At Laughlin’s trial in 1993, his attorney failed to point out that the federal government has exclusive jurisdiction over crimes on federal post office property under the U. S. Constitution and Missouri statutes.

After Laughlin filed an application for a writ of habeas corpus in 2009, the Missouri Supreme Court, perhaps noting that Laughlin might have a strong case,  appointed Ginger Gooch, a Springfield attorney, to represent him. She did so admirably.

The facts of this case remind me of several things:

1. Our country is organized in a federal system, in which the federal government has exclusive jurisdiction over some things and shares concurrent jurisdiction with the states over other matters. States have jurisdiction over many kinds of crimes, but there has been a “federalization” of crime in recent decades, as federal statutes have defined many crimes under the headings racketeering, drug trafficking, money laundering, etc.
2. The Newton County prosecuting attorney should have referred the case to federal authorities in 1993, failing to understand the limits of his office. The judge went along with the improper prosecution.
3. The defense attorney in 1993 may have reckoned that a state court conviction and sentence would have been better for Laughlin than a federal conviction and sentence. Or the defense attorney may have, like the prosecutor and judge, totally missed the issue.
4. Lawyers and judges make serious mistakes with serious consequences. Maybe Laughlin would have spent 15 years in a federal prison as a consequence. But the lawyers and judges involved probably won’t suffer.
5. The Missouri Supreme Court, when faced with Laughlin’s request for a writ of habeas corpus, was able to separate it from the thousands of such requests it receives each year and to give it a fair hearing.
6. Ginger Gooch was willing to stand up for the prisoner.
7. While I haven’t checked, I think it’s a safe bet that Laughlin waited until the statute of limitations had run on the federal offenses before filing his request for a writ of habeas corpus. Someone who knows criminal law may be able to offer an opinion on whether he could have been tried again for the same acts.

Baca filed a motion for summary judgment, with a simple statement of facts (the patients asked for and received treatment, the were billed the services, and failed to pay), along with a reference to the chiropractor’s affidavit attached to his petition which said that the charges were reasonable. The patient responded with an affidavit saying the the chiropractor’s fees were unreasonable because of the price increase.

Baca objected, claiming that the Cobbs were not qualified to testify on the reasonableness of the fees.

The court granted summary judgment for the chiropractor for all the fees asked for, and the Missouri Court of Appeals reversed the summary judgment, remanding the case for a trial on the issue of reasonableness of the fees, in Baca Chiropractic v. Cobb.

Summary judgment is the conclusion of a civil lawsuit by a judge who determines that there is no issue of fact that requires a trial. The judge renders a judgment for one of the parties on the basis of a statement of facts and legal arguments. The opposing party is given the chance to question the statement of facts and legal arguments made by the party seeking summary judgment. Obviously, the frequent use of summary judgments would greatly cut down the number of trials and the amount of legal fees generated by litigation.

In collection cases, defendants often have no defenses or are unable to pay the legal fees needed for effective representation. Summary judgments are fairly common in collection cases for these reasons, especially when the defendant has filed an answer that indicates non-existent or very weak defenses.

On appeal, one Missouri appellate judge told me, eight of ten summary judgments are reversed. But summary judgments in collection cases are rarely appealed.

The Court of Appeals identified only one issue, whether the Cobbs’s affidavits raised “a genuine issue of material fact as to the reasonableness of Baca Chiropractic’s fees.” Reversing the summary judgment, the Court of Appeals gave the Cobbs  a new trial. They can try to convince the trial court that Baca charged more than agreed which resulted in unreasonable fees.

Judging from the use of “years of combined experience” in advertisements, many people must think that combined experience adds up to expertise, even in the Show-Me State, where people are not sheeple but skeptics. Here are some samples:

• AllPro Yacht Sales and Service at Lake of the Ozarks answers the question of “Why list with us?” with “60 Years of combined experience with all types of vessels”
• My friend Rick Muenks’s Springfield-based real estate appraisal company boasts “50 years of combined experience in the real estate industry.”

Are four years of experience twice as good as two? Aren’t there diminishing returns, or would we expect to learn as much in years 25-30 as years 1 though 5? Is a busy year of experience worth more than a slow year?

