H O M E P R A C T I C E M E M B E R S O F F I R M C O N T A C T M U R P H Y ' S L A W I N D E X

2004

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." - U.S. Supreme Court "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach even himself." - Thomas Paine For a brilliant modern day application of Paine's wisdom, read Justice Wiley Rutledge's dissent in In re Yamashita. Call 423-0400 if you want more information on this Supreme Court case. "In 1891, the [U.S.] army, navy and marines employed a total of 39,492 people. The Pennsylvania Railroad employed over 110,000." - from The Company by Micklethwait and Wooldridge Modern tugboats, typically about 100 feet in length, have 50-60 hp for every foot of length. 'Disclaimer' (that is, declining an inheritance) is a device routinely used in estate planning for various reasons. A Pentagon web site posted Rumsfeld's Rules, including: "It is easier to get into something than to get out of it." "Don't divide the world into 'them' and 'us'." "Visit with your predecessors from previous administrations… Try to make original mistakes rather than needlessly repeating theirs." The Rules have now been removed from the web site. The recent tax revaluation process seems to demonstrate that "rural character" results in very high real property values. "People don't want to admit to mistakes. This is true of the ... Church, it's true of companies, it's true of non-governmental organizations and it's certainly true of political bodies." - Robert S. McNamara Overheard on the Town dock near Captain Mark's beautiful lobster boat: Husband: "Those lobsters look really fresh. They'll be great when steamed." Wife: "Yes, but I really wanted the red ones." Conundrum: A desirable location creates demand for development, and development may destroy the location's desirability. The First Circuit Court of Appeals has upheld a judicial order requiring the issuance of a zoning variance to erect a telecommunications tower. ---------------------------- The above-referenced decision is an example of federal court involvement in municipal zoning matters, a phenomenon which occurs rarely. "No nation can remain both ignorant and free." - Thomas Jefferson A prime function of a public library is to provide civic information. Project CHILDSAFE is promoting firearm safety. Come to our office to receive a free gun lock. "The First Amendment gives America's press far greater latitude than Great Britain has." - Ken Paulson For further information on the First Amendment, including a copy of thought provoking commentary by Edward Achorn, contact us at 423-0400. Another illiterate pop music lyric of the Sixties: "I don't want no pity." - from the Molty and the Barbarians hit single, Molty "A strong economy requires growing consumer as well as capital goods demand, mutually feeding one another." - A.M. Wojilower In Monaco, a studio apartment only 150 square feet in size sells for more than $500,000. Is this Jamestown's future? The Alternative Minimum Tax rules are a trap for the unwary. Work closely with your accountant to avoid avoidable pitfalls. "There is nothing more friendly than a friend in need." - Plautus The volunteers of the Jamestown Fire Department save our Town's taxpayers more than two million dollars per year. While the population of Jamestown has increased significantly, the number of volunteer firefighters and EMTs has declined precipitously. The businesses of Jamestown can and do make a substantial contribution to the volunteer Fire Department and Ambulance Association by allowing their employees to participate and "answer the whistle". Participation in volunteer fire departments and ambulance corps is a rural tradition. Let's reinvigorate this part of our island heritage. On Lawyers: It was a scorching hot day in Kentucky, and A. Lincoln's client had just been convicted of a felony. The judge, graciously, allowed all present to take a brief recess, outside the courthouse for a cooling drink of water, while he considered the sentence he would impose. When the proceedings resumed, the defendant was missing. The prosecutor boldly suggested that the judge should ask Mr. Lincoln whether he told his client to flee, the imposition of a jail sentence being a certainty. The future president responded that, being an officer of the court, of course he would not advise a client to flee. But he did allow that he could have told the defendant they had some mighty fine drinking water in Tennessee. "Nothing is more wretched than the mind of a man conscious of guilt." - Plautus ---------------------------- The above-referenced condition of wretchedness does not occur in certain sociopaths. There have been frauds and losses in 401 (k) retirement plans. Be sure to be familiar with your plan agreement, and watch your account statements closely. Where more than 35% of the value of a decedent's estate consists of stock in a closely-held company, the IRS permits deferment in payment of the estate tax. Historically, courts have ruled, based upon the doctrine of "assumption of risk", that firefighters are barred from recovering for injuries from those whose negligence causes a fire. This is known in the law as the firefighter's rule. Adverse possession, sometimes called "squatter's rights", is one of the harshest doctrines in the law, and, as a result, its application is carefully limited. Rhode Island's mechanics