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11/23/08
IT’S A GRAY AREA: No, it’s just the beginning
Filed under: General
Posted by: Jim Gray @ 8:59 pm

By JAMES P. GRAY
Updated: Saturday, November 22, 2008 7:02 PM PST

Maybe some of you older types like me will remember watching the television police show “Dragnet,” starring Jack Webb. Then you might also recall that, after the crime was solved, they would tell us at the very end of the show that the perpetrator was convicted and sentenced to a large number of years in state prison.

But, as my father used to say, that was not the end. In actuality, when you consider the big picture, it was really only the beginning. But in so many ways in our society, we do not look at or even consider the whole picture.

For example, in the matter of the perpetrators of those offenses, what is the rest of the story? What will happen to them while they are in prison, and what will they be like once they are eventually released? And incarceration is expensive.

Will the taxpayers get their money’s worth by keeping them locked up? What will happen to the perpetrators’ families and other dependents both during the time of incarceration, and afterward? Will the crime victims be better off? As we have seen in earlier columns, all of these are appropriate questions that are seldom even asked, much less answered.

That is not at all to say that people should not be put into prison, and sometimes for long periods of time. Far from it. We certainly need jails and prisons both as a deterrent and as a place for appropriate people to be removed from society for long periods of time. But we must also recognize that about 95% of the people who are sent to prison are eventually released. So we should also do our best to provide opportunities for those people to learn some skills that will reduce the chances that they will return to the antisocial conduct that put them behind bars in the first place.

In other words, in many ways we have to change our way of thinking, and we also have to change our approach.

So as a part of this shift of analysis, we must more fully consider who the people are that we are dealing with. For example, the largest mental-health facility in most counties is the local jail. Imagine the psychological damage that is daily being inflicted upon these mentally fragile people by incarcerating them for minor offenses. Fortunately, and as we will discuss in this column next week, our courts in Orange County are doing something really promising in this area.

But unfortunately, there is little political impetus in most places for the needs of the people who are incarcerated to be addressed so that they can begin to overcome or even address their problems. Wouldn’t it be better for everybody if those imprisoned could be assisted, as appropriate, with drug treatment, anger management, parenting skills, job skills, accurate medical information, and a focus upon intelligent decision-making? We should take an overall approach to this issue. Why? Because the actual goal of the criminal justice system is not to punish; it is instead to reduce crime and increase safety for everyone.

We should also take the long-run approach in many other matters as well. For example, in so many ways when we throw an item into the trash, we think that is the end of the story. But, once again, it really is only the beginning, because we must consider the entirety of the issue. Putting toxic or any other materials into landfills may be a temporary fix (out of sight, out of mind), but as we are now beginning to understand, it brings on many more long-range complications. So when we put something into a Dumpster, flush something down the toilet, or throw something out of our car window, that does not end the story. It really is only the beginning, because there are costs involved with the disposal of virtually everything. And as the old effective advertisement said: “Pay me now, or pay me later.”

And this has now grown to be a worldwide problem, because increasingly everything is connected. China and India are seeing this firsthand. And you may not be aware of this, but the air pollution that is generated in China is now being blown across the ocean here to California and beyond. In addition, places that used to accept our trash are no longer doing so. For example, for many years we shipped our nuclear waste to the deserts of Nevada and buried it there, but people in that state have now closed the door on that activity. And remember that barge of trash that kept being hauled from one country to another because no one would take it? Now more than ever all countries will be forced to confront their own long-run consumption, environmental, trash disposal and recycling issues.

Similarly, we need to adopt the same total approach with issues like education and healthcare. Receiving a diploma from an institution of higher learning is not the goal, it is actually just the beginning. The end goal is not the piece of paper, it is instead being able to learn and apply a skill, and also to comprehend and deal effectively with the complexities of our lives. In the same fashion, the goal of healthcare is not really to get over whatever ailment you happen to have at the moment. Instead the goal is to be healthy.

So in most areas, we as individuals must start taking a holistic or long range approach in our everyday lives, and even more so in government. This means that as voters we should generally be skeptical of candidates who speak mostly in sound bites. Why? Because life is much more complicated than that, and we should consider most simple approaches not as the end of the discussion, but as only the beginning.

