Leonard Link

Montana Court Finds Co-Parent Entitled to Continuing Parental Role; Compensation for Property

A Montana trial judge ruled on September 29 that a lesbian co-parent is entitled to continued parental contact with the children adopted by her former partner, as well as compensation for her financial contribution to the house they had occupied together with the children for many years. Missoula County District Judge Ed McLean went beyond traditional constitutional analysis to find that the children’s rights to continued contact with both of their mothers were an important part of the analysis. The ACLU participated in representing the co-parent in seeking to establish her parental rights over the opposition of her former partner.  Kulstad v. Maniaci, Cause No. DR-07-34 (Mont. 4th Jud. Dist. Ct., Missoula Co., September 29, 2008).

According to McLean’s lengthy factual recitation, Michelle Kulstad, then a Washington state resident, and Barbara Maniaci, then a Montana resident, met in Montana, where Kulstad was visiting for business from Seattle, in late 1995. They began staying at each other’s homes as their relationship progressed, and eventually Kulstad moved to Montana, living with Maniaci and making major contributions to finishing construction on her house, including a home office for Maniaci’s chiropractic practice. They exchanged rings in 1996 and lived together until the fall of 2006.

During that time, Maniaci adopted a boy and a girl, in both instances with the understanding, McLean found, that Kulstad would also serve as a parent to the child. McLean found, based on expert testimony, that the children bonded with and regarded Kulstad as a mother, despite Maniaci’s efforts since the break-up to prevent the children from seeing Kulstad, and even to indoctrinate them by repeatedly playing a tape recording reciting that Kulstad was not their mother.

Maniaci argued that the women did not have a mutual, committed relationship, but McLean found all the relevant evidence supported the conclusion that they did, and that the children considered Kulstad’s relatives to be part of their family. He also found, based on the expert testimony, that the children would be psychologically harmed were they to be permanently deprived of contact with Kulstad, especially the boy, who was adopted out of a bad family situation.

Having reached these factual conclusions, Judge McLean was helped by the relatively progressive wording of Montana statutes, which seem to have been drafted with the existence of non-traditional families in mind. Thus, Montana provides, as summarized by the court, that "persons who have previously established a parent-child relationship that is in the best interests of the child to continue" can file to establish a legal parental interest. He also found plenty of precedent to support the idea that "it is constitutionally problematic to discriminate against children based on conditions they cannot control." In this case, McLean found, the children had no control over who was adopting them and who was providing parental care.

The judge noted that Montana statutes protect the constitutional rights of children when "a parent has acted in a manner contrary to the child-parent relationship." In this case, he found, Maniaci’s conduct had been contrary to Kulstad’s parental relationship with the children, providing a further basis for judicial intervention in the dispute between the former partners.

While the case was pending, the court had ordered the establishment of a schedule for Kulstad to resume regular parenting contact with the children. In the September 29 ruling, McLean concluded that it would be in the best interest of the children to continue that program for some time until the court made a permanent decision on custody, visitation, and other parental rights. However, in the meantime, Kulstad is recognized as having equal rights with Maniaci to participate in decision-making for the children regarding such things as "education, activities, day care, health care (including medical, dental and psychological) and spiritual development."

In addition to relying on Montana statutes, McLean also relied on the common law concept of the de facto parent, finding that past Montana Supreme Court decisions had embraced the concept, as far back as 1938. The court found that Kulstad had easily met the requirements of establishing that she was a de facto parent of the two children. McLean also considered that reviewing all the statutory factors that Montana courts are commanded to evaluate in making parenting decisions, Kulstad would prevail on all those that were relevant to this case.

A "guardian ad litem" appointed to supervise the visitation program in which the parties are participating by court order will eventually recommend a final parenting schedule to the court.

The court resorted to general equitable principles to determine that upon the breakup of the relationship between the women, Kulstad’s significant financial contribution to the house, which Maniaci will retain as her residence, should be compensated. The court also found that Maniaci "took advantage of Ms. Kulstad" in various ways, and was "unjustly enriched," setting the foundation for the award of restitution damages, which the court calculated at over $100,000. Because it is unlikely that Maniaci can pay that amount right off, the court provided that Kulstad should have a judgment lien against the house and would be entitled to 10% annual interest on the balance due her until it is paid up by Maniaci.

