Science-based medicine conference, part 2: cancer quackery

This is part two of my summary of the Science-Based Medicine conference at TAM7, which will be followed by a summary of TAM7 itself. Part one is here.

David Gorski, surgical oncologist and associate professor of surgery at Wayne State University, perhaps better known as Orac of the Respectful Insolence blog, spoke next on "Case studies in cancer quackery: Testimonials, anecdotes, and pseudoscience." He began with a disclaimer (he doesn't speak for his employer) and some disclosures (he receives no pharma funding and isn't paid to blog).

His talk was about misrepresentations by cancer quacks, who use exaggeration and misrepresentation and make false promises. To illustrate exaggeration, he showed a cartoon that described "three approved paths to the graveyard," "cut" (surgery), "burn" (radiation), and "poison" (chemotherapy) (the exaggeration is in the title rather than the descriptions, which are he admitted were accurate). To illustrate the latter, he showed a series of book covers by Hulda Clark--"The Cure for All Advanced Cancers," then "The Cure for All Cancers," and then "The Cure for All Diseases." She thinks that all cancers and diseases are caused by liver flukes, to be diagnosed with a "Syncrometer," a device similar to a Scientology E-meter, a galvanometer that measures electrical resistance of the skin, and cured with the "Zapper," a low voltage electrical device.

Some of the frequent claims of cancer quacks are that they are "wholistic" and treat the whole patient rather than a part or a symptom, that "we treat the real cause of cancer," that their treatment is "natural," and that "cancer is not the disease, it's a manifestation of something else" such as psychological conflict. And, of course, the ever-popular generic "toxins." They also claim that natural cures are being suppressed because Big Pharma can't make a profit from them.

Testimonials
Gorski next turned to the role of testimonials in cancer quackery, which he said are being used for several reasons, the first N of which are "to sell a product." Two other reasons are "to persuade others" and "to attack standard evidence."

He gave Gorski's Laws of Testimonials:

1st Law: When a believer in Alternative-Based Medicine (ABM) uses a combination of both science-based medicine (SBM) and ABM and gets better, it's always the ABM that gets the credit.

2nd Law: When a believer in ABM uses a combination of both SBM and ABM and dies or gets worse, it's always SBM that gets the blame.

He next described two cases of testimonials, the first of which was an example of a "not cancer" testimonial. This was a testimony of a man who felt a lump on his chest which he claimed to be breast cancer, which was successfully treated by some quack remedy. But this was never diagnosed as cancer, and Gorski noted that from the description it actually sounded like a case of gynecomastia rather than cancer. His second case was that of Daniel Hauser, a 13-year-old boy with Hodgkin's lymphoma, who went through one round of chemotherapy with good results, but then stopped taking it because he and his mother wanted to use an alternative treatment from "Chief Cloudpiler." The judge ordered chemotherapy to be continued, and he and his mom took off, though ultimately returned and re-started chemotherapy. During the time chemotherapy stopped, the tumor grew to larger than it was originally, and when it was restarted, it again responded to treatment--but of course his mother gave credit to the alternative treatment.

The problems with testimonials are that there may not have been a diagnosis of cancer, there may have been a misunderstanding of the diagnosis (e.g., "I was sent home to die"), there may be important information withheld, the diagnosis may have been done by quack tests with no validity (e.g., the Syncrometer or live blood cell analysis), and there may be a selection bias. As an example of the latter, he noted that dead people don't give testimonials.

Questions for Evaluating Testimonials
He provided a modified version of Dr. Moran's questions to ask in order to evaluate testimonial evidence. These questions include:

• Was cancer definitely present?
• Did it go away?
• Was the advocated treatment the only one used?
• Was the alternative therapy a replacement for primary or for adjuvant therapy?

At this point, he distinguished primary, adjuvant, and neo-adjuvant therapies. The primary therapy for most cancer treatments is surgery, to remove as much of it as possible. Adjuvant therapy is designed to reduce the risk of recurrence, where radiation is used to reduce the risk of local recurrence (cancer in the same place, to make sure you get rid of it all) and chemotherapy is used to reduce the risk of a systemic recurrence (cancer that may have spread to other parts of the body). Neo-adjuvant therapy is designed to shrink a tumor prior to surgery, and may reduce complications and produce better results from surgery.

