of public financing. McKee has asked for about $380 million in city tax increment financing (TIF), received approval for more than half, and will likely receive the rest in a few years. In late December, the state granted the development company, NorthSide Regeneration LLC, more than $19 million in tax credits (which can be used dollar-for-dollar to pay off taxes). Interestingly, the Department of Economic Development did not issue a press release, which it generally does when it issues tax credits.

One of the issues that will likely be raised at trial tomorrow is whether NorthSide unfairly characterized the area as being blighted. In its TIF application, NorthSide submitted a blighting study that systematically categorized more than 4,600 properties within the redevelopment boundary as being blighted. Along with its classification of properties as blighted for being dilapidated, unsafe, or unsanitary, the company also included blighting factors for properties with excessive vegetation, properties that had neither increased or declined in assessed value between 2003 and 2005, and properties with an increase in assessed value that totaled less than the city average from 2003 to 2008.

Another issue that could be raised at trial is that of eminent domain. McKee, along with the city aldermen who backed the project and pretty much every other public proponent of the project, have sworn repeatedly that eminent domain will not be used on owner-occupied property. What that means for the fate of non-owner-occupied properties within the boundary is less than clear.

Publicly available court documents also reveal some interesting details:

• NorthSide is curious about how the plaintiffs’ court costs are being financed, and requested that Sheryl Nelson and Elke McIntosh (two of the plaintiffs) reveal how they’re paying for litigation. Judge Robert Dierker did not grant the request.
• Both sides have taken deposition from Michele Boldrin, an economics professor at Washington University.
• NorthSide submitted a letter of interest from the Bank of Washington (in Missouri) as evidence of financial backing of the development. However, NorthSide has not submitted evidence of a contract with the bank, which has less than $800 million in total assets.
• According to NorthSide’s application for state tax credits, the company has spent about $25 million to purchase property in the redevelopment area.

The trial will start at 11 a.m. in Division 18 of the city’s Circuit Court. Judge Dierker, who quoted economist F.A. Hayek when rejecting the plaintiff’s request for a preliminary injunction, will hear the case. You can read that ruling here.

Last week, Judge William Price, the chief justice of the Missouri Supreme Court, delivered the State of the Judiciary address. He made one thing clear: The judiciary is tasked to protect the people of the state, but they cannot carry out this commitment successfully without sufficient resources. Missouri’s essential government services must be carried out even in the worst of economic times. The Missouri judiciary is doing its part to be fiscally responsible, returning millions of dollars of appropriated funds even though their own budgets are tight. They feel the same economic pressure that other government agencies are experiencing, but they are making an attempt to keep the interest of the public at the forefront.

We have all undoubtedly felt overworked and underpaid, and during a recession, the proportion of the labor force feeling this way has surely increased. As Judge Price pointed out, those who make some of the most important decisions throughout the entire criminal justice system — state prosecutors — are being spread thin. This is a worrying state of affairs if we want prosecutors to make well-considered decisions. People work better when they are happier — it’s as simple as that.

One of the most pressing issues mentioned in Judge Price’s address is the state’s overspending on the incarceration of nonviolent criminals, something that Show-Me Institute research assistant John Payne mentioned in an earlier blog post. This is a situation resulting from too many restrictive laws that have resulted in the criminalization of nonviolent offenses, such as transactions involving drugs, alcohol, and even prostitution. Regardless of how one feels about the morality of such activities, it’s hard to justify expending so many resources on their prosecution when the core functions of the judicial system — protecting life, liberty, and property from actual direct, measurable harm — is suffering from a lack of resources.

Too many people are being arrested and tried for crimes that have no complaining victim. As Reason editor Radley Balko has observed, “Because there is almost never a complaining victim in vice crimes, law enforcement officers must go to extraordinary lengths to investigate and prosecute these crimes. This leads to all sorts of other problems, including invasions of privacy, entrapment, and police corruption.” The situation has also led to inconsistency in prosecution throughout Missouri. The toughest counties are prosecuting five times as many offenders as the most lenient counties.

Judge Price has has offered a rather convincing reason to change these policies, and to decrease the rate of prosecution and incarceration of nonviolent criminals — because we can’t pay for it. What’s even more convincing is that we cannot afford to pay for the proper treatment and rehabilitation for these offenders. Price outlines how poorly the system treats people who haven’t directly harmed anybody else, by tearing them from their lives, throwing them in a “concrete box with very expensive guards, feeding them, providing them with expensive medical care, surrounding them with hardened criminals for long periods of time, and separating them from their families who need them and could otherwise help them[.]” What’s worse, while in prison, some of them are being trained by full-fledged violent criminals on how to further divide themselves from mainstream society. These people are also citizens, and deserve to be given a chance to reintegrate into society.

Price provides some sobering numbers:

In 1994, shortly after I came to the Court, the number of nonviolent offenders in Missouri prisons was 7,461. Today it’s 14,204. That’s almost double. In 1994, the number of new commitments for nonviolent offenses was 4,857. Last year, it was 7,220 — again, almost double. At a rate of $16,432 per offender, we currently are spending $233.4 million a year to incarcerate nonviolent offenders … not counting the investment in the 10 prisons it takes to hold these individuals at $100 million per prison. In 1994, appropriations to the Department of Corrections totaled $216,753,472. Today, it’s $670,079,452. The amount has tripled. And the recidivism rate for these individuals, who are returned to prison within just two years, is 41.6 percent.