 

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JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

 

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11/16/08
IT’S A GRAY AREA: A positive world revolution
Filed under: General
Posted by: Jim Gray @ 12:10 pm

By JAMES P. GRAY Updated: Saturday, November 15, 2008 6:42 PM PST

Recently while I was flying home from Houston, where I had been invited to speak about our nation’s failed drug policy, I had the good fortune to sit next to a Continental Airlines pilot who was going home to Ventura. And this interesting fellow had an idea that I want to pass along to you.

He suggested that our government offer a prize, or a “bounty,” for anyone who would develop a process or method that would be commercially viable to separate the hydrogen and oxygen elements from water. Then the pure hydrogen could be used as a fuel. Our government would pay anyone who would develop such a process $1 billion, or even $5 billion, and then we would donate the process to the public domain.

Imagine what would happen if something like this could be developed. I believe the more you think about it, the more you will agree that this would be one of the most profound and positive revolutions in the world since the invention of the printing press.

Of course, the separation of hydrogen and oxygen from water can be achieved now, but the cost prohibits it from being commercially viable at this point. Furthermore, it now takes more energy to separate the hydrogen and oxygen molecules than is gained by eventually burning the hydrogen.

But the implications from this discovery would be far-reaching and even earthshaking. It could furnish cheap and viable energy that would come from an inexhaustible source. It would burn cleanly, with the only waste product being water vapor. Hydrogen-burning automobiles and other vehicles would soon be commonplace, with inestimable benefits to the environment. Electricity could be generated from this source of power, which would greatly reduce, or over time even eliminate, our reliance upon the burning of coal, with all of the pollutants that come with that process. And the list would go on and on.

Also, and most importantly, this development could change the face of local and world politics forever. Our country would no longer be reliant upon governments in the Middle East and other corrupt and unsavory governments around the world for their oil. The present status quo seriously strengthens them and weakens us, but this would be forever changed. Further positive results would be both to increase funds available for world trade, which would tend to strengthen both wealthy and poor countries alike, and to allow us to support world civil liberties and rights for the downtrodden without having politically to kowtow to so many repressive despots.

Hydrogen-burning plants could be installed all around the world that would convert seawater into fresh water, and this could allow presently arid regions to raise crops to feed their own people. So this new process in itself could seriously reduce tensions in many countries of the world. In fact, it could even have some beneficial influence on the “tinderbox of the world,” which is Israel and Palestine. Another result would be the reduced competition for water between farmers and migrating fish, etc.

Furthermore, consider the effect this development would have upon our balance-of-payments problem, since we would no longer be exporting billions of dollars per year to the Middle East and elsewhere for oil. This could help our country’s economy and those of most other nations to explode into unheard of productivity.

Now, I agree that this suggestion does some violence to my Libertarian principles of a smaller and less-dominant government, as well as the principle of simply allowing the marketplace to devote the necessary capital to meritorious projects.

In most circumstances, rewards in the marketplace are sufficient to promote needed advances. (”Necessity is the Mother of invention.”) But so far, even though the discovery of such a process would indisputably bring untold wealth to the discoverer, this viable process still remains elusive. So our government’s offering a large incentive or bounty might just do the trick. And providing this process for free to the world would allow new further developments and products to be generated more quickly. So I think a compromise in my personal philosophy would be acceptable.

Will our government put such a plan into operation? Maybe so; maybe not. But a private Manhattan Project-style program to develop plentiful, inexpensive and clean-burning fuel would be one of the best things that our government could do with our money. So I think we should give it a try. What do you think?

JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his website at www.JudgeJimGray.com.

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11/09/08
IT’S A GRAY AREA: Government belongs to us
Filed under: General
Posted by: Jim Gray @ 12:14 pm

It’s A Gray Area: Government belongs to us

Updated: Saturday, November 8, 2008 7:04 PM PST
There are No comments posted. View Comments

No matter how you approach the issue, when all is said and done, it’s our government, and if it is not working, it is our own fault. In today’s large and complicated world, that is a difficult mantra to accept — but we are “the People” mentioned in our Constitution, and there is no alternative than to accept this as our ultimate responsibility in our democratic republic. Fortunately, the good news is that if we persist, we will often be successful in achieving results.

