Extra-Territorial Warrants and the Fourth Amendment

For those to whom the title of this post is gobblety-gook, I apologize. But I wanted to take a moment to mention that during the last week of 2009, the Second District Court of Appeals (which includes Montgomery, Champaign, Clark, Darke, Greene, and Miami counties) issued an extremely interesting decision on a legal question that is quite murky. So please bear with me while I go all law-geeky.

The facts are quite simple: Miami Township police came to believe that Kevin Jacob had committed a theft offense. (Believe it or not, he allegedly stole several Hummel figurines. Note to would-be thieves: people get very, very possessive about their Hummels.) Eventually, the police decided that Jacob had taken the figurines with him to California, and convinced a Miamisburg judge to issue a warrant to search Jacob (then in California), as well as a residence and two cars also in California. The warrant was sent to and executed by the San Francisco police.

The question before the Second District was this: can an Ohio judge authorize a search in California? In an opinion written by Judge Froelich, the court concludes that it does not. The court's decision relies heavily on the statutes and rules enabling Ohio judges and magistrates to issue warrants, all of which limit the judge's power to his territorial jurisdiction. "Crossing state lines," writes Judge Froelich, "by allowing an Ohio court to determine when California citizens and property are subject to search and seizure crosses [a] constitutional line."

As is my policy, I'll not comment on the merits of the court's decision. I did want to note, though, that one of our local courts of appeals recently wrestled with a particularly thorny constitutional question. For more analysis--including some discussion of how this applies to internet crime issues--read this blog post by Professor Orin Kerr of George Washington Law School.

By the way, because the appellate court determined that the issuance of the warrant was outside of the trial court's authority, Mr. Jacob's conviction was set aside; should the State seek to retry him, it will not be permitted to use the evidence obtained from the California search during a new trial. Given the novelty and importance of the issues raised, I'd be surprised if the Montgomery County prosecutor doesn't seek review before the Ohio Supreme Court (and perhaps ultimately the US Supreme Court).

Mr. Jacob was represented on appeal by Jennifer Getty of the Getty Law Office in Dayton.

UrbanUp Ponders Exclusivity

Sherman Cahal at UrbanUp ponders the viability of exclusivity in the booming downtown club scene. At last count there are at least five high-end clubs (with one more on the way) in the Downtown area. This doesn't include the high end restaurants. Can the market take this level of supply? I could use another Arnold's in Downtown. Can we clone it?

Let's Go Bengals!

In all likelihood, today is the Bengals' final home game of the 2009-2010 season (theoretically, the AFC Championship could be played here, but only if the Bengals beat the Jets and the Chargers and the Ravens beat the Patriots and the Colts).

Those of us who live in the southwestern corner of downtown have a unique experience when we watch Bengals' home games on television. (And since I don't have tickets, that's how I'll be watching.) To make sure we don't hear any bad words, games are, of course, broadcast with a delay of several seconds. For some reason, digital cable (to which I subscribe) is often a second or two behind its broadcast or analog cable counterparts. So people see plays on their TV about 7 to 12 seconds after they happen in real time.

Why does that matter? I live close enough to Paul Brown Stadium that I can hear the crowd. I can hear the crowd's intensity rise during and after a particularly positive play for the Bengals. And I can hear it, usually, a couple seconds before the ball is snapped on my TV. So as the team is at the line, if I hear the volume of the crowd suddenly pick up, I know the Bengals are about to have a big gain or a score.

I don't really have any game analysis for you (for that, check out one of the sports bloggers, like Lance McAlister). But I wanted to offer some sort of game-day post wishing the Bengals well.

And wouldn't it be cool if the AFC Championship game were here?

Velvet Opens on Fourth Street

I'm not really cool enough to be in the know about things like this (I was hoping perhaps 5chw4r7z had the scoop, but there's nothing on his blog), but by virtue of proximity, I can report that a new nightclub has opened on West 4th between Plum and Central, in the space previously occupied by Bang. The new club is called "Velvet," and was open this past weekend.

I can't seem to figure out the new club's hours or who, exactly, is running the show (though I think it's the guys behind Bang/FB's/Club Clau/etc.). Some of the club's residential neighbors have complained about noise during the club's opening, so one hopes that the club will work to be a good neighbor. Velvet's owners should remember that a busy nightclub in that block is a relatively new phenomenon, and many of the street's residents pre-date Bang and thus weren't looking for the residential experience of an entertainment district.

If anyone has some info on the new club, feel free to post in the comments.

CSO Faces Transition

The CSO announced today that Paavo Jarvi will conclude his tenure as condutor at the end of the 2010-11 season, when his contract expires. The CSO sent an email to its subscribers informing them of the maestro's decision.

That comes on the heels of the death of Erich Kunzel, long-time conductor of the Pops. It also follows--by just a few weeks--Louise Nippert's extraordinary $85 million gift to the CSO.

I moved to Cincinnati in the fall of 2000. The first nine months of that time, I was too busy trying not to flunk out of my first year of law school to do anything outside Clifton. So for me, Paavo--who came here in September 2001--has always been been the face of CSO.

The search for a new conductor will no doubt be made easier by Ms. Nippert's gift, which ensures the long-time financial stability of the CSO. Most orchestras in similarly-sized cities don't have the financial breathing room now enjoyed by the CSO. This all means that CSO will likely have its pick of conductors from around the world.

So, Who's BossSexy?

Regular Cincinnati Blog commentor BossSexy has taken the next step and started his/her own blog.

The tag line is "A collection of thoughts and commentary on Cincinnati life that is too short to be taken seriously and too long to end up on Twitter."

Have a read and send your nutty comments to him/her!

Really, Milford?

Before a single flake of snow has fallen, and with only a few inches of snow predicted (snow that isn't scheduled to start falling for at least twelve more hours), Milford has declared a snow emergency.

