Saturday, January 26, 2013

Pro Gun Control group march in Nashville today

Million Moms March for Gun Control in Nashville
The fear of what happened in Newtown, Connecticut happening at your child's school is what started a nationwide campaign.
A small hand full of gun control advocates marched in Sevier Park today. Included in their number was former Davidson County Sheriff Gayle Ray. See the above link for video and report.

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Tracy gets the last word in the Williams-Tarum-Horwitz supremacy clause debate

Below is Tracy Tarum's response to the last post by Daniel Horwitz on the topic of the supremacy clause of the constitution. I am going to let Tracy have the last word.  Someone has to have the last word and it appears we are getting into reruns. This could go on and on. I have found this dialogue instructive of a divide between stains of thought of those on our side of the aisle. While I tend to side with the view of Daniel, I know that Tracy's view has wide appeal among many conservatives. I appreciate the thoughtful and spirited debate. While I am ending this point-counter point blog posting, any of the participants in this debate as well as anyone else is free to post a comment to any blog post. Comments are welcome. Following this post is a list of other post in this series as well as some related post. Thank you to Daniel, Tracy, and Gene for your contribution to this dialogue. Rod

 I’m saying that it is not our duty to submit ourselves to government

Tracy Tarum
by Tracy Tarum

First, I hate neither you nor Vandy.  In my picture I’m wearing a Vandy shirt, and I’ve been a Men’s Basketball Season Ticket holder for the last five seasons.  I did make the snide “top University” comment, referring to my displeasure that an alleged top University has failed to teach you such basic and important facts in the field in which they’re educating you; but neither is that “hatred” of nor discrediting the University.

And if a Marine recruit unjustly or incorrectly criticized Chesty Puller or James Mattis, I’m going to call that kid arrogant, condescending, and foolish.  Likewise, when a third-year college kid so disrespectfully (and incorrectly) criticizes Tami Kilmarx – co-founder of “The Salt and Light Institute;” responsible for bringing David Barton to town, and Glen Hughes – who has contributed untold hours and funds towards finding, funding, supporting, and promoting Conservative causes and candidates: I’m naturally inclined to show some aversion or contempt for such an attitude – but that’s not hatred.

Referring to me as “unhinged” and not “in the land of reality” doesn’t affect me even a little.  I deal in facts and reason; I’m someone who cannot be offended; don’t assume they bother me.  And if I had discredited you based solely on being a third year law student, it wouldn’t have been “completely reasonable.”  The correctness or incorrectness of your ideas and positions are what determine your credibility, not your age, education, or school of choice. Wow, I do sound unhinged…  Now…

It’s not your fault, but you grew up in the “everybody gets a trophy” and “your intentions make you right” generation.  So you naturally equate someone pointing out your errors as being “unhinged” or “not understanding your point.”  No, I did read your response and fully understood what I was critiquing – and your point was and still is wrong.  You misunderstood my point.

Though you don’t realize it, your bedrock belief is upon the notion that the fabric of society and the security and maintenance of our rights must be directed by “courts’ decisions;” and you give no indication whatever of understanding true Liberty, and what that actually entails – the unmolested possession of Natural rights.  You therefore mistakenly assert repeatedly that any law passed by the federal government supersedes all other laws passed by the States.  (You “say” you don’t; your arguments bare the obvious conclusion that you do…you assert time and time again that the only possible way for a federal law to be disregarded – even if passed outside the granted authority of that government, and even if clearly unconstitutional – is for a federal judge to overturn it.)

And I am telling you that that’s not correct; not if they reach beyond the established, agreed upon, and allowed – i.e. enumerated – powers.  And if the federal courts fail to invalidate violations thereof, States do have a right to do so themselves, and not adhere or comply.  Protection of that power is found in the 9th and 10th Amendments.  The idea that the States and their citizens must, as some assumed universal and inherent duty, follow all dictates of the federal government – to include even the invalid or otherwise unconstitutional – unless overruled by “Federal judges [the only ones who] have the power to nullify Federal law” is patently absurd and insane!!
Lest you disagree because I’m not a lawyer, let me offer the words of John Harris, a Friend of mine, a third-generation attorney, and leader within the TFA:
Only those federal laws which a) are enacted pursuant to an express delegated power set forth in the Constitution and b) which do not violate any provision(s) of the Bill of Rights are protected under the "supremacy clause". Those that do not meet each of these standards are ultra vires acts by the federal government - so says the Constitution.
Here’s our difference Daniel: you look to “what did the courts decide?” for your answers to what is and is not a right, and how the powers of government must function; I look to the studies and ideals of Locke, Montesquieu, Cicero, Pufendorf, Smith, Jefferson, Adams, Madison, Franklin, Bastiat, etc. for what Liberty actually is, and how governments should be formed and maintained to secure it. 
You ascribe to the courts all the power of government; I ascribe the body directly elected by the people as the source of the power of government.  It’s a difference between studying the origin and basis of Natural rights, and a notion to simply appreciate the “rights” government “allows”’ you – and an even more dangerous notion of vesting courts alone with the power to interpret.