In that regard, let me tell you a story. As some of you may recall, on Oct. 14, 2007, this column addressed the fact that when a person donated a minimum of $5,000 to the California Highway Patrol’s 11-99 Foundation, the donor was given both a license plate frame and an identification card about his or her membership — that (coincidentally) could be placed next to that person’s driver’s license.

Of course, the strong implication by being sent these items was that the donor would receive favorable treatment from the CHP out on the state’s highways. And I cited in the column some occasions in which that favorable treatment had actually been given.

After the column was published, I sent a copy of it to Commissioner Mike Brown of the CHP, along with a handwritten letter requesting him to investigate the situation, and hopefully cause the 11-99 Foundation to discontinue this practice. The reason for that request, of course, was that our system of justice in traffic court and everywhere else should be entirely free from even the appearance of any favoritism whatsoever.

I received no response to my letter. So a few months later in another column I reported to you that I had not received a response from Brown, and then sent him a second letter, this time accompanied by a copy of both of the columns. Again my letter was met only by silence.

But about four months thereafter I learned that the CHP had a new commissioner named Joe Farrow, so I sent a letter to him, along with an explanation of my request and a copy of both prior columns. Within three weeks, I received a telephone call from his secretary inviting me to have lunch with the new commissioner.

We had that lunch Oct. 21, and at that time Farrow told me he had personally investigated the matter, and concluded that there could indeed be the perception of favoritism in this area. So he had taken action in two ways.

First, he had issued a strong statement to all of his troops that they were not to be influenced by 11-99 Foundation membership in exercising their sound discretion about whether to issue traffic citations or anything else.

Second, he had met with the officials of the 11-99 Foundation and was successful in obtaining their promise to cease the distribution of the license plate frames and identification cards by this coming January. In addition, he had also instigated a movement to recall the license plate frames and ID cards that have already been issued.

This is government at its best, and that was the laudatory message I gave to Farrow. Responsive, responsible, professional and based upon integrity.

I also passed along to the commissioner that in my opinion the CHP was the most professional law enforcement agency in the state, and that I had initiated my request for change so that this deserved stellar reputation would not in any way be tarnished.

In addition, I told him that I felt so strongly about the goals of the 11-99 Foundation, which is to provide support for the widows and orphans of fallen CHP officers, that I wanted to make a donation to it on the spot. And I did, and was proud to do so.

Why am I writing about this experience? Because it demonstrates the fact that we can and do have an influence in our government — at all levels. In fact, if we are persistent, there is little that we cannot accomplish, at least in the long run.

Why? Because in government, like many other situations in life, familiarity does not breed contempt; it breeds access. Another way of saying this is that government is a “contact sport.” So all of us should make advocacy a regular part of our everyday lives. Our form of government depends upon it.

And in that regard, and as we have seen, persistence frequently pays off. Many elected officials have told me that when they receive individually written letters, they attach great significance and weight to them. In fact, they actually have a formula that for every personalized letter they receive, they feel that at least 35 other people in their district probably have the same views. So don’t be bashful about writing those letters.

Of course, your letters will have a great deal more chance of influencing elected officials if you actually can vote for those same officials. This means that a letter you send to your own member of Congress will be much more likely to have influence than a letter you might send to another member outside of your district. In sending that letter you will probably be wasting both your time and postage stamp.

But to take this a step further, if you can get together a group of 10 to 15 voters or more in your elected official’s district who are united and vocal about a certain issue, that would probably be so influential that the odds are overwhelming that the elected officials not only would respond to you, but they would even actually meet with you on the subject at a place of your choosing.

So that is the way we can obtain government at its best. Relationships are power and, whatever your issues are, you can and should turn your passions into that power. Why? Because if we do not have government at its best, we only have ourselves to blame.

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JAMES P. GRAY is a judge of the Orange County Superior Court, the author of “Wearing the Robe – the Art and Responsibilities of Judging in Today’s Courts” (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his website at http://www.judgejimgray.com.