Oregon Tax Magistrate Rules Straights Not Entitled to Gay Benefit

An Oregon tax magistrate ruled on September 24 that unmarried different sex couples are not entitled to a benefit that the Oregon legislature has provided to same-sex couples.  Rejecting an appeal from the Department of Revenue, Magistrate Dan Robinson found that the legislature did not violate the state constitution when it authorized state employees with same-sex partners to omit the value of domestic partnership benefits provided to their partners from their state income tax, but refused to provide the same benefit to unmarried different sex partners of employees.  Haldeman v. Department of Revenue, 2008 Westlaw 4371517 (Or. Tax Magistrate Div.).

The statute was a response to a decision by the Oregon Court of Appeals, Tanner v. Oregon Health Services University (1998), which had ruled that the equality provisions of the Oregon constitution required the state to provide spousal benefit rights for same-sex domestic partners of its employees.  The legislature reacted to the court decision, which was denied review by the state’s supreme court, by enacting provisions to extend such rights.

Federal tax law requires that the value of benefits offered to domestic partners of employees be reported as income of the employee, subject to tax.  The Oregon statute is intended to provide as much equality as possible under state law by exempting the value of the benefits from state tax, but only for same-sex partners.

Yvonne Haldeman’s unmarried male partner receives such benefits, and she tried to subtract their value on her Oregon state income tax form for 2006, but the Department of Revenue disallowed the subtraction, and asserted a tax claim against the value of the benefits.  Haldeman argued on appeal that by not extending to her the same economic benefit that is given to employees with same-sex partners, the state was again violating the equality requirement.

Robinson first had to determine the level of judicial scrutiny.  Turning to the Tanner case, he found that the court had applied heightened scrutiny to the state’s failure to provide domestic partner benefits to same sex couples, as the court had determined that gay people have suffered a history of discrimination, raising an inference of discriminatory motive when they are denied treatment equal to non-gay people.  But he found that unmarried heterosexuals have not generally been subjected to the same kind of discrimination, so they are not a suspect class entitled to heightened scrutiny of policies that disadvantage them.

Consequently, Robinson concluded that the state policy would survive constitutional challenge if that state had a rational basis for excluding different sex couples from this benefit.  He found that the state’s interest in promoting marriage – an interest not present in the case of same-sex couples, since Oregon law does not allow same-sex marriage – was directly applicable to unmarried different sex cohabitants, and would justify depriving them of the benefit, since they could easily qualify for non-taxable spousal benefits by marrying.

A Tale of Two Cities - The Broadway Musical

First point - I had a good time, and found the drama very well presented and acted and staged...

Second point - Why do Broadway producers think their audiences are deaf?  The amplification was totally over the top this afternoon - TOO LOUD, GUYS!!!!

Third point - This would have seemed quite original, had not Les Miz gotten there first.  Indeed, the general impression is that this is a pale copy of Les Miserables, and that Jill Santoriello, the talented writer of book, music, and lyrics, is not quite the major talent that was responsible for the earlier show.  There are altogether too many echoes of the predecessor, and the producers here seem to have helped the resemblance along by recruiting a cast heavy with veterans of various productions of Les Miz.

Fourth point (really a bit repeating from above) - This is extraordinarily well cast.  I was especially taken with the work of Aaron Lazar, in the very sympathetic role of Charles Darnay.  Gregg Edelman was superb as old Doctor Manette, and James Barbour very affecting as Sidney Carton.  But the entire cast was at least adequate and most very much more than that.  Brandi Burkhardt as Lucie Manette was a total heartbreaker, and Natalie Toro's Madame Defarge, not having quite as much to do as she should have done in a less hurried compaction of the novel into a single night in the theater, was happily over the top, especially in her final "out for blood" scenes.

So, while I would hardly call this a greatly original artistic success, I would call it a satisfactory few hours of musical theater, unmemorable but moving while it is going on.  But turn down the sound, guys!!!!