Runners-up in the Race to Over-React to the Coming of the White Death: Little Miami and Mason schools, which have already decided on a two-hour delay for schools tomorrow. (If the forecasts are right--and they never seem to be--getting to school will be trickier, not easier, two hours later than usual.)

Stay tuned to the Cincinnati Blog, your best source for the ridiculing of people who can't deal with southwest Ohio's relatively tame winters.

Do Any City Republicans Want to Be on Council?

So all three Republican Council Members are running for Hamilton County Commission. All three would be running against each other in the GOP Primary.

So, I'm sure all three will have time to find ways to improve the city's budget problems. They've been so full of ideas recently that they have solved all of the problems facing us in the City.

Leslie Ghiz Announces Run for Commission

Showing her dedication to the City, Council Member Leslie Ghiz today announced her run for Hamilton County Commissioner. This has long been rumored and gives support to her right wing tilt during last year's council race.

According to the Enquirer she will not step down from council during the campaign, but claims she will reduce her law practice to compensate for the time.

How much time has she actually been putting into her duties as a council member before now?

No word on who will be challenging her.

Plummer Fired From Police Department, Again

Cincinnati Police Officer Anthony Plummer has been fired from the force, again. Plummer was the officer who shocked the daughter of Councilman Cecil Thomas with a taser last summer. All reports of the incident reported that Plummer used excessive force in dealing with Celeste Thomas, who was on her knees when hit with the taser. There is no one out defending this officer's bad actions, but there will be at least one group who defend him.

Plummer is appealing his termination, as he did back in 2006 when he was fired the first time. This is the point where the Police Union must act. It is obvious Plummer does not belong on the police force. The FOP should convince Plummer not to return to the force. If the FOP lift a finger to help Plummer get back on the force, then they are complicit in his actions. The language from the internal police investigation was beyond damaging, it was a condemnation. The FOP must act to not only keep the citizens safer by getting this cop of the streets, they do themselves harm by defending him. How can any professional defend the improper actions of this terrible police officer? I know the argument they will make, they have to follow the rules of the union and defend him to the end, but when is enough, enough? All they are doing now is fighting for him to get money. He doesn't deserve a dime from anyone and it is theft if the city is forced to pay him anything and it is an injustice to the public if he gets his job back.

Plummer must go. If arbitration goes the wrong way, the only likely option would be some kind of buyout, which still sucks, but to keep a gun out of this guy's hands it may be worth the price.

A New Year, and a New Disclaimer

Since joining Brian here at the Cincinnati Blog a little more than two years ago, I've been a solo practitioner. That's meant that I've never had to worry about anyone attributing my words to anyone else.

As of today, though, I'm a proud partner in Caster, Dutta & Seibel, LLC. My point is not to advertise (though you should certainly contact us with any of your criminal defense, civil rights, employment, or appellate needs!). Instead, I just want to make it clear--as it should be to anyone who isn't an utter moron--that when I write, I do so only for myself. My musings here are my own thoughts, and should not be attributed to any entity in which I am a member or any of the other members of those entities.

And as you all know, Brian and I don't always agree, so I don't write for him, either.

Happy New Year!

The Top Local News Stories of 2009

I'm sure people will quibble with my list of the top local news stories of 2009, but that's why we are here. My list gives deference to stories that are more important. I know that's not what the masses want, but since when is this blog about pleasing the masses? Anyway, here's the top ten:

1. City Budget Battles - The lack of civility on council is a disgrace.
   
2. County Budget Battles - The lack of planning from the Stadium Tax architects is causing a critical reduction of services. We actually need a functioning court and corner's office.
   
3. City Council Election - Loss of Harris, wins for Winburn and Quinlivan: The Obama voters stayed home and the GOP scared enough Republicans to vote for Winburn.
   
4. City Lay offs: Workers did lose jobs, but the FOP doesn't seem to care about that, just their own raises.
5. Issue 9 goes down in defeat. The citizenry actually listened on this issue and defeated anti-city forces. We must be vigilant and defend progress, the likes of COAST and Smitherman will not end their quest to destroy the city.
   
6. CinWeekly dies. Yes, it was "replaced" with Metromix, but there is less content, which goes went along with laying off the entire staff.
7. Decline of the Enquirer and CityBeat: The economic downturn has hurt print media across the board and these publications took hits this year. We have less news gathering. Fewer reporters are out looking for stories. The existing ones don't have time to work on stories that may not actually pan out. Local News is dying. I don't know how to prevent that.
   
8. Bengals and Bearcats are successful: Pride actually does a city well and people are more positive about where they live when their sports teams does well. Yes, that says a lot about our Culture, when sports drive so much of our Psyche, but if the Bengals win the SuperBowl, even Westwood Concern would support the Streetcar.
9. People are coming downtown: We just had an election last month and it touched on crime, but overall, people think downtown is safe. No one demagogued the CDB. Many still fear OTR irrationally, but that too is changing.
   
10. Ups and Downs in the Arts: Many local arts organizations had layoffs over the last year or closed outright (I will miss New Stage), but actions like Mrs. Nippert's gift to the CSO, the Opera, and the Ballet gives hope that once traditional donors get their investments back to a more comfortable level, they will continue giving and maybe give more.
    

Top Cincinnati Area News Stories of 2009?

So, I'm taking nominations for the top news stories of 2009. This is for the Cincinnati area, so keep your Health Care and Obama stories to yourself for this purpose. I think I'm looking for two types of stories, those that actually mattered and those that got a ton of attention. The latter being included, I'll likely have a sports story. I won't have that many, and no I don't think any high school sport story would ever make it, even if your school won the state championship. I'll have my top picks later this week.

Crappy Budget and Five Are to Blame

Only one of the five who voted for this bad budget deal are to blame. The four: Cole, Qualls, Quinlivan, and Thomas had no choice. Charlie Winburn pulled a Joe Liberman on them and was 'for' furloughs and then flipped in such a manner that The Flying Wallendas would be proud.