If we combine the years of experience of several people, what do we really get? I have been in jobs where I really wasn’t interested, so that in the year or two I was there–believe me, it  seemed like a lot longer–I learned very little. Yet I can count this as combined experience when I put it with the experience of someone else, who may also have been daydreaming.

What’s the upper limit for combined experience? Builders Screen and Aluminum is proud that its installation crew has 100 years of combined experience. The agents of Real Estate Brokers of Missouri have over 150 combined years of experience, with photographs on its website of seven people, two of whom are named Olga, so you can see that these years are spread over seven people rather than two people with 75 years each, or one with 65 years and one with 10.

When it comes to one person’s years of experience in a profession, you don’t find individuals claiming more than 40 years. Nobody wants to risk giving the impression of being old. But with combined years of experience, even 150 is not too much. Akers & Arney Insurance in Branson has over 250 years of combined experience.

For total years of combined experience, it’s hard to beat a bunch of retirees. SCORE, which stands for “service corps of retired executives” may be in a class by itself. Volunteers at the Lake of the Ozarks chapter of SCORE have “over 1,000 years of combined experience as Executives and Business Managers.”

As I became more mature, or at least older, I probably learn a little less each day. On some days I discover that I’ve forgotten more than I have learned. If this continues, eventually I will have forgotten more than I ever knew. Nobody will want to combine their experience with mine.

The point of the quoted rhetoric was to fuel voter sentiment against Democrats running for Congress in November by alleging that the bill is “set to screw the retiring generation who often downsize their homes.”

The 3.8% tax on gains doesn’t apply to the first $250,000 in gain from the sale of a residence and applies only to single persons earning at least $200,000 annually or couples earning at least $250,000. It’s plainly aimed at only a few households. Here’s a fairly rhetoric-free explanation: http://factcheck.org/2010/04/a-38-percent-sales-tax-on-your-home/.

I don’t think that many Americans are proud of Congress and its lack of bi-partisan cooperation in either crafting legislation to either allow competition or regulation, or some combination of the two,  to effectively address the incredible inefficiencies in the way that health insurance and health care are administered. Large numbers of Americans – often the same people – want Medicare but hate the idea of a single-payer system, thinking of it as socialized medicine, so it’s no wonder that Congress can’t make anyone happy but the health insurance industry.

In the next few months, we’re going to hear a lot about the expiration of the Bush tax cuts and President Obama’s campaign promise to protect all the the highest-earning 2% of Americans from the expiration. James Surowiecki’s analysis of the make up of this top 2% shows that it includes a large number of of business owners and professionals who are essentially treading water, while those who make up the top 0.1% have seen their share of national income triple over the last 25 years. This top 0.1% earn as much as the lowest 120 million Americans. Surowiecki says that “taxing LeBron James and LeBron James’s dentist” at the same 38% rate is a big mistake.

Targeting the top 2%, rather than the top 0.5%, will surely hurt Democrats running for re-election.

Within a week, the heat wave will have run its course and we’ll surely have a little rain. Then we can get moving again in the wonderful Ozarks outdoors and watch the greens become gold, orange and red.

Here are some links for outdoor activities of various kinds:

Ozark Mountain Ridge Runners, based in Springfield, promotes running events. Its website includes upcoming events and race results.

Ozark Mountain Paddlers is another Springfield-based education and conservation organization, whose members travel widely in pursuit of whitewater thrills and relaxation with canoes and kayaks. The website offers links to river and lake levels.

Riverhills Traveler is the webpage of my brother Emery’s print publication of the same name. The website contains a multi-author blog called News and Views, with the focus on hunting, fishing, environmental issues and events. A companion site, Guides and Outfitters, is a directory of Missouri businesses providing campsites, hunting and fishing guides, canoe and kayak outfitters, restaurants, and others, covering most of the state.

Autumn is a great time to visit Missouri’s many wineries. Missouri Wines offers information about dozens of Missouri wineries and five different maps of Missouri “wine trails,” each of which could be the basis of fine weekend. Arkansas also has several wineries and microbrewers, which you can learn about at Arkansas.com.

If you want to know more about the plants and animals of the Ozarks, so that you have a better understanding of what you see and hear and smell, several professional and amateur naturalists share their knowledge at these sites (there are many others):

Ozark Highlands of Missouri is the work of Allison Vaughn, whose acute eye, great photographs, and snappy writing make it one of my favorites. Her focus is on plants, but she also applies her learned brain to birds, mammals, reptiles and amphibians. Allison’s passions infuse her writing, especially about the use of fire to restore and maintain natural areas, with diversions into wines and tennis. Allison’s blog has many links, including to The Vasculum, an Ozarks botany blog, and Beetles in the Bush, which is about insects.