GEMS at the Times Center

Gotham Early Music Scene (GEMS) is an umbrella organization that publicizes concerts by "early music" groups, and organizes a series of early music concerts at the Timescenter Stage (in the new NY Times building).  The most recent series was this weekend, with installments Saturday and Sunday afternoons and Saturday evening.  I attended the Saturday evening presentation.

The format for these events is to present three groups, two before the intermission and one afterwards.  This provides more variety than one finds at a typical early music concert, which is a plus in my view.

Saturday's program began with New York Polyphony, singing selections from their new Christmas album, titled "I Sing the Birth."  This is no ordinary Christmas album, however, since the music comes from 16th century England (with the exception of one recent piece they performed to provide an interesting contrast to one of the old pieces).  NY Polyphony consists of four young men with vocal ranges of countertenor, tenor, baritone and bass, singing renaissance polyphony with confidence and great artistry.  I was captivated by their performances of Cornysh, Taverner and Tye, and I with they had included some Tallis.  Maybe next time....

The second group was The Grenser Trio, a clarinet-cello-fortepiano ensemble named for the famous family of woodwind instrument makers who flourished in the late 18th century in Europe.  Ed Matthew, the clarinetist, was playing an instrument with is a reproduction of one produced by the Grensers.  The sound of this ensemble was quite distinct from a clarinet trio using modern instruments, casting a very unusual light on Beethoven's Op. 11 Clarinet trio.  Indeed, the music sounded to me more like Haydn or Mozart than early Beethoven, at least in this guise.  The playing was fleet, but I thought the tempi slightly too fast for the keyboard player at times.

Finally, after intermission, there was a presentation of Spanish Renaissance music by Ex Umbris, a rather larger group (7 musicians) playing several instruments a piece, providing a colorful view of 16th and 17th century Spanish music.  There was singing as well as playing, and one almost felt as if dancing would break out at times, so exuberant were the rhythms.   The great hit of the entire evening was Gran Chacona, a setting of a grossly humorous text by 17th century writer Luis Briceno, with music arranged by Grant Herreid, an Ex Umbris member, "after Juan Aranes." 

I would love to hear each of these groups again.  Ex Umbris has released some recordings on the Dorian label, but a quick check on line showed scattered availability, and the album that includes Gran Chacona seems to be out of print....   It should not be!!!!

Federal Judge Refuses to Dismiss Constitutional Challenge to Policy Restricting What Trans Student Could Wear at High School Prom

On September 25, U.S. District Judge Joseph S. Van Bokkelen denied a motion to dismiss filed by public school administrators who are being sued for their refusal to allow a transgendered student to wear a dress to a high school prom. Logan v. Gary Community School Corporation, Civil Action No. 2:07-CV-431 (JVB). The court found that the defendants had not met the high standard for a motion to dismiss, essentially that there is no plausible claim stated by the plaintiff’s complaint. Lambda Legal represents plaintiff Kevin Logan.

According to the complaint, Logan identifies as a gay transsexual youth who prefers to wear feminine attire, and did so throughout his senior year at West Side High School in Gary, Indiana. It is an interesting sign of the times that Logan claims to have encountered no substantial problems at school due to his attire, finding teachers and fellow students to be generally supportive. Even the Assistant Principal stated no objections when Logan inquired about wearing a dress to the prom. But Principal Diana Rouse stated her objection, directing that Logan wear a pants suit rather than a prom dress.

Despite this, Logan arrived at the prom wearing a dress similar to those worn by the girls attending the prom, and was denied entry at the principal’s direction. Several students aware of what was going on left the prom and spent part of the evening in the parking lot with Logan to show their solidarity, before he returned home without having been allowed to enter the prom. After the prom, Logan demanded to know what school policy restricted his dressing for the event, and was shown "School Board Policy #319," which deems "inappropriate" clothing that signals "sexual orientation."

Logan sued on a variety of claims, asserting violation of his First Amendment Free Speech rights, Fourteenth Amendment Equal Protection rights, and right to be free of sex discrimination by an educational institution under Title IX of the Higher Education Amendments Act. He also sought a declaration of the invalidity of the policy and an injunction against its operation. Logan sought damages for his exclusion from the prom.