I’m not saying that our country isn’t acting as you say it “should;” we are submitting ourselves to government as you portray it.  I’m saying that it is not our duty to live as such.  Our governments WERE NOT constructed as such; and we have ZERO obligations as human beings with Natural rights to live in such manner as to hinge our pursuits of happiness on 545 people; less still to merely nine.  Because whenever “Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and institute new Government, laying its foundation on such principles and organizing its powers in such form, as shall seem most likely to effect their Safety and Happiness…”  And when we find our government to be so far out of kilter with what seems most likely to affect our Safety and Happiness, “it is [our] right, it is [our] duty, to throw off such Government, and to provide new Guards for [our] future security.”  It is from this brilliant and timeless Declaration of Natural rights that we understand that any governmental authority acting outside its granted powers need not be respected.

Also, do yourself, true history, and Mr. Madison a favor, and never refer to him as “The Father of the Constitution.”  Madison hated it, stating in 1834 that; “You give me a credit to which I have no claim in calling me ‘the writer of the Constitution of the United States.’ This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.” And reading his own “Notes of the Debates…” shows his suggestions were overruled far more than they were carried.  But since you brought him up, here are some words of wisdom from Mr. Madison:
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution."
Translation in part: the States created the federal government as a voluntary act, and may rescind that association at any time.  I don’t think it’s wise to do so, but it’s each State’s right.  It is apparent that you’ve never considered or studied the purpose of government, the necessary and intended structure of Republican government, the danger of consolidated power, Natural rights, and the studies of the origins of society – based on leaving the state of Nature to form Society, which necessarily also incorporates the proper purpose of the law.  That is why I suggested to you that you read Bastiat, Locke, Jefferson, Montesquieu, Pufendorf, etc.

And as you explain how my previous example would “likely play out,” you again perpetuate the notion that we are mandatorily subjugated to the federal government, against our will, with no relief available except the mercy of the courts, at the threat of loss of Liberty: which is the TEXTBOOK DEFINITION OF TYRANNY!!!  Do you not realize that if you were correct, we – as 50 separate States and an entire nation of individuals – would be living in a tyranny controlled by 545 people assembling in one city; and of that, nine-man, nearly-un-removable branch would be King?!  I am stating as fact that our foundation was not laid on such principles, nor our powers organized in such form, as to be forced to live as such.  Your assumptions as such are dead wrong!!

Lastly, your statement dealing with citizens having “a constitutional right to own “high-capacity” magazines…[and constitutionality of Exec. Orders]” by coming to the conclusion that we DON’T and that they ARE, is so mind-numbingly ignorant of the verbiage, purpose, and intent of the Constitution and the 2nd  Amendment, that I’ll not even bother addressing it other than to say that it’s scary how ignorant you are on that one. And judicial review is not the “bedrock of our constitutional system.  It was a hotly debated topic, has been severely abused, and in my mind and the minds of many is a dismal failure, and quite possibly the worst mistake our Founders made; and is in serious need of review and amending.

Though (especially after your “high-capacity” magazines comment…), I’d love to know the name of this “most respected and effective conservative legal scholars of the last century” you studied under.  Because either you weren’t listening to what you were taught, or the reverence is as misguided as Chief Justice, Law Professor, Constitutional Law Scholar, et al……

Tracy Tarum is an Aircraft Avionics Technician who has extensively studied Natural rights and the origins of Liberty, and is active in many groups desirous of a return to these principles and Republican forms of government consistent with honoring and protecting them.  He can be reached at

To read previous and related post in this series, see the links below:

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Join national stars for a special National School Choice Week event

Please see the invitation below for a very special event we are co-hosting to kick off National School Choice Week on Tuesday, January 29th from 6:30 to 7:30 at the Renaissance Hotel in downtown Nashville (611 Commerce Street). We will hear about the importance of educational choice from Patrick Byrne, CEO of, former WNBA star Lisa Leslie, and passionate student leader Sandeep Thomas. Renowned school choice leader and former D.C. Council Member Kevin Chavous will moderate the discussion. 
We hope you can make it and please forward the invitation along to others who care about this issue. Please RSVP to or (615)383-6431.

Justin Owen
President & CEO
Beacon Center of Tennessee

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Bill Freeman and Will Pinkston"s cussing and shouting brawl at a Christmas Party

Holiday party spat riles up TN Democrats on eve of chair vote

When dozens of the region's most prominent Democrats gathered for a holiday party at Metro Councilwoman Megan Barry's Belmont-area home last month, what began as an evening of top-notch hors d'oeuvres and tasty cocktails quickly became a reminder that old political grudges die hard.

In case you missed it: If you are a Republican, reading about Bill Freeman and Will Pinkston getting into a cussing and shouting match at a Christmas Party will brighten your day. After reading this, the clashes within the Republican Party seem minor. Rod

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More good PR for Nashville

Nashville Is Nowville...And Has Been For A While. - Forbes

The New York Times has bestowed their blessing on Nashville, sort of. Whew! I feel a little like N.....
...Last year alone it was ranked #3 by CNN as a “City Where Startups Thrive,”  and also #3 in Travel + Leisure’s “America’s Best Cities.”  The city’s friendly locals, good food, affordability, job potential, safety and cleanliness are often cited factors in ranking Nashville on lists such as “Cities Getting Smarter the Fastest” and “Top 10 Budget Destinations for 2013.”