Suzanne Somers
To illustrate the importance of these questions and distinctions, he used the case of Suzanne Somers, who was diagnosed with breast cancer at the age of 54, probably at stage I. She had no positive lymph nodes and underwent a lumpectomy, radiation, and a lymph node biopsy, but refused chemotherapy with tamoxifen in favor of mistletoe extract and other supplements.

In her case, the answers to the questions were:

• Was cancer present? Yes.
• Did it go away? Yes--it was removed by surgery.
• Was the alternative medicine the only or primary treatment? No.

He then examined her probable survival rates with and without chemotherapy, and noted that if the tumor was small, the benefit of chemotherapy for her 10-year survival rate could be as low as 1%. With a larger tumor, her 10-year survival rate improvement could still be as low as 4% (and would already be at 90% prior to chemo). But, Gorski noted, most women say that they would go with chemotherapy even for as little as a 1% increase in survival rate.

Surgery cures most cancers that can be cured, up to stage III, and the corresponding benefits of chemo and hormonal therapy increase with more advanced stages of cancer.

Gorski then observed that there may be cases where a person is diagnosed with cancer by a biopsy, declines further treatment, and has a good survival rate, where they fail to realize that the biopsy itself has been a surgical primary treatment that has excised all of the cancer--an excisional biopsy may be equivalent to a lumpectomy. He also noted that many people say to go ahead and take out the tumor but don't touch my lymph nodes, and he agreed that lymphedema, which can be caused by surgical or radiation treatment of the lymph nodes, is "not a fun thing." But the new standard of care is to use blue dye and a radiotracer procedure to find lymph nodes likely to be positive for cancer ("sentinel lymph nodes"), and treat accordingly.

Kim Tinkham
Kim Tinkham is a woman who saw The Secret, had stage III breast cancer, and declined all treatment. She now claims the cancer is gone, based on a quack blood test, even though the lump is still present, and has written a book about it. She is a follower of Mormon naturopath Robert O. Young, who claims that acid is the cause of all disease and alkalinization is the cure for everything. He says there is no such thing as a cancer cell, just a healthy cell spoiled by acid. Two years after her initial diagnosis, Tinkham is still alive.

Gorski pointed out that for a case like hers, expected survival for five years with treatment could be over 50%, but at ten years it goes way down. Data about untreated cancer comes from 250 cases of "large palpable tumors" from 1805-1933 at Middlesex Hospital in Connecticut. At 10 years, 3% were still alive, and at 15 years, 0.8% were still alive; the median survival rate was 2.87 years.

He noted that breast cancer biology is "highly variable in clinical behavior" and in some cases may be "indolent, slow-growing, and slow to metastasize."

The answers to the testimonial questions for Tinkham are:

• Was cancer definitely present? Yes.
• Did it go away? No.
• Was the alternative treatment the only one? Yes.

Time will no doubt soon tell how (in)effective this alternative treatment has been, unfortunately.

Testimonials as Conversion Stories
Gorski suggested that these testimonies are really part of "cult medicine" and seem to follow a pattern like religious conversion stories. The specter of death comes like a "bolt out of the blue," the person repents and says "I brought this upon myself," they face temptation in the form of standard medical care, they search for enlightenment, and then they find enlightenment in the form of some alternate description of their ailment which they then want to evangelize.

Michaela Jakubczyk-Eckert
Dr. Gorski concluded his talk with the story of Michaela Jakubczyk-Eckert (warning, graphic images), who was born on November 14, 1964 and died on November 12, 2005, just two days short of her 41st birthday. She had a T4 lesion eating through the skin of her breast, a case of "classic delayed diagnosis." She received neo-adjuvant chemotherapy treatment which shrank the tumor considerably, but then discovered Ryke Geerd Hamer, the inventor of German New Medicine, who argued that cancer is caused by psychological conflict rather than anything biological. She stopped her chemotherapy, and suffered a horrible relapse. As Gorski put it, she "died a horrible, horrible death" with her final days being subjected to the pain of a rotting-away body of skin and bones--a death far worse than chemotherapy. It was a vivid depiction of the alternative that cancer quacks can cause for their victims. Her husband has put up a website to try to dissuade others from being fooled by Hamer's theories (see link above to her story).