The school district’s motion to dismiss raised a variety of arguments that have routinely been rejected by other courts in litigation challenging school policies on constitutional grounds, challenging the jurisdiction of the court and asserting the immunity of school officials. Judge Van Bokkelen succintly disposed of all of these arguments, pointing out that reaching any conclusion on the ultimate validity of Logan’s claims would be premature before the issues could be further developed through pre-trial discovery. The court’s ruling means that Kevin Logan and Lambda Legal will get their day in court unless the school board comes to its senses, realizes that school boards usually lose these kinds of cases, and offers a reasonable settlement. The board seems to be placing most of its reliance on a recent 7^th Circuit decision rebuffing a school’s disciplinary action barring anti-gay t-shirts, in which the court expressed unhappiness about federal judges intervening in such disputes between school officials and students, but that ruling did not deter Judge Van Bokkelen.

San Francisco Symphony Launches the Carnegie Hall Season

The visiting San Francisco Symphony Orchestra, with their music director Michael Tilson Thomas, launched the regular concert season at Carnegie Hall this past week with three concerts.  My subscription series brought me to the last concert of the set, on Friday night, when they performed Oliver Knussen's Symphony No. 3 and Ludwig van Beethoven's Symphony No. 9, assisted by the New York Choral Artists and a quartet of fine vocal soloists: Erin Wall (soprano), Kendall Gladen (mezzo), Garrett Sorenson (tenor), and Alastair Miles (bass).

I have the old LP recording of the Knussen Symphony No. 3 that Tilson Thomas, the work's dedicatee, made with London's Philharmonia Orchestra back in the days of analogue sound and vinyl pressings.  I haven't had the technology available to play that disk for many years and had no specific memory of the piece.  Now I'm going to want to locate a CD transfer, because I found it quite enjoyable.  Knussen knows his way around the orchestra -- as you would expect from somebody who is also an excellent conductor -- and this piece is full of interesting sounds.  Thomas spoke before performing the piece, using a microphone but turned low enough that I had trouble following his presentation from my seat in Row A center of the balcony.  (Somebody needs to instruct conductors who speak from the stage about how to use a microphone, and any conductor who wants to do it should rehearse with the hall's sound technician to make sure they will be loud enough to be heard.  Maybe they did that here, but you couldn't prove it by me....) 

The Beethoven was a bit of a let-down by comparison.  I am used to faster, stormier performances of the first movement than we received last night.  Beethoven's tempo indication is Allegro ma non troppo, un poco maestoso (Fast but not too much so, a bit majestic), and it seemed to me that Thomas was emphasizing the "ma non troppo" a bit too much.  It is, after all, a fast movement, but I found the tempo too deliberate, undermining the drama of the music.  Everything was ship-shape in the performance department, as this is one of the nation's very top orchestras and they play like a very top orchestra, but something of excitement was missing for me.  The scherzo was also more on the restrained side than I would expect for a movement marked "molto vivace," but the third movement variations were fine, and things really caught fire in the finale.  The chorus pepped things up with their enthusiasm, and I enjoyed the work of the soloists -- especially tenor Sorenson in his big solo in the "military variation" of the Ode to Joy. 

The performance brought forth a sustained ovation from the audience.  Any top orchestra that doesn't draw a sustained ovation after the finale of Beethoven's 9th would be in serious trouble, I think.  No matter what has gone before, the final moments are calculated to generate audience hysteria, and they did last night.

I'm puzzled about Thomas's tempo choices in this symphony.  I don't normally think of him as a "slow" conductor, but maybe he's following the path of his late mentor, Leonard Bernstein, whose own performances slowed dramatically in his last years.  In the meantime, I'll return to my Zinman recording to hear the first movement at a tempo I can better appreciate.

PWA in Rare Win on Disability Benefits Reversal

In Beckstrand v. Electronic Arts Group Long term Disability Insurance Plan, 2008 Westlaw 4279566 (E.D. Cal., Sept. 16, 2008), an HIV-positive man who went on disability benefits in 1998 has won a rare reversal of a benefits plan's decision to terminate his benefits under the ERISA "abuse of discretion" standard.  Anybody who is representing HIV+ disability benefits recipients faced with termination notices would do well to read this excellent, detailed decision by District Judge Anthony W. Ishii.