Price observes that if the state government were run like a business, these wasteful practices would have been done away with years ago. “Business” may not be the most convincing metaphor to use, because one of the classic economic justifications of government action, particularly the justice system, is that public goods are not optimally provided by markets. Some economists, however, have suggested that many aspects of government action that are commonly justified in terms of their status as public goods, including some within the justice system, can’t correctly be considered public goods:

The standard economics approach to delineating the optimal set of the state’s functions is unsatisfactory.² In particular, when economists such as Joseph Stiglitz (1988: 24) indicate that “a primary role of government” is to provide the legal framework “within which all economic transactions occur,” not much is said about the desired content of the laws, and how it might affect the desirability or efficiency of their enforcement. Besides, there is typically no mention of nonstate enforcement mechanisms and their relationship to those of the state. The impression is created that all conflict resolution in economic life is in the unavoidable domain of the state. That impression is in contrast with the empirical evidence (see, e.g., Greif 1997, Gow and Swinnen 2001, and Waldmeir 2001).

This confusion is related to the use that is made of the concept of public goods as being nonrival in consumption and nonexclusive (Samuelson 1954: 387–89). If these goods are to be provided at all, taxes and the related state’s coercion are necessary. However, which goods are truly public? Is the justice system the domain of the state because the relevant services are a public good? Clearly, that cannot be said of all such services. Then, which “justice services” constitute a public good? Is the lighthouse, the favorite textbook example of a public good, a public good? Ronald Coase (1974) has shown that lighthouses in 19th century Britain were operated and financed privately. This finding, however, has not prevented the lighthouse to continue serving as the primary example of a public good in many textbooks (e.g., Stiglitz 1988: 75).

There may be fewer public goods in real life than typically assumed. As a result, the necessary (or desirable) scope of the state’s activity may be narrower, too. Some of the goods declared “public” may in fact be private goods, pushed into the state’s domain by public intervention that has eliminated or undercut the possibility of voluntary private financing of these goods. In other words, some uses of the theoretical concept of public goods may inadvertently constitute ex post justifications for the results of previous expansion of state activity.

Judge Price is not an economist, but by questioning whether the routine prosecution and incarceration of nonviolent offenders for committing consensual crimes actually provides more value than cost for the people of Missouri, this may well be the type of argument he was trying to make, using different terminology. Price is suggesting that it’s time for a more thorough analysis of which interests are truly being served by prosecuting many types of nonviolent offenders, and whether such prosecution actually provides results that could be considered a public good. His address doesn’t contain all the answers, but it’s the starting point for a worthy debate.

In times of fiscal crisis, it sometimes becomes necessary to embark upon a new policy path, and welcome changes that we might otherwise avoid. Whether Judge Price’s recommendations are inspired by a concern for justice or for more practical financial reasons, this would be a positive step for the government to take. The judiciary appears to be willing to do its part in order to withstand the jolts of the recession, but are the other branches of government also up to the task?

Barbara Geisman, an aide to Saint Louis Mayor Francis Slay has questioned whether the city needs a drug court and recommended cutting funding for the court by $325,000. Now, I’m all for cutting the budget of pretty much any government agency, but if this just shifts people that would be going to drug court into the more punitive side of our criminal justice system, it will likely wind up costing Missouri taxpayers more in the long run.

Geisman’s view has been challenged by William Ray Price Jr., Chief Justice of the Missouri Supreme Court, who last week called for increased drug court funding.

From the Post-Dispatch:

“We know drug courts work. We have more than 8,500 graduates,” said Price, who is seeking $2 million more a year for drug courts. “We know the tremendous savings that result from drug courts in Missouri.”

As for studies about drug courts, Price had this to say in his speech to the state House and Senate:

At one fourth to one fifth the cost of incarceration, more than one half of drug court participants graduate, and recidivism is only in the 10 percent range. The last five meta studies on drug courts, from all across the United States, have shown that drug courts reduce crime from 8 to 26 percent.

As the editorial board of the Post-Dispatch noted, this is the low-hanging fruit in our justice system. I will reiterate that the cheapest of all alternatives here is to not to criminalize the behavior of nonviolent drug offenders at all, but since that is not currently on the table, drug courts are an improvement over prison — even if you think people who consume politically incorrect substances should be forced by the state to change their behavior.

Last week, I noted with some pleasure Missouri Chief Justice William Ray Price Jr.’s call for a less punitive approach to nonviolent offenders in our legal system. In an editorial today, the Post-Dispatch praises Price and offers some concrete recommendations for reform:

• Drug courts need more funding. This is the low-hanging fruit in criminal justice reform — the chance to save serious money by ending the cycle of crime and keeping nonviolent, drug-related offenders out of prison. A lack of funding means state leaders aren’t serious.

• Leaders in rural counties must start to deal with nonviolent offenders in their own communities. If their prosecutors and judges insist on sending everyone to prison, then local taxpayers should be forced to pick up the tab.

• And, Gov. Jay Nixon should convene a panel of top law enforcement, legislative and judicial officials. Their task over the next 120 days should be to develop a plan for closing five of Missouri’s 21 adult correctional institutions over the next five years — one a year for five years — using part of the savings to support alternatives to incarceration for nonviolent offenders.

I agree that all of these would be positive developments, but I will note that we could save even more money if the state did not attempt to force people to abstain from certain vices.  Oh, well — baby steps, I suppose.

Although it changes nothing immediately, it is good to hear Missouri’s highest-ranking judge point out the inefficiency and waste of imprisoning nonviolent criminals:

During his annual State of the Judiciary address, Missouri Chief Justice William Ray Price, Jr. urged lawmakers to take a closer look at the incarceration of nonviolent offenders and the expansion of the state’s drug court system.

In a speech today before the house and Senate, Price said Missouri’s “broken strategy of cramming inmates into prisons” isn’t working and costs the state millions of dollars each year.

He said the state should focus on rehabilitating nonviolent offenders, instead of sending them to jail. Jailing nonviolent offenders, Price said, frequently leads to higher recidivism rates. 41.6 percent of nonviolent offenders who are jailed, then released, return to jail within two years, he said.

Price praised the state’s drug court system, but said it needs at least $2 million more funding per year to operate at full capacity.

