Andrew McCullough's Blog

Tuesday, June 23, 2015

The flag must go?

I have been meaning to write something about the Confederate Flag controversy, and time is so limited. Below is something I posted to a friend's Facebook Page. It is a beginning. Hopefully I can come back and "flesh it out" a bit. I have a Confederate Flag in my office. I have had a few comments on it. Most pay no attention. It is not the version in the news, which was never official. It is the last official version of the flag, before the surrender, officially the flag of the "lost cause. As someone who defends lost causes in court for a living, I am inspired by it. I hope that I am not a racist. I try not to be. I am a lover of freedom, and I try and make that my cause.

The question is not so much about the flag, but about the "cause". If you see the civil war as a "crusade to end slavery", that ends discussion. I don't. I cannot imagine that the "Founding Fathers" had it in mind that a State could not leave the union; and the efforts by the central government to force its will on them were wrong. Huge parts of the South were burned to the ground, Thousands of people were killed. Wives and sisters of "rebels" were imprisoned simply for their relationship. Members of the Maryland legislature were arrested to avoid secession. A US Congressman was imprisoned because he made a speech saying that peace should be made. General Order No. 11, issued in Missouri in 1863, ordered four counties in western Missouri where pro-Confederate guerillas operated, depopulated - all residents outside of larger towns were ordered to leave, so they could not provide support to the rebels. Many innocent civilians were ruined. I do not read that history with pride. When parts of the USSR and Yugoslavia seceded, we went to their aid immediately. Anyone who has seriously read the history of the War Between the States would have serious doubts about what Lincoln did to "preserve the Union." Thus, the current effort to obliterate references to the history are, in my opinions, misguided. The two biggest military training camps in the South are named after Confederate generals. I expect they will be targets next. I do not agree with that. That being said, I do understand wanting to do something to prove the worth of black citizens. I do not think obliterating or whitewashing history is the right thing.

My "disconnect" here is that the Civil War (whatever you may want to call it) brought us the Fourteenth Amendment which gave us all rights against oppression by the States. It is the Fourteenth Amendment that gives us the right to seek redress of injuries by police officers and other officials of our own state government. I can hardly imagine life in the United States without these protections. But that does not mean that I support the violence used to obtain them. And it does not mean that I must disavow those who did nothing but resist what they saw as tyranny. the Sesqui-Centennial of the Civil War just ended. It was sad that there was little in the news about it. Many people have decided that any references to the Confederacy are just too "offensive", so we ignore it. I think important lessons of history were lost with such decisions.

A friend pointed out in a FB post today that several States pointed to slavery as the main reason for leaving the Union. Yes, that is what they said. But allowing it to be our main point is missing the main point. If a State has the right to secede (and I am convinced that they did before the 14th Amendment), the reason that they give for doing so does not cancel that right and give other states the right to kill them and burn their cities. Slavery was doomed by the march of human progress. This method of eliminating it was not justified.

Another friend quoted with disgust a passage from the Texas Secession Ordinance:

"She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery—the servitude of the African to the white race within her limits—a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy. Those ties have been strengthened by association. But what has been the course of the government of the United States, and of the people and authorities of the non-slave-holding States, since our connection with them?"

At the start of the Civil War, Texas had been a State less than 15 years. It was admitted to the Union as a "slave state". Did Congress not know what it was doing when it admitted Texas? Should they have refused to admit a slave state? Obviously, at the time, it was an accepted practice; and the agreement made as part of the admission was that they could continue this practice. Someone who looks at this from the view of the 21st Century has a hard time justifying or even understanding it; but things were not the same in 1860. So, Texas decided that the central government in Washington had violated the contract under which it entered the Union. I am at a loss to understand on what basis it became legitimate to kill them for this. Did we not know that several Southern States allowed slavery way back in 1776 when Independence was declared? Did we not know that such great Americans such as Thomas Jefferson (and ten other Presidents) owned slaves? On what basis do we now seek to go back 150 years and impose out moral viewpoint on them?

This next week celebrates the anniversary of the Stonewall Riots in NY. At that time, in 1969, everyone knew that gays were just criminals and needed to be locked up. So, once a month or so, the NYC police raided their hangout and arrested them for lewdness (cross-dressing being the main "crime"). One night, they fought back and refused to go quietly. The social change that came from that movement is no less amazing than ending slavery. But no cities were burned, few people were killed or imprisoned. Slavery was abolished peacefully around the civilized world. We are a very much more enlightened society than existed in 1861. But those who defended their homes and families against what they saw as an invasion should not be demonized. I do not approve of what the Union government did in the 1860's; and that does not make me a racist or a bigot.