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10/26/08
IT’S A GRAY AREA: Dear Mr. President By JAMES P. GRAY
Filed under: General
Posted by: Jim Gray @ 4:18 pm

If you could have a dinner conversation with our next president, what would you want to discuss? I asked myself that question and, after some reflection, decided I would share the following thoughts with him.

Mr. President, all of us are naturally concerned about our economy, but we are optimistic at heart and know that eventually “This too shall pass.” But my deeper concern is that we will overreact to this financial crisis and stray from the economic framework that made us strong. That framework is based on the principles of the Free Market and the individual accountability that is inherently contained therein, as well as appropriate anti-trust laws and some regulating forces.

But please be mindful that government interference in the marketplace originally led to the problems we are facing. For example, the Savings and Loan Scandal was caused by the government’s FSLIC insuring bad loans, which meant that big mistakes and “oversights” would not result in big losses for the offenders. Why? Because the government could always be counted on to bail them out.

The same thing occurred with this present mortgage banking mess, which was made possible by Fannie Mae and Freddie Mac and the government protections behind them. This situation shielded offenders from being forced to take responsibility for their own malfeasance. And this combined with multitudes of government “supervisors” who were lazy, sloppy and asleep at the switch to cause the problems.

So we don’t need more regulations. What we need is more diligence and accountability. So please guard against an overreaction to these recent problems and an over-correction that would take us to a more minute and all-encompassing bureaucracy, and a further suffocation of our entrepreneurial efforts.

Which, Mr. President, brings me to my next point. Please tell us that you will empower a nonpartisan agency like the General Accounting Office with sufficient investigative powers to supervise our government to detect small economic, ethical and human rights problems before they become large ones. Then mandate that organization to report its findings directly to you, and also to the news media. Being proactive instead of reactive in these areas will not only go a long way in ferreting out and blunting future problems, but also regenerate a faith and trust in government that has understandably been missing for decades.

Next, and all importantly, please tell Congress and the American people that you will veto all spending measures passed by Congress if they contain even one appropriation that you do not believe is appropriate, until such time as Congress delegates to you the power of the Line Item Veto. And then carry out that threat! This is one reform that President Reagan was unsuccessful in passing, but you can and must cause it to occur.

We now understand that, as a political reality, individual members of Congress are simply forced to show the voters back home that they are active in procuring federal funding for lots of pet projects in their districts. This was made abundantly clear when, even in the moment of dire economic crisis, members of Congress wouldn’t pass the so-called “bailout package” until they appropriated an extra $135 billion for their local projects. So let them continue to earn their “political points” back home by continuing this practice. You can be the “heavy” or the “bad guy” and veto this non-essential spending for the good of the country. Let Congress blame you - you can take it!

And then there is the difficult question of Iraq. Mr. President, I want to be clear. Before all of this happened, I took the public position that if we put ground troops in Iraq without the substantial assistance of the world community, it would be the biggest mistake of my lifetime. Nothing has happened since that time to change my mind. But we are now in Iraq, and we must address our present options and, for these purposes, put the past aside. So simply pulling out of Iraq at this point would for many reasons be another major mistake.

Instead, what we should do is two-fold. First, we should send as many private American contractors home as soon as we reasonably can. Then we should give their jobs to Iraqi contractors who should establish new contracts with and then be paid by the Iraqi government. Second, we should require the Iraqi government to pay a fairly small amount of money for each day that each American soldier remains on duty in that country.

That two-fold approach will accomplish three noteworthy benefits. First, it is a simple fact of life that people more appreciate and value the things that they pay for instead of the things that are given to them. Second, both economically and politically these small payments will encourage a reduction in our troops to the smallest levels that will still be sufficient to do the remaining tasks at hand. And third, of course, this will help in at least a small way with our balance of payments problems. Considering their resumed exportation of oil, the Iraqi government should be able to take on these financial obligations, and everyone, especially Iraq, will be better off if this occurs.

Thank you for your time, Mr. President. Regardless of the politics of this past election, all Americans wish you good health, wisdom and fortitude as you guide our fragile experiment in democracy forward for the next four years. And if you ever feel that there is anything I can do to help you in this effort, you can always count on me.

