Expatriate Owl

A politically-incorrect perspective that does not necessarily tow the party line, on various matters including but not limited to taxation, academia, government and religion.

Sunday, August 26, 2007

Beddia, Graffagnino and Palsgraf

New York City firefighters Joseph Graffagnino and Robert Beddia died while fighting a blaze at the former Deutsche Bank Building, across the street from the World Trade Center site and abandoned since the September 11 2001 Muslim terrorist attack. Due to the asbestos and other toxic substances which permeated the DBB following the September 11th attack, the demolition of the DBB has had to proceed slowly.

There now are some well-founded contentions that the standpipe in the DBB had been removed and/or was otherwise nonfunctional, thereby leaving the firefighters without a water supply as they tried to extinguish the fire.

Apparently, many of the FDNYers and others who attended the respective funerals for Graffagnino and Beddia are of the opinion that the two FDNYers who fell in this latest Deutsche Bank Building incident ought be counted as FDNY fatalities 344 and 345 from the September 11th terrorist attack on the World Trade Center.

Firefighters and law enforcement officers in New York and most other places have grown quite adept at playing upon the public sympathies to exact monetary benefits from the public fisc. This is certainly not to the firefighters' or police officers' discredit; the public officials who negotiate with firefighters (and all other public servants) must proactively assert the public interest in the negotiations, and too many public officials have been remiss in this duty. Including Beddia and Graffagnino among FDNY's 9/11 casualties does have fiscal implications which ought not be totally ignored by the New York City administration.

Dropping all of this very heavy emotional baggage, is it stretching things a bit far to count the tragic deaths of Firefighters Beddia and Graffagnino among those caused by the terrorist attack?

The one memorable case from law school is Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928). The Palsgraf opinion was written by Judge Cardozo when he sat in the center spot of the New York Court of Appeals, and is standard fare for law school Torts courses.

The Palsgraf facts are as follows: Two men ran to catch a train as it pulled out of the station. One of the two men jumped aboard the train without incident, while the second needed to be helped aboard by two Long Island Railroad conductors. A package carried by the second man fell to the tracks. The package contained fireworks, and exploded when it fell. The explosion caused some scales to fall upon the plaintiff, Helen Palsgraf, causing her injuries.

[N.B. The incident was reported in the New York Times the day after it occurred: "Bomb Blast Injures 13 in Station Crowd," N.Y. Times, August 25, 1924.].

Cardozo's opinion, in a nutshell, was that possibility of the scales falling upon Mrs. Palsgraf was so far removed that even "the most cautious mind" would not have apprehended it. Because Mrs. Palsgraf's injuries were so unforeseeable and attenuated, there was no liability on the part of the Long Island Railroad.

But Palsgraf was about negligence. The World Trade Center attack was not negligent, it was intentional. The terrorist attackers specifically intended to inflict widespread physical, economic and emotional damage upon the City of New York and the United States of America and the public, damage occurring not only on September 11th, but continuing for a considerable time in the future. The damage to the Deutsche Bank Building, and the deaths of Beddia and Graffagnino, then, were within the scope of contemplation by the terrorist attackers.

Under such circumstances, there is much to support the argument that Bob Beddia and Joe Graffagnino were indeed victims of the September 11th terrorist attack. May they rest in peace!

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Tuesday, August 21, 2007

Not Their Boy/Girl

This Blog's posting of 31 July 2006, entitled "He's Not Our Boy," spotlighted attempts by various Jewish groups to distance themselves from convicted bribepayer Jack Abramoff, and by CAIR to distance itself from Seattle terrorist Naveed Afzal Haq.

Now, the Catholic League is doing similar with respect to Rhiannon O'Donnabhain, the the gender bender who now seeks an income tax deduction for the sex reversal surgery he/she paid for. The word on the street is that O'Donnabhain was the taxpayer to whom IRS Chief Counsel Memorandum 200603025 was addressed, as discussed in this Blog's post "Taxman or Taxwoman" (24 January 2006).

The Catholic League, to be sure, is a well-reputed Catholic civil rights organization which this posting does not purpose to trash. The CL in general, and its President, William A. Donohue, in particular, have earned a reputation for calling matters as they see them, and, indeed, they make some calls which need to be made.