According to the Show-Me Institute’s new spending tool, “Show-Me: The Books,” Missouri spends more than $2.7 billion a year on the Department of Corrections. Much of that spending keeps violent criminals off the street and is justified, but much of it goes to lock up petty criminals and drug offenders. Of course, I would go much further than Judge Price by eliminating prosecution of all victimless crimes (e.g., drug possession, prostitution) completely, but given how rare it is to hear someone in power even approximate my position, I will gladly take it.

It appears that the Missouri state Supreme Court may be poised to strike down the $350,000 cap on damages for pain and suffering in medical malpractice lawsuits. I’m fairly certain that some here will disagree with me, but I for one hope the cap is eliminated. From a legal perspective — keeping in mind that I am not a lawyer — the law seems inherently unequal, as it carves out a special exception in tort law for doctors. Furthermore, if doctors have this special exemption, they have less economic incentive to be careful in their work.

On the other hand, not having a cap can encourage too many lawsuits and add to medical cost inflation. However, it is important to keep the costs of excessive lawsuits in perspective. The Congressional Budget Office estimates that the savings for instituting a typical set of tort reforms (including but not limited to a cap on damages) saves 0.5 percent on total medical spending. This is not completely insignificant, but those savings would be totally swamped by a single year’s medical inflation.

There is a way to reform the tort system without giving anyone special privileges. Outside of the United States, most of the developed world uses what is usually referred to as the “loser pays” system, whereby whoever loses the lawsuit must pay both sides’ legal expenses. This system would have the salutary effect of eliminating frivolous lawsuits and lowering total lawsuit expenses. A 2008 Manhattan Institute study found that when compared to countries with the loser pays system (e.g. Britain, Australia, Germany), the United States spends at least twice as much on tort litigation as a percentage of GDP. If Missouri instituted loser pays, we could reap the benefits of lower litigation costs without creating a privileged legal class.

In a recent post, I commented on how I supported preventing felons from working as bail bondsman, but stated that I did think, on the whole, that we were being too restrictive about which positions that felons can work in once they serve their sentences. So, I was delighted to read that in Kansas City Councilman John Sharpe has introduced legislation changing the city’s liquor code to allow felons to work in bars. I think that this is a very positive change, and I commend Councilman Sharpe. There is no reason that felons who have done their time should not be able to serve drinks, or work in any of the other assorted jobs that are available in bars. (I, myself, used to be a barback and a bouncer — although no, I am not a felon.) I hope this change goes through, so it can give former convicts a few more opportunities to build back their lives after they serve their punishments.

I was also delighted to read the story first at Tony’s Kansas City, which is always informative and fun to read for a number of reasons — which you will discover as soon as you visit.

Nobody covers the bail bond industry like we do here at the Show-Me Institute. Combest has linked to an AP story in the Springfield News-Leader that details how a state agency is recommending that Missouri tighten its requirements to become a bail bondsmen. Now, I loathe most occupational licensing, but these recommendations (as reported by the article) don’t seem that bad.

I understand the reasoning behind not letting convicted felons serve as bail bondsmen, and that strikes me as a reasonable change. I say this as someone who is very sympathetic to the plight of former convicts getting jobs after serving their time, and I think we have gone too far in limiting the ability of felons to work after their sentences are complete. However, jobs that deal with the court system, like bail bondsmen, seem a reasonable restriction in my opinion. 

The other changes, according to the article, are:

The report also recommends larger fines for violations and requiring that applicants have high school diplomas.

Restricting entry requirements through rules or costs are the biggest economic problem with occupational licensing. Fines levied by regulatory agencies to punish misconduct by those who have done something wrong — after they’ve been licensed — are less of an issue, so I don’t greatly object if such fines are raised for current practitioners.

However, the last rule proposal is just stupid. I realize that getting a high school diploma or GED is very simple and has a low cost, but the main question should be whether performing the job competently requires a high school diploma. I fail to see why the job of bail bondsmen should require a high school diploma. The customers who need you don’t care whether you have a diploma on the wall. They care that you have the money to put up, and they need to know that you are going to find them and harm them (I don’t necessarily mean physical harm; returning them to jail is “harming” them) if they skip out on you and the court. The diploma requirement and the requisite job skills just don’t connect.

This is not in any way an attack on the intelligence of bail bondsman. I don’t think being a policy analyst at a think tank should require any type of diploma if you can do the job without it. (But, yes, the author does have a high school and college diploma, just like I am certain that most bail bondsmen have diplomas.)

Because the Show-Me Institute’s staff took some time off during the holidays, we missed writing about a few things that I might otherwise have jumped on. In the interest of catching up, I want to highlight this excellent piece by James Harris — whom I have had the pleasure of knowing for some time — that ran about a week ago in the Springfield News-Leader. I like how he puts the issue here:

Right now, having tort reform laws on the books puts us at a comparative advantage with other states and other nations when competing for new industries. The loss of these laws would put us at a disadvantage, discouraging companies from creating new jobs in Missouri which could be created more cheaply in other states.

I actually disagree with James on a related issue: that of judicial appointments in Missouri. However, I totally agree with every word he wrote in this piece. If the state Supreme Court strikes down the current tort laws that were enacted in 2005, it would be a disaster for Missouri in countless ways, especially economically. I won’t get too worked up, because I am optimistic that the court will agree that elected officials have a right to set limits on government actions, such as court verdicts.

If opponents of tort reform laws want to go back to the way it was in Missouri, they need to get people elected to office who run on rescinding the lower award limits and other reforms that were passed. After all, the officials elected in 2005 almost all ran on the issue of tort reform. The people of Missouri elected legislators who had proposed to limit awards, change venue laws, etc. If you want to change those laws, do it through the democratic process — not the courts.

