f/k/a . . . the archives

     update (Aug. 15, 2007): As expected, the Schenectady County Legislature voted last night to hold a public hearing on Wednesday Aug. 22 on a resolution to rescind the law that would require forced relocation of sex offenders from “exclusions zones” as of October 1st, and to amend the main sex offender residency restriction [SORR] law by removing Level One offenders and “permitting” other local governments to impose greater restrictions. They also agreed to vote the very next day (Aug. 23) on the measures. Except for getting the important date of the public hearing wrong, today’s Daily Gazette does a good job covering last night’s action. See “Changes looming for sex offender laws,” and “Town awaits action on offender law“; click for related video from FoxNews 23.

Dem. Mike Eidens and Rep. Carolina Lazzari, who both voted against the two original sex offender laws, stated that they would prefer to repeal both of them and not merely the forced relocation law. Lazzari lamented the fact that there was no practical way for her to get the option to repeal both SORR laws before the Legislature (other than the good will of the majority). The very popular option of wiping the books clean and starting over will, therefore, not be on the table when the Legislature votes next Thursday night, despite the fact that they will surely hear calls for total repeal from Town Supervisors, and many citizens and experts at the public hearing.

  The Legislature’s Chair, Dem. Susan Savage, proclaims “We think we’re meeting the majority of the concerns” and we’re “meeting them half way,” but it is very discouraging that she has presented amendments that specifically encourage the City of Schenectady, the towns and the villages of the County to consider passing laws more restrictive than the revised laws. When the problem with the SORR law is that it does not serve its intended purpose and is very likely to be held unconstitutional, “half way” is an asinine, hypocritical position to take. And, inserting “permission” for more restrictive laws by the smaller governmental units is gallingly politcial, when they already have that power. [See the discussion of preemption by the County below.] Having Rep. Minority Leader Robert Farley braying on in support of increasing the exclusion zones underscores their pandering to those who irrationally believe banishing sex offenders is an effective solution. Farley and other legislators also stressed the importance of listening to the public. But, I must wonder just when these leaders will start to take seriously their own responsibility to tell the public the truth about the efficacy and wisdom of residency restrictions. Leaders can have empathy for the fears of their constituencies without enacting worthless and counter-productive laws.

For drama and substance, the presentation of Duanesburg Supervisor Rene Merrihew was the highlight of last night’s legislative meeting. The Albany Times Union captured it in today’s article “Lawmakers re-think sex offender bill: Schenectady County Democrats lead move to tone down legislation” (Aug. 15, 2007; reprinted):

The lone person to address the county panel Tuesday during its regular meeting was Duanesburg Supervisor Rene Merrihew. She repeatedly called the measure ill-conceived and thoughtless.

Merrihew also came armed with petitions from “750 angry people in District 4″ and said she received 60 more letters from Princetown residents.

“We’re angry at the total disregard for us and our children,” said Merrihew, who punctuated her comments by saying she and fellow supervisors remained committed to having both laws rescinded.

p.s. To Susan Savage: When your honesty and political savvy are already in question, you really should refrain from remarks such as those reported in the TU article, concerning whether your sex offender laws brought out the many voters who caused Ed Kosiur’s defeat in the Aug. 31 special election for the Assembly:

“Savage has insisted the turnout wasn’t a sign that the legislation was a political miscalculation. ‘There were really other (things) that were (to blame) such as the misrepresentation of (Kosiur’s) tax record,’ she said earlier in the day.”

update (1 PM Aug. 14, 2007): Earlier today, I suggested below that Schenectady County should explicitly inform the local units within its borders (the City, town, and villages) that it would consider any sex offender law that fails to grandfather in existing residences or that covers Level One offenders to be inconsistent with the proposed County Law. It appears, however, that declaring such inconsistency would not mean that the County has pre-empted those issues and could therefore stop the local units from passing more restrictive SORR provisions. See County Preemption of Local Laws in NYS, where I have compiled (with the help of attorney Arthur J. Giacalone of East Aurora, NY) what I believe to be the most relevant portions of the state constitution and municipal law. Note, for instance, that NYS Const., Art. IX, § 2(d) includes a provision that states: “A local government shall not have power to adopt local laws which impair the powers of any other local government.”

We can ask the County to urge restraint on the part of the other local units, but each can decide for itself how it wants to manage sex offenders within its borders, subject only to state law (and the federal constitution). Should the proposed bill pass the County Legislature next week, lobbying efforts will thereafter need to be focused on the City of Schenectady, the towns and the villages.

At tomorrow’s monthly meeting (7 PM, Aug. 14, 2007), the Schenectady County Legislature will call for a special public hearing to be held on Aug. 22nd, with a vote to be taken on Aug. 23, in order to consider major amendments to its Sex Offender Residency Restrictions. (prior posting here, here and there) Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see a draft of the proposed legislation as of Aug. 13, 2007.

One new bill would repeal Local Law 04-07, which currently requires sex offenders to relocate if they reside within 2000 feet of a school, playground or day care facility on or after October 1, 2007. Thus, the bill would effectively “grandfather in” the current residences of sex offenders, removing a major complaint about the current law.

In addition, proposed Local Law 07-07 would remove Level One offenders (those considered by a court to be the least at risk to re-offend) from Local Law 03-07, and add a new section Section 4, explicitly granting town, village or city government the right to pass more restrictive residency laws for sex offenders (i.e., no-reside zones greater than 2000 feet):

Section 4. This local law permits a town, village or city located within Schenectady County, in order to provide further protection and safety for its residents, to enact local legislation that is more restrictive in nature and that meets the specific needs of a locality, including, but not limited to, local legislation that increases the measurement of the residency restriction beyond two thousand feet or that prohibits loitering for the purposes of engaging in illegal conduct.