The FOP Election was going on yesterday and it appeared to me that Winburn and his staff may have been doing a little acting in the effort to make Kathy Harrell look like she won a victory. How real were those shouts in the hallway that Jane Prendergast reported? Kathy Ended up winning easily, 555-90, but just below half (49.4%) of the rank and file voted for her. What does it say that voter turnout for the FOP election was only 57%? Does the rest of the membership feel like their vote doesn't count? Or that there was no real choice?

The rest of the blame goes to those who put forth no ideas and no plan of their own, namely Berding, Bortz, Ghiz, and Monzel. Leslie Ghiz can call this plan 'garbage, but what did she offer up in its place? Bortz attacked it and I think he is most concerned about raiding the City's Working Capital Reserve Fund for 8.2 Million. He is right to call that irresponsible from a development and infrastructure perspective, but unless you get furloughs or layoff cops and fire fighters, there is no other way, or at least no other way on the table. If the silent four are going to govern, they have to play the game with Winburn too. No, you can't trust Charlie Winburn. He will double deal everyone, unless you pay him off. He agreed to the rules and he got himself a new committee to play with. Yesterday, he got to dance with the FOP and help Harrell raid the city's reserve to keep the seasoned cops sitting on their butts getting pay raises, while still having the younger pups out doing the work. The FOP now owes him, and he will collect.

If you are going to sit on your hands and not put forth ideas, you really have nothing to complain about. Hell, no one of the Gang of Five put any pressure on the unions to provide concessions. The only thing close in the budget is a cut of Overtime, which reportedly will come mostly from the CPD, and none of the silent four voted for that!

We have a crappy budget. We have to live with it, for now. It is time that every member of council starts participating in the process. The first step would be to stand up to the Police Unions. Next, some reform of the police and fire departments might be in order. If you are not willing to do that, then no one is really serious about fiscal responsibility.

Buyer's Remorse for the FOP?

FOP President (at least for now) Kathy Harrell may be a little bit pissed at herself for supporting Charlie Winburn for Council. Charlie appears to be playing word games in his reported support of the latest budget deal. Winburn pledged to not support any budget that included fire or police layoffs. The the current deal on the table doesn't directly call for police or fire layoffs, but instead calls for 10 day furloughs with layoffs coming if unions don't agree, so I guess in the world of a slimy politician, that's keeping your word.

Harrell may not have agreed with Greg Harris, but he was a council member who was honest. There are no exchange policyies in council races. She claimed to have help defeat Harris and win it for Winburn. Well, caveat emptor, Kathy.

Latest Budget Deal on the Ropes?

A new budget deal for the city was announced today, but late word from Jane Prendergast is that this deal may have stalled, with Charlie Winburn, the presumed 5th vote, calling for a recess.

The deal puts the plan for layoffs in the hands of the unions, either furloughs or layoffs. The police and fire departments would need to accept 10 days otherwise 34 from the Fire Department and 47 from the Police Department would be laid off. Additional cuts for AFSCME and CODE would be put to those unions as well.

For the FOP this couldn't come at a worse time, as they are holding union elections today.

Did COAST Help Cause an Increase in Crime?

The point of this article from Enquirer's Jessica Brown is that the lack of jail beds is turning criminals back on the streets.

The article goes on to say there are two causes for the lack of jail beds, the closing of Queensgate Jail in 2008 and the defeat of the Jail Tax plan in 2007.

So, 20,000 arrestees were turned away because we don't have enough jail space. COAST and its other allies were the main campaigners fighting to defeat the Jail Tax effort. They reveled in that defeat.

During the election, many (mostly the conservatives) said the crime rates were increasing this year in the city. If that is true, part of it can be laid at the feet of the recession. More people are poor, crime goes up. That's a general fact of life that no one can prevent or deny.

If any increase in crime can be traced to 20,000 people not being on bail before their trial and being free, then COAST should get a big fat share of the blame and be ridiculed for its efforts to defeat the jail tax. The problem with that notion is validating those released from jail are committing more crimes. The article uses as a source Sheriff Simon Leis, who is not shy of point out problems with solutions that would get more funding for his department.

The bias of the Sheriff aside, there is a lesson to learn. The anti-government stances put forth by COAST, like the 2007 anti-jail tax campaign, are examples of how bad ideas that are born out of shortsighted extremism come back to bite everyone in the ass. People are far to ignorant and groups like COAST prey upon that ignorance. Their strategy is to make complicated issues into yes/no questions. That is how charlatans work. They try to convince people the issues are simple, but they know that's a lie, but when your goal is destruction, lying is no vice.

Ghiz Blocks the Cincinnati Blog on Twitter

You have been blocked from following this account at the request of the user.

I've never held back my criticism of Council Member Leslie Ghiz, but I've never been offensive. Is that reason enough to block me on Twitter (@Leslie_Ghiz)? I had been a follower of her account for a while and replied to many of her tweets, with fair, but critical questions. I just realized she was tweeting or so I thought. I don't know when she blocked me, but I would guess its been a while, likely before the election. I guess she prefers to isolate herself from critics. Sounds like she's preparing to grow up to be a Republican.

Two questions arise from this: 1)Was I the only one blocked? Did anyone at the Enquirer or any other blog get blocked as well? 2)If she is twittering from a city owned computer does that fall under the public record statues?

Know Theatre Adds Shows!

The Know Theatre has added two additional performances of Sideways Stories From Wayside School on Sunday December 20th and 27th at 3PM. The family friendly show is fun for all ages (I'd say kids maybe 8 or older will have more fun, but matures younger ones might like it too).

For tickets, go to www.knowtheatre.com. Tickets are only $12 in advance, and get them now, they are really starting to sell out, which is why they added more shows!

If you go on either day, be sure to come early and visit the neighborhood and shop! Check out www.otrgateway.com for all of the shopping, eating, and drinking options.