lien statute has now been declared unconstitutional by several justices of the Rhode Island Superior Court. Many believe that young Louis Armstrong's rendition of Stardust is the seminal jazz recording. Recycling and creative reuse are good. Outdoor activities, such as fishing, bike riding, and hiking are good. Saving the old Jamestown Bridge for such uses would have been a sound decision, and should have been implemented long ago. "Pocket parts" is a term having a special meaning for lawyers. What are they? Affordable housing is getting as hard to locate in Jamestown as in Palm Beach, and other enclaves of wealth. Great performances by child actors: - Justin Henry in Kramer vs Kramer - Anna Paquin in The Piano - Tatum O' Neal in Paper Moon - Others? "Oh what a tangled web we weave, when first we practise to deceive." -Walter Scott It's the cover up, rather than the initial offense, that frequently trips up leader types. The Greeks had a word for the arrogance underlying this syndrome: hubris "L'Etat c'est moi" - Louis XIV Refuge behind the privilege against self-incrimination of the Fifth Amendment is usually a far wiser course than deception for persons under interrogation. "That would be the honorable thing to do, said Gary Maddocks, when he heard the news over a plate of ziti at Santoro's Pizza and Hot Weiners. - Providence Journal article on the resignation of Senator Celona ---------------------------- With that single sentence, the essence of Rhode Island's political and culinary culture is succinctly captured. As to the food items mentioned, one can only say, in awe, "what a combination." With the forced resignations of two disgraced Chief Justices, the jailing of a Governor and a Mayor, and the arrogant malfeasance of rogues in the General Assembly, Rhode Island's civic history in the past thirty years has been one for which shame is the only reasonable reaction. The use of the terms "Chief Justice", "Your Honor", "His Excellency", et cetera, when applied to certain office holders is so ridiculous as to approach absurdity. The saving rationale: we do respect the office. Why does our state government regularly act to prop up our state's two quasi-casinos? While, at the same time, squelching all efforts by the Narragansetts to create one! Why is it surprising that a Jamestown highway barn costs millions to site and build when a modest two bedroom apartment here goes for more than $600,000? Pop lyric mysteries: Just exactly what are "alligator lizards in the air"? There are few entertainment acts more salacious than Ronnie Isley and his "brothers". Witness: It's Your Thing. They are great, though, and have been at it for about fifty years. The Founding Fathers laid the legal foundation for the U.S. Supreme Court's infamous ruling in the Dred Scott case (1857) when they included the fugitive slave clause in the Constitution. Robbery is theft in which force or fear is used; larceny is theft in which neither is used. The three principal provisions of Murphy's Law are: Nothing is as easy as it looks; everything will take longer than you think; and, if anything can go wrong it will, most often at the worst possible time. The only Olympic gold medal in court tennis (also known as real tennis) was won in 1904, by Jay Gould. This year, for the first time, the world championship in this oldest of racquet sports will take place over three days at the Casino, in Newport, starting on May 18th. A writ of habeas corpus is a document ordering that a person be brought before a judge or court to determine that there has been no unlawful restraint. During the Civil War, President Lincoln suspended the writ of habeas corpus, in order to permit the detention of persons suspected of interfering with the prosecution of the war against the rebel states. Who remembers the Crusades with loathing and anger? Think about it! "A liar needs a good memory." - Quntilian For a thought-provoking analysis of the seeming inability of the Christian West to understand the Muslim East, and vice versa, see David Warren's essay in the April 2004 issue of Commentary. 14th century Muslim historian iba Khaldun was the inventor and a great master of the discipline we now call sociology. He considered the primary cause of civilizational decline to be forgetfulness. "To argue that other cultures cannot change because their members are incapable of embodying the values we hold dear is racism." - Lee Harris "… the West did not prevail over the East because it was particularly brutal or conspiring or malicious but rather because it was unusually adept, co-operative, and just. We sufficiently mastered the realities of the world around us to remain in charge of our destiny." - David Warren To use the phrase "read the riot act" is to make a reference to the Riot Act, signed by King George I, in 1716. The Act prohibited the unlawful assembly of twelve or more persons, and provided for extremely harsh penalties, including life imprisonment. The use of the dove and olive branch as peace symbols arises out of references in the Book of Genesis. "We have it on the highest authority that the meek shall inherit the earth. But if the meek don't want it?" - Anita Brookner (The Rules of Engagement) "Our doubts are traitors and make us lose the good we oft might win by fearing to attempt." - William Shakespeare Which was the first state, not one of original thirteen, to be