Also, a proposed RESOLUTION declares, among other things:

WHEREAS, this Governing Body finds that the New York State Legislature should introduce and approve legislation that would: (i) develop comprehensive statewide management policies for persons who have been convicted of certain sex-related offenses; (ii) increase sentences and sanctions for convicted sex offenders; and (iii) implement a statewide program for the monitoring of convicted sex offenders using GPS technology; and

WHEREAS, this Governing Body encourages all county governments to consider enacting residency restrictions for persons who have been convicted of certain sex-related offenses;

The Resolution also directs the County Manager to do a Report on improved monitoring of sex offenders, and designate a person to help local communities by providing random residency checks of sex offenders. In addition, the Sheriff is to assign a person to develop methods of “intercepting and catching online sexual predators.”

Susan Savage, Chair of the County Legislature, issued a statement saying: “”[T]he laws adopted in June were intended to protect children throughout Schenectady County and to place our community on a level playing field. Some concerns were raised. We listened to those concerns and think this proposal addresses many of them while providing a level of protection to our community.” As reported by CapitalNews9, “County will revise sex offender law” (Aug. 13, 2007), “With tighter restrictions in Saratoga, Albany and now Schenectady county, many think sex offenders will have to move west. That has some in neighboring Montgomery County worried.” You can find comments from the Schenectady internet community by scrolling down the page at The Unadulterated Schenectady.

update & afterthoughts (9 AM Aug. 14, 2007): I believe, at a minimum, that the County should make it clear that any law by the smaller units of government that includes Level Ones or requires relocation (failing to include a grandfather clause) would be inconsistent with the intended scope of the County law. By “encouraging” balkanization and having towns, villages and the City play Whack-the-SO and Up-the-Ante over distances, the County is encouraging preemption litigation (and making the preemption case significantly stronger), and just pushing all of the Constitutional issues downstream, to governments that will surely have to hire expensive outside counsel to defend themselves. Making clear what kinds of laws are inconsistent will take weapons out of the hands of the SOBashers and the PanderPols and help wiser minds to prevail, while reasonable comprehensive plans at the County, regional or state level are developed, enacted and implemented. .

Like a Perseid meteor shower, multi-blawger and “inspired solo” Sheryl Sisk Shelin returns regularly to host Blawg Review and brighten our cyber skies, if only fleetingly. Today, she hosts Blawg Review #121 at her The Inspired Solo weblog. Poor Sheryl apparently had a very troubled night looking for a suitable theme around which to build her Blawg Review presentation of recent worthwhile law-related weblog postings. She found herself with a dearth of inspiration and finally admitted it to herself at 7:20 AM:

“And that’s when it hit me – like a ton of bricks, the cosmic 2′ by 4′ upside the head. The theme is that there is no theme. We’re back to basics, folks, with this, the theme-free Blawg Review.“

If you’ve read this weblog or my mind over the past couple of years, you know I often find themed Blawg Reviews to be annoying, strained and distracting. As evidenced by our own Blawg Review #52 (and my affection for the Barrister Blog’s Weekly Review), my favorite Blawg Review compilations are themeless. So, I want to thank Sheryl for giving us an uncutesy annotated listing of quite a few worthwhile weblog posts from the past week. Her lack of inspiration turned out to be a blessing. Since she was up anyway, I hope she took advantage of last night’s prime opportunity to see the 2007 Perseid meteor show (New Jersey Herald, “Sky’s the show: Popular meteor shower hits tonight,” Aug. 12, 2007) . When our skies started clouding up around midnight, the f/k/a Gang headed to bed without seeing the Perseids, but hoping to dream of a few shooting stars.

stars fade
she says i look like
that aging actor

…………………………………….. by dagosan

. . .

I was quite pleased to be pointed by Sheryl to Eugene Volokh’s piece “Speakers Arrested Because Their Speech Supposedly Has ‘No Legitimate Purpose’,” about a group of people arrested in Fond du Lac, Wisconsin, for “harassing” a sex offender by posting information about him in several places (apparently in the hope of driving him out of town). As usual, Eugene raises important questions about free speech and his commentors flesh out the issues (and emotions). I was particularly intrigued by this portion of the post, which deals with a topic frequently touched upon at f/k/a recently:

By the way, Allen’s offense (as reported in the press) strikes me as very minor as sex crimes go:

Court records show that Allen was convicted in 1998 of second-degree sexual assault of a child for receiving oral sex from a 15-year-old girl. The records show that Allen was 16 years of age at the time of the incident, which occurred in 1997 in Shawano County. In a victim statement included with court documents, the 15-year-old girl said it was her idea to perform the sexual act. She also wrote that she didn’t think it was Allen’s fault or that he should get in trouble.

It seems to me that even if consensual 16-/15-year-old sex should be criminalized, it should not be subject to sex offender reporting (certainly not longterm reporting), or at least any such reports should clearly note the nature of the offense (something the Wisconsin sex offender page does not). Such reporting is not only unfair to the offender, but also harmful to the community, because it misleads the public into overestimating this threat, and distracts them from other possible threats.

Nonetheless, while this would have been good reason for Wisconsin not to place Allen’s records on the sex offender site (unless there was something more to the sexual contact than the newspaper reports), and this might make the neighbors’ actions morally suspect (if they knew the nature of Allen’s crimes), it doesn’t strip the actions of constitutional protection.

If you insist on more explicit inspiration this morning, I recommend checking out Sheryl’s discussion/confession “What is an Inspired Solo?.” Here are the first four of about a dozen characteristics:

* She wakes up happy, most days.
* She goes to bed content, most nights.
* She practices in an area of law that speaks to her, somehow, even though she might not fully understand why.
* She genuinely likes her clients, and feels they’re pretty fond of her, most times.