I love to see all the positive rankings and good PR for Nashville. I love this city! Rod

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Friday, January 25, 2013

More on the Williams-Horwitz-Tatum Supremacy Clause/Nullification debate

This is the fifth in a series of post on this topic. To see the previous post, follow this link, which will then link to the other post. Rod
by Gene Wisdom
Gene Wisdom
I find myself disagreeing here with my friend, Tracy Tarum, on an issue dear to both of us: our Second Amendment right to keep and bear arms.  While I agree with most of what Mr. Horwitz argued in response to Mr. Tarum, I hope to address this from a more originalist standpoint and rely on the Framers and their sources rather than statutory or case law.  Let me start out in agreement with Rep. Carr that the Second Amendment is not meant to protect hunters.  It was meant to ensure the security of the citizenry from assault and tyranny.  Elbridge Gerry in the First Congress debating what became the Second Amendment asked:
“What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins….”
But is that right absolute?  William Blackstone didn’t think so.  In his Commentaries on the Laws of England, published in 1776 and very influential and heavily read in our early history by our Founders, he wrote
“The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” (emphasis added)
My basic point here is that we are far from a position where our laws are “insufficient to restrain” tyranny. 
Now, do I defend the federal government’s right to pass legislation contemplated in Tennessee HouseBill 42?  That bill is designed to prohibit federal enforcement of “[a]ny federal law, statute, rule, regulation, or executive order implemented or executed on or after January 1, 2013” which “attempts to: (1) Ban or restrict ownership of a semi automatic firearm, firearm accessory, or ammunition; or (2) Require any firearm, firearm accessory, or ammunition to be registered in any manner.”  If such legislation indeed were aimed at semi-automatic firearms I believe it would be unconstitional (a) for vagueness and (b) as a general restriction of a fundamental right.  Semi-automatic weapons includes virtually all handguns.  I believe such federal legislation would be patently unconstitutional. 
This bill, however, is the wrong way to deal with it.  First of all, the bill itself has problems with its language.  It targets legislation passed only after January 1, 2013.  What if such laws are identical with previous laws, such as the previous assault weapons ban?  What if an executive order references existing law and prescribes rules for federal agency enforcement?  What if such law expands background checks to provide further protections against possession by those insane or mentally unfit?  Such checks would surely, on the face of them, “restrict” ownership or possession.  Paragraph (b) of the bill would prohibit any firearm dealer in the state from attempting to enforce such restriction no matter how reasonable or consistent with existing law. 
Mr. Tarum, in his response, accuses Mr. Horwitz, incorrectly, of “not once” referring to original sources when the truth is plainly otherwise.  Horwitz referred to the history of the Kentucky (Thomas Jefferson) and Virginia (James Madison) Resolutions reminding us that the more radical Kentucky Resolutions were not only ignored by the other states but repudiated by some and that this contrary view has remained accepted throughout our history.  Additionally, Horwitz pointed to the Federalist Papers, including Number 78, in which Alexander Hamilton put forward the doctrine of judicial review.  Though Tarum may not value Hamilton’s influence (I’m not a big fan of Hamilton myself) he is certainly to be counted among the Framers of the Constitution. 
We have been through worse, even in our Founding.  John Adams’ Sedition Act, passed by a Federalist Congress, directly attacked the First Amendment, making it illegal to criticize the President.  Journalists (and other citizens, if I recall correctly) were imprisoned.  The discussion has been around the right of gun ownership to protect other fundamental rights.  Well, surely, free speech is to be counted highly among those “other rights”.  It came under attack by the federal government and those responsible were repudiated.  Adams was turned out of office as were the Federalist majorities in both houses. 
Our Constitution provides the means to overturn attacks on our rights to gun ownership.  This remains available through: (1) overturning such federal law, rule, regulation, or executive order through further laws passed by a still-elected Congress; (2) “throwing the bums out” as the voters did to Adams and company; and (3) appeal to the federal courts.  (Another avenue, by the way, used to address the abusive Sedition Act was President Jefferson (who defeated Adams)’s pardon of those convicted under it.)  Though Tracy is dismissive of judicial review, it remains a means of overturning unconstitutional legislation.  
 While I believe that judicial review is a valid power of the Supreme Court, both under the terms of the Constitution (“cases arising under the Constitution”) and, as noted, as explained by Hamilton, I have not always agreed with its exercise.  I could cite a long list of cases where I believe the Court has been grievously wrong, beginning of course with Dred Scott, and Plessy v. Ferguson’s “separate but equal” but through to the present day with such decisions as Everson v. Board of Education’s “wall of separation” and more recent cases such as Roe v. Wade (and much of its progeny) and Lawrence v. Texas’s finding of a constitutional right to homosexual sodomy.  Just for starters.  But it’s here and it is available and, in fact, the Supreme Court has done pretty well by gun rights in its recent decisions in McDonald v. City of Chicago and D.C. v. Heller.  Neither one perfect but both very well grounded. 
I would argue that a fourth possible method of resistance exists: impeachment of the President for the “high crime and misdemeanor” of infringing on fundamental rights.  While I don’t believe that impeachment should be lightly considered or become a political tool, as I think it arguably was used against Bill Clinton, James Madison argued that it should be available as a protection against “negligence or perfidy of the Chief Magistrate.”    
Those means do not include state or local police officers arresting federal law enforcement officers.  I agree with the motivations behind the bill—protect our fundamental rights, limit the national government to its enumerated powers, preserve the states police powers under the Tenth Amendment.  And as Tracy well knows, I’m certainly no fan of this President or Administration.  Barack Obama’s agenda is one of socialism, of making a mockery of Constitutional limitations, of attacking the family, and of weakening this country and its military perhaps irreparably.  The program he outlined in his inaugural address was described even by some in the liberal mainstream media as to their Left.  That’s saying a lot. 
But as Rod put it so well in his essay this is not best dealt with by having Barney arresting federal agents.  That is a recipe for chaos.  First of all, as Mr. Horwitz points out, it is rightly against federal law, the Supremacy Clause, and years of our history.  Not even George Wallace in his stand in the schoolhouse door sought to arrest the federal officers whom he confronted.  He moved aside after his speech.  Secondly, it invites federal agents seeking federal troops to put down what would essentially be a state-led  insurrection.  Our Constitution was designed to protect liberty and preserve order.  HB 42’s solution is an attack on that Constitutional order when other peaceful, orderly, available and prescribed methods for resisting federal encroachment exist.
In concluding, I can’t ignore the repeated cheap shots and insults by Mr. Tarum against his opponent.  He justified it by the “well, he did it” defense, arguing that his comments were comparable to Mr. Horwitz’s against Glen Hughes and Tami Kilmarx.  On the contrary, Horwitz’s references to these two weren’t snide, belittling remarks.  Tracy, you’re better than that.