Dr. Gorski has written a blog post at the Science-Based Medicine blog on alternative medicine testimonials that covers some of the above subjects in more detail.

(Part three of my conference summary, on chiropractic, is here. Part four, on evidence-based medicine and homeopathy, is here. Part five, on chronic Lyme disease, is here. Part six, on online health and social media, and the closing Q&A panel, is here.)

Science-based medicine conference, part 1

This year's "The Amazing Meeting" (TAM7) was preceded by a Science-Based Medicine conference, organized by Steven Novella and the Science-Based Medicine blog; the speakers were all contributors to that blog. This summary is from my hand-written notes--I've tried to quote and summarize accurately, but keep in mind that some of the quotations and bulleted items may not be verbatim. The conference was videotaped and may become available via DVD or online video; keep an eye on the SBM blog for that. Steven Novella has posted a short summary of the SBM conference at the SBM blog.

I am in the process of posting a summary of TAM7 itself, which begins here. (I summarized 2008's TAM6 here.)

Novella's Introduction
The SBM conference began with Novella's presentation, titled "Science-Based Medicine: Science and Pseudoscience in Clinical Decision Making," which distinguished science-based medicine (SBM) from the recently popular "evidence-based medicine" (EBM) and explained the motivation for promoting the SBM concept.

Novella, assistant professor of clinical neurology at Yale University School of Medicine, began with a slide titled "Foundations of Medicine" which described some historical varieties of medicine:

• Superstition/philosophy-based medicine.
• Scientific medicine.
• Evidence-based medicine (EBM).
• Eastern vs. Western medicine.
• Complementary and alternative medicine (CAM).

He made the point that modern scientific medicine, which arose in the western world, is relatively young, though attempts to put it on a more scientific footing go back much farther.

Next, he discussed "What is science," first observing that "scientifically formulated" is a meaningless marketing label, then noting that there is a battle of memes about science between its defenders, who use it as a label connoting "objective truth, quality, and professionalism," and its critics, who use it as a label connoting "arrogance, oppression, and elitism." Marketers also use it "to imply product safety, effectiveness, and overall value."

He argued that we should adopt "common sense standards" which require that treatments "reasonably account for all available evidence," use "valid and internally consistent logic," have been rigorously and methodically investigated and judged with fair and unbiased criteria, and are conducted by practitioners who adhere to "standards of ethics and professionalism."

Evidence-Based Medicine
Next, he looked at evidence-based medicine, a term of art in use for the past couple of decades. EBM begins with the premise that "products and practices that work and are safe are better than those that don't work or are unsafe," an uncontroversial premise. It promotes scientific investigation as the measure of what works and is safe. But, according to Novella (and later, other speakers), EBM has "too much focus on evidence, and not enough on logic and prior probability, and good science must consider both." He argued that EBM made sense at the time it was introduced, because practices were being used largely "because they made sense, not because of supporting evidence." The introduction of EBM effectively "leveled the playing field, but also opened it up to implausible treatments," with bad timing due to the rise of complementary and alternative medicine (CAM).

The standard reference for evidence in the EBM framework is the Cochrane Reviews. The data reported in the Cochrane Reviews includes not only tests of legitimate medical treatments, but of completely implausible research such as chiropractic treatment for migraine. The problem with the framework is that it assumes that everyone is "playing fair," it does not account sufficiently for fraud or publication bias (such as the "file drawer effect"), it ignores prior probability, and it "doesn't adequately consider the big picture of the entire literature." According to Novella, with EBM it is typical to see the quality of studies decline over time, in order to continue to yield positive results for implausible treatments.

He then discussed "The Work of John Ioannidis," who argues that "most published research findings are false." The reasons are that

• The majority of highly-cited initial medical research is later refuted.
• There's a bias towards publishing positive studies.
• There's a bias towards researchers publishing provocative research.
  

And a "low prior probability worsens the effect," i.e., studies of treatments with low prior probability are more likely to be refuted.

Science-Based Medicine
By contrast with EBM, Novella identified the following features to distinguish Science-Based Medicine, SBM:

• It affirms high-quality science as a basis for standard of care in medicine.
• It acknowledges the consilience of science.
• It considered scientific medical plausibility of an intervention when weighing evidence.
• It considers the overall pattern in the literature.