When the f/k/a Gang is looking for sure-fired inspiration, we dip into the haiku oeuvre of some of our Honored Guest Poets. Here are a handful of poems that were selected for the Shiki Haikusphere 10th Anniversary Anthology (2007) (full cover image)

Valentine’s Day –
pulling a thorn
from my palm

blue heron
all paddles
at rest

melting snow
headlines of war
fall apart

…………….. by Yu Chang

he’s gone
and gone too
the hydrangea

early spring walk
the roughness of the scarf
that was mother’s

first cold night
my fingers snug
in mother’s old gloves

…………… by Roberta Beary

disinfectant jar –
there must be 14 or 15
barber’s combs

clouding sky
my finger
on the bear track

broken tennis racket –
my aging father says
he won’t replace it

………………………… by Michael Dylan Welch

Two more from Yu Chang from Upstate Dim Sum 2007/I

just in time
to pick blueberries
August evening

lingering heat
the pale color
of green beans

Our Uninspired Health Care System: I hope yesterday’s New York Times editorial (Aug. 12, 2007) “World’s Best Medical Care?,” will inspire Americans to think and fight hard to create a much-improved system for all Americans. Reading how for behind we are when compared to other industrial nations (and, in some categories, even developing nations) should stir us to action. It is easy to agree with NYT that:

With health care emerging as a major issue in the presidential campaign and in Congress, it will be important to get beyond empty boasts that this country has “the best health care system in the world” and turn instead to fixing its very real defects. The main goal should be to reduce the huge number of uninsured, who are a major reason for our poor standing globally. But there is also plenty of room to improve our coordination of care, our use of computerized records, communications between doctors and patients, and dozens of other factors that impair the quality of care. The world’s most powerful economy should be able to provide a health care system that really is the best.

Thoughtful observers must have been surprised on July 24th, when Kathryn Grant Madigan, the new President of the New York State Bar Association (the nation’s largest voluntary bar group, with 72,000 members) issued a press release saying “we are in agreement with the Court’s decision” in Alexander v. Cahill. At her NYSBA President’s Blog, Madigan confirmed her concurrence with Judge Scullin’s Alexander opinion, saying it “validated the measured and sensible approach of the [NYSBA Advertising] Task Force.” See “Striking a Balance on Lawyer Advertising” (July 26, 2007). Like other Bar leaders (see ABAJournal and NYLJ), she also pointed out that the invalid provisions regulating the content of ads were not Task Force proposals, but had been added by the Presiding Justices.

Alexander is the federal district court case that struck down numerous sections of the State’s new attorney advertising rules as unconstitutional restrictions on non-deceptive forms of commercial speech (see our prior post). The Alexander court enjoined enforcement of provisions that would “prohibit attorney advertisements from containing endorsements and testimonials about matters still pending, portrayals of judges, techniques to obtain attention that lack relevance to selecting counsel, portrayals of attorneys with characteristics unrelated to legal competence, and use of a nickname, moniker, motto, or trade name that implies an ability to obtain results in a matter.” It also struck down a ban on pop-up and pop-under internet ads, and held that the rules would not be construed to apply to non-commercial speech (by not-for-profit attorneys).

In Alexander, Senior Federal District Judge Frederick J. Scullin, Jr., specifically rejected New York’s bald assertion that it “could ban attorney advertising that was ‘irrelevant, unverifiable, [and] non-informational’” without reference to the Supreme Court’s Central Hudson test for the regulation of commercial speech.

The New York Bar Association had played a major role shaping and promoting the new advertising regulations, which went into effect on Feb. 1, 2007, after adoption by the State judiciary. In fact, the group’s leaders have been at war with lawyer advertising for quite a few years. See, e.g., our posting “New York Bar disses lawyer advertising” (Nov. 18, 2005), where we quoted from an Association “public education” radio spot and noted that the NYSBA would like consumers to ignore lawyer advertising.

In early 2005, A. Vincent Buzard had pushed a draconian scheme of advertising oversight and censorship through the Monroe County [Rochester] Bar Association (see prior post); the MCBA plan was aborted very quickly, when the State Bar Grievance Committee complained that the enforcement process interfered with official disciplinary procedures. However, immediately upon elevation as NYSBA’s 108th President in June 2005, Buzard appointed an advertising Committee/Task Force, hoping that it would improve the “public perception” of lawyers by helping to eliminate ads that he deemed to be inappropriate and unprofessional, and to educate the public as to which lawyer ads were “ethical” and “appropriate.” According to the Task Force’s final Report, it was established “as a result of increasing concern over lawyer advertising as contributing to the lack of public understanding about lawyer marketing,” with the “expressed concern that the State Bar… has a duty to protect the public and advance the legitimate interests of our profession concerning the subject of lawyer advertising.” Buzard’s inaugural press release explains that the advertising Committee was expected to achieve its goals by developing “rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.”

The Task Force’s 129-page Report was released in November 2005 and was to play a big role in shaping the controversial new advertising rules for New York. The Presiding Justices initially adopted the basic approach and most of the proposals of the Task Force — including its surprising declaration that websites and weblogs by lawyers are advertising, and the shocking proposal that the sponsor of a website or weblog must file every material change in the website with a central authority. The resulting uproar in the legal blogisphere and media garnered far more attention and opposition for the proposed new rules than had been originally anticipated, necessitating an extended comment period and extensive re-writing of the rules.

When the final rules were announced by the New York State Unified Court System, the Bar Association took credit for the more balanced (less rabid) revisions. (press release, Jan. 4, 2007) The then-current Bar Asociation president, Mark H. Alcott, boasted that the final provisions ”reflect extensive consultations that the Association had with the Presiding Justices after the initial proposals were issued last fall.” There was none of the distancing that we now see by President Madigan in the wake of Alexander v. Cahill — no complaints about direct regulation of content and no suggestion that Task Force over-reaching had led the Justices astray.