 Gene Wisdom is an Alabama native but has lived in the Nashville area since 2007. He, his wife Vicki, and their dog Savannah live near Nolensville.  Gene is a conservative activist and leads the Conservative Fusion Book Club.

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Nashville Transportation Entrepreneurs Hit Government Roadblock

Press release, Nashville, Tenn.—Today, a jury ruled in favor of the Nashville government as part of a long-running dispute over the city’s limousine and sedan regulations. A group of the city’s transportation entrepreneurs and the Institute for Justice first filed suit in 2011 challenging Nashville’s minimum-fare law and other unreasonable restrictions on the city’s affordable car services. The decision means that for now Nashville’s $45 minimum fare for sedans and limousines will remain in place.

“Our fight isn’t over,” promised Ali Bokhari, owner of Metro Livery, which had charged as little as $25 for trips between the airport and downtown before the law was passed. “These laws were wrong when they were passed, they are wrong now and they will be wrong until they are struck down.”

The plaintiffs in the case had argued that the minimum-fare law, which was literally written by a lobbying group representing the interests of the city’s expensive limousine companies, did not advance any legitimate government purpose. The week-long trial featured testimony from local small-business owners, sedan customers, and even the regulators and limousine-company owners responsible for the law itself. After deliberating, the jury found that the government had at least one legitimate interest for the law beyond mere protectionism.

“Unfortunately, across the country, governments continue to pass protectionist laws at the behest of powerful private interests,” explained Wesley Hottot, the lead attorney on the case. “We remain committed to fighting back against encroaching government power on every available front.”

The week-long trial featured testimony from local small-business owners, sedan customers, and even the regulators and limousine-company owners responsible for the law itself. After deliberating, the jury found that the government had at least one legitimate interest for the law beyond mere protectionism.

“Achieving economic liberty is a marathon and not a sprint,” explained Institute for Justice Senior Attorney Robert McNamara. “The jury’s verdict will neither stop nor slow our efforts to free transportation entrepreneurs here in Nashville and nationwide.”

“The Institute for Justice has fought for the rights of entrepreneurs for over 20 years, seeking to make sure that all Americans have the right to earn an honest living in the occupation of their choice,” concluded Institute for Justice President and General Counsel Chip Mellor. “As long as government officials insist on abusing their power, we will insist on holding them to account.”

For more information contact: Shira Rawlinson, (703) 682-9320 ext. 229

To contribute to IJ, follow this link and hit the "donate" tab. I am so disgusted, I made an additional contribution to IJ. One of the things that really disgust me is that even the so-called "conservative" members of the Council were guilty of voting for price fixing when the current anti-free enterprise price-fixing legislation was adopted. Rod 

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limousine price-fixing was upheld

I was informed a short while ago that the city prevailed and limousine price-fixing was upheld. Obviously, I am disappointed. I will post more, when I know it. Rod

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Metro's Price-fixing on trial: Report from the Courtroom

Daniel Horwitz
by Daniel Horwitz

[Author’s note: After discovering that absolutely no one in the media is covering this trial, I wrote all of this up fairly quickly based on my notes at 2:00AM in order to get it out as soon as possible.  I have not had a chance to edit it or review it, so please forgive me for any typos, run-on sentences or incomplete thoughts, which I promise to fix at some point later on.]

Sitting in attendance for day two of the trial between several low-cost limousine companies and the Metro Transportation Licensing Commission (MTLC), I’m happy to report what I thought was a very strong day for the plaintiffs. 