In other words, SBM considers prior probability in a Bayesian sense as part of the evaluation, it looks at whether there is other scientific evidence that casts doubt on the plausibility of a suggested treatment (like violating the laws of physics or including unknown entities and mechanisms), in addition to merely looking at the specific results of controlled trials of the particular treatment. CAM, in particular, is loaded with claims that have extremely low and near-zero prior plausibility, as evidenced by the fact that $1.2 billion of U.S. taxpayer funding to the National Center for Complementary and Alternative Medicine since its founding in 1991 (originally as the Office of Alternative Medicine) has so far yielded zero effective treatments for anything.

He stated that finding anomalies argues for deeper research, and we can't have two inconsistent views that both work. Here, I think he overstated his case, since we have had cases in science where there are mutually inconsistent theories that both work, though we also take the inconsistency as grounds that something is wrong and ultimately needs to be reconciled (e.g., light wave/particle duality, quantum field theory vs. general relativity). Even theories that are wrong at some level can still work for solving certain kinds of problems (e.g., Newtonian physics)--and I'd agree with Novella's claim that scientific medicine is still in its infancy. A point Novella didn't make that I would like to insert here is that when you have two inconsistent views that doesn't mean that only one of them must be wrong--they could both be wrong.

Novella did go on to mention two cases where things that seemed initially implausible or lacking in mechanism have turned out to be correct, the postulation of dark energy in physics, and, more directly relevant to the topic at hand, the use of botulinum as a treatment for migraine. This treatment seemed to him completely implausible even though the evidence of trials suggested its effectiveness, and now a mechanism has been discovered and is understood. (My Google searching on this subject, however, yielded some recent evidence that it is not a good treatment for migraines and is no better than placebo, so this appears to me to still be somewhat controversial.)

Clinical Decision-Making
Novella ended his talk by talking about the process of clinical decision-making and pitfalls that arise as a result of human psychology and limitations. While clinical decision-making "individualizes the best available evidence to a specific patient" and "considers risk vs. benefit in both therapeutic and diagnostic intervention," this evaluation needs to include not acting as an alternative. In some cases, screening for certain diseases causes more harm than not performing the screening test, because conducting the test will yield far more false positives than true positives. (This is an effect discussed in some detail in John Allen Poulos' book, Innumeracy, and is a reason not to do things like mandatory HIV screening as a condition of a marriage license, drug testing of grade school students, and certain kinds of security screening for terrorists--if your baseline prevalence of what you're testing for is very low, your false positive results will swamp your true positive results.)

He briefly discussed the claim that "surgery kills more people than car accidents," noting that it doesn't really compare against the outcomes that would occur without surgery--far more deaths.

He then recounted some examples of pitfalls in the clinical context, such as the human capacity for pattern recognition even when the pattern isn't really there (pareidolia), the tendency to be "unduly influenced by quirky experience" or to "value experience over evidence," "failure to consider alternatives," "over-reliance on non-specific signs and symptoms," and confirmation bias (e.g., the sorts of heuristics and biases discussed in Kahneman and Tversky's classic Judgment Under Uncertainty). He then listed a few logical fallacies, pointed out the confounding factor of the placebo effect, and a couple of statistical effects--regression to the mean and the fact that most diseases are self-limiting.

Q&A
In the Q&A session, someone asked what Novella thought of legislation supporting evidence-based medicine, apparently referring to $1.1 billion in the stimulus package for evidence-based medicine research. Novella said that he thought conceptually it was a good idea but wasn't familiar with the specifics of the legislation. Another question was whether, given the current state of health care and the desire for reform, SBM would be challenged or supported. Novella said that the delivery of healthcare is a separate issue from how we decide what to research or what treatments are appropriate, and that things will either get much better or much worse. If he had also added that things might also stay about the same in overall quality, I'd say he's certainly correct; without it, merely probably correct.

(Part two of my conference summary, on cancer quackery, is here. Part three, on chiropractic, is here. Part four, on evidence-based medicine and homeopathy, is here. Part five, on chronic Lyme disease, is here. Part six, on online health and social media, and the closing Q&A panel, is here.)