The Phony Coney's Christmas Wish For COAST

There is only so much coal in the world, but The Phony Coney has a big pile of it ready for the members of COAST at their Christmas party. I'm sure the event will be filled with the anti-City, anti-urban, anti-government negative spirit we come to know and expect from COAST.

Again, Less News is Bad News

The average television news viewer will not notice this type of change at WCPO and WXIX. That has to do with the average television news viewer being as interested in real news as they are interested in which type of Novocaine their dentist uses.

In a perfect world, I would wish this would allow Channel 9 and Channel 19 to devote more time an resources to actual news gathering, but no, it will not. News gathering (aka News Reporting, aka Journalism) is a dying profession. It is nearly dead in television, and is on life support in print.

More and more I am scared of that ability of the public will actually get reasonably unbiased and relevant information will be gone. Trust is the most important skill in journalism, and as talk radio and advocacy media are becoming the only way people hear about things, we as a society lose. I really wish people were not apathetic sheep, running toward the cheap mindless media traps being set all around.

New Commenting System

I'm in the processing of changing commenting systems, so comments may be sporadic. Please bear with me over the next few days. I will be playing with the method of commenting once I am fully up and running, so they functionality may very. Let me know if there are opinions on things that work or don't work and I will take it under advisement.

For those wondering, Haloscan, the system I was using, is ceasing operations and being absorbed by a system called Echo, which I the system I am converting to.

Monzel is Void of Honor

Once upon a time there lived a City Council Member who I in no way agree with politically, but who I respected and felt had a high level of integrity. That Council Member's name was Chris Monzel. At this point, Monzel has transformed himself into a political hack approaching Steve Chabot territory. Monzel lacks honor. I am saying he lacks honor because he's not crazy. He also is not stupid. He lacks honor because he is not being honest. In his press released issued today responding to a call for ideas on what to cut in the budget Monzel continued the campaign dogma.Therefore any budget that I will consider voting for will not, under any circumstances, include the laying off or dismissal of police officers or fire fighters (and related essential personnel) as well as severe cuts to the resources that these fine men & women need on a day to day basis to keep us safe.Monzel needs to stop pandering. The election is over. He is not going to win any more votes. He needs to start actually BEING a Council Member. That involves facing the facts that there is a 51 million dollar project budget shortfall. We can't cut all 51 million from non-public safety departments. We can not and more importantly, we SHOULD NOT! The CPD is bloated. The Enqurier article on CPD overtime is on big area that if address would provide meaningful cuts. But, not in Chris Monzel's eyes. The FOP is his Holy Grail and he will do what ever they want, no matter how low they stoop. No matter how many times they create false panic. No matter how many police slow downs they organize to punish citizens for daring to question their divinity.

I look at the other Four of the Gang of Five and I really hope they do not play Monzel's game. I'm pointing at Ghiz mostly, since she's been the worst, even though Berding has given her a run for the City's most prolific Grandstander. Since they seem to be playing a game of chicken with the Mayor, I expect the fireworks to erupt soon. It makes for good blog fodder, but as is obvious is makes for horrible governance.

Milton's Robber Dead

The man 'allegedly' responsible for robbing Milton's Tavern last summer died after a police chase in Anderson Township.

Yeah, the 'allegedly' is in my opinion not allegedly in the slightest, but the guy never stood trial for the crime, and who knows what his family might do, I don't need the grief. Anyway, he did get punished. Now I hope the staff and patrons of Milton's can have more peace and enjoy the holidays with a beer. If you are good, maybe an elf will make gumbo.

An Amazing Gift for Cincinnati Arts

Louise Nippert has made history with her incredible gift to the CSO, Opera, and Ballet. Classical music is the base of fine arts and this gift will go far to ensure that the CSO can continue as a world class orchestra and in turn provide first class live music to the Opera and Ballet for many years to come. This donation will also help all of the local arts organizations in the city, if by no other way then opening up opportunities for other donors to focus on an expanded list of Arts groups (like local live Theatre!). Mrs. Nippert played the role of Mrs. Claus in a big way yesterday, so turn on WGUC right now and think of the culture this city will be able to continue to remain famous for throughout the world.

Who's Next?

If the media reports are correct, Brian Kelly will tell his soon-to-be-former players tonight that he is leaving for South Bend. At least we'll get a million dollars of Notre Dame's money (at least, I assume his contract with that school will force it to pay his buyout from his UC contract).

Thanks to Brian Kelly for three great years. As someone who went to Nippert to watch games during the early part of this decade, it was terrific to see the excitement (and success) he brought to the program. I've previously written that coaches should not be permitted to leave before their season is done. But until the NCAA creates some more rational rules, the system is what it is. I don't blame Notre Dame, Brian Kelly, or UC for Kelly's early departure.

Now, UC has a decision to make: will it continue to grow UC's football program, or will it view the team's recent success as a byproduct of Brian Kelly that is unreproducable by another coach and therefore back off? I hope it chooses the former path. UC made a mistake by permitting the basketball program to be too strongly identified with a single head coach. It should continue with its plans to provide Division I-quality practice facilities and expand Nippert.

Who should UC look to hire as its next head coach? There's a lot of talent (not the least of which is Zach Callaros) ready to play next year. After 12 wins and 2 consecutive BCS appearances, UC will have more options than it did after Mark Dantonio left. A short list of candidates (in no particular order):

• Kerry Coombs, UC (a terrible choice, but this is who UC chooses if it decides it's not interested in continuing to grow the program)
• Jeff Quinn, UC
• Turner Gill, Buffalo (if Kansas doesn't sign him first)
• Skip Holtz, ECU
• Butch Jones, Central Michigan University (two CMU coaches in a row?)

Any other names we should discuss?