If we want to discern the current attitude of the New York State Bar Association toward lawyer advertising we need to look a bit closer at Madigan’s reaction to Alexander v. Cahill and then at what its Task Force actually did and said. In her President’s Blog piece on July 26, Madigan made the following relevant points:

1. “[T]he decision comports with the Task Force’s effort to strike a balance between an attorney’s right to advertise his or her services and protecting the public from advertising that is false and/or misleading.”
2. “I believe that most of us would agree that attorney advertising should be done in a manner that is dignified and balanced, enabling the consumer to make informed decisions about securing quality legal representation.”
3. “Unfortunately, efforts to restrict the content of lawyer advertising that is not false or misleading have not passed constitutional muster.”
4. “Notably, this decision referenced the expert analysis provided by our Task Force in a number of respects and we are indebted to the Task Force for their dedication and commitment to this important issue.”

Recall that the Alexander decision strongly rejected regulations aimed at ‘irrelevant, unverifiable, [and] non-informational’” ads and insisted that the courts and bar respect free speech rights despite their finding some presentations distasteful. In that context, it is not surprising that Bar President Madigan would try to downplay the Association’s role in shaping the provisions that were struck down in Alexander, and to avoid embarrassing prior Bar leaders. It is surprising, however, that she would claim to agree with the Alexander decision, while nonetheless 1) demonstrating the continuing wish that the profession could ban advertising that “is not false or misleading,” in order to promote “dignified and balanced” advertising; 2) stressing support for the 2005 Task Force Report; and 3) praising the “expert analysis” of the Task Force which — as prominent first amendment lawyer Floyd Abrams has correctly pointed out — appears to provide us with “almost no empiric basis for the adoption of almost any of these rules.” [Below the fold in this post, I have repeated my discussion in Nov. 2005 of the weak proof of actual consumer harm in the Task Force Report]

This seeming inconsistency stems from the very nature of the 2005 Task Force Report — which is a prime example of what can happen when a policy statement is written by a large committee and “overlawyered”: It attempts to use wordplay to appease many interests and appear reasonable, without abandoning its mission and preordained conclusions. Clearly, some Task Force members had a more sensitive approach to Free Speech and antitrust issues, and the fear of defamation suits, than did Pres. Buzard. Thus, for example, the Report states (at 2):

“The Committee was also cognizant that further content-based restrictions have the potential to run afoul of constitutional rights and we agreed at the outset to deal in practical solutions (i.e., generally strengthening existing disclaimers and requiring further disclosures) without adding content-based restrictions.”

The Report also makes it clear that the fear of antitrust liability (as well as meritless antitrust claims and defamation charges by targeted lawyers) kept the members from recommending any active enforcement role by the Bar Association and any statement of principles as to appropriate advertising that would be deemed binding on Association members. And yet, the Task Force would not abandon its primary mission — “improving” lawyer advertising in the hope of improving the public perception of lawyers. It therefore decided, rather than directly proposing rules embodying its notion of “dignified and balanced” advertising, to adopt “Guidelines” and use them to educate the bar and the public about what kinds of ads were “appropriate or inappropriate.” As a result the Task Force made the following recommendations [at 11]:

1. “Adopt the recommendation that the Monroe County Bar Association guidelines regarding advertising as the official advertising guidelines and policy of the State Bar.”
2. “Adopt the recommendation that the State Bar use the guidelines for public dissemination in a State Bar media program which will be designed to serve as a model for educating lawyers including but not limited to dissemination at the time of admission to the Bar.”
3. …. “develop the proposed booklet for educating consumers about advertising.”

Once the above recommendations were approved by the NYSBA’s full House of Delegates, the two-page MCBA Advertising Guidelines became “the official advertising guidelines and policy of the State Bar.” [see our description of the MCBA rules; also here] Therefore, the official position of the NYSBA is that lawyer advertising, to be fully ethical, must not only be “true, accurate and clear,” but also “fair,” “rational” and “relevant to the thoughtful selection of counsel.” [Below the fold, I have reprinted the MCBA /NYSBA definitions of "fair," "rational" and "relevant".]

To avoid antitrust problems, the Task Force reluctantly gave up the Monroe County enforcement scheme, but it whole-heartedly joined its Dignity Posse in calling for lawyers and the public to reject ad content that was “irrational” or not “relevant to the thoughtful selection of counsel,” or that might offend a segment of the community, or “foster disrespect for . . . the legal profession.” Indeed, despite having apparent expertise with the concept of consumer deception, and in matters of professional responsibility and legal ethics, the Task Force declared [at 74]:

• “[V]irtually all, if not all of the guidelines, solely restrict misleading or deceptive advertising.” [The only possible exception acknowledged by the Task Force was the 15-day moratorium on advertising to disaster victims.]
• “The Guidelines themselves were not intended to break new ground; they are a plain language, straightforward articulation of the Code of Professional Responsibility provisions on advertising.”

Adoption of the MCBA Guidelines by the Task Force and the Bar Association helps explain why NYSBA did not complain earlier this year when the Unified Court System unveiled content-based advertising rules, along with procedures that could significantly chill much advertising in print, broadcast or internet form. (They were hoping that the courts could achieve what a voluntary bar association could not.) It may also explain why the Presiding Justices thought they had a legal basis for regulating ‘irrelevant, unverifiable, [and] non-informational’” ads as false or misleading.

It seems to this observer (who spent much of his decade at the Federal Trade Commission looking at antitrust and consumer protection issues rising from advertising restrictions imposed by professional associations) that NYSBA cannot both agree with the Alexander decision and actively advocate the implementation of the MCBA advertising guidelines. After reading Kathryn Madigan’s reaction to the Alexander decision, I left a comment at ABAJournal website:

If Bar president Madigan really means “we went too far and our initial proposals were unconstitutional, unnecessary, and insulting to the intelligence of the public and the integrity of the profession,” she should say so, rather than merely trying to cover the Association’s rear end.