Here at Show-Me Daily, we have long documented the efforts of the Missouri Municipal League to prevent this state’s citizens from voting on constitutional amendments that would severely limit abuses of eminent domain in this state. For years now, the league (its leadership is made up of elected officials from across the state) has successfully persuaded cities to use your taxpayer dollars in order to help support their effort. Part of that effort has included litigation that the filers claimed to be an attempt to get a “fair” ballot title — but, in reality, it was intended to keep the measure off the ballot entirely by so delaying the signature-gathering process that it would be impossible to collect the necessary number within the limited time available.

Up until a few weeks ago, advocates of eminent domain reform had no real proof that the Municipal League’s lawsuits had this suspected insidious purpose. On Nov. 20, however, at a meeting of the Missouri Bar Association’s Eminent Domain Committee, a managing partner in the law firm representing the Municipal League was asked to give an update on the litigation. She had this to say (audio transcript; emphasis added):

It’s not a real big update, but … um … from the standpoint of the initiative petition, uh, we did partially win, uh, in the … at the trial court level, and it’s on expedited appeal for the western district, um, which will be argued in December, with the main objective being to delay the gathering of signatures and, um, hopefully we’re … we’re accomplishing that.

Missouri Citizens for Property rights, the group spearheading the petition effort, has asked the court for permission to supplement the record with the audio evidence of the attorney’s statement, and should hear today whether the court will agree. If the court chooses to take her statement seriously, it could assign sanctions against her firm for violating the ethical rules (yes, attorneys are supposed to understand ethics) governing the legal profession.

The story has started to gain interest nationwide — as it should. It is yet another example of powerful people trying to prevent ordinary citizens from having their own say on important issues. The AP article has so far been run by media outlets in Atlanta, Phoenix, Washington, D.C., Seattle, Miami, Philadelphia, Minneapolis, and Dayton, Ohio. Here in Missouri, the story has been reported in Kansas City, Springfield, Columbia, Jefferson City, Joplin, Cape Girardeau, and St. Louis — although it is interesting to note that the Ost-Pay Ispatch-Day, for some reason, has not yet covered this story.

Among the elements of the health bill being considered by Congress is a requirement that every adult would either have to purchase a health insurance policy or face punitive fines to be collected by the Internal Revenue Service. There has been widespread debate in legal circles about whether the courts would uphold such a requirement, but lawmakers in several states are trying to do what they can to insulate their citizens from such a requirement. In Missouri, state Sen. Jane Cunningham has already persuaded half of her colleagues to cosponsor Senate Joint Resolution 25, an amendment to the state Constitution that would recognize the citizens’ right to decide for themselves whether they will participate in any health care system.

Under this amendment, the government would be denied the authority to prevent citizens from offering or accepting direct payment for health care services, and it would not be permitted to substantially limit the purchase or sale of health insurance in private health care systems. In addition to recognizing that this is a sort of common-sense freedom that ought to be enshrined in the Constitution, the proponents of SJR 25 are aware that state constitutions are permitted to afford liberties above and beyond those secured under the U.S. Constitution, and that there is a possibility the courts might find that even a federal statute cannot violate those additional rights.

This proposed amendment has sparked the interest of some in the media, including an article from the St. Louis Beacon (authored by William Freivogel, director of the School of Journalism at Southern Illinois University–Carbondale) with a headline suggesting that, if passed, SJR 25 would itself violate the U.S. Constitution. I quickly posted a rejoinder in the comment section of that article, but I felt it would be worthwhile to restate in this forum the points I made in those comments.

There are four major constitutional issues raised by the potential federal health insurance mandate and Sen. Cunningham’s proposed amendment: 1) Does the proposed law fit within the powers that the Constitution gives to Congress? 2) Does the proposed law infringe upon powers reserved to the states by the Tenth Amendment? 3) Does the requirement to buy health insurance unconstitutionally infringe upon the individual liberties secured to American citizens under the First, Fifth, and Ninth Amendments? And, 4) Does the Supremacy Clause allow for the enforcement of a federal statute even if that statute conflicts with individual rights protected under a state constitution? I’ll address these points in order.

As we all remember from high school, congressional authority is limited to those powers explicitly granted by the Constitution. In this case, the question would be whether the Constitution gives Congress the authority to punish citizens for refusing to purchase health insurance.

Those backing the bill suggest that this authority is part of part of Congress’ power “to regulate commerce … among the several states[.]“ It is true that courts have generally interpreted this power very broadly, resulting in the decision that a farmer named Filburn was bound by agricultural regulations even though he was not taking his grain to market, as well as the decision that Angel Raich was subject to federal drug laws even though her medical marijuana was homegrown and neither bought nor sold.

But courts have also recognized limits to congressional authority under the Commerce Clause. In U.S. v. Lopez, the Supreme Court held that the Commerce Clause did not permit Congress to create a federal law banning possession of firearms in a school zone. In U.S. v. Morrison, the court struck down a law that addressed the subject of gender-based violent crime. The primary reason that the court struck down the laws in Lopez and Morrison was that the subjects Congress sought to regulate lacked a clear impact on commerce among the states.

While much of the health insurance industry is handled within the bounds of individual states (it is very unusual to be able to purchase insurance from a company in a state other than the one in which you are domiciled), I believe that courts will be inclined to find that health insurance as a whole is an issue with a sufficient connection to interstate commerce to permit congressional regulation. But, if Congress passes a bill mandating that individuals must either buy health insurance or face financial sanctions, courts will have to answer a very specific question: Does the power to regulate interstate commerce give Congress the authority to penalize citizens who do not wish to engage in commerce? As Prof. Randy Barnett pointed out at a recent Heritage Foundation debate, the Supreme Court has never faced such a question, so we cannot be certain how it will be answered. I tend to agree with Barnett that the Court’s response will likely hinge on the solicitor general’s ability to explain which aspects of citizens’ lives (if any) would remain beyond the reach of congressional regulation if the Court permitted these mandates to be enforced.