Wussy Packs Them In, From Canada

If you've been living under a rock, then you may not know that Wussy is one of the best bands in Cincinnati. They have attracted a nationally following amongst indie music experts which has attracted Stuart Laidlaw from the Toronto Star to fly to Ohio to see wussy. He loves Wussy, and one might say put the fanatic in fan. He likely was a little giddy when he got to met the band after a recent Show at the Northside Tavern, but we can forgive that. It is great attention for a band that continues to grow and continues to be a standard barer for the Cincinnati Music Scene. Help out the band and give a gift of Wussy this holiday season.

Attention I71 Drivers!

This is a public service announcement to all I71 drivers. If you were white-knuckle driving your way home tonight, then be open to some advice. If there ever is a weather forecast that includes a chance for snow, any chance of snow...fluries...a light dusting...or even just few flakes, then stay home. If you can not handle driving in the rain, then you should never drive in the snow, ever. Also, you must vote for all forms of public transit if you ever plan on going anywhere: trains, buses, or pack mule.

This ends this friendly public service announcement.

Yes, It Snowed This Morning

In case anyone missed it, there was a slight snow fall this morning.

I hope you have plenty of canned food to survive the day.

Jean-Ro v. Wade

Sorry. I just couldn't resist getting to use the title.

As first reported by Polly Campbell, Jean Robert de Cavel has filed suit against his former business partner, Martin Wade. (The defendants are actually several limited liability corporations, each of which operated a separate de Cavel/Wade restaurant.)

De Cavel is represented by Vorys, Sater, Seymour & Pease. I believe that Wade is represented by Taft, Stettinius & Hollister. The case, filed in Hamilton County Common Pleas court, has been transferred to the recently-created commercial docket.

Jean-Robert seeks an injunction prohibiting Wade from taking any action (including public statements) seeking to use a non-compete agreement to keep Jean-Robert from opening his new restaurant. It appears from the filings that Jean-Robert agrees that there was a non-compete agreement, but that it has expired. According to his attorneys, the non-compete was in force while Jean-Robert was providing services as a manager to Wade's restaurant group and for one year following the termination of those services. They claim that Wade restructured the group in September 2008 and removed de Cavel as a manager at that time. Wade, of course, has publicly claimed that the non-compete is in force for one year after de Cavel leaves the partnership, which he hasn't done yet.

The language from the non-compete agreement quoted in de Cavel's brief seems to support the chef's legal interpretation. It's not entirely clear the facts are with him though; at least as I read the court documents, there may be an argument that he remained the manager of Pigall's until it closed at the end of February 2008. His attorneys must be planning to argue that "services as a manager" refers to managing the entire group, not just one restaurant in the group. I don't know whether that argument is sustainable. I also don't know whether, apart from the non-compete, de Cavel would have a fiduciary obligation not to compete with an entity in which he is a partner. (For the sake of my own culinary delight, though, I hope that de Cavel's attorneys have the upper hand in both arguments.)

A couple of interesting tidbits from the motion for injunctive relief:

• Jean-Robert says that Wade only began rattling the non-compete sabre when Jean-Robert refused to transfer his 20% interest in the restaurants (and--perhaps most importantly--a liquor license) to the Relish Group.
• In his letter to de Cavel informing him of the then-impending closure of Pigall's, Wade claims to have lost money every year Pigall's was open. Wade wrote, "Fine dining as you know and love, no longer is a profitable business."
• Jean-Robert testifies (via affidavit) that the reason he delayed the opening of his new restaurant at Seventh and Vine is the uncertainty created by Wade's litigation threats. This seems to contradict what Jean-Robert reportedly told Polly Campbell about the delayed opening.

It'll be interesting to see how this all plays out.

Council Committees Revamped

The Mayor wasted no time changing Council's power structure by renaming and eliminating committees. The line up is as follows:

Committee: Chair
Budget & Finance: Cole
Public Safety: Thomas
Job Creation: Winburn
Strategic Growth: Bortz
Livable Communities: Qualls
Quality of Life: Quinlivan
Government Operations: Berding
Rules Committee: Qualls

Monzel and Ghiz were shut out. Ghiz reportedly wasn't pleased. I find that shocking, oh so shocking. Having Cole at Budget & Finance really sucks for everyone.

More from WVXU

New Role for Vice-Mayor?

Since Cincinnati's move to an executive mayor, the role of vice-mayor has been largely symbolic. When Jim Tarbell was vice-mayor, I seem to recall Mayor Mallory describing him as a cheerleader for the city. David Crowley, while certainly active on Council, seemed to continue the Tarbell tradition of vice-mayor as cheerleader-in-chief.

The appointment of Roxanne Qualls, I suspect, signals a shift in what is expected of the vice-mayor. I can't imagine Qualls signing up for a gig that is merely ceremonial. Instead, it's likely that she has an agreement with Mallory similar to the one Biden had with Obama: that she'll be "in the room" when important decisions are made.

I don't have anything to substantiate my speculation beyond Qualls's history of strong leadership in the city and her penchant for the nuts and bolts of urban policy and planning. If I'm right, though, I think her appointment will be good for both the mayor and the City: her experience and strong voice will be extraordinarily useful to the administration during the difficult months ahead.

Marking the 30th Anniversary of the Coliseum Tragedy

This week marks the thirtieth anniversary of The Who's concert at Riverfront Coliseum (now U.S. Bank Arena), where 11 people died in a stampede into the venue.

The Enquirer has a terrific article by Lauren Bishop on the tragedy and its aftermath. Lauren does a great job of blending a history of the incident with individual narratives from people who were there.

I've known that something happened at a Who concert back in the '70's (I think I first heard of it when Cincinnati re-legalized festival seating five years ago), but didn't really know what happened or why. This article is a good read for anyone who is either a non-native or too young to remember 1979.

Brian Kelly Watch

Oklahoma's Bob Stoops says he has no interest in a Notre Dame job.

TCU's Gary Patterson just finished a contract renegotiation, which mean's he is staying put.