In the wake of the decision in Alexander, and with her embrace of the 2005 Advertising Task Force Report, we need to know the position of Pres. Madigan and her Bar Association on lawyer advertising and free speech. Do they still equate “irrelevant” with deceptive? Do they plan to step up their misleading “educational” campaign to convince the public and lawyers that there is something unethical or inappropriate about advertising that is truthful but somehow deemed to be insufficiently dignified or relevant? Or, do they trust the intelligence of consumers, the integrity of lawyers, and the benefits of free speech and vigorous competition sufficiently to disband their Dignity Posse and turn their energy to efforts that will help improve the quality and value of the services lawyers provide?

———————–

update (Aug. 14, 2007; 9 AM): Right after I wrote this piece on Saturday afternoon, Aug. 11, I left a comment at Pres. Madigan’s weblog, saying that I had written about this issue and that I hope she would respond. So far, the Comment has not been approved and does not appear at the site. No response has been posted at the weblog nor received by me answering the issues raised here. update (Aug. 15, 2007; 9 AM): My comment is now up at the NYSBA President’s Blog. Now, I hope we’ll get a thoughtful, frank reply. No spin needed.

update (Aug. 20, 2007):  As promised, Bar President Madigan has responded at her weblog to this posting.  See “Lawyer Advertising II” (Aug. 20, 2007).  Naturally, f/k/a replies in “Madigan responds on NYSBA advertising position.”

(more…)

Oi Ocha is “The most popular green tea beverage in Japan,” and its parent company Ito En, Ltd. has been sponsoring the “ITO EN Oi Ocha New Haiku Contest” every year since 1989. Ito En says:

• This contest has contributed to the rejuvenation of haiku, a Japanese traditional short poem only seventeen characters in length. Endorsed by the Japanese Ministry of Education, Culture and Science,
• this contest features haiku promoting free expression . . . What makes this contest unique is the acceptance of both “New Style” haiku and traditional haiku. To encourage as much participation as possible, any themes can be chosen, and “New Style” haiku do not have to include kigo (words symbolizing one or more of the four seasons). Moreover, “New Style” haiku, whether in Japanese or English, do not need to follow the 5-7-5-syllable format—the most common taught outside of Japan.
• Last year, the seventeenth contest drew over 1,650,000 entries and different haiku (the most entries ever).
• The award-winning haiku are not only compiled and printed in an annual ITO EN publication entitled Jiyu Gatari (Free Expression) but also printed and appear on Oi Ocha brand products.

At least four of f/k/a‘s Honored Guest Poets had winning haiku in Ito En 17th Contest last year — Andrew Riutta, Roberta Beary, Ed Markowski and Jim Kacian. The winners in this year’s 2007 ITO EN Oi Ocha New Haiku Contest — #18 — have been announced. Congratulations to Roberta, Ed and Jim, who have repeated their success. [If other f/k/a family members have also won, I hope they will let haikuEsq know.] You can find their winning poems, with Japanese translations here. Because few of our readers outside of Japan will get to see the winning haiku in the 2007 Free Expression anthology or on Oi Ocha tea products, we’re presenting the poems by our Honored Guests for your entertainment and edification — and to urge you to submit poems for the 19th Contest. [Need more incentive? Ed and Jim each won Y30,000 in prize money last year for their Judge's Award poems; Roberta's Sponsor's Award comes this year with Y20,000 in prize money.]

rolling thunder
the deeper darkness
of distance

…………………………………. by Jim Kacian

just enough moon
for this firefly to land
on my finger

…………………………………………………. by roberta beary

hunting stories
the old cat yawns
& walks away

……………………………… by Ed Markowski

Here are Jim and Ed’s Judge’s Award winners from last year’s 17th Ito En Oi Ocha New Haiku Contest:

Lightning—
the fly resettles
in the same spot

…………………………….. by jim kacian

factory entrance
moths spin round & round
a bare light bulb

………………………………….. by ed markowski

“Not a single case. So the panic is even more crackpot than I thought, or more cynical.” Carl Strock, Daily Gazette, Aug. 9, 2007.

On the night the Schenectady County Legislature passed its infamous sex offender residency/eviction laws (see our June 13th post PanderPols Vote to Evict Sex Offenders), County Legislator Joseph Suhrada complained that our children could have been protected over the past two years from sex-predator neighbors, if his colleagues had only passed such residency restrictions when he first proposed them in 2005. As we left that public meeting, I mentioned to Daily Gazette columnist Carl Strock that we should check out just how many instances of registered sex offenders molesting children we’ve had here in Schenectady County since the Legislature wisely chose not to pass Suhrada’s ban. And, I ventured a guess based on my recollection of local news accounts: Not one. Well, this morning, Carl’s Gazette column has the answers. It is called “Schenectady’s imaginary predators” (Aug. 9, 2007) and is worth reading in its entirety. With no further commentary, let me quote the most salient parts:

“. . . [H]ere’s what I learned from no less an authority than Schenectady County District Attorney Robert Carney … In the past two years the district attorney’s office has processed 113 sex crime defendants and of those a mere six were registered sex offenders repeating their crimes. Further, of those six repeaters, only two were charged with offenses against children, and of those two, neither was accused as a stranger. They were both some kind of family members or acquaintances.”