NPR ombudsman on torture

About a week and a half ago, I heard NPR's ombudsman, Alicia Shepherd, defending NPR's policy on refusing to identify waterboarding as torture. Her argument was that NPR had a journalistic responsibility not to take sides on any issue, and that to identify waterboarding as torture was to take a side. She actually wrote that "I believe that it is not the role of journalists to take sides or to characterize things."

I think this is not only ridiculous, but an abdication of journalistic responsibility in favor of a bogus view of reporting "objectivity" by using only "he said, she said" descriptions, to an extreme.

Here's what I posted to the NPR blog on July 2:

There is no reasonable debate about whether waterboarding is torture. Waterboarding has been legally determined to be criminal torture by U.S. courts in 1947, when Yukio Asano was sentenced to fifteen years hard labor for it (among other war crimes). Other Japanese war criminals, such as Kenji Dohihara, Seishiro Itagaki, Heitaro Kimura, Akira Muto, and Hideki Tojo, were tried by the International Military Tribunal for the Far East for engaging in torture during WWII, including waterboarding, and several were executed for it.

U.S. soldiers who undergo waterboarding as part of SERE training receive that training in order to understand what torture is.

It is bad journalism to defend "there are two sides to every issue" as a form of phony objectivity. Sometimes there are more than two sides of merit, and sometimes there is only one (and there is *always* some nut who will take issue with any well-established claim). In this case, there is no reasonable argument by which waterboarding is not torture. It makes no more sense to call it "what some people refer to as torture" than it does to insert similar qualifications on the front of every noun used in a sentence on NPR.

Another commenter replied to point out that waterboarding has been legally torture for longer than that in the U.S.

I was glad to hear Adam Savage of Mythbusters, at TAM7, answer the question "what has been the biggest media failure of skepticism lately" by saying that the biggest failure has been the NPR ombudsman's statement that calling waterboarding torture is taking sides and they have to be "balanced."

Prestons win in court

The judge has ruled in Preston v. Hallman, and again it goes in favor of the Prestons. As expected, he ruled that the city's decision to revoke their permit was "arbitrary and capricious" since it did not meet any existing standard for denial.

The judge ruled that Tempe must re-issue their permit and allow their business to open. The city has 30 days to file an appeal.

I haven't heard how the judge ruled on the other issue, which I predicted might go the city's way, but it doesn't matter for the overall outcome--it was enough for the Prestons to prevail on either of the two issues, and they won on the one that they had a very strong case for.

The Goldwater Institute has issued a press release about the victory, and the Arizona Republic has run a story on it.

(Previously.)

On my way to TAM 7

I'm in the Phoenix airport waiting for my early morning flight to Las Vegas for today's conference on science-based medicine, followed by The Amazing Meeting 7, at the new South Point Casino and Hotel.

I hope to write up a summary like I did for last year's TAM 6.

United breaks guitars

From Sons of Maxwell:

In the spring of 2008, Sons of Maxwell were traveling to Nebraska for a one-week tour and my Taylor guitar was witnessed being thrown by United Airlines baggage handlers in Chicago. I discovered later that the $3500 guitar was severely damaged. They didnt deny the experience occurred but for nine months the various people I communicated with put the responsibility for dealing with the damage on everyone other than themselves and finally said they would do nothing to compensate me for my loss. So I promised the last person to finally say no to compensation (Ms. Irlweg) that I would write and produce three songs about my experience with United Airlines and make videos for each to be viewed online by anyone in the world. United: Song 1 is the first of those songs. United: Song 2 has been written and video production is underway. United: Song 3 is coming. I promise.

UPDATE (August 18, 2009): "United Breaks Guitars" song 2 and video are now on YouTube and below:

Arizona state senator Sylvia Allen thinks the earth is 6000 years old

Arizona State Senator Sylvia Allen (R-Snowflake), arguing in favor of a bill to allow uranium mining north of the Grand Canyon, casually says that the earth is 6,000 years old, and therefore a little uranium mining isn't going to hurt anything.

Snowflake, the home of the logging team that included claimed UFO abductee Travis Walton, also has a large Mormon population, and Mormons have power in the Arizona legislature far beyond their numbers.