Brian Kelly? He simply won't address the rumors until after the Pitt game on Saturday. Not exactly the unequivocal statement of commitment UC fans would like to hear right about now.

Dear Notre Dame: Haven't you learned anything? You need a defense-oriented coach. Coach Kelly is great, but defense doesn't seem to be his strong suit. Leave him alone.

Dear UC Alumni Association: Shouldn't someone rent a plane to buzz the campus towing a sign saying, "Let's Keep Kelly" or some similarly catchy phrase?

Dear NCAA: Isn't it time you adopted an anti-tampering policy similar to the NFL's? What kind of joke do you turn into if one of your major bowl games (in particular, the Sugar Bowl) involves a team led by an interim head coach? Better yet, what if UC beats the Panthers (thereby vaulting TCU in the BCS standings), Texas loses to Nebraska (moving UC to #2 after Alabama loses in the SEC championship), and Notre Dame hires Coach Kelly before the bowl games? Do you want the national championship played by a team that just lost the coach who took it through an undefeated season? Just make teams wait until after a coach's job is done to hire a coach away. It works in the pros; it can work at the college level, too.

Qualls is the New Vice Mayor

There was little choice for Mayor Mark but to name Roxanne Qualls as Vice Mayor. The big questions still out there, who will fill the rest of the committee chairs? Here is a list of the committees and the prior chairs:

Committee: Chair
Arts, Culture, Tourism and Marketing & Technology: Monzel
Economic Development: Bortz
Finance: Cole
Health, Environment and Education: Crowley
Law & Public Safety: Thomas
Rules and Government Operations: Berding
Transportation and Infrastructure: Qualls
Vibrant Neighborhood, Recreation, & Public Services: Qualls

Obvioulsy Crowley's chair at HEE is open, but will there be other changes? I think everyone except Laketa Cole would like to see someone other than Cole chair the Finance Committee. With her placing 9th in the race, she may have to settle for something else. I would like to also see Monzel removed from Arts & Culture. I don't see Chris liking much of anything on that committee, so his judgment is not going to help push arts, culture, tourism, or marketing. His only interest seems to be technology, which doesn't really fit with that committee anyway.

Black Friday Question

How much Black Friday shopping is about Christmas-present-giving-these days?

One of the best deals at Sears, for instance, was a deal on a washer and dryer. Are there really that many clueless men who honestly believe they can give their wives a washer and dryer for Christmas and still hope to have sex in the coming year? I tend to think a lot of the TV purchases are for personal use rather than gifts.

How about y'all? If you went discount-hunting Friday, was it for Christmas presents, or was it to pick up an appliance you needed at a good price?

How About Those Bearcats?

In an effort to appease those who think we need more sports posts, I thought I'd mention the excellent play of the Bearcats recently. But I'm talking here about the team coached by Mick Cronin.

For those who missed it, last week the 'Cats went to Hawaii (I know, being a student athlete is such a tough gig!) for the annual Maui Invitational. There, they beat Vanderbilt and Maryland, both of which were ranked as among the top 25 teams. That got them to the tournament final, where they lost in overtime to Gonzaga (thanks largely due to some bad late-game officiating). What was perhaps most surprising was the Bearcats' tenacious defense through the tournament. (Even in defeat, they allowed only 19 first-half points for Gonzaga.)

Yes, the real test doesn't start for a few weeks, first at the Crosstown Shootout against Xavier December 13, and then through the Big East schedule beginning with a December 30 homegame against UConn. But the season has started much better than anyone in the media expected it would.

Let's Go 'Cats!

"Progress" v. The Metropole Tenants Association (Part II)

Note: this is a continuation of the post immediately below.

2. Does 3CDC have too much power in downtown and Over-the-Rhine? Truthfully, I have no idea. Certainly, we should talk about 3CDC and what it does. (And I don't think 3CDC would shy away from that discussion.) I definitely don't want to engage in some conspiracy-laden rant, accusing 3CDC of being some local version of the Trilateral Commission. But we should discuss, from time-to-time, what 3CDC does and whether it's good for a private organization to play the role in development decisions occupied by 3CDC.

At the outset, let me say this: 3CDC has, for the most part, done a terrific job in downtown and OTR. Anyone who doesn't believe that didn't drive up Vine Street five years ago and then again today. Anyone who doubts that 3CDC has made a lot of good decisions hasn't been on Fountain Square in the last three days--or, frankly, in the past three years.

Having said that, though, 3CDC has become something of the de facto planning commission for downtown. Maybe that's alright, because they have done a pretty good job thus far. But we should make sure the delegation of downtown planning to 3CDC is a conscious decision, and not one driven solely by momentum.

Last week, City Council debated the Queensgate Terminal project. Part of what was discussed was that the project would put Cincinnati Bulk Terminal out of business. Jeff Berding suggested that it's not City Council's job to favor one business over another, thereby creating "winners and losers". Maybe it's not. But it's something Council does more often than one would think. The remodeling of the Metropole is to be supported with $2.5 million from the City. An agreement to allocate that money will be a decision by the City that 3CDC's proposed business plan is better than the one currently in place. Notably, it will force the relocation of Roma's and the Subway Lounge. There's no guarantee that either of those will be successful in a new spot. So sometimes, the City does, indeed, choose winners and losers. 21c and its restaurant (which is Italian, by the way) win, and Roma's loses.

City Council routinely rubber stamps 3CDC proposals. My question: should it? Maybe it should. But let's make sure we talk about it every few years.

3. Why is this Legal Aid's problem? Finally, I have to wonder why the Metropole Tenants Association is represented by the Legal Aid Society. Is this really part of its core mission and services?

Some of Legal Aid's attorneys are my friends. The people who work there are dedicated, hard-working public servants, many of whom chose to work for Legal Aid even though they carry six figures of educational debt and could parlay their degrees into much more lucrative private practices. They are intelligent and capable, and they will no doubt represent the tenants zealously and professionally.