“In other words in the past two years there has not been a single case of what the legislators (and many others) want us to believe is a trememdous social problem — serial ‘predators’ skulking around schools and playgrounds waiting to snatch away our innocent children for their perverted gratification.”

family vacation
in the museum corner
uncle’s hard kisses

me in one hand
a belt in the other
dad sings a lullaby

………………………. by roberta beary
“family vacation” – frogpond XXVII
“me in one hand” – Taboo Haiku

p.s. Rev. C. David Hess of theparson.net has sent along another reality check for those who believe that running sex offenders out of a community is the best way to protect our children. David points to this finding from a recent Minnesota study:

“…even when offenders established direct contact with victims, they were unlikely to do so close to where they lived. This may be due mostly to the fact that offenders are more likely to be recognized within their own neighborhoods. As a result, when direct contact offenders look for a victim, they are more likely to go to an area relatively close to home (i.e. within 20 miles of their residence), but still far enough away (i.e. more than one mile) to decrease the chances of being recognized.” (Residential Proximity & Sex Offense Recidivism in Minnesota, April 2007, Minnesota Department of Corrections, p. 2)

update (Aug. 10, 2007): See our update to Tuesday’s posting, describing an article in today’s Schenectady Daily Gazette, “Towns mull initiative on offender issues,” which notes that town supervisors are unhappy with proposed changes to the current law.  Also, thanks to Corey Yung at the Sex Crimes weblog, for continuing to cover these issues in a new post, “What’s the matter with Schenectady?” (Aug. 9, 2007).

summer sky
one log then another
to cross the river

glacier climb
the last nectarines
from a summer pack

tug of her hand
a spring so small
you could miss it

all its leaves fallen
a tree we were
forbidden to climb

. . . . by paul m. [a/k/a Paul Miller] from called home (Red Moon Press 2006; 3rd place, 2007 HSA Merit Book Award)

everyone in the circle
shares a poem
white oleander

this line of stars
is some beast’s tail . . .
scent of snow

the tree still draws water
a calendar
declaring a new year

…………………………. by Paul Miller from Shiki Haikusphere 10th Anniversary Anthology (2007) (full cover image)

summer grasses
an old blue car
without doors

………………………………….. paul m. from Acorn & Tinywords.com

Mayor in a Hurry: See The Unadulterated Schenectady website for the photo evidence, and the TU Local Politics Blog for Schenectady Mayor Brian U. Stratton’s lame “I made a mistake” explanation for parking his city-issued SUV going the wrong direction on a one-way street in a No Standing zone, just two blocks from my home on Tuesday night. I can say unequivocally that I have seen the Mayor’s vehicle parked unlawfully on more than one occasion in our neighborhood, for long periods, alongside the Stockade Inn. Parking enforcement is quite efficient here in the Stockade; it’s about time the Mayor gets ticketed for his “mistakes” like the rest of us.

   update (Aug. 14, 2007):  See our posting “new Schenectady sex offender proposal,” for a description of the bills proposed for a public hearing on Aug. 22, 2007.  Click SchdyCountyProposedSOLawAug07, 9-pp pdf., to see the proposed legislation.

update (Aug. 11, 2007): Jim Murphy has an excellent letter to the editor in the Daily Gazette today, “County should look at Iowa’s model for help with sex offender law.” update (Aug. 10, 2007): According to an article in today’s Schenectady Daily Gazette, “Towns mull initiative on offender issues,” a majority of town supervisors oppose proposed changes” to the County’s SORR and are “considering their own initiatives.” It quotes Glenville Supervisor Frank Quinn saying the five supervisors are “gagging on” the proposals, which are “[not] really getting at the issue and managing it better.” Quinn argues that the “real answer is to get people who do this for a living to come up with recommendations on how to deal with all the issues.” Niskayuna Supervisor Luke Smith wants a comprehensive approach and says “Don’t put nine politicians in a room to find answers.” Rotterdam Supervisor Steven Tommasone said “Drawing circles on the map does not help anyone.” He wants the state to do more, with stricter laws, better enforcement. [Ed. note: It appears that the town supervisors have learned from the mistakes made at the County level -- wanting effective answers to the concerns of parents and politicians, not symbolic, "feel-good" laws that bash "predators" without making children safer or respecting the Constitution.] The article has a Sidebar comparing sex offender laws in Schenectady, Saratoga, Albany and Rensselaer Counties.

update (Aug. 9, 2007): See “Dems to alter offender laws: Legislators cite concerns of town supervisors,” Daily Gazette, Aug. 9, 2007, which reports that likely changes would be repealing the law requiring relocation, exempting Level 1 offenders from the SORR, and “allowing towns to adopt more restrictive provisions if they choose” [Ed note: town laws would raise serious state pre-emption issues]; “Residency law faces possible challenge,” Albany Times Union (Aug. 9, 2007; reprinted); and also Carl Strock, “Schenectady’s imaginary predators,” Schenectady Daily Gazette, Aug. 9, 2007, which is covered this morning in a separate posting.

update (6 PM): WTEN.com News just told viewers about the NYCLU’s Letter, and quotes Legislative Chair Susan Savage saying that the Legislature is considering making major changes to its sex offender residency restriction [SORR] laws. Savage insists the changes have been under consideration and are in no way a reaction to the NYCLU lawsuit threat. Note, however, that Savage is quoted in yesterday’s Schenectady Daily Gazette (Aug. 7, 2007) insisting that “There is no change in the law that I anticipate.” Channel 10 was not able to get any other County legislator to discuss SORR on camera. [WNYT, Channel 13, had a similar story on its 6 o'clock news; at 10PM, FoxNews23, ran "NYCLU Threatens Legal Action against Schenectady County" (Aug. 8, 2007); and CapitalNews9 updated its story "Lawsuit could be filed over sex offender laws," to discuss possible changes in the law.] I’d bet that a combination of Ed Kosiur’s stunning SORR-related political defeat and the looming reality of incurring large legal expenses in a losing cause made Ms. Savage and her Posse see the light.