One of the law professors cited by Freivogel argued that even without relying on the Commerce Clause, authority for the health insurance mandate could be found in Congress’ power “to lay and collect taxes … [to] provide for the … general welfare of the United States[.]” I disagree. While this provision might permit the creation of a tax-based public health insurance system like Medicare that all workers pay into, this is not what is anticipated in the insurance mandate under consideration, which is neither tax-based nor public. Nor would the alleged “tax” be collected from all workers. Furthermore, even if the fees for failing to purchase health insurance were classified as a tax, Congress is specifically denied the authority to impose capitation taxes “unless in proportion to the census,” a requirement that this proposal does not seem to meet.

Assuming the courts were to determine that Congress does have the general authority to impose a health insurance mandate, the next question would be whether the issue should be reserved to the states under the Tenth Amendment. While Congress has for decades been active on the subject of health care, this does not necessarily imply that Congress may remove state governments’ ability to decide whether their citizens should be punished for failing to purchase health insurance. In fact, this is an issue that several states have previously dealt with, in which at least one state (Massachusetts) has adopted such a mandate and a number of other states have considered — yet refrained from — doing the same. Federal courts have previously been very willing to permit congressional interference even in areas that were traditionally the sole province of the states, but considering the current ideological composition of the Supreme Court, it is possible (although, admittedly, unlikely) that a majority might take this opportunity to redefine (or restore) the balance of power between the federal government and the states.

Most of the arguments I’ve heard so far regarding the proposed health insurance mandate have neglected to address whether it might violate the First, Fifth, or Ninth Amendments, but I think this is an oversight. The Supreme Court has previously recognized that the Constitution protects citizens’ rights to associate with others of their choosing, to enter into contracts, to make their own decisions regarding health care, and, of course, their right to privacy. A violation of any one of these rights could be sufficient to invalidate the health insurance mandate.

While some people may not carry health insurance because it is unaffordable, many choose not to purchase health insurance. Some people’s religions may not permit the use of modern medicine, while others may not believe it to be effective. Still others are simply confident enough in their propensity for health that they are willing to risk the costs of illness or injury in order to direct their money to concerns that they believe to be more pressing. And there are some who, recognizing that most people pay far more to insurance companies than they are ever likely to need for their own treatment costs, would prefer to self-insure by creating their own health fund. For each of these people, a congressional directive to purchase a health insurance policy would mean giving up a huge amount of money — as well as a significant amount of privacy — committing themselves to a contract for goods and services that they do not want, and in some cases may be prohibited from using.

There is a principle in American law that says the government may not punish someone for exercising a constitutional right, and neither may it offer a benefit on condition of the citizen’s willingness to refrain from exercising a constitutional right. In the case of an individual health insurance mandate, the government would be telling its citizens that if they choose not to associate with an insurance company by entering into a contract under which they will be required to pay large sums of money while also disclosing private information about their health, they will be subject to very large fines. I think that this is clearly an infringement of some, if not all, of the constitutional rights listed above.

Unfortunately, establishing an infringement of rights does not end the analysis. In fact, the Supreme Court has long permitted infringement of these kinds of liberty, as long as the government could advance what the court considered to be a sufficiently important interest in doing so. In the case of the individual health insurance mandate, the goal advanced by the government would be to bring about slightly lower insurance premiums and, thus, to increase the number of people with access to health care. This is just a hunch, but I suspect that courts will not find this interest sufficiently compelling to justify forcing citizens to purchase coverage that they do not want and may have no intention of using, particularly when doing so necessarily requires an invasion of their privacy.

My final point is that if the courts find that the U.S. Constitution does not afford citizens protection from being forced to participate in a health care system, the courts will have to decide whether the Supremacy Clause permits a federal statute to be applied in such a way that it violates an individual freedom recognized by a state constitution. As I pointed out in my first comment, it is very possible — perhaps even likely — that the courts will decide that these state constitutional amendments do not bind the federal government. It is important to note, however, that this sort of holding would not strike these provisions down as “unconstitutional.” Rather, it would simply prevent their application against the federal government — perhaps foiling the hopes of the state constitutions’ drafters, but certainly not preventing the effectiveness of the provision against state governments and their subdivisions.

I’ll be a guest on Charlie Brennan’s morning show on KMOX tomorrow from around 9:30–10:00 a.m. What will I be discussing? I’m glad you asked. …

Although we haven’t yet discussed it on the blog, I hope that all of our readers are aware that the St. Louis Police arrested Gustavo Rendon, husband of the president of the North Side Community Benefits Alliance. Why? Because he was distributing fliers that opposed the NorthSide redevelopment project recently approved by the city. Even worse, he just happened to be doing so outside the church of Alderwoman April Ford-Griffin, a staunch supporter of the project. So, two police officers arrived, threatened to put his kids in foster care if he didn’t stop distributing the fliers, then arrested him.

The charge? Affixing advertisements to private property.

Fortunately, the city attorneys quickly realized that the ordinance under which they arrested him didn’t, you know, prohibit what he was doing. And even if it had prohibited distributing fliers that communicated purely political ideas, the ordinance probably would have been unconstitutional anyway. So, today they announced that they were dropping the charges.

The bigger problem, which I hope to address with Mr. Brennan, is that Mr. Rendon’s arrest is suggestive of a much larger problem: powerful people trying to stop citizens from having their say on important public issues. In this case, it was police officers arresting someone for communicating opposition to a redevelopment project. In Jim Roos’ case, a city agency is trying to destroy a sign calling for an end to eminent domain abuse. In the Northeast Ambulance and Fire Protection District, officials tried to fine and ban from future meetings certain taxpayers who protested the district’s insane spending. And, of course, the Missouri Municipal League is using taxpayer money for a lawsuit with the primary goal of keeping off the ballot a constitutional amendment that would go a long way toward ending eminent domain abuse in the state — because they know it will pass if citizens are allowed to vote!