 

 

JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts. He may be contacted at his website, judgejimgray.com.

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10/18/08
IT’S A GRAY AREA: The subtle nuances words have
Filed under: General
Posted by: Jim Gray @ 1:06 am

Updated: Saturday, October 11, 2008 6:43 PM PDT

Consider this: When we think, we really think only in words or something else that can be written, like musical notes, or mathematical or chemical equations. That means that if some people do not understand the shades of meaning between one word and another, they will be limited in their ability to understand concepts and options in everyday life.

Does this make any difference? I think it makes a great deal of difference. For example, I heard that there are more dialects in the world that have no difference in their languages between the words for “stranger” and for “enemy.” That means as a practical matter that anyone who is a stranger to those people is automatically their enemy. This in turn has probably resulted in lots of needless waste, fighting and lost opportunities.

Even people who do seemingly understand the shades of meaning among words often get too lazy in selecting the most appropriate one for their situation. For example, in my courtroom in many of what we call auto v. auto cases, most attorneys lazily fall back on the tired word “accident” to describe what occurred. But maybe this wasn’t really an accident. What if one of the drivers had been driving under the influence of alcohol or another mind-altering substance, or maybe were involved in some form of reckless driving? Then it could be concluded that this was not accidental, but intentional.

Think about it. What other words could a plaintiff’s attorney use instead of the word “accident” to set the tone for his attempt for a more serious recovery? How about the words “impact,” “collision,” “striking,” “careening into,” “slamming together” or “smash up”? Or from a defendant’s perspective in trying more to downplay the incident, the attorney could, when appropriate, use words like “bump,” “touching,” “grazing,” “coming together” or “coming into contact.”

Another example that everyone should be aware of is that there is a world of difference between the words “solve” and “resolve.” Most of us in the court system realize that you can only find “solutions” for things like mathematical equations. But problems involving human conduct mostly do not have solutions, only resolutions.

Therefore, when people lose an arm because of a defective piece of equipment, nothing can be done to “solve” that problem. Nothing will bring back their arms. All we can do is try to “resolve” the problem, usually by paying them some amount of money. Would most people prefer to forgo the payment and have their arm back? Absolutely yes. That would solve the problem, but that is simply not an option. So all we are left with is a proposed resolution.

The same thing is true regarding almost all other problems we encounter in our everyday lives. There are no solutions, as such. Only resolutions. But if people cannot understand the difference, or shades of meaning, between the two words, those people will unnecessarily submit themselves to extra pressure and frustrations by trying to solve an unsolvable problem.

The same analysis can be utilized for virtually any problem you may be involved with. People with a strong vocabulary understand more nuances, concepts and options. And those are the people who usually get ahead in life.

Look at the issue this way. If you can only discern the colors red, green, blue, yellow and black, you are going to be genuinely at a disadvantage when confronted by a person who, in addition to your colors, can also see, understand, appreciate and describe vermilion, turquoise, cobalt blue and magenta.

So do not lose the opportunity to work to increase your and your child’s vocabularies. This can be done by using vocabulary flash cards, playing word games like “Scrabble” or by simply going through the dictionary with your child, looking at a descriptive picture of a word, and trying to figure out what the word is.

In addition, parents should lose no opportunities to discuss with their children the shades of meaning among different words. (I use the word “among” instead of “between” because the latter compares only two objects, and the former compares more than two.) As another example, there is a difference between the phrase “Mary may climb a tree” and “Mary can climb a tree.” The first discusses permission, and the second discusses ability. There are similar nuances between the words “infer” and “imply,” “courtesy” and “respect” and taking a “risk” as opposed to a “gamble.”

A big distinction to be discussed with children for many reasons is the definition of what a “friend” is. Someone who encourages your child to ditch school, shoplift a CD from a store, smoke marijuana or speak disrespectfully to a teacher, parent, or anyone else is not a friend. Why? Because a friend has your child’s best interest at heart. So someone who would encourage such antisocial behavior may be an acquaintance, or former friend, but not actually a friend.