But is this type of class-action really the type of activity that Legal Aid should be spending time on? There are certain clients and cases that would go unserved if not for Legal Aid. Most poor people in the midst of divorce, foreclosure, social security applications, education law needs, and individual landlord-tenant disputes would not find representation in the private bar. As clients, they cannot pay a lawyer's hourly fee, and their cases are typically too small to justify a contingent fee arrangement.

With unemployment reaching double digits, the need for Legal Aid's individual services is larger now than ever. And that makes me wonder how Legal Aid is able to find the time to devote to a class action case. (Perhaps its plan is to merely see the case through its administrative phases, and to assist the tenants in finding private counsel should litigation be required.) The Metropole action, should one be filed, is large enough that there are members of the private bar who would take it on. Should it be left to the private bar, then?

I don't ask either of the questions raised in the post to demonize either 3CDC or Legal Aid. Both are organizations that (though very different) are extremely competent in their respective fields. Each is enormously important in the future of our city. But like any organization, it's fair to talk about their role from time to time. (Commenters, please take your meds before ranting here about either of these groups!)

"Progress" v. The Metropole Tenants Association (Part I)

I've been wanting to write about the coming conversion of the Metropole (located on Walnut between Sixth and Seventh) to a luxury hotel for some time. (Background: Enquirer; Streetvibes.) I've been reluctant to, for fear of what will appear in the comments. I don't want to feed the trolls who regularly comment in order to insult poor people. I also suspect, though, that the overwhelming part of our readership is fairly unsympathetic to the Metropole's tenants. Many of our readers consider themselves "urban pioneers" (a term I find patently offensive) who are somewhat sympathetic to the poor--so long as they don't have to live, eat, work, play, or pray alongside the poor. I'm a little afraid of what you'll have to say, too.

For me, this episode in the development of downtown Cincinnati raises three issues: the merits of the dispute between the tenants of the Metropole and the new owner of the building; the role and power of 3CDC in downtown development; and the role of Legal Aid in the provision of services to the indigent. I'll tackle each in turn over two posts.

1. Who's right: the tenants, or the landlord? Like most things, this isn't as black-and-white as those on either side of the dispute would have you believe. If the complaint to HUD is accurately described by the Enquirer (in other words, if the complaint really alleges that 3CDC is discriminating against the tenants because most are elderly or African-American), my guess is that it lacks much merit. I don't think 3CDC cares much about the age or race of the tenants it is displacing. Instead, 3CDC has a vision for downtown and this project is part of that vision, regardless of the tenants who are tossed out on the street. Remember, 3CDC's plans also call for the "relocation" of two commercial tenants, neither of whom--so far as I know--are owned by people who are minorities, elderly, or indigent.

But the tenants need to be treated with respect. To the extent that isn't happening, 3CDC should be ashamed. Federal law requires that a process be followed before federally-subsidized tenants can be displaced. The tenants' fear and anxiety is certainly understandable. I'm not indigent, and if my landlord announced that my building were closing in the next twelve months, I'd be apprehensive, too (I hate moving!), and I have the resources to find my own place. 3CDC claims that it will make sure it follows the law and that it will find appropriate new residences for the Metropole's tenants. I hope it keeps its word.

Ultimately, the question comes down to this: once a landlord accepts federal housing money, does that act as some sort of covenant that runs forever against the building, regardless of ownership? Certainly, that cannot be the case. Property owners must be free, assuming they follow the law, to opt out of Section 8. Take care of the tenants, but don't demonize the building's ownership for deciding to go in a new direction.

Dear Gang of Five: It's Your Turn

Mayor Mallory didn't waste any time after Milton Dohoney issued his budget by passing the plan right to City Council, which will change on December 1st. So the message I took from this is: Gang of Five, it's your turn to govern, not grandstand. I'll be very interested in hearing the rhetoric from the likes of Ghiz and Berding and as of Dec 1st, Charlie Winburn.

I'm surprised I've not heard anything from Berding. Just a month ago he was claiming people would flee Cincinnati if police were laid off. What will his plan be now? Dohoney's plan cuts really deep everywhere and raises fees, but still must cut the public safety departments. Will he now try to govern, or will he and the Gang of Five change winds and not pander to the FOP and the Westside voters and finally face the music by cutting the CPD and CFD ranks without the rhetoric of fear filling talk radio and Twitter?

Playing Chicken, Part II

Well, it is no longer election season. Now we shall see who really will be honest and who will continue to grandstand on the City's Budget. The City Manager has announced his plan and it includes cutting 315 jobs, including 110 from the police department, and 47 from the fire department. So two departments (police and fire) making up 2/3rds of the budget will get only about 50% of the job cuts. I guess some might call that prioritizing public safety. I am sure the FOP's sock puppets will call it something akin to a nuclear bomb going off in the heart of the Westwood.

I really hope that City Council does not play games. I've not seen what's come out on Twitter today and I don't know what's be said on talk radio yet, but I honestly wish it will adult speak, not gamesmanship or juvenile rants about who won't shut up.

Most Dangerous Cities 2009: Where's Cincinnati?

So, the same flawed group is out with another Most Dangerous list, this time for Cities, but Cincinnati didn't make the list. I for some reason didn't read this in any of the local media. Cleveland made the list, but not Cincinnati. St. Louis is #2, but no mention of it.

I hope the local media learned that this website uses bad stats, but it would be good journalism to do another story about how Cincinnati is not on the list, but it incorrectly got on a worst "neighborhood" list by some bizarre misuse of data. I know not to expect the media to do follow-ups, but I hope they will and calling them out may guilt an editor/producer into assigning a reporter, thus letting them do their jobs. Instead I expect to ready more fluff, but its the holidays, so no one wants actual news to happen. The goes double for local TV news, who are the worst!