If you’re interested in music festivals and community events, check State of the Ozarks and the Ozarks Mountaineer.

In some ways, the Ozarks economy is like an export economy, in that the money spent by visitors and retirees was earned elsewhere. When the money was earned, it did not consume the labor or natural resources and other kinds of capital of the Ozarks. (Besides the tourism and retirement sectors of the Ozarks economy, there are many other economic activities that result in income from exporting, such as production of beef, dairy and poultry products; other food products; manufacturing; retailing; financial and insurance services; and others. )

The best scenario would be to have money come into the Ozarks without having to consume resources that are difficult or impossible to renew. Imagine having tourist income without tourists, who require pavement, drinking water, sewer treatment, solid waste disposal, and lots of low-wage seasonal labor. Imagine the income from retirees without having to construct houses and condominium units for them, which also requires streets, drinking water supplies, sewer treatment, police and fire protection.

To fill the jobs necessary for residential housing construction and maintenance and the tourism industry we have a large number of residents who have children that require education and health care, who lack private health insurance and who endure seasonal unemployment.

The exports – what we send away – for the tourism and retirement sectors are land and water and solid waste.

The Brookings Institute just released Export Nation: How U.S. Metros Lead National Export Growth and Boost Competitiveness, which contains this finding:

Export intensive industries pay higher wages than domestic oriented industries in large

metropolitan areas. In an analysis of the 94 of the largest 100 metropolitan areas, for every

$1 billion in exports of a metro area industry, workers in that industry earn roughly 1 to 2 percent higher wages. Even those exporting industry workers without high school diplomas earn a higher wage. This wage effect can be seen even adjusting for worker characteristics, occupation, or the characteristics of the metropolitan area.

The report identifies the Wichita metro area as having the highest percentage of export-related employment. Wichita is known for its production of aircraft.

While the Ozarks are unlikely to become a leader in the export of transportation equipment, chemicals, computer and electronic products and machinery, which together accounted for a third of U. S. exports in 2008 (according to the table on page 6 of the Brookings report), we should try to move in that direction.

To do so will require better education and redirection of capital.

In today’s editorial, “Show Me Your Insiders,” Collins’s first point is that Missourians are “crazy about insiders,” despite the conventional wisdom that voters hate incumbents and career politicians. Her evidence is the huge majorities of Roy Blunt and Robin Carnahan in rolling over their outsider opponents in the primary race to select candidates to replace Kit Bond. The reality is that their opponents didn’t raise enough money to mount serious campaigns.

Blunt has served as Missouri’s secretary of state and governor and has served several terms as Missouri’s 7th District representative in Congress. Carnahan’s only public office has been Missouri secretary of state, though her father was governor, her mother served her father’s term in the Senate after his death, and her brother Russ serves in Congress.

Blunt and Carnahan are insiders. Carnahan had no credible opposition. Blunt was challenged by Chuck Purgason, a veteran Missouri legislator with little money and no connections to national interests, though he was endorsed by Joe the Plumber and claimed to be a Tea Party-type.

On Proposition C, nearly three of four those voting (71% of the 23% of registered voters who turned out) expressed their rejection of the part of the federal health care law that requires the purchase of health insurance by nearly everyone, penalizing those who do not. According to Collins, Prop C is “almost certainly unconstitutional and unenforceable.”

While mandatory coverage is the logical and economic foundation of the federal health care  law, the constitutionality of this provision is itself constitutionally questionable, according to federal district judge Henry Hudson’s ruling in Virginia v. Sebelius, the  case testing the Patient Protection and Affordable Care Act, overruling HHS Secretary Sebelius’s motion to dismiss the suit. Referring to the Hudson wrote:

Never before has the Commerce Clause and the Necessary and Proper Clause been extended this far.

A pronouncement from a federal district judge on a motion to dismiss should not be viewed as an indication of how the case will turn out, but seems to have more weight than the flippant remark of a columnist.