So, like I said, tune in tomorrow morning as Charlie Brennan and I discuss these issues. Who knows, there might even be some interesting surprises involved. And, if you can’t listen to tomorrow’s show, keep an eye on the Policy Pulse website, where Audrey Spalding is continuing to do excellent work reporting on abuses of taxpayer money and government authority.

The trial for the man charged with terrorism because of a conversation he had with a telemarketer was originally scheduled to take place this month, but it’s been postponed until Jan. 4 (search case no. 0922-CR03091-01).

Getting angry on the phone is only one of many behaviors that can prompt suspicion of terrorism. According to the public service announcement embedded in this post by Jim Harper, anyone who asks for directions or writes in a little notepad is a possible terrorist.

I hope the justice system will turn its attention to real threats and dangers, and go easier on the people who lose their cool over phone solicitations. Put them on the Do Not Call list; don’t put them in jail.

Nothing involves the combination of occupational licensing, the Second Amendment, civil rights, police and courts, free markets, and entrepreneurship quite like the bail bond industry. That’s probably why I write about it every chance I get. So, when I got back in the office this morning for the first time since Friday (there was a fire in our Clayton office building on Friday, shutting it down, and many of us spent Monday through Wednesday at a think tank convention — my brain is very tired), I was delighted to see Combest linking to a story about an investigation of some bail agents.

Apparently, Missouri is holding hearings on the industry. I might go and testify on Nov. 10 — but, then again, I might not. I really don’t know very much about the industry (my enthusiastic blog postings aside), and since this is one industry where I think the benefits of having some licensing outweighs the costs, I really don’t have that much to add. “Don’t go too far with tightening up the licensing requirements,” would basically be all I might say.

This is also topical because some agents possibly went too far in their efforts to catch someone the other day in Springfield. As the police officer quoted in the story says, agents do have the right to kick down your door in certain circumstances:

“They have less [...] restrictions [than] what a law enforcement agency has and can make some entries under some circumstances,” Springfield Police Department Maj. Kevin Routh said. “And that’s the key that’s under investigation here…is, did they have enough information to make entry into the residence?”

I basically think that if the agents did indeed violate the rights of the other citizens, criminal and civil penalties should be enforced. If they made an honest mistake in a difficult situation, then perhaps there should be civil repercussions to benefit the people they harassed, but I wouldn’t see the need for criminal charges. No matter what, there are current laws to deal with this, and this should not serve as some excuse to tighten up the licensing requirements further.

Don’t worry, I still detest red light cameras and think they are a total violation of our rights. I think the state should ban them throughout Missouri. However, I give Springfield some credit for truly using them for public safety purposes rather than as a back-door revenue generator. The article in the Springfield News-Leader (link via Combest, who is a very safe driver), details how the city has made almost no money from the cameras, although the company that installed them has certainly made its share.

I am not generally someone who gives much credit for intent over results (that is a mindset of the left side of the political spectrum), but I am going to make a slight exception here. I still think the people of Springfield should demand that the cameras be removed, but it is better if they are only used for traffic enforcement, and not as a money raiser. Springfield’s city traffic engineer (Earl Newman, quoted below) sums it up nicely at the end:

St. Louis’s mixture of significant additional revenue with those public safety benefits worries Newman, who is concerned the financial windfall muddies the water.

“When you’re making a lot of dollars, that means people are still running lights,” he said. “And it’s going to give the appearance it’s being done for the money.”

Today the Wall Street Journal reports on the latest episode of eminent domain in the courts:

New York’s highest court is set to hear arguments Wednesday in a case that will decide whether the state government can lawfully seize private property for a development company.

The story is very familiar, although the actors are different. This time, the New York State Urban Development Corp., a government agency, assumes the role previously played by the city of New London, Conn. A chorus of concerned land owners reprise the role of Susette Kelo, the woman in the little pink house. Forest City Ratner Cos. replaces the New London Development Corporation in the role of the developer, and instead of building a Pfizer research complex, it plans to build an NBA stadium in downtown Brooklyn.

Stay tuned! If the Court of Appeals in Albany sides with the property owners and introduces additional limits on eminent domain, there will be a happy ending. If the court sides with the developers, there will be an unhappy ending, as there was in New London. This will mean that, in addition to other negative consequences, the property owners will lose their homes and the city will lose money on the project.

The city’s Independent Budget Office said in a report last month that the arena would cost the city nearly $170 million, nearly $40 million more in spending than it would generate in tax revenues.

Eminent domain is not reserved for East Coast cities like New York and New London — it’s a pukka issue here in Missouri, too. Last month, the Show-Me Institute released a study of the expansion of eminent domain in Missouri, and it also hosted Jeff Benedict to speak about the eminent domain abuse that occurred in the Kelo v. New London Supreme Court case.

The Show-Me Institute was pleased to be able to host Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, for speaking engagements in both Kansas City and St. Louis earlier this month. The first of those events, held in conjunction with the Kansas City Public Library, is now available for your viewing pleasure on our website. Hear how Susette Kelo’s heroic fight to save her New London, Conn., home turned into the landmark Supreme Court case that outraged homeowners and sparked a legislative backlash across the nation. Kicking off the event is R. Crosby Kemper III, executive director of the Kansas City Public Library and chairman of the board of directors for the Show-Me Institute.

I’ve also posted it below, for your convenience. This playlist consists of seven separate parts. After each individual part has finished playing, the playlist should automatically load the subsequent part until the sequence has finished. You may also choose to view any individual part on its own:

Part 1 (10:00) | Part 2 (10:03) | Part 3 (9:47) | Part 4 (10:01) | Part 5 (9:59) | Part 6 (10:00) | Part 7 (5:58)

The Post-Dispatch has a story about a college freshman from Ladue and the very small clothing line he came up with two years ago as a parody of “The North Face.” Apparently, the legal department at The North Face is taking issue with his business all of a sudden.