admitted to the United States of America? Court tennis (sometimes called Royal or Real Tennis) is played on a complex indoor court. It dates back to medieval Europe, and was the adaptation of a street game, imported into castle and monastery enclosures. It is the forerunner of all racquet sports. Following up on a Middle Ages concept, Doctor Joseph I. Guillotin advocated the use of the guillotine as a method of quick and painless execution. [No one really knows if he was right about the painless part.] The actor cast as the villain in Prime Suspect 6 played an equally treacherous character in the great Russian movie, Burnt By The Sun. Call 423-0400 if you want to borrow the video. The impact upon a victim of identity theft can be enormous, and the legal remedies may be totally unsatisfactory. "The true Axis of Evil is the brilliance of our marketing, and the stupidity of our people." - Bill Maher A computer model developed by the insurance industry has predicted substantial hurricane damage for the Atlantic coast. "Just as hair, fiber and blood samples are collected from a crime scene to test for DNA and find a suspect, a computer's DNA can be collected." - Wendy A. Hobe on computer forensics Military personnel, tried in courts-martial, generally have an array of procedural rights, under the Universal Code of Military Justice, equal to or exceeding those of persons tried in civilian courts. David Brooks' column in the New York Times of May 11, 2004 is well worth reading. Call 423-0400 if you want a copy. Is more law enforcement attention required for: - large trucks billowing black smoke when accelerating - mindless litterbugs - poorly muffled motorcycles OR - drivers who misuse the left lane, and fail to properly enter and merge into highway traffic? "We have not inherited the world from our forefathers-we have borrowed it from our children." - Kashmiri proverb Regarding the enormous compensation received by today's top professional athletes, contrast this: "The last batter to reach the 400 plateau was also a decorated veteran of two wars, the winner of two triple crowns, and off the field served as the tireless champion of charities such as The Jimmy Fund, in addition to pursuing his passion of fly fishing. He is also the last major-leaguer to demand a pay cut at the apex of his career." - Richard A. Johnson ---------------------------- [In 1959, after a drop in his batting average, Ted Williams demanded that his salary be reduced from $125,000 to $90,000.] Thoughts on Constitutional Issues: ---------------------------- In Korematsu vs. United States, the U.S. Supreme Court approved the forced internment of American citizens of Japanese descent, allowing wartime deference to the Executive branch to override systematic civil-rights violations. Many consider this decision to be a low point in the Court's jurisprudence. ---------------------------- Because of public ownership of the airwaves used by television and radio broadcasters, government oversight and control of program content has been justified. However, because cable television is distributed over privately owned facilities, it has been deemed, to date, to be beyond governmental control as to program content. ---------------------------- Principles of constitutional law are constantly being applied by the courts to new facts and circumstances. A thorough knowledge of history is extremely helpful in this process. On Mankind and the Natural World: ---------------------------- "The English country gentleman galloping after a fox - the unspeakable in full pursuit of the uneatable." - Oscar Wilde ---------------------------- "Oh Lord, help me to be the person my dog thinks I am." - Anonymous ---------------------------- "Ants are so much like human beings as to be an embarrassment. They farm fungi, raise aphids as livestock, launch armies into war, use chemical sprays to alarm and confuse enemies, capture slaves, engage in child labor, exchange information ceaselessly. They do everything but watch television." - Lewis Thomas On A Huge Void: ---------------------------- The world is a much poorer place without Ray Charles in it. ---------------------------- His greatest live performance was recorded "right here in Newport", at the 1958 Newport Jazz Festival. ---------------------------- To have your own memorial service, slap that LP on the turntable, pump up the volume, turn out the lights, and listen to the man whose music can penetrate even the most hardened soul. "Never did he cease to regard a Supreme Court appointment as vastly more desirable than the Presidency." - Mrs. William H. Taft, wife of the former President and Chief Justice of the U.S. Supreme Court The prices of single family homes have been rising in all Newport County communities except for Tiverton. The U.S. Supreme Court has, from time to time, declared the existence of a fundamental right (for example, the right to privacy) not expressly enunciated in the Constitution. Come in to the office and meet our very distinguished summer law clerk, Mark Devine, of Coventry, England and Aiken, South Carolina. Mark has just completed his first year of law school, and also is a top-ranked court tennis professional. Legal services for the poor, as a federally funded program, started as part of the Johnson administration's "war on poverty". Following the election of Richard Nixon, Donald Rumsfeld was appointed