Collins also makes fun of Billy Long’s theme, that he was “fed up with insiders.” While I’m not sure that this theme, rather than Long’s high name recognition and personal familiarity in the most populous parts of the 7th District, carried the day for him. His opponents Gary Nodler and Jack Goodman, both state legislators, didn’t differ from Long on the issues, and were fairly unknown to voters in Springfield and in Christian County.

Whatever the height of Collins’s perch, her vision is not acute enough to truly understand how Missouri voters make their decisions. She surely doesn’t think that she understands Missourians, but she still doesn’t mind depicting us as simple folks for the entertainment of her supposedly more sophisticated audience.

Gromer settled with the other driver and Barker before the trial. Then Gromer convinced a jury that Matchett should be at least partly responsible. He owned the farm with the open gate where Barker boarded his horse.

Missouri’s Stock Law, section 270.101 RSMo, makes a person whose livestock gets onto a highway responsible for damages, unless the owner can prove that the animal was outside the fence for some other reason than the negligence of the owner. Missouri’s appellate court has ruled that negligence does not have to be proved by the plaintiff; negligence may be inferred “from the fact that the animal was loose on the road.”

Lack of negligence is an affirmative defense, which means that the defendant has the burden of proof on this point. Unless the defendant could prove that he exercised reasonable care, he could be liable, and the plaintiff would not have to address the issue of the defendant’s negligence.

Gromer argued that the Stock Law applied to Matchett, because he was the owner of the farm with the open gate. Over Matchett’s objection, the judge instructed the jury that it must assess a percentage of fault to Matchett if he was in possession of the horse when it escaped onto a public highway.

The issue on appeal is whether a person who is in possession of an animal is liable for damages caused by the loose animal, even though the animal belongs to someone else.

The Southern District of the Missouri Court of Appeals held otherwise in Gromer v. Matchett, in a decision released July 30, 2010.

In reviewing other appellate opinions applying the Stock Law, the Court of Appeals found that the distinction between ownership and possession was not the decisive issue in these cases, because the owners were in possession or the defendant was neither an owner or possessor.

The Court of Appeals looked to how the word “owner” has been interpreted in other contexts, noting that a dictionary definition indicates that “own” and “possess” are often used to mean the same thing. But in legal settings, ownership and possession are not the same. An owner has the right to possess, but so does someone who rents a car, who is clearly not the car’s owner.

Eventually, the Court of Appeals concluded that it could not “read into the statute a legislative intent that is contrary to its plain and ordinary meaning.” The jury verdict was reversed and the case sent back for a new trial. The Stock Law would not apply to Matchett. To win, Gromer would have to prove that Matchett was negligent in allowing the horse to escape.

The disputes between growers (of cattle, hogs and poultry), the small number of purchasers (packers) and the USDA dwarfs the Shirley Sherrod affair in economic importance, especially in the Ozarks.

While the character assassination and redemption of Shirley Sherrod was essentially contrived by and blown up by the media, the real economic tensions between those who raise animals and those who buy them and convert the meat into consumer products has reached a point at which Congress in the 2008 Farm Bill asked the USDA to propose regulations to address several problems.

The problems arise out of the unequal power of the growers and the packers. The growers must obtain land and borrow heavily to invest in facilities, equipment, livestock and feed and supplements. Many of the packers have become vertically integrated giants, such as Tyson Foods, Cargill,  and ConAgra. A report from the General Accounting Office indicated in 2009 that four firms purchase for slaughter 79% of the nation’s cattle, 63% of the swine and 57% of the poultry. While 2% of all farms account for 50% of the revenue from production of livestock, the other 98% of farms are receiving a sharply decreasing share of each dollar spent for food.

The USDA and the Justice Department began a series of public hearings last year to gather information to use in the preparation of proposed regulations. The Justice Department’s involvement arises from the antitrust provisions of the Packers and Stockyards Act of 1921, which prohibits unfair, unjust and deceptive practices. Proposed regulations were issued in June 2010, which generated enormous negative reactions on the part of–you guessed it–the trade organizations that represent the packers.

In the Ozarks, as elsewhere, poultry growers sign multi-year contracts with companies who purchase their birds. The growers take the contracts to lenders who provide loans for the construction of the poultry houses and the purchase of equipment for feeding and handling the birds, chicks, feed and supplements. The contract terms are not very negotiable, and the growers (often young married couples) are deeply in debt, obligated to work long hours without vacations, and responsible for complying with environmental regulations for the disposal of manure and dead birds.