Certainly, there is a trade-off between protecting intellectual property and permitting free expression. Absent any copyright protection, an entrepreneur can spend an entire life building good faith in a brand only to have fly-by-night startups capitalize on it by selling under the trusted name. However, the case of Jimmy Winkelmann — the parody clothing line’s creator — is clearly not in need of the intellectual property adjuvant. Even if each respective clothing line were displayed on adjacent shelves at Macy’s, I doubt anyone would confuse the brands “The North Face” and “The South Butt,” despite the obvious satirical similarity.

But they aren’t even on adjacent shelves. According to the article, the Ladue Pharmacy on Clayton Road is the only store that stocks the clothing. We don’t need intellectual property rights to protect The North Face from a joke competitor. In fact, I tend to agree with Al Watkins, attorney for “The South Butt,” when he says of “The North Face” (quoted in the article):

“I don’t think they have any grounds to stand on,” Watkins said. “They’re just being bullies.”

A couple of weeks ago, the Show-Me Institute hosted events in Kansas City and St. Louis at which Jeff Benedict discussed his book Little Pink House: A True Story of Defiance and Courage, the story of Susette Kelo’s fight to save her home in New London, Conn. As most will know, Susette lost her fight when the U.S. Supreme Court ruled that the U.S. Constitution permits cities to take private property on behalf of new private owners, so long as those owners are considered more likely to generate more tax revenue for the city.

Many people at these events asked whatever became of the planned development once the city won the case. Did they ever build the luxury hotels and condominiums, or the high-end retail shopping establishments that were promised? New London’s local newspaper, The Day, has produced a video that lets you see for yourself how the development is faring, four years after Mrs. Kelo’s neighborhood was leveled. I hope the city is satisfied with the Fort Trumbull neighborhood’s new residents.

They are alike because the smaller counties in Missouri choose not to tax themselves to pay enough for their sheriff deputies, so the state then taxes all counties, including the larger counties that already pay their deputies a decent salary, in order to make up the disparity.

As a former St. Louis County deputy sheriff, I am uniquely qualified to comment on this story. The Political Fix has a post here about the decision in a lawsuit brought by St. Charles and St. Louis counties. Now, my own post is not a comment on the decision in the lawsuit. I have no idea whether the specific legal claims have merit. I just know that this is one more example in which the taxpayers in our larger counties have to pay higher taxes (or, in this case, a higher fee) for something because the smaller counties refuse to tax themselves enough.

I have absolutely no problem with smaller counties choosing to tax themselves less, but I do have a problem with taxing the larger counties more in order to pay employees in smaller counties more. I do not know whether this could be considered “socialism” or not, as County Executive Steve Ehlmann said, but I do know that it is terrible public policy, and blatantly biased as well.  Both county executives Ehlmann and Charlie Dooley deserve credit for fighting this new law.

On Tuesday, Sept. 15, the Show-Me Institute released a new study: “Gradual and Silent Erosions: How the Missouri Supreme Court Expanded the Power of Eminent Domain.” It discusses last year’s Missouri Supreme Court decision in City of Arnold v. Tourkakis, and was written by Timothy Sandefur, a senior attorney for the Pacific Legal Foundation and a nationally recognized expert in constitutional protection of property rights who represented Homer and Julie Tourkakis in their fight to save their dentist’s office from being taken from them by Arnold, Mo., on behalf of a private developer.

Sandefur points out several areas in which the Tourkakis court’s analysis veered away from earlier holdings about how laws should be interpreted and applied, before concluding that the court’s refusal to protect Dr. Tourkakis’ office from the wrecking ball represents only the latest in a series of steps that Missouri courts have taken away from the powerful protections for property ownership that are enshrined in the state’s Constitution.

Today, colleges around the country are hosting speakers and events to celebrate Constitution Day. Yesterday, the Show-Me Institute hosted Jeff Benedict to talk about an abuse of constitutional rights and eminent domain in the Kelo v. New London Supreme Court case.

While Susette Kelo’s case is well-known nationally, a new Show-Me Institute policy study also brings to light eminent domain abuses in Missouri. “Gradual and Silent Encroachments: How the Missouri Supreme Court Expanded the Power of Eminent Domain,” by Timothy Sandefur, a senior staff attorney at the Pacific Legal Foundation, tackles recent cases that have set back the constitutional rights of Missourians. Though this state once had one of the strongest constitutional provisions to protect home and business owners against eminent domain, new precedents by the Supreme Court have eroded that protection.

As Policy Pulse and Show-Me Daily continue to report, eminent domain is still a very pertinent issue in Missouri.

Constitution Day serves as a great reminder that some of the founding ideals of the country, like the respect of one’s own private property, still need to be protected.

As the Springfield News-Leader reports, Judge Michael Cordonnier of the Greene County Circuit Court handed down a very important decision yesterday. Several months ago, the Springfield School District announced a new collective bargaining policy in which teachers would get to choose: (1) whether they wanted to have official bargaining representation provided by just one teachers’ union, multiple teachers’ unions, or no teachers’ unions at all; and, (2) which union(s), if any, would be chosen as representatives.

The Springfield chapter of the National Education Association, the nation’s largest teachers’ union, filed a lawsuit arguing (among other things) that the Missouri Constitution should be read to require employee groups to choose only one exclusive bargaining agent, selected by the majority. The SNEA (which claims to have more than half of the district’s teachers on its membership rolls) wanted to prevent teachers from even voting on the possibility of multiple representation, and instead to have a winner-takes-all election in which it would likely be chosen to represent even those teachers who did not want their services.