To provide a general summary of what this trial is about, the three plaintiffs in this case –represented by the extraordinarily successful libertarian public interest firm the Institute for Justice – have sued the MTLC over the following four provisions of Metro’s livery ordinance (No. BL2010–685):

(1) The “minimum fare” provision that requires that limousine and sedan service operators charge a minimum of $45.00 per trip;

(2) The “prohibition on leasing” provision that requires that limousine and sedan service operators hold title to their vehicles;

(3) The “dispatch restriction” that requires that operators dispatch vehicles only from their place of business; and

(4) The “vehicle age requirement” that requires that operators take sedans and SUVs out of service if they are more than seven years old, take limos out of service if they are more than ten years old, and refrain from placing any new vehicle in service if it is more than five years old.

I should note that only the minimum fare provision, dispatch restriction and vehicle age requirements were mentioned today, so it’s possible that #2 was dropped at some point between the filings submitted last month and the start of trial without my noticing.  In any case, the plaintiffs have alleged that each of the above provisions violates their constitutional rights under (1) the Due Process clause of the 14th Amendment, (2) the Equal Protection clause of the 14th Amendment, and (3) the Privileges or Immunities clause of the 14th Amendment.  As such, the plaintiffs claim, each of these regulations must be struck down as unconstitutional.  The plaintiffs’ latter claim concerning the Privileges or Immunities clause is, unfortunately, foreclosed by a Supreme Court decision handed down in the late 1800s, but the Institute for Justice and other proponents of economic liberty remain hopeful that the current Supreme Court will eventually decide to reexamine the issue.  It is not, however, going to be a successful claim for relief at this point in this particular case.  

In order to win, the plaintiffs in this case must prove that the regulations above fail what is known as “rational basis review.”  Basically, this means that they bear the burden of proving that these laws do not bear a rational relation to any conceivably legitimate government interest.  The MTLC has asserted that nine separate government interests are advanced by its regulations, so the plaintiffs must therefore disprove, by a preponderance of the evidence, that there is a rational connection between each of the laws above and any of the government’s nine stated purposes.  Those rooting for a favorable outcome for the plaintiffs in this case (and I count myself among them) should not be na├»ve about just how difficult this burden is to overcome; though the Institute for Justice has been uncannily successful in its recent “economic liberty” lawsuits, victories in cases like these are virtually unheard of.  The fact that this is a jury trial is likely to help the plaintiffs (judges applying the law correctly generally find that the standard in a case like this is all but impossible for plaintiffs to meet), but it’s important to remember that Judge Sharp can always overturn the jury’s verdict. 

Extremely helpful to the plaintiffs in this particular case, however, is the controlling 2002 decision that the Sixth Circuit reached in Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002) (also won by the Institute for Justice), which stands for the general proposition that pure economic protectionism is insufficient to provide the rational basis necessary to justify a law under the 14th Amendment.  Though in my own humble opinion (and according to Judge Sharp, the Tenth Circuit and several others) the Craigmiles decision was constitutionally suspect, the case is nonetheless controlling here in the Middle District, and as such it prevents the MTLC from being able to argue that the above regulations may be justified on the basis that they protect more expensive limo companies from competition.  For what it’s worth, I’ve believed for some time that the Tennessee case Consumers Gasoline Stations v. City of Pulaski, 200 Tenn. 480, 292 S.W.2d 735 (1956), stands for a similar anti-protectionism rationale under the Tennessee Constitution, and I hope very much that somebody develops this argument one day.

In any case, with that primer, here’s how the day played out:

Before the jury was brought in, there were a handful of motions made regarding whether certain witnesses could testify.  The plaintiffs won the first two of these motions over the MTLC’s objections, with Judge Sharp ruling that the witnesses “barely get over the bar, but do get over the bar of relevance.”  (Author’s note: only relevant evidence is admissible at a trial, and pursuant to Federal Rule of Evidence 401, evidence is considered relevant only if it has “any tendency to make a fact [of consequence in determining the action] more or less probable[.]”)   A third witness on the plaintiff’s witness list was prohibited from testifying, however.  The witness was apparently going to testify as to the protectionist intent of the lobbying group that drafted the regulations (hereafter, TennLA), but Judge Sharp responded that it is only Metro’s intent that matters, and thus that “the motivation of [TennLA] has nothing to do with whether the Metro Council had a protectionist motive.”  Though the plaintiffs’ attorneys countered – persuasively, in my view – that the drafters of the legislation “had protectionist purposes, and therefore it’s more likely that Metro’s purpose was protectionist,” the witness was nonetheless disallowed.  Two reasons for this ruling that Judge Sharp alluded to were that the witness’s testimony (1) could potentially confuse the jury, and (2) could be seen as being needlessly cumulative since TennLA’s representative, who testified yesterday, apparently did not come across as credible and was consistently evasive on this point.  Since, pursuant to Federal Rule of Evidence 403, relevant evidence may be excluded if its value is substantially outweighed by the danger of issues like these and others, Judge Sharp’s ruling on this point was soundly within his discretion. 