The ignorant Senator Allen should step on over to the Talk.Origins Archive and read the Age of the Earth FAQ. (UPDATE: For a more readable introduction, how about Chris Turney's Bones, Rocks and Stars: The Science of When Things Happened, or G. Brent Dalrymple's The Age of the Earth.)



(Via the Bad Astronomy blog.)

Tempe tattoo parlor case

In late June 2007, Tom and Elizabeth Preston obtained a use permit from the City of Tempe to open a tattoo studio. The Prestons signed a five-year lease and invested $30,000 in the property, but then a local neighborhood group appealed to the city, arguing that this would have a negative impact on the neighborhood, lowering property values and increasing crime. (Other businesses in the same area include a liquor store, bail bondsman, lingerie shop, check cashing store, and an adult video store.)

Tempe Mayor Hallman and the City Council voted unanimously to override the zoning officials who had approved the permit on the basis that there was a "perception" that the business would contribute to neighborhood deterioriation.

The Goldwater Institute's Scharf-Norton Center for Constitutional Litigation has taken the case on behalf of the Prestons, with former Institute for Justice litigator Clint Bolick as the primary attorney for the plaintiffs.

In a previous hearing in May, the court ruled in favor of the Prestons and remanded the case back to the City Council for reconsideration. The city then asked for a new hearing on the grounds that it had found some new relevant case law, and that hearing occurred at 11 a.m. today before Maricopa County Superior Court Judge Robert Oberbillig.

The judge first stated, that the city's motion for reconsideration in today's hearing was appropriate and that the hearing would take place, setting aside the plaintiff's objections to that. He then focused most of the hearing on two issues. First, what was the appropriate level of burden of proof for the appeal to the city which revoked the permit? And second, did the city provide "credible evidence" that the Prestons' business would lead to neighborhood deterioration?

Burden of Proof
The burden of proof argument centered around two parts of the City of Tempe's Zoning and Development Code. These were Section 1-305 (D), which says:

Hearing Officer – Appeals. Any person aggrieved by a decision of the Hearing Officer under this Code may file an appeal to the Board of Adjustment, or the Redevelopment Review Commission as applicable, within fourteen (14) calendar days after the Hearing Officer has rendered its decision, in accordance with Part 6, Chapter 8, Appeals. Appeals of the decisions of the Hearing Officer shall be heard de novo by the Board of Adjustment, or the Redevelopment Review Commission as applicable.

and Section 6-802(C), which says:

In the event that a decision made under this Code is appealed, the appeal does not invalidate the approval. The holder of the approval may proceed with a use or development at their own risk.

The plaintiffs argued that this second section means that the permit was granted and created a vested right for the Prestons to use the property, and that in the event of an appeal the burden of proof was on the city to demonstrate a reason to revoke, rather than a completely new ("de novo") process that was as though they were applying for the permit for the first time. The city, by contrast, put emphasis on the first passage, arguing that the appeal hearing was "de novo" and had no burden of proof on the city. The city argued that the "at their own risk" phrase in the second section indicated that the permit was, in fact, conditional and did not give the Prestons any vested rights.

The plaintiffs were previously victorious on this issue on the grounds that the second section did entail a vested right for the plaintiffs. This time around, however, the city argued that case law from outside of Arizona demonstrated that there was no vested right. They agreed that the city made a botch of this case from a customer service perspective, in that the Prestons were not told that their permit was conditional and could be appealed, and they were in fact sent a letter by the city telling them to go ahead and start doing work on the property to meet other requirements of the city, such as the addition of windows.

The judge seemed amenable to the city's argument, and questioned Clint Bolick over this thoroughly. He noted that the Arizona cases presented by the plaintiffs on this issue were not in the context of a pending appeal, though Bolick disagreed with the judge, pointing to a 1939 case from Iowa City, Iowa, Crow vs. Board of Adjustment. The city responded by noting that a 1981 Iowa Supreme Court case, Grandview Baptist Church v. Davenport, argued the opposite--that a church couldn't apply a vested right during a pending appeal to keep a storage shed it had built.