This case is an early successor to the Supreme Court's recent important decision in Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct. 2343 (2008), taking note of the built-in conflict of interest in many employee benefit plans where the same entity that pays out benefits also makes the eligibility decisions.  Metropolitan Life should induce new skepticism in federal courts reviewing decisions by benefit plan adminstrators to cut off benefits, and this ruling (a reconsideration of an earlier ruling turning down the plaintiff's appeal) could be a precursor of good things to come.

In this case, from the detailed recitation of the facts and history of the case by Judge Ishii, it appears that the claimant has suffered severe side-effects from his HIV meds.  Even though the meds have boosted his CD4 count and kept at bay typical AIDS-related problems, they have apparently generated a host of debilitating effects.  At a relatively early stage in the claimant's period on disability benefits (having been found disabled both by the Plan and the Social Security Administration, so the plan was benefiting from coordination of benefits), his doctor prescribed an anti-depressant.  There is a history of benefits denials and reversals on appeal in this case.  Finally, in 2004, the Plan had the claimant examined again by a doctor it designated, and this doctor opined that he was doing well on his HIV meds and his problems were probably due to untreated depression.  (This conclusion was not communicated to the claimant when he was informed that his benefits would be terminated.)

Claimant appealed, and the Plan had another doctor review the file.  This doctor also attributed the claimant's problems to depression.  The Plan contacted the claimant and asked if he had seen a psychologist or psychiatrist, to which he responded "no."  But apparently they did not pick up on the fact that part of the extensive pharmacopia he was ingesting included an anti-depressant.  They turned down his appeal.

Judge Ishii found an abuse of discretion here.  He found that the Plan had based its decision on clearly erroneous facts, that it had ignored the opinions of the claimant's doctors while relying on the opinions of its own doctors, as to whom there was no record of expertise in treating HIV/AIDS, and that it had failed to explain why the claimant did not meet its disability definition while he continued to receive federal Social Security Disability benefits, which apply the same criteria.  Although Ishii found no evidence that this particular Plan is systematically biased against claimants, he concluded that the high abuse of discretion standard had been met in this case, and ordered the restoration of benefits.

Surviving Civil Union Partner Wins Appeal Against Insurance Company

John R. Langan, the surviving Vermont civil union partner of Neil Conrad Spicehandler, an attorney who died at St. Vincent’s Hospital after being run down on the street by homicidal motorist Ronald Popadich in February 12, 2002, has finally won an appellate ruling after two losses in his struggles to seek compensation for his partner’s death. However, Langan’s September 16 victory in the New York Appellate Division, 2^nd Department, based in Brooklyn, was not based on his relationship to his partner.  State Farm Mutual Automobile Insurance Co. v. Langan, 2008 Westlaw 4256241, 2008 N.Y. Slip Op 06980.

Langan’s first defeat came when the 2^nd Department ruled that his status as a Vermont civil union partner would not be recognized for purposes of New York’s Wrongful Death Statute, so he could not sue as a surviving partner for the economic loss flowing from the death of his partner. The second defeat came at the hands of the Appellate Division, 3^rd Department, in Albany, which upheld the Workers Compensation Board’s determination that Langan was not entitled to the death benefit normally paid to a surviving spouse of a person whose death is due to work-related incident. Spicehandler was walking between business appointments when he was struck by the car.

In this third action, Langan was suing as administrator of Spicehandler’s estate, seeking to claim uninsured motorist and death benefits under an insurance policy that Langan owned from State Farm Mutual Insurance Company. State Farm maintained that because Popadich was intentionally running down pedestrians when he rammed into Spicehandler, this was not an "accident" and thus not covered under the insurance policy, which does not insure against intentional acts.

State Farm’s first attempt to get the case thrown out on this basis, filed when criminal charges were pending against Popadich, was rejected by the trial court, and the rejection was affirmed by the Appellate Division, "without prejudice to renew following the resolution of the criminal charges pending against Popadich." On September 28, 2005, Popadich pled guilty to 2^nd degree murder charges, admitting that he intentionally caused Spicehandler’s death. State Farm then filed its new motion, which was granted by the trial court.