11 PM update: WNYT13 reported that the Legislature is considering removing Level One offenders from the law, and grandfathering-in those living within the no-reside zones at the time the law was passed. That confirms my own information. I’m not sure this will satisfy the outlying Towns or remove the pre-emption issue, but it would eliminate two of the most troublesome aspects of the Schenectady County SORR.

In a four-page letter joined by three area lawyers, the Capital Region Chapter of the New York Civil Liberties Union advises each member of Schenectady County‘s Democratic-controlled Legislature that the sex offender residency restrictions [SORR] enacted by the County on June 12, 2007 are unconstitutional and will be challenged in a lawsuit, if not immediately rescinded or drastically revised. (see Agenda, at pp 68 – 74, for text of the law) The Letter declares: “it should be clear to all that this legislation was passed in haste, without careful attention either to New York state law or to constitutional protections.”

Dated and mailed Aug. 7, 2007, the Letter is signed by Melanie Trimble, Executive Director of the Capital Region Chapter, and by Albany lawyers Terry Kindlon and Kathy Manley, of Kindlon Shanks & Associates, and myself, David Giacalone, of Schenectady. Kindlon is a well-known criminal defense lawyer and Manley is experienced in appellate and civil liberty litigation.

In his recent unsuccessful special election campaign for State Assembly, County Legislator Edward Kosiur, primary sponsor of the County’s sex offender residency law, proudly boasted that it is the “toughest sex predator law in New York State” (see our July 30 posting “stop Kosiur“). In a detailed discussion at the time it was passed, we described the most outrageous features of the new law:

It requires sex offenders — at every level — to leave their homes starting Oct. 1, should they reside within 2,000 feet of public parks, pools and playgrounds, as well as schools, day care and youth facilities. In addition, should such facilities at any time in the future by located within 2000 feet of a sex offender’s residence, he or she has 90 days to relocate outside of the forbidden zone. The restrictions effectively ban sex offenders from living in the city of Schenectady and its close-in suburbs, and are therefor likely to cause relocation and future location of sex offender residences in more rural parts of Schenectady County and into Montgomery County.

The NYCLU Press Release (Aug. 7, 2007) describes the Letter, which:

• details the deficiencies in the county’s sex-offender laws, threatening legal action if the laws are not repealed or drastically revised to conform with state standards.
• lays out the overwhelming legal case against the laws and marshals the large body of social science evidence which shows how such laws are more likely to cause problems than to solve them.
• notes that, in the recent 105th Assembly District special election, voters “have sent a strong message that these laws, in their current form, are invidious.” And “The Schenectady County Legislature should listen to the voices of its constituents.” [see the update to "stop Kosiur"]
• states that “New York state law already puts severe but carefully-thought-out restrictions on those who have been convicted of sexual offenses,” and explains how the Schenectady laws violate state pre-emption principles that prohibit local governments from exercising authority in a manner inconsistent with state law and policy; and
• shows how the residency restrictions — which amount to banishment and require the eviction of law-abiding citizens — also run afoul of the prohibition on ex-post facto laws by increasing punishment for a crime after it has been committed. Noting that no case has been found upholding an SORR imposed without “grandfathering” current residents to allow them to stay, the Letter stresses: “It is shocking to think that the County Legislature would force people who already have paid for any crime they may have committed to uproot or abandon their families, to break leases with landlords, and to forsake communities where they may have lived in peace for decades.”

The Letter also points out that the laws place an undue burden on surrounding communities to which sex offenders might be forced to migrate. Recent studies indicate that such laws may actually correlate with increased recidivism and cause former offenders to stop registering with law-enforcement authorities and to abandon the community support services that may actually inhibit them from re-offending. “There is no evidence,” Trimble observes, “that invoking residency restrictions around schools has any effect at all on rates of sexual offense.” (for example, see Statement on Sex Offender Residency Restrictions in Iowa, by the Iowa County Attorney Association, Feb. 2006)

The Letter concludes with a plea and a warning:

“We strongly urge the Schenectady County Legislature to reconsider its actions and rescind these onerous, unjust and unconstitutional laws. If you should persist in enforcing these laws, we would be left with no other option but to pursue litigation with all the attendant legal costs to the county which that implies. “

p.s. I have no idea whether our Letter will help Susan Savage, Chair of the County Legislature (who hand-picked Ed Kosiur to run for the 105th District Assembly seat and foolishly rushed through the SORR to aid his campaign and advance her personal crusade against “sexual predators”), and County Attorney Chris Gardner (who apparently believes the law is unconstitutional as written) to come to their senses. They should know that a lawsuit challenging this unwise and unconstitutional law is a certainty, should they fail to void or totally revamp the SORR in the next week or so. Wasting tax dollars on an expensive defense of a fatally deficient law is intolerable, as is leaving the families of sex offenders in an anxious limbo with the October 1 relocation date a mere 7 weeks away. As a lawyer, I am aghast at their embracing a law that has no redeeming value. As a registered Democrat, I can assure Ms. Savage and other Party leaders that their actions have made myself and many fellow Democrats in this County angry and ashamed — and in no mood to permit our Party to be destroyed by arrogant and foolish leaders, either now or in future elections.

eviction notice —
a moth ricochets
in the lampshade

. ……………. by Alice Frampton — The Heron’s Nest (March 2004)

autumn wind —
a leaf and homeless man
cross paths

……………………….. by Andrew Riutta

I had the best of excuses for ignoring my weblog the past few days: I was in western New York, helping to celebrate the tenth birthday of my wonderful niece Elisabeth ["Lissa"] Grace Giacalone. (And, I was even treated by my haiga-collaborator brother Arthur to a fabulous concert at Chautauqua Institute by Emmylou Harris and Carolina Star (a reincarnation of the legendary Seldom Scene; see this article from the Wash. Post, which should inspire all aging boomers who love to play music).