Cincinnati Unchained November 21st

This Saturday join your fellow Cincinnatians and support local independent businesses in the annual Cincinnati Unchained. From the press release for this year's event:

On November 21, locally-owned businesses across Greater Cincinnati will urge area residents to support the city’s vibrant independent businesses by shopping locally-only. As part of Cincinnati Unchained, a shop-local event throughout Greater Cincinnati, participating businesses are asking residents to take one day to shop, dine out, and do other business only with locally-owned independent business.

A place to start would be the Gateway Quarter in OTR. Cool shops in the best neighborhood in the city.

You can help you neighbors by shopping at businesses that truly add to the community and local economy.

Brother, Can You Spare A Dime . . . . . A Report From The Breadline

Raise your hand if you think the United States has the best health care access and coverage in the world and if you think the United States is the richest and bestest country in the world . . . . Let's hear it for American exceptionalism . . . . .

The number of Americans who lived in households that lacked consistent access to adequate food soared last year, to 49 million, the highest since the government began tracking what it calls “food insecurity” 14 years ago, the Department of Agriculture reported Monday. The increase, of 13 million Americans, was much larger than even the most pessimistic observers of hunger trends had expected and cast an alarming light on the daily hardships caused by the recession’s punishing effect on jobs and wages.

* * * * *

One figure that drew officials’ attention was the number of households, 506,000, in which children faced “very low food security”: up from 323,000 the previous year. President Obama, who has pledged to end childhood hunger by 2015, released a statement while traveling in Asia that called the finding “particularly troubling.”

But, lest we get all wobbly about the fact that 14.6% of our country does not have adequate food or feel too sorry for these hungry children, Robert Rector, an analyst at the conservative Heritage Foundation, comforts us by stating, “Very few of these people are hungry. When they lose jobs, they constrain the kind of food they buy. That is regrettable, but it’s a far cry from a hunger crisis.”

Now, doesn't that make you feel better, these people are not hungry, they have just stopped buying steak, caviar, and foie gras, and are eating ramen noodles instead. I mean, after all, what five year old doesn't love a steady diet of ramen noodles.

'Every Breath You Take, Every Move you Make'

Bring on "Big Brother!" Public Safety will improve with the installation of video cameras at various points around town. Starting in Downtown and Uptown, street corners will have 24 hour surveillance and will be able to better catch criminals and watch for medical emergencies.

OTR is being considered for this, and I personally say yes please!

I am trusting the police on this issue. I understand that every time I walk to Fountain Square, I will be captured in the surveillance. This invades my privacy on one level. It is legal. The police could just have multiple officers stationed at the same locations and watch me just as much. They would be witnesses to know that I walked by just as much as video tape would be. Stationing multiple police officers as each corner is obviously way too expensive, so not a practical option.

One point that is not mentioned in the article and is the key question against this idea is how long is the video tape stored? 24 hours of tape is a lot and takes up a ton of space, whether digital or not. How long will it be stored? How long will police have to trace your movements? There has to be some time restraint, unless they have as much server space as Google, so that time frame will be something that should be made public.

Jim Knippenberg - Requiescat in Pace

What a sad thing to learn of Jim's death last evening. He was truly a legend in Cincinnati, the kind of person who knew everyone and, truthfully, knew a lot of gossip about everyone. Jim was a kind and generous man who loved life and lived it about as fully as one can. He will be missed.

Somewhere Jim is gathered at the bar with all his friends who went before, hoisting one and laughing that gregarious laugh. Some evening soon, all of those of us left here on this mortal coil should lift a glass to Jim and his life and memory. And in doing so, remember that "Life is rather like a tin of sardines - we're all of us looking for the key." Traveling mercies Jim.

Good News For CNN

National Cable News became a joke yeas ago and Lou Dobbs made CNN far worse than it needed to be with his insanity. His anti-immigrant jingoism, his embrace of birthers, and his out right anti-Obama stances were what you expect from outright biased news outlets like FOX. Lou Dobbs is now leaving CNN which does nothing but increase the credibility of the TV network. I think the cheers from Atlanta could be heard across the country when this was announced.

Serious Run or a Stunt?

28 year old Surya Yalamanchili is running of the Ohio 2nd Congressional District. By itself, that action is neither serious nor a Stunt, but when you add the fact the Yalamanchili was a contestant on "The Apprentice" television show, then I just don't see how this would be anything other than a stunt to provide him with attention to use for personal gain. Yalamanchili is a former marketer for Linkedln, so media stunts are not out of the possible sphere of his area of experience, so I am very doubtful of the seriousness of his campaign. If you want to run for political office, you need to do more than just issue a press release and have a website. You need an organization with people to help you and they must believe in you. The election is less than a year away, so he better start working on the basics if he doesn't want to be just an also-ran.

Remove Cole From Finance Chair

If there is one thing Mayor Mallory can do to improve City Council quickly, then it is removing Laketa Cole from the Finance Committee Chair. Her inability to work with, well, anyone, makes it an obvious need. She was the only person voting for her motion on the Property Tax rate in the committee session yesterday. So, now things are up in the air and someone with actual credibility wouldn't have let it get to this point.

Qualls Nixes Vice Mayor Slot

In this in-depth piece by Howard Wilkinson Roxanne Qualls stated she does not want the Vice Mayor's appointment. Here's the meat of what her future may hold:

Does she parlay her strong support among Cincinnati voters into a position of greater influence on the new City Council, such as an appointment to a major committee or as vice mayor?

Nobody knows; and Qualls isn't saying much.

No, she told The Enquirer on Friday, she isn't interested in being Mallory's vice mayor. Yes, she said, she might be interested in running for mayor in 2013, but "it's too early to talk about that." Yes, she said, she would consider a run for county commissioner, but is "leaning against it."

She clearly has City Wide support. That support will be something to think about in the future. A post as Finance Chair maybe something worth considering, especially if she can have more influence in getting some on the right to vote with her.