Director of the Office of Economic Opportunity, ("OEO"), the principal federal agency overseeing the "war on poverty". In 1970, Mr. Rumsfeld recommended removing the legal services program from OEO. This was eventually accomplished shortly before President Nixon's resignation. A knowledge of history is crucially important to understanding the present. State law requires that motor vehicle license plates be "maintained free from foreign materials and in a condition to be clearly legible." This law, under which a fine may be imposed for violations, appears to be little enforced: witness the many plates obscured by plastic colored film, or badges and insignia for various organizations. The dictionary definition of pandering ought to contain a drawing of a license plate to which has been affixed an FOP badge or other "I support law enforcement" insignia. What is amazing is that people apparently believe these items are effective in securing some sort of "protected" status. Sort of an insulting concept. And, what are we to think of police organizations that distribute an insignia that they know will be displayed: a) in many instances, in contravention of state law; and b) more importantly, as evidence of a presumed pact to subvert the rigorous enforcement of traffic laws. The balancing of power between the executive, legislative, and judicial branches is a recurring theme in our constitutional republic. "[T]he danger of a President governing by decree in the name of national security - is with us now in much more alarming form." - Judge David A. Pine (1952) "What exactly had Chief Justice Marshall done in 1803 when he held that the Supreme Court was the ultimate interpreter of the Constitution? Had [P]resident Jefferson won or lost…" - Anthony Lewis (1974) "Impressed with a conviction that the true administration of justice is the firmest pillar of good government, I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system." - George Washington (1789) Begin your tax planning now, and avoid the year-end crunch. Owners of undeveloped land should consider the benefits of donating development rights. The International Yacht Restoration School (IRYS) is worth a visit, if only to see the venerable schooner Coronet resting in its enormous cradle near the Newport harbor bulkhead. Jamestown's high groundwater ordinance has been amended in an effort to eliminate "wrinkles" in the procedure for the processing applications for permits. The procedure remains complex, however, necessarily so, given the objectives of the ordinance. "When did we get so [expletive deleted] thirsty?" - George Carlin on the Yuppie affectation of carrying water bottles everywhere State laws on recording telephone conversations differ. Some require only one party consent, others require both parties to agree. Ellis Marsalis on the necessity of a strong work ethic, "...talent is like the battery in a car. It'll get you started, but if the generator is bad, you don't go very far." Some of the world's top athletes use yoga as an integral part of the training regimen. Unusual cash crops, such as hardwood timber and medicinal plants, are being used to attract environmentally sensitive investors to "life style" type projects in the tropics. Byron R. White was the first person appointed Justice of the U.S. Supreme Court who had served there as a law clerk. Asked why the Supreme Court commanded more respect than any other institution in Washington, Justice Brandeis responded: "Because we do our own work." Current mortgage rates continue to justify strong homeowner interest in refinancing and equity loan programs. Years end is just about four months away. If you haven't already done so, begin your tax planning now. A citizen, having suffered an injury as the result of another's negligence, retains the services of a trial lawyer to seek redress and compensation. Politicians who vilify trial lawyers are seeking to limit that process. It is important to note that the sequence starts with a citizen suffering an injury caused by negligence, not with the trial lawyer. It is also important to discern which groups or entities have a definite interest in curtailing the rights of citizens to seek redress and compensation through the civil courts. But, it is also important to keep in mind that not every bad occurrence or injury is the result of negligence and/or worthy of compensation. A proper balance has to be maintained. And therein lies the difficult question. The presidential campaign is getting downright nasty. This is what happens when one defines dissent as being unpatriotic. Patriotism is an honorable and important virtue. But easily abused. "A long-term military presence in Iraq undermines the very goals that we are hoping to achieve there: it emboldens anti-American terrorists to expand their operations, both against the forces in their neighborhood and ultimately on American soil." - report of the Cato Institute entitled Exiting Iraq. "We have a government that makes Winston Churchill sound like a pacifist clergyman." - Jon Carroll Gertrude Ederle was the first woman to swim the English Channel, and she beat her male predecessors' records by hours. The US Supreme Court has ruled that sentencing guidelines which can result in an enhanced sentence being imposed by a judge without jury determination of the enhancement, is a violation of the right to jury trial