Lately, I’ve often thought how lucky we are to be on the planet during the rather short part of human existence when photography has been available for saving and highlighting our memories. When other memory functions may be fading, photos bring back vivid images of the young ones who have enhanced our lives. In honor of Lissa and the many smiles and warm moments she has given me, I put together a Baby Lissa Montage (in color). See Lissa enjoying her first ice cream cone, her first Thanksgiving with Uncle David, her first night in a big-girl bed, and more. For more, feast your eyes on Lissa in her first pair of sunglasses.

Lissa and her delightful little brother James have graced this weblog often over the past few years. Check out their trip to a pumpkin patch, and their effort to teach us all to “Live to Love, to Laugh and to Learn.”

Of course, the visit has worn out this old uncle, so I’m going to head for a nap, after ending with a few poems from Jim Kacian, who was honored last week by the Haiku Society of America, for the bi-lingual re-publication of his book Presents of Mind (see our previous post).

brightest moon up all night

sundown –
one dog starts
them all

the melon splits
ahead of my knife –
midsummer heat

for my birthday
another trip
around the sun

……………………… by Jim Kacian – Upstate Dim Sum, guest poet, 2001/II

first page
of the new journal
untrammeled snow

after snowfall
a Buddha on the lawn
with coal eyes

……………………………… from Presents of Mind

p.s. Lissa noted recently that she was about to enter double-digits and “would be in double digits for most of the rest of my life.” She has a very good point.

p.p.s. Although he is cloaked in anonymity, the Editor of Blawg Review is almost surely in double-digits himself.  Ed pulled off a Blog Carnival double-header today (after being double-cross again by Steve Bainbridge), hosting both Blawg Review #120 (in Kingsfieldian style) and Carnival of Trust #3.  If, like myself, you have not discovered the Carnival of Trust, you might want to check out the prior editions (first and second) of this montlhy compilation of weblog materials dealing with the most important concept of trust.  (It is limited to the ten best recent postings as chosen by the host.) CofT is the creation of Charles H. Green of Trusted Advisors Associates.  Here’s what Charles has to say about the venture:

As I wrote when announcing the first Carnival of Trust my hope and ambition for the carnival is to begin establishing a home base, a center of gravity, for people who are interested in fostering greater trusted relationships in various realms of the world.

While my own material is primarily business-oriented, the Carnival of Trust will be explicitly more broad than business alone. Trust is heavily personal in nature, and I hope the submissions will reflect that—postings that deal with personal trust, business trust, and political trust are welcome, as well as pieces on the nature of trust.

I’ll be setting a hard limit of 10 postings per Carnival. The host will personally make the decisions about inclusion, in an inevitably subjective manner intended to push the thinking ahead in those broad areas of trust.

The Haiku Society of America honors “excellence in published haiku, translation and criticism” every year, through its Mildred Kanterman Memorial Merit Book Award. The 2007 HSA Merit Book winners were just announced, and the 2007 Award Report posted by this year’s judges, our f/k/a Honored Guest friend Ed Markowski and well-known haijin Yvonne Cabalona. The f/k/a Gang is proud to report that members of our family of guest poets has again been remarkably successful, with awards for haiku publishing excellence going to Carolyn Hall, Paul Miller (a/k/a “paul m”), Jim Kacian, and Roberta Beary.

Congratulations to Jeanne Emrich and the Reeds haiga organization. At $16, their First Place winning anthology Reeds: Contemporary Haiga 2006 must surely also be the Best Haikai Value for 2006. The contest judges say: “Beautifully arranged, this collection of haiga from 35 contributing poets and painters delivers inspiration, surprise and delight from cover to cover.”

Here is the official list of all the 2007 HSA Merit Book winners:

First Place: Reeds: Contemporary Haiga 2006, edited by Jeanne Emrich
Lone Egret Press. 6566 France Avenue South. Suite 1210. Edina, Minnesota USA 55435. $16.00

Second Place: Water Lines by Carolyn Hall
Snapshot Press. P.O. Box 132, Waterloo, Liverpool England L22 8WZ US $14.00 UK 7.99 (pounds) Canada $17.00

Third Place: called home by paul m.
Red Moon Press P.O. Box 2461 Winchester, Virginia 22604-1661 USA $12.00

Fourth Place: paperweight for nothing by vincent tripi
Tribe Press 42 Franklin Street. Grenfield, Massachusetts 01301 USA $20.00

Special Category Honorable Mention For Haibun: Business in Eden by David Cobb
Equinox Press. Sinodun Shalford Braintree Essex CM7 5 HN Great Britain. 7.95 (pounds)

fish in love

Special Category Honorable Mention for Anthology: fish in love, edited by Roberta Beary and Ellen Compton. The Haiku Society of America Members Anthology 2006. Available from and published by The Haiku Society of America. [ed. note: fish in love is apparently sold out; let's hope this honor results in a 2nd printing.]

Special Category Honorable Mention for Best International Collaboration: Presents of Mind by Jim Kacian. Translation into Japanese by The Kon Nichi Haiku Circle, Kumamoto University. Red Moon Press. P.O. Box 2461 Winchster, Virginia 22604-1661 USA $20.00 US 22.00 yen Japan

(see cover) In awarding Carolyn Hall‘s Water Lines Second Place, the Kanterman judges said “From first poem to last, one is taken on a smooth journey marked by ordinary scenery that becomes extraordinary by virtue of the poet’s keen and guiding eye.” We previewed Water Lines when it was still a manuscript and was a winner in the 2005 Snapshots Press haiku collection contest. The book was reviewed at Modern Haiku (Summer 2007), by Paul Miller. Here is a sample of Carolyn’s fine haiku from Water Lines:

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