Witness 1: Richard “Limo John” Simpkins

The first witness of the day was Richard “Limo John” Simpkins: former sole proprietor and owner-operator of “Limo for You.”  Dressed in a flashy business suit that his attorney initially mistook for a tuxedo, Mr. Simpkins testified that after holding several uninspiring jobs, he decided he wanted to become self-employed and thus opened a limo company twelve years ago “to make a go of it.”  Drawing inspiration from Cornelius Vanderbilt’s ferry business model, he explained, his goal was to become the low-cost provider in Nashville’s livery market, and to be “very disruptive to the marketplace” by giving customers better deals on fares on both roundtrip and short-trip pricing.  According to Mr. Simpkins, before the recent regulations $20 limo rides made up 80% of his business.  After the $45 minimum fare requirement was enacted, however, Mr. Simpkins claimed he was forced to shut his doors.  Furthermore, Mr. Simpkins noted, his business model depended on a simplified, low-cost dispatch system that is no longer legal today due to the new “dispatch restriction.”  Operating a single white super-stretch Lincoln Town Car which he described as the only true “classic limousine,” Mr. Simpkins testified, he was able run his businesses using nothing more than a calendar and a cell phone. 

On cross-examination, the MTLC touched on several points.  First, they noted, Mr. Simpkins had been kept informed throughout the development of the new livery regulations.  I’m still not quite sure what the point of this line of questioning was, but in any case Mr. Simpkins responded that he had voiced his objections so vociferously that the former director of the MTLC “told me if I opened my mouth again I'd be thrown out.”  Next, the MTLC’s attorney hammered Mr. Simpkins on whether his business model aimed to compete with taxicabs.  (Author’s note: the state is asserting that helping consumers differentiate between taxi and livery services and helping the transportation industry as a whole provide rational bases for the regulations.)  True to form, Mr. Simpkins delivered a line that earned a chuckle from the jury: “I want to compete with taxis, airplanes, and everyone else involved in the transportation business!” he exclaimed.  “I just want to go back to being Limo John.”

Witness 2: Mark Sissel

The second witness of the day was Mark Sissel, a longtime customer of Metro Livery who painted a vivid and personal picture of the way that the new regulations had affected him.  Mr. Sissel explained that he works at an artist management company three miles away from his home, and doesn't have a driver’s license due to his eyesight.  As such, he often uses a car service to get to work and other places (but not always, since he sometimes walks, bikes, or works from home). 

Mr. Sissel’s account of how he ended up as a customer of Metro Livery was worth smiling about.  He had been accustomed to taking a cab to work, he said, and one day he called Metro Livery mistakenly believing that they were a cab company.  To his delight, he stepped out of his home that morning to find a polished black Lincoln Town Car with a driver wearing a suit waiting for him.  This “was exceptional” Mr. Sissel noted, beaming from ear to ear.  “Cabs are just means of getting from A to B,” he continued.  But “Metro Livery gave me a sense of dignity.  They treat me like a VIP.  They take care of my son in Franklin when I’m not there, and wait for him to get safely into his apartment.  They make me feel like somebody special.”   

Before the recent regulations, Mr. Sissel testified that he had paid $18 per ride with tip included.  Now, in order to get the same price, he and Metro Livery have to try to exploit a loophole in the minimum fare provision by paying $54 per ride, then taking two rides free.  This arrangement often doesn’t work for him, however, since his schedule is unpredictable and it’s hard to keep track of the “free” rides that are owed.  “I don’t understand why, if someone can create a business model that allows me to work the way I want to in the city I love, then...” he started to say before his testimony was cut short by MTLC’s objection.

Nothing of note was discussed on cross.
Witness 3: David Clegg

If Mr. Sissel’s testimony was your average human interest story, Mr. Clegg’s story was the tear-jerking “All I WantFor Christmas Is You” moment from Love Actually.  I’ve watched several trials in my life, and even tried a few myself, but never have I ever seen an entrance quite like this one. 

According to his testimony, Mr. Clegg is “totally blind” and suffers from “severe rheumatoid arthritis and osteoarthritis.”  Swiveling a black cane out in front of him and wearing dark sunglasses to cover his eyes, Mr. Clegg slowly inched his way into the courtroom with the help of his attorney Wesley Hottot.  The jury, visibly sensitive to his difficulties, hung onto every word of his testimony.  “I can’t hardly walk . . . and there’s no cure,” he began.

After explaining his condition, Mr. Clegg explained that he uses Metro Livery four or five times per month, and maybe more.  Before the minimum fare regulation, he also used to be charged just $25 per trip.  “It’s hard to beat a deal like that,” Mr. Clegg noted.  “With my condition I often need extra help, and [Metro Livery] helps me get in my house and makes sure I’m ok before they leave.”  Now, in an effort to keep him as a customer and comply with the minimum fare requirement, Metro Livery has worked out a deal with Mr. Clegg where he’s charged $50 upfront for a round trip.  “It all amounts to about the same, but it means I have to pay more upfront,” Mr. Clegg explained.  “I liked it the way it was.”
Witness 4: Theresa Anglan

The fourth witness of the day was Theresa Anglan, the manager and principal dispatcher for Metro Livery.  Ms. Anglan has been with the company since its inception, and handles all duties from car inspection to customer complaints to booking.  She also testified that Metro Livery drivers used to spread out throughout the city in order to maximize the speed of service, but that this is no longer possible due to the dispatch restriction’s requirement that limousines only dispatch from their place of business. 