guaranteed by the Sixth Amendment to the US Constitution. Great harm is done by gossip, and it always best to follow the adage that if you can't say something good about someone, say nothing at all. Annals of justice: An attorney courteously sought to read a statutory passage to the judge. The judge declared, "The court knows the law--the mind of the court is made up--take your seat, sir." The judge then imposed a fine and had the attorney expelled from the courtroom when the attorney noted, again reasonably and courteously, his objection to the court's ruling. The lesson: Judicial temperament is the most important quality to consider when appointing judges. Another lesson: There is a price to be paid by the society which appoints its judges for life. Interest rates remain relatively attractive for refinancing of home mortgages. "He was a beer drinker who thought wine was for Frenchmen or effete social climbers like his children." - from Pat Conroy's eulogy for his father, Col. Don Conroy, USMC Donate to the charity of your choice before the end of the year to secure an itemized deduction on your 2004 tax return. Contribute appreciated stock and get a double benefit. Patrick Conley has written a very lucid essay on the history of Rhode Island laws governing casinos. Call 423-0400 for a copy. "The biggest question about post-Saddam Iraq - whether it is headed toward stability or toward new tyranny and chaos - may not be answered for years." - James Fallows If being a well informed voter is one of your objectives, you might want to read The Atlantic for October, 2004. Rhode Island now has the second highest corporate franchise tax, and the highest in New England. Entry-level registered nurses earn, in Rhode Island, a salary of nearly $ 49,000.00, according to the Department of Labor. County boys are believed to be, of necessity, resourceful, adaptable and tough. To what County does the term refer? Call 423-0400 for the answer. "Getting their fundamental interests wrong is what American political life is all about." - Thomas Frank The end of 2004 may seem far away, but it is a good idea to begin your tax planning now. "Clearly our standard of living substantially exceeds our production, since it also includes our huge and growing import surplus-which, ironically, the world would much rather we enlarged than reduced. - A.M. Wojinilower Goering's Law (on "Wagging The Dog") "People don't want to go to war . . . But, after all, it's the leaders of the country who determine the policy and it's always a simple matter to drag the people along whether it's a democracy or a fascist dictatorship or a parliament or a communist dictatorship . . . Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to greater danger. It works the same way in any country." - Herman Goering In the mockitplace of idears, concepts espoused by native Rhode Islanders are frequently undermined when expressed orally. You were enormously fortunate if you were in the audience at last Friday's concert performance, at Edwards Auditorium (URI), of Rokia Traore, the charismatic and talented Malian singer. One constitutional right our current U.S. Attorney General appears absolutely determined to protect is that guaranteed by the Second Amendment. Effective enforcement of the then-existing fire safety laws appears to be what was lacking in the Station nightclub disaster. The new laws are draconian in their reach, and punish all of us for that failure of enforcement. This is typical overreaction by a legislature. For persons engaged in a business or profession, Rivers of Revenue, by Kristin Zhivago, is an enlightening read. For all lucky enough to be living on Conanicut Island, the Jamestown Farms 2004 Viability Report is an important guide for the future. All those connected with this project should be proud of their work product. A federal judge has ruled that a real estate broker is not obligated to disclose to tenants of a buyer the presence of lead paint on the premises. But brokers beware: this decision is sure to be narrowly construed. According to the Health Letter of the Harvard Medical School, ADHD is not just a children's disease. Tell me about it! The mechanics lien statute gives to the court the right to award reimbursement of reasonable attorney's fees to the prevailing party. A "529 Saving Plan" is a way to save, on a tax-advantaged basis, the enormous sums needed to pay for a college education. Substantial income tax deductions are available to the purchasers of hybrid fuel vehicles. Residential housing approved as "affordable" under a zoning proceeding must remain so for at least thirty years from initial occupancy. On Admitting Error: A meaningful apology should not contain the words "if" or "but". If is frequently used by public figures when overwhelming evidence forces a public apology, but they remain loathe to actually admit misconduct. As in "I'm sorry if my conduct offended you". The word "but" frequently appears in the apology of a person who is not fully contrite, and who seeks to rationalize their improper conduct by attributing cause to the person being apologized to. The net usual result: a totally ineffective apology. Under most state and federal sentencing guidelines, admission of guilt and acceptance of responsibility are important mitigating factors, and result in a lesser sentence.

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