Langan won his appeal in a 3-2 decision. While the court agreed that the "uninsured motorist" part of the insurance policy would not cover this situation, it held that Langan could pursue his claim under the insurance policy’s mandatory personal injury protection endorsement, as well as its death, dismemberment and loss of sight provisions.

Justice Steven W. Fisher, writing for the majority, explained that "the issue whether an event may be deemed ‘accidental’ for insurance purposes is ‘usually determined by looking at the casualty from the point of view of the insured to see whether or not from his point of view the event was unexpected, unusual and unforeseen." Thus, apart from the uninsured motorist provisions, whose definitions rule out insurance company liability for intentional injuries, coverage is "unaffected by whether the tortfeasor acted intentionally in causing the injury, provided only that, from the viewpoint of the insured, the event was ‘unexpected, unusual and unforeseen’ and not brought about by the insured’s own ‘misconduct, provocation, or assault."

Fisher commented that when the incident was viewed from Spicehandler’s perspective, it clearly met this test, since he was innocently walking on the sidewalk when a car jumped the curb and struck him. Thus, Popadich’s criminal intent was irrelevant to State Farm’s responsibility to cover the injury.

The dissenting justices, William F. Mastro and Edward D. Carni, took the position that the court’s ruling was inconsistent with the Appellate Division’s prior ruling in the case, when it had indicated, at least in their view, that if Popadich was convicted, State Farm could not beheld liable for accidental insurance coverage.

New Brahms from Cedric Tiberghien

The young French pianist Cedric Tiberghien has issued a new album of Brahms solo piano music on the Harmonia Mundi label.  He plays the ten Hungarian Dances that Brahms published for solo piano, as well as the 16 Waltzes, Op. 39, and the Klavierstucke, Op. 76. 

Tiberghien brings a very refined, poetic sensibility to this music, presenting a sharp contrast to recordings by German pianists such as Wilhelm Kempf, generally considered sovereign in this repertory.  By contrast, Tiberghien is less strict about tempo, and creates a lighter, more transparent piano sound.  The Hungarian Dances are not really dances in his hands, but rather rhapsodic elaborations on Hungarian dance themes.  Similarly, the waltzes are, like Chopin's waltzes, stylized elaborations of themes in 3/4 time, pieces about the waltz rather than dances per se.  The Klavierstucke are already tone pictures in origin, and Tiberghien plays them as such.

A relatively new recording artist on the scene, Tiberghien has recorded music by Bach and Chopin and Debussy, but seems to have a special interest in Brahms, having included the early Ballades together with the Chopin Ballades in a prior release, and also having recorded the first Piano Concerto, bringing to it an unusually restrained and gentle approach for what is usually considered a heaven-storming work.  Tiberghien's Brahms is certainly different from the norm, distinctive and individual.  It works for me, although I suspect it won't for those who insist that their Brahms must be tough and Germanic.

Tiberghien's Brahms strikes me as more like the pictures of the young Brahms, the pretty, slight, boyish blond imp with the sleepy poetic eyes who first drew the love of Robert and Clara Schumann, rather than the Brahms better known to us from the late photographs, the burly, bearded fierce and somewhat waspish Viennese "character."

So, for those wishing to explore an unusual and different view of a favorite composer, Tiberghien may be just the ticket.

American Symphony Classics Declassified: Strauss's 4 Last Songs

The American Symphony Orchestra began their new season of "Classics Declassified" programming at Symphony Space on the Upper West Side of Manhattan this afternoon, with a program devoted to the "Four Last Songs" by Richard Strauss, which were written during the period 1946-1948 and include the last completed work by the composer. 

Scheduling conflicts caused me to miss all of the programs in this series last year, so this was my first time hearing them at Symphony Space, where the series relocated last year after a successful run at Columbia University's Miller Theater for several years.  Symphony Space is a better venue for this, with apparently more stage space for the orchestra and more -- and more comfortable -- seating for the audience.  The amplification for Maestro Leon Botstein was excellent, and the sound of the singer and orchestra in the hall were clear and bright.