Fortunately, Judge Cordonnier recognized that the Missouri Constitution requires nothing of the kind. In a very well-reasoned decision, he pointed out that the section of the Missouri Constitution that protects employees’ rights to bargain collectively specifies that they must be permitted to have “representatives” of their own choosing. As the judge noted, that word “is unambiguous, plural, and must be read to include the possibility of more than one representative.” In other words, nothing in the language of the Constitution supported the SNEA’s argument that employees must choose a single exclusive bargaining representative. The court further pointed out that the Missouri Supreme Court has previously held that “employees who choose not to be represented by the majority union continue to have a constitutional right to present their issues to [their] employer,” and they may do so as a group, with an “informally elected representative.”

I am thrilled that the judge made these points. What the SNEA misconstrued about the constitutional right to bargain collectively is that the right itself belongs to individual employees. The SNEA’s reasoning suggested that no individual had a particular right to a representative of their own choosing; to the contrary, the union argued that if a majority of any ill-defined group of employees wanted a particular representative, then all other employees in that group must be bound by the majority’s preference. Judge Cordonnier’s option saw through that argument, however, and he reaffirmed what the Missouri Supreme Court has previously stated — that employees must be free to choose their own bargaining agents, and neither the government nor a union can deny them that right.

Anyone interested in these issues needs to know that they’ll be hearing more about this in the future. The head of the SNEA would not commit to an appeal of this case to the Missouri Supreme Court, but it is a very safe bet that they’ll ask the high court to reverse Judge Cordonnier’s ruling. Additionally, at about the same time that the SNEA launched this lawsuit, another local chapter sued the Bayless School District in the St. Louis area, making almost precisely the same arguments. Even if the SNEA does not pursue its case further, the union will be pushing for success in the Bayless lawsuit.

Hopefully, this will be my last post about tort reform for a while. Combest has a couple of KMOX links today dealing with the issue. The question has largely been settled in Missouri, given that comprehensive tort reform was passed five years ago. How has it worked out? Very well for the insurance companies, as well as for the doctors who are paying lower malpractice rates.

I truly believe that the passage of tort reform was the best change for long-term economic growth that Missouri has made in decades. The benefits are realized every time a doctor decides against moving her practice across the state line. But I still don’t think a preemptive federal reform would be appropriate. This is a state issue, and Missouri has properly addressed it.

There has been a great deal of discussion about property taxes in the wake of the state Supreme Court’s decision in favor of taxpayers the other day. In particular, Judge Michael Wolff’s partial dissent has encouraged a nice debate. I want to focus here on a few key questions about property taxes, and correct a few errors that have cropped up in discussions. I will try to do this concisely, because this could easily grow into a 3,000-word essay.

Judge Wolff and the Post-Dispatch argue that property taxation is not a fair way to fund schools, because obviously the wealthier areas get more property taxes. The justice writes (quote via a Beacon article):

These unequal results pose a simple question that is hard to avoid and even harder to answer: What makes the children of one school district deserving of only about one-third of the education money available for the schools of the children in the highest-spending district?

Because the state constitution seems to authorize this absurdly unequal structure, the question is one of policy, not law.

The gross disparities created or tolerated in the system, however, ought to make courts especially attentive to particular constitutional requirements such as taxation of property tax wealth.

I disagree. The property tax is a fair way to fund schools, provided that the funds are supplemented by other taxes (currently state income taxes) to address a portion of the disparities that result. Judge Wolff clearly understands that property taxes are actually more equal than the other primary methods of taxation, as he writes in a footnote:

If one is disturbed by the inequalities of property taxes, one simply should imagine local taxation based, instead, on local incomes or on local retail sales. Property wealth, it seems to me, is far more evenly distributed throughout the state than income or retail sales even though the property tax wealth per pupil of the wealthiest districts is 15 to 20 times that of poor districts.

He is absolutely right here. The differences between sales tax collection in certain areas can dramatically large, as there are some school districts in the state that have little to no retail sales, while a district like Brentwood would be awash in sales tax dollars. The income taxation levels between Ladue school district and Hancock Place would also be enormous.

The fact is that part of the blame, for lack of a better term, for low funding levels in many school districts (especially in rural areas) lies with taxpayers who elect assessors that will keep official property values low, and then vote to keep taxes low on top of that. It’s fine with me if they do that — they may, or may not, be hurting their own children and communities. Some of that disparity is offset by income taxes that are paid statewide, but I don’t think general taxes should be raised to pay for eduction in areas where the local citizens have chosen to keep school funding low.

This leads us to what the Post-Dispatch got wrong in its editorial about the issue (link via Combest). They write:

Property-rich counties quickly become freeloaders when they employ assessment methods that dilute the market value of their real estate. They deprive poor counties who play by the rules and pay their fair share.

The author of this editorial clearly has no idea how assessments work in Missouri. It is the property-rich counties, like St. Louis, Jackson, and St. Charles, that use appointed assessors and value their property more aggressively close to market values. It is the poorer, more rural counties that use elected assessors and lack “certificates of value,” thereby undervaluing their property, keeping their school funding low, and receiving increased state aid because of that.

The wealthier school districts in St. Louis County — and presumably Jackson, too — have not seen any increases in state aid for years, precisely because they support their school locally with more accurate assessments and higher voter-approved taxing levels. The poor counties tend to take advantage of the system as “freeloaders,” not the rich counties. (It is possible that the Post has a different set of counties in mind as being “rich,” in which case I’ll amend my criticism. But I have to assume that their examples of wealthy counties in Missouri are the same ones everyone else would choose.)

I could go on and on, but I won’t. If we truly want to increase educational opportunities for all of Missouri’s children, it will take a lot more than adjustments to the school funding formula. For too many kids, that strategy is just rearranging deck chairs on the Lusitania (although that metaphor doesn’t quite work, because the Lusitania sank so quickly that its passengers didn’t really have time to engage in any ironic comedy before dying).