The proposed regulations address some of the growers’ complaints about the one-sided contracts, which often obligate the growers to incur debt that cannot be repaid within 10 or 15 years, while many of the packer’s obligations may be terminated before the grower’s investment is recovered. Or, like Pilgrim’s Pride, the nation’s second largest poultry processor, the packer may seek a reorganization in bankruptcy and terminate its obligations to its contract growers, many of whom took on hundreds of thousands of dollars in debt to provide birds to Pilgrim’s Pride.

While the return on investment may work out on paper, as shown in this study, the growers are literally betting the farm (which includes their homes) that they will be able to perform physically demanding labor for a decade or more and that the packer will continue to buy their birds.

An analysis of the contract provisions required by the proposed regulations is found here.

For more on the proposed regulations and the cattle business, see this article from CattleNetwork.com, which characterizes the conflict as a “civil war.”

Farmers and ranchers are among the most loyal Republican voters. The Obama Administration has reached out to them with these proposed regulations, which are authorized (arguably) by statutes passed by Congress in an era when politically active farmers were populists.

In the upcoming election season, the agriculture lobbies will support the Congressional candidates who will vow to fight these proposed regulations in the name of supporting American agriculture and free enterprise.

Branson’s aldermen (none of whom were in office when the Branson Landing project was approved for construction) have chosen to take $1.4 million from the city’s general fund and $1.2 million from the city’s transportation fund to make up shortfalls in TIF revenues to make debt service on the bonds used to finance the construction of the Branson Landing infrastructure and related street improvements. In addition, part of the TIF-secured bonds issued to finance Branson Landing also refinanced debt incurred for the decade-old Branson Meadows project, which has always been a weak generator of sales tax revenue.

The TIF-financed bonds are not general obligations of the City of Branson, which means that the bondholders have no claim on any revenue other than that generated by the increase in the taxes pledged for debt service. But if Branson’s TIF bonds are allowed to default, the city gets a black eye.

In this post, I’ll look at the implications of statements made by alderman Mike Booth and developer Rick Huffman, as quoted by Cliff Sain’s article.

Alderman Mike Booth: “If we didn’t have to spend $1.2 million (from the transportation fund), then maybe that road in front of your house could be paved better.”

The traditional role of local government is to fix potholes and keep the snowplows running. Nobody says this isn’t a proper role of government. And citizens complain to their aldermen when the streets in front of their houses aren’t in good repair. Big projects, at times, divert money from taking care of the needs of the little people.

Rick Huffman of HCW, Branson Landing developer, made several incisive observations, including these:

1. “The city wanted to get as much cost into the project as possible because they get to use state sales taxes.

2. “Visitors to Branson Landing spend money and generate sales taxes outside the TIF district and might not come to Branson at all without the Branson Landing project.

Through HCW’s efforts, Governor Holden and the state TIF commission approved the Branson Landing project so that the increase in state taxes in the project area, not just city taxes, could be used to repay the TIF bonds.

With this incentive, and probably for other reasons, Huffman strongly makes the point that the city was given the opportunity to use money that would have otherwise not been available to pay the remaining debt on city projects having little or nothing to do with Branson Landing, such as the city hall expansion, a fire station and Branson Meadows.

As Sain points out, it’s debatable whether the Branson Landing visitors spend enough outside the TIF district to make up for the effect of Branson Landing and Branson Hills shopping centers in pulling shoppers away from the Strip and other locations outside the TIF.

Branson residents and elected officials, like most Americans, would say they’re for small government and letting markets make big decisions. But Branson’s city officials were tempted by Branson Landing, because it offered the opportunity for redeveloping the Taneycomo lakefront, which needed rejuvenation, and bringing people to Branson who wouldn’t otherwise come to Branson, because of the lack of convention facilities and the nature of the existing shopping and dining opportunities. It also allowed the city to repay some old debt with a new source of revenue.

The TIF-financing, especially with the state’s portion thrown in, proved irresistible. Branson Landing has brightened the image of Branson and made Branson a much more attractive destination. Those faced with allocating the city’s revenues will never know whether Branson Landing, as built, was the best choice, but they’ll have to play the hand they were dealt or step aside.