Ms. Anglan’s testimony started out fairly aggressively, then moved quickly to the emotional.  “Many customers are going out to black tie events, the Ryman, or for a nice night on the town, and they don’t want to show up in a dirty, nasty cab” she exclaimed.  “They want a service that opens a door for them and a driver in a suit.”  Customers also used to be charged an average of $22-$25 per ride, she continued.  But “now, we charge them $45.  Some people— they can’t afford that.  We’ve lost almost 50% of our business” she said, appearing to be on the verge of choking up. 

What would happen if the minimum $45 fare rule remains in effect, she was asked?  “I’ve had to cut our employees hours, then cut them again.”  “We’ll keep losing business,” she said, needing a moment to collect herself.  “It used to be so pleasant, so fun to work in our office.  We can’t make a living here anymore.  You can sit there for hours and hours and the phone doesn’t ring.”  Some employees have already had to leave the company for new jobs to make ends meet, and 70% of Metro Livery’s customers also can’t pay in advance or aren’t comfortable with exploiting the loophole in the law, she explained.  “We shouldn’t have to put this on our customers.  Eventually we’re going to have to shut out doors.  I have worked so hard to build this company, earn these customers and keep these customers.”  “It breaks my heart,” she finished actually choking up this time. 

Attorney Jerry Smith of the MTLC handled the cross, which was primarily dominated by both attorney and witness becoming frustrated about Ms. Anglan claiming she didn’t understand the questions she was being asked.  “It’s a yes or no question,” Judge Sharp once interjected, joining in the frustration.  The cross centered on some hearing at which Ms. Anglan had responded to several questions from MTLC Chairwoman Helen Rogers, and at which some individual named Boyd Kinser – a driver of Metro Livery who had also once been a licensed attorney – had appeared.  I can’t say I understood the relevance, though, and I doubt the jury did either. 
Witness 5: Clint Catshod

The fifth witness of the day was Clint Catshod, a current driver for Metro Livery who had once been ticketed for violating the minimum fare ordinance.  Mr. Catshod described a sting operation that MTLC had conducted, and was still visibly perturbed about the experience.  Sometime after the minimum fare regulation went into effect, an MTLC employee apparently called Metro Livery to negotiate a $25 fare, and then halfway through the ride, an MTLC inspector pulled Mr. Catshod over and assessed him a $50 fine. 

To me, the most interesting part of Mr. Catshod’s testimony was the fact that he had been pulled over by an MTLC car equipped with blue lights, and that both the MTLC inspector who had posed as a passenger and the one who pulled him over had flashed official police badges and represented themselves as law enforcement officers.  This, of course, was one of several scandals that wonthe MTLC national headlines last year, as well as a scathingrebuke from Nashville’s Chief of Police Steve Anderson.  MTLC inspectors, of course, are not actually law enforcement personnel, and impersonating a police officer by illegally equipping a car with blue lights, holding oneself out as a law enforcement officer, and flashing a falsified police badge– otherwise known as a “Criminal Impersonation” under TCA§ 39-16-301(b) – is a Class A misdemeanor that carries a sentence up to eleven months, twenty-nine days in prison and a fine of up to $2500.  Despite apparently having engaged in the practice of impersonating police officers for thirty-five years, however, not a single MTLC official was ever charged, presumably because Nashville prefers to waste its resources rotating non-violent drug addicts and homeless people in and out of prison. 
Witness 6: Brian McQuistion

After a break for lunch, the trial resumed again at 1:00PM.  The sixth witness of the day was former MTLC Director Brian McQuistion, who for the sake of full disclosure I have been no fan of and publicly demanded be fired several times last year both in the Tennessean and in this blog.  After recounting how he became MTLC Director, the parties spent the following four hours painstakingly tracing the process by which the livery ordinance was enacted.  Several members of the gallery had to get up to stretch and pace the hall in order to prevent from falling asleep throughout this testimony, and more than a few jurors began to nod off at various points as well.  The highlights of his direct testimony, as far as I could tell, were (1) his reading of the MTLC meeting minutes from August 2009 (“Chair Rogers asked where the minimum $50 fare [later reduced to $45] had originated; the Director responded that this had been a recommendation of [TennLA] during the revision process”), and (2) his testimony that “Bo Mitchell put the minimum fare back in” when it was voted on by the Metro Council, and that this “surprised everyone except TennLA.”  Plaintiffs’ attorneys also spent considerable time getting Director McQuistion to rebut, in part, many of the MTLC’s asserted interests in this case (e.g.— Q: “Do you believe that businesses always make more money when they charge higher prices?”  A: “No”).