The format of these programs is for Botstein to present a lecture/demonstration with the assistance of the orchestra, followed by a brief intermission, followed by a full performance of the work, followed by a period for questions from the audience, mainly fielded by Botstein (although the audience is told they can pose questions to anybody on the stage). 

Botstein is generally a very effective lecturer.  After all, he is a university professor and president, a learned musicologist, as well as a symphony conductor (of both the ASO and the Jerusalem Symphony for his regular appointments, and he frequently guest conducts and records with other orchestras, especially in London).  He does have a tendency to rush his speech at times, blurring proper and place names, names of compositions, and musical terminology, but he is generally understandable, and seems to be working most of the time from an outline of prepared remarks, peppered with witticisms and occasional stories.  The bits and pieces played by the orchestra -- sometimes including excerpts from pieces other than the work on the program in order to illustrate a point -- are carefully rehearsed.

On this occasion, I thought the failure to include the singer in the first part of the program was a weakness.  There are many interesting things that could be said about the vocal part of the 4 Last Songs, but absent the singer they could not be demonstrated.  Thus, the audience was presented only with the orchestral perspective.  However, what was presented was illuminating and useful to understanding the piece.

Twyla Robinson, an established young soprano -- if not yet a major opera house headliner -- was the singer, and she did an excellent job during the full performance segment of the program.  Botstein set tempos within the mainstream of the performances I've heard -- both in concert and on records -- and the tempi seemed comfortable for Robinson, giving her the chance to spin out the long melodic lines that Strauss employed for this music.   Because of the intimacy of the hall, she did not have to scream or force to be heard over the orchestra, as is sometimes the case in a barn such as Avery Fisher Hall, which is where I've heard some unsatisfactory performances of this piece with the NY Philharmonic...

I have a standing complaint about how vocal and choral music is presented at symphony concerts.  The producers of the concert take the trouble to prepare texts and translations and to distribute them to the audience, but then they turn down the lights in the hall, making it difficult -- sometimes impossible -- for the audience to follow the text.  I can understand this approach in the opera house.  After all, with the sets and the costumes and the (sometimes pathetic) acting on the stage, you naturally want to direct the audience's attention to the stage.  Titles projected above the stage interfere with this, but the Metropolitan opera came up with the best solution - titles displayed on a small screen on the back of each seat that are generally within the peripheral view of the audience member, who can turn them off or on at his or her pleasure.  For concert presentations, the NY Philharmonic and occasional other organizations using Avery Fisher have available an electronic signage system to display text above the stage.  Since sets, costumes and "acting" are missing at a symphonic concert, this is effective and doesn't get in the way of the overall effect.

But to my way of thinking, the solution of the problem of letting the audience have the full experience of understanding what is being sung is best solved by distributing texts and leaving the lights up so they can be read.  This solution was not followed on this occasion.  Lights were significantly dimmed.  It was impossible to follow the text in small print in the program.  Some members of the audience seemed to have a sheet with larger print text.  I don't know where they got it, since these were not being distributed when I entered the hall about 15 minutes before the program...  But I saw few people using them, so I suspect the dim lighting was a deterrent there as well.

During the Q&A session I tried to raise this issue with Maestro Botstein, but he answered like a politician, giving a non-responsive answer, trivializing my question with a little historical lesson about how concerts used to be social events with flirting and waving and chattering distracting from the music until concert presenters hit on the idea of dimming the lights.  All well and good.  I have no dispute with dark houses for purely instrumental music.  He never answered my point about allowing audiences to follow the text for vocal music in a concert setting.  (He has a way of veering off into strange anecdotage and provocative comments during the Q&A.  As an audience member, I have to say that many of the questions coming from the audience at these events are rather strange, and so it is understandable that he sometimes turns them around into answering something else.)

These programs are a terrific way to get to know a piece of music better.  They were usually sold out at Miller Theater.  With the large seating capacity of Symphony Space, there were some empty seats today, suggesting to me that this series has not sold out on subscriptions this year.  A word to the wise...