As an example, the latest posting from the CL website throws a flag on Florida attorney Loring Spolter's motion for the recusal of U.S. District Judge William Zloch in a DUI case which Spolter is defending. Spolter's basis for the recusal motion is that Judge Zloch is overly biased towards Catholics and Catholicism, and his "proof" is that Zloch is a supporter of Ave Maria Law School, of which two of his clerks are alumni.

Though Ave Maria Law School is unabashedly a Catholic institution, it does accept students of all faiths, and does have a diverse faculty. Geography is the sole reason I have not applied for a faculty position there. If my own experience obtaining a degree from another Catholic institution is any indication, I don't see where Ave Maria's Catholic orientation would adversely affect its ability to impart a fine legal education to students of whatever religious background. And I do believe that Judge Zloch is perfectly capable of adjudicating the case without regard to any party's religious orientation. The Catholic League has, then, appropriately blown the whistle on Spolter.

Bill Donahue's hackles were raised by an article in Tax Notes which reported that Rhiannon O'Donnabhain was "born into an Irish-Catholic Boston family." Donahue did what he has been conditioned to do -- he wrote a letter to the Editor of Tax Notes, which Tax Notes published yesterday ["Catholic Group Questions Religious and Ethnic Identification in Article," Tax Notes, Aug. 20, 2007, p. 699, 2007 TNT 162-34 (Doc 2007-19017).]. In his letter Donahue implores "Can you tell me why the man's ancestry and the religion in which he was raised were identified in the piece? It does not seem as if the man's Irish-Catholic background is relevant to the story. Would Tax Notes Today mention if he were an Ashkenazi Jew or a Scottish Presbyterian?"

Tax Notes pointed out that O'Donnabhain's attorney publicly distributed literature mentioning O'Donnabhain's Irish Catholic upbringing, and that O'Donnabhain himself/herself mentioned this in his/her testimony at the trial. O'Donnabhain, then, has opened the door and made the matter relevant.

And so, the Catholic League now implicitly seeks to disclaim O'Donnabhain as one of their own, just as Jewish groups have tried to jettison Abramoff, and just as CAIR has tried to hide Haq under a burqa.

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Sunday, August 19, 2007

Religious Freedom Peace Tax Fund Act

Been busy lately, including some out of town travel. Teaching starts again in two weeks, so I'll soon be busy again.

All kinds of scatterbrained legislation gets introduced in Congress (and, for that matter, in the various state legislatures). Most of it dies in committee, or is voted down, or passes in a form quite different from the original proposal.

On 18 April 2007, the Religious Freedom Peace Tax Fund Act [H.R. 1921] was introduced in the House of Representatives and referred to the Ways & Means Committee, where it remains as of this writing.

The bill purports "[t]o affirm the religious freedom of taxpayers who are conscientiously opposed to participation in war, to provide that the income, estate, or gift tax payments of such taxpayers be used for nonmilitary purposes, to create the Religious Freedom Peace Tax Fund to receive such tax payments, to improve revenue collection, and for other purposes."

It was introduced by John Lewis of Georgia, and the sponsors include such leftists and nutjobs as Conyers, Ron Paul, Caliphate Keith Ellison, et cetera. My initial instinct was to say that the bill ought to die in committee.

I still think it ought to die in committee, but Section 4(b) of the proposed legislation does have some sort of merit. Section 4(b) provides that [M]onies deposited in the Religious Freedom Peace Tax Fund shall be allocated annually to any appropriation not for a military purpose."

Stripping away all of the political baggage carried by the bill and its sponsors, they may be onto something here. The New York State Lottery proceeds were supposed to support public education, but much of those funds somehow find their way to other uses. And let us not forget the Social Security taxes we all pay, which have long been diverted from their intended purposes. If the moneys deposited by the taxpaying public into the Religious Freedom Peace Tax Fund were indeed restricted in their uses, then that would set a good precedent.

But, given the precedents set by the lottery and Social Security, I would expect that the funds in the RFPTF would, in practice, be restricted in name only.

Here, then, is a bill which, though not without its noble attributes, ought to die in committee.