On cross, the MTLC retraced all the steps of the ordinance’s drafting process.  Toward the beginning of the cross-examination, I was rather surprised that he was asked whether “other cities had used minimum fares” (he had testified that Nashville’s livery ordinance was based in great part on those used in other cities), to which he promptly responded “no.”  This seems like exactly the sort of evidence that helps the plaintiffs in this case, but quite frankly I didn’t follow the relevance of the rest of the cross-examination, either, and may have completely misunderstood whatever trial strategy the government was pursuing.  Mr. McQuistion did state that many other municipalities have dispatch and vehicle age requirement regulations, though, which does lend credibility to the MTLC’s non-protectionism claim.  Another fun fact— apparently Nashville pays fairly hefty dues for our MTLC commissioner to attend some international conference of transportation regulators every year, and for this we get one of the most dysfunctional, embarrassing and borderline corrupt transportation regulatory bodies that you or mother has ever heard of. 

By 4:00PM – after three hours of testimony from Mr. McQuistion and seven hours of trial – I had to leave.  Something like 12 exhibits detailing the minutiae of the bill’s drafting process had been introduced at this point in his cross examination (with several more to come) though, and I’m relatively certain that nobody was paying attention anymore. 
In any event, I’m looking forward to tomorrow. 

-Daniel Horwitz

I showed up for a while yesterday, just to get a flavor for what was going on to extend moral support ot Ali Bokhari, owner of Metro Livery. I heard Brian McQuistion testify that one to the justifications for the minimum fare for limo companies was to protect the taxi industry and to insure that taxi drivers make a decent wage. Astonishingly, at least to me, he said that this was important or the taxi drivers would resort to criminal activity to earn a living.  That seems pretty paternalistic if not racist and anti-immigrant given the demographic of the taxi drivers.

I am astonished that no local media is covering this trial. Thanks to Daniel Horwitz for this excellent report. Rod


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Obama's "recess" appointmenst unconstitutional

Today  the D.C. Circuit Court of Appeals ruled unconstitutional the "recess" appointments made by Barack Obama to the National Labor Relations Board (NLRB), ruling  that they did not occur during a congressional recess. Also, all of the actions taken by the board since the unconstitutional appointments are ruled invalid. It is good to see that Obama did not get by with that abuse of power. Read more.

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Fairgrounds Consultants will present draft report at Community Meeting

 Monday, January 28, 2013 6-8 PM

Sonny West Conference Center in the Howard Office Building, 700 Second Ave S.

 Consultants for Phase 2 of the Fairgrounds Master Plan will present highlights of their preliminary report at a public meeting on January 28.  Phase 2 of the study will determine the highest and best mixed use scenario for redevelopment of the Fairgrounds site, and compare that with the best practices model for fair and event uses included in Phase 1 to generate a “Recommended Master Plan.” 
The Fairgrounds Master Plan Study is being done at the Metro Council’s direction, and the Council will make the final decision on the Fairgrounds site’s future.  Details of the study so far and community comments from previous meetings are on the Planning Department’s Fairgrounds Master Plan webpage.

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Thursday, January 24, 2013

Ken Jakes tells NES Board Decosta Jenkins must go!

Ken Jakes appeared before the NES Board today and told the Board that they should fire NES executive director Decosta Jenkins. 

Ken Jakes is the long time citizen activist and former Metro Council candidate who uncovered massive criminal activity on the part of NES. Such criminal activity including accepting thousands of dollars of perks and benefits for use by NES brass in exchange for NES services provided to Gaylord, misuse of credit cards and pay pal accounts involving private purchases with NES credit, a conflict of interest and manipulation of purchasing specs to benefit a particular provider of cable and more. Ken discovered these criminal activities by using freedom of information request and poring over hundreds of email exchanges and other records.

As a result of Ken's effort the State Comptroller conducted an audit of NES and confirmed what Ken's investigation had uncovered. The information was presented to Davidson County District Attorney Torry Johnson but he declined to prosecute. At today's appearance before the Board, Ken said, "This is not the end of this. I am taking this issue to the Federal Attorney."

To be allowed to address the board, Ken had to make his request in writing and had to get unanimous Board approval. They only allowed him five minutes. Ken declared that criminal activity had occurred and read to the board the following segment from Metro Charter: 

The officers, agents and employees of the board are prohibited from appropriating or using any of the moneys, revenues, assets or property of the board, or of the metropolitan government, or its credit either directly or indirectly by way of donations for festivities, exhibits, shows, lectures, pageants, excursions, decorations or parades, and shall not give or grant to any person or persons any reduction or other benefit of any kind in rates or service by the board, nor shall they make or allow any discrimination in favor of any purchaser of power, light, current or other service not enjoyed by others of the same class and taking power under like conditions; provided, nothing in this article shall prevent participation in normal electric promotion activities.
"How much clearer, could it be?" Ken asked. He also referenced a section of the NES employee manual that says much the same thing.

Most of the NES Board meeting was spend adopting policies to address the issues raised in the audit. A new credit card policy took credit cards away from over 100 employees and left only eleven procurement professionals with credit cards. The State audit had found substantial misuse of credit cards. The bylaws of the Electric Power Board were amended; a new travel expense policy, a new policy manual, a new procurement and materials policy manual, a recommendation to  retain  a firm to provide third party review of the Internal Audit Function, and a "Corrective Action Plan in Response to the State Audit Findings" were approved.

While it is good that the Board is addressing the finding of the audit and taking corrective action, why is no one in jail for grand theft? Why does  Decosta Jenkins still have a job?

There was no media present covering today's important Board meeting.

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