More soon? P

Friday, June 05, 2015

From the New York Law Journal

Joel Stashenko, New York Law Journal
June 8, 2015
ALBANY - Pole dance routines by exotic dancers in an Albany-area juice bar are an expression of artistic merit, but the private couch dances performed for individual patrons are not, a state tax department administrative law judge has ruled.
The distinction drawn by ALJ Joseph Pinto Jr. is an important one for the outcome of the state Division of Taxation's latest attempt to collect sales taxes from the Nite Moves club on couch dances. Of the $4.9 million in sales reported in a state audit of Nite Moves between 2005 and 2010, just over $3 million came from the private dances performed in small rooms off the main stage of the nightspot. Auditors contend that the club and its proprietors owe the state just under $530,000 in unpaid taxes on the private dances and on cover charges for the period.
The same club challenged its tax bill for 2002-05, also on grounds it was due the exemption for artistic performances on First Amendment grounds. That bid was ultimately denied in 2012 in a 4-3 ruling by the state Court of Appeals in Matter of 677 New Loudon Corporation v. New York State Tax Appeals Tribunal, 19 NY2d 1058 (NYLJ, Oct. 23, 2012).
Pinto rejected the claim of Nite Moves' owners that the couch dances, being artistic in nature, fall under the same state sales tax exemption that state Tax Law §1105(d)(5) provides for admissions to a "theater, opera house, concert hall or other hall or place of assembly for a live, dramatic, choreographed or musical performance."
Nite Moves owners Stephen Dick Jr. and Stuart Cadwell provided sufficient evidence to make their case that the admission fee, $4 before 5 p.m. and $11 after that, is not subject to sales tax because it provides access to the pole dance routines offered on a continual basis by a changing cast of dancers.
Those, Pinto wrote in Matter of 677 New Loudon Corporation, 824333/824334/824335, are sufficiently choreographed, costumed, illuminated and practiced by dancers to represent a dramatic or artistic presentation.
He cited the testimony presented by several dance experts about the artistic merit of the pole routines, but said he found most persuasive the testimony of two Nite Move dancers, identified of "Alize" and "Taylor," "who, without pretense, provided a more visceral description of the business and their art, in contrast with the theoretical opinions of the more erudite experts."
Both performers have backgrounds in formal dance, Pinto noted, and both told him of efforts they made to practice and perfect their pole dances, including studying other dancers in person and on YouTube and the hours they spent practicing their multiple routines.
"Taylor had a repertoire of about 40 songs and planned movements that she used for her stage routines," Pinto wrote. "She invested heavily in her costumes and shoes and they were integrated into her dances. She described in detail at the hearing while her videos were played and told of how she utilized repetition, pole movements and the use of a fictional character of her own creation to interact with the audience."
Pinto held that the just under $1 million in cover charges Nite Moves collected for the 2005-10 period are exempt from sales taxes under the exemption for admissions to artistic or dramatic performances.
The dancers and the experts submitted far less evidence about the private dances, and those do not have the artistic merit to justify the state sales tax exemption, Pinto said. Nite Moves' dancers generally charge $20 for each three-minute lap dance they perform topless and $30 for a nude dance, according to the ruling.
Among the factors that distinguish the private dances from the pole dance is that they were performed in a confined space, they were not choreographed and the music was chosen by the club, not the dancers, Pinto said.
He cited the testimony of the supervisor of the Nite Moves audit who said the "private dance was essentially a full body rub" and far different than the pole dances the supervisor observed in his 10 to 15 visits to the club.
"The overriding preoccupation of both management and dancers was luring patrons to small rooms for the ultimate in physical contact with the performers and having them remain there as long as possible to maximize revenue, not the performance of a choreographed dance or artistic performance," Pinto concluded. "The components necessary for a theater ... are absent from the private dance rooms." Pinto rejected the club's attempt to have the tax statute declared unconstitutional, noting that the Tax Appeals Tribunal or its hearing officers lack the jurisdiction to consider constitutional challenges to tax statutes.
Nite Moves was represented by W. Andrew McCullough of Midvale, Utah.
McCullough said Pinto's determination is "much better" than the outcome of the earlier litigation. "Instead of one expert, we brought in five this time," McCullough said Friday. "Instead of half a day for a hearing, we took two days. We are relatively pleased."
However, McCullough said he has not had a definitive discussion with the club's owners of whether they will want to appeal Pinto's decision to the state Tax Appeals Tribunal.
"There was some discussion of maybe this is the best we are going to get," McCullough said. "But there was also some discussion that we may want to keep doing this. For me, this is a great case: It may never end."
Division of Taxation attorney Osborne Jack argued for the tax department.
Nite Moves' owners failed in their attempt to get the U.S. Supreme Court to hear an appeal of the Court of Appeals' ruling in their previous litigation (NYLJ, Oct. 16, 2013).
The administrative law judge who initially heard Nite Moves' earlier tax challenge case, Catheine Bennett, found that the club's dances qualified for the sales tax exemption, but her determination did not distinguish between the artistic merits of the pole dancing and the private couch dances (NYLJ, March 26, 2009).
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