The judge then pointed out that there were two arguments of equitable estoppel here--one is whether the city's actions in granting the permit shifted the burden of proof to the city and in favor of the plaintiffs for the subsequent appeal, and second regarding the potential for damages to be awarded to the plaintiff. He set the second issue aside, and then asked to continue the hearing to the question of the city's evidence of negative impact by the Prestons' business, which would become relevant if he ruled in favor of the city on this first issue.

The Credible Evidence Issue
On this issue, the city got a thorough grilling by the judge. The relevant context here was the city's use permit test criteria, part (c) of which supplies a ground for denying a use permit if a proposed use will cause:

Contribution to the deterioration of the neighborhood or to the downgrading of property values which is in conflict with the goals, objectives or policies for rehabilitation, redevelopment or conservation as set forth in the City's adopted plans, or General plan.

The hearing officer for the initial permit application ruled that this was not the case, but the City Council and Mayor overturned the permit on these grounds based on complaints from neighbors.

The judge made it clear that the city had the burden of providing not just evidence, but credible evidence that this would be the case. He noted that in the city's filings, it expressed concern that the tattoo studio is a "de facto adult business" which would contribute to a clustering of adult businesses (even though there is no clustering provision in statute) and thereby would cause a deleterious effect on the neighborhood.

The city's attorneys then noted that Tempe does now have an anti-clustering ordinance, which the judge seemed to suggest was not good for the city's case, but rather evidence that they didn't have the necessary ordinances in place at the time of their decision. He asked, "why even discuss a clustering effect" at this hearing?

The city responded that it was an issue raised by the neighbors, to which the judge responded that the city should have responded as the hearing officer already did on that issue--sorry, we don't have an ordinance on that, but we need another reason, such as contravention of the city's general plan or some other plan. But the hearing officer approved the use permit, and noted that it was in furtherance of, not in detriment to, the city's general plan.

The city's attorneys noted that the city didn't object to the business in general, and that Mayor Hallman had said that he hoped the Prestons would keep their business in Tempe.

At this point, the judge noted that the Prestons have had a successful tattoo business in Mesa for 15 years with no complaints, and asked, "So on what basis was this rejected?"

The city attorneys noted that nobody from the city has objected to tattoos, but it was complaints by third parties, neighbors of the business who "want some other type of business--a Starbuck's, or a drugstore," to stop the clustering. They made reference to a study from New York City (perhaps referenced by the complaining neighbors?) arguing that clusters of adult businesses contribute to neighborhood deterioriation and crime. They admitted that a tattoo parlor is not an adult business under city code, and again, that there was no anti-clustering ordinance at the time. (I find it interesting that both of the city's examples of preferred types of businesses are in the business of drug distribution. The space, in fact, remains vacant to this day, demonstrating that the real choice is between the Preston's business or no business at all.)

The judge then asked, "Where's the credible evidence? A New York study that's apples and oranges? A real estate person who steps up to the microphone [and offers objections]? If there's no credible evidence, [then] this [decision] could be arbitrary and capricious. If we have an anti-clustering statute, the permit process should incorporate that." He offered a few specific objections to the NYC study and its applicability here, and noted that in order to have substantive due process in the permitting procedure, the applicant needs to know up front that there are rules objecting to clustering. He stated that the city seemed, in effect, to have a secret unadopted city plan that requires third party intervention to enforce requirements that are not in the city's plans or ordinances. And he noted that the city had already overruled the arguments of the third parties in its initial granting of the permit.

At this point, the judge asked Bolick if he had anything to add, and he asked permission to give another argument on the previous point, arguing that it was the city's actions that caused the defendants to engage in detrimental reliance upon their representations. The judge told Bolick that "you're still missing the first step in the analysis--that it's a person who knows the law. It must be reasonable detrimental reliance." This exchange suggests to me that the judge will rule in favor of the city on the prior point. Bolick responded that there is a factual aspect to the meaning of the statute, and that the Prestons would never have made the investment if not specifically told to go ahead and do so by the city and by a hearing officer.

Bolick then made a few remarks on the credible evidence issue. He pointed out that the City Council and the City Attorney said in deposition that the city's standard must be satisfied, but the city also admitted that the business is in furtherance of the general plan. The judge said that the city is now focusing on a prior point, that the business is "detrimental to the public." Bolick said this is a post hoc change of the city's legal position and asked how a permit applicant would know. He stated that "there's not only no credible evidence for the city's position, there's no evidence." And he also noted that "there are constitutional dimensions to 'arbitrary and capricious'--there has to be a standard."

Immunity for Damages
At this point, the judge said there were a couple other issues to discuss. If the city didn't meet its standard and so has to issue the use permit, there's an immunity for damages issue. The city has argued for immunity to damages on two grounds. First, absolute immunity on the grounds that its action was a legislative action, as per an opinion from the city attorney. Second, immunity on the grounds that the "at your own risk" clause was sufficient warning to the plaintiffs. The city added a third argument, noting that while they want the case to be decided based on the current record, they have other documents that are relevant to a decision about damages. Specifically, they argued that there are emails between Preston and his contractors which appear to make the contracts conditional upon the granting of a permit and so neither Preston nor the city should be liable for that. Bolick agreed that there should be a separate factual review on damages, but that plaintiffs should win damages if they either win on the burden of proof issue or if they win on the "arbitrary and capricious" issue and it's an administrative act.

The judge observed that the City Council has a legislative function, a judicial function, and an administrative function, and that if this was an administrative function, this was not a matter of determining fundamental government policy. Bolick cited the Reynolds case (?) and another to the effect that issuing a building permit is an administrative act. The city attorneys objected that Reynolds didn't involve a de novo appeal process, and that the city was going forward on the assumption that it was a legislative process, as argued in a position from the city attorney on which the City Council relied. The judge asked, "is it clearly not judicial?" The city said that perhaps it might be, if the judge ruled that there couldn't be a de novo review in this case (i.e., if they lost on the burden of proof claim) and were thereby acting in an appellate capacity.

After a few more exchanges, the judge indicated that he would deliberate and be back shortly to issue a ruling from the bench. A few of us gathered outside the courtroom to talk, including Bolick, the plaintiffs, a few other supporters of the plaintiffs, and a reporter from the Arizona Republic. At around 1 p.m., the bailiff summoned us back into the courtroom, to inform us that we were all dismissed and the judge would be issuing a written ruling, which is apparently what he did at the May hearing as well.

My understanding is that the plaintiffs win the case if they win on either of the above two grounds, the burden of proof issue or the credible evidence/"arbitrary and capricious" issue, and the case will not go back to the City Council this time. Of course, it may be appealed by the losing side. My best guess is that the city will prevail on the first issue and the plaintiffs on the second.

CBS Channel 5 was also filming the hearing, but you heard the details here first.

I'll update this post with information about the decision after it happens.

The Goldwater Institute's website has more on the Preston case.

(The photo of the Maricopa County Court House in downtown Phoenix, above, is a Creative Commons licensed photo (attribution, noncommercial, no derivative works) from the flickr photostream of Steve Minor, user lumierefl. Click on the photo to get to that photo in his photostream.)

UPDATE (July 9, 2009): The Prestons won their case, again, on the grounds that the city's decision to revoke their permit was "arbitrary and capricious." I haven't heard how the judge ruled on the other issue. The city has 30 days to appeal the decision; otherwise they must issue the permit and allow the business to open.

Fundraising for Bowl-A-Rama

I have only one month to try to reach my fundraising goal for this year's Bowl-A-Rama. I know times are tight, but if you can spare a few dollars please visit my page and make a donation.

(Photo is of the Lippard household's latest adoptee from RESCUE, Buster.)

Republican states lead in divorce, teen pregnancy, and porn subscriptions

Charles Blow has an op-ed piece in yesterday's The New York Times commenting on the spate of recent Republican sex scandals which contains this infographic (an aptly named "blowchart") ranking the states based on divorce rates, teen pregnancy rates, and subscriptions to online porn sites as a percentage of broadband subscribers.

Blow suggests that conservatives address this hypocrisy by becoming more concerned about what goes on in their own bedrooms than in everyone else's. It also highlights the ineffectiveness of abstinence-only sex education.

(BTW, the data for the third column comes from the work of Ben Edelman (PDF), who I've cited here before for his excellent work on spyware and adware, and on the ineffectiveness of TRUSTe.)

UPDATE (June 30, 2009): There's at least one error in this chart, in that Tennessee should be red, not blue, near the bottom of the broadband porn column.