So we think in words. That means that people’s vocabularies limit or broaden their ability to understand and deal with the world around them. Therefore, a strong vocabulary will not only be helpful for your children on the Scholastic Aptitude Test or on the high school debate team, it will also make a significant difference in how successful they will be in business, their social relationships and almost anything else.

And besides, when it comes down to it, becoming aware of the shades of meaning among words is actually fun. Try it and you’ll see.


JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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10/05/08
Addiction is a medical problem (59)
Filed under: General
Posted by: Jim Gray @ 11:11 am

Addiction is a medical problem (59)

I was gratified to see that the editorial board of the Daily Pilot endorsed Proposition 5, which is the Non-Violent Offender’s Rehabilitation Act, with the headline “Prison is for drug dealers, not customers.”

They are right, and I commend them for their insight and sophistication.

As I have said in previous columns, it makes as much sense to me to put the gifted actor Robert Downey Jr. in jail for his cocaine addiction, and he certainly seems to have one, as it would to have put Betty Ford in jail for her addiction to alcohol.

Drug addictions are medical problems, and they are better addressed by health-care professionals than by policemen.

But if Robert Downey Jr., Betty Ford, or you or I drive a motor vehicle while impaired by any of these drugs, or engage in any other offense while under the influence, bring them to the criminal justice system.

What’s the difference?

Because now by their actions these people are putting our safety at risk. So the answer is to hold people accountable for what they do, but not for what they put into their bodies.

In my mind, most of the people who support Proposition 5 on the ballot this November agree with that fundamental concept.

Face it: You or I could come home any evening and drink 10 martinis and, if we are 21 or older, we would not be violating the law.

Obviously this would not be a healthy thing for us to do, but as long as we are not putting anyone else’s safety at risk, society wisely has left those problems to be addressed by drug education and treatment.

Why have we not done the same thing with regard to people who use other mind-altering and sometimes addictive substances?

Our great country now leads the world in the incarceration of its people.

And a large number of them are in custody only because they either possessed or were under the influence of some illicit drug.

In fact, a ridiculously high number of people are put back into custody only because they were found to have been possessing or using drugs while on parole.

That is an enormous waste of time, tax money and lives.

And it doesn’t begin to address the many families who are placed onto welfare or children into foster care because their parents and breadwinners are taken away for such things as smoking marijuana or using other drugs.

Proposition 5 will go a long way in giving us judges more discretion to place these people into treatment programs instead of jail. Honestly, they should not be in court or jail in the first place simply for the usage of drugs.

Former arch-conservative Republican Assemblyman Pat Nolan from Glendale used to favor putting lots of people in prison for all kinds of reasons until he was himself convicted of an election fraud and sentenced to prison.

But now he is quoted as saying that there are many too many people in prison who should not be there.

And then he goes on to say that “We should reserve our prison space for people we are afraid of, not people we’re mad at.”

Our jails and prisons are hugely expensive, and all are seriously overcrowded, so I suggest we listen to people like Nolan.

So who is opposed to Proposition 5?

Many good people who have been led to believe incarceration is the answer to these problems.

We all need to take it upon ourselves to spread the word that this approach simply doesn’t work.

Of course, people who are in the prison construction business, and people who are in the prison guard’s union are also against Proposition 5, but that opposition is logically governed by their own economic self-interest.

And I acknowledge that some of my fellow judges are also against Proposition 5 as well.

But for the most part they are still of the belief that drug abuse is a problem that should be first addressed by the police, and then the abusers should be forced into treatment after being placed into one of our drug courts.

So for various reasons they do not want to give up that power over non-violent offenders.

But since drug courts are really expensive to administer, wouldn’t it be better to spend these scarce resources on the drug-addicted people who are actually causing harm to others, and leave those who aren’t harming anybody else alone?

But there is another group that has formally expressed opposition that I hope will, upon reflection, reconsider its point of view. And that is the City Council of Newport Beach.

As best I understand it, the council members are fearful that if Proposition 5 passes then more non-violent drug offenders might possibly come to their city for treatment. I request them to look inward and see if they would really trade having people actually lose their liberty and be sent to prison on the off chance that they might otherwise wind up in a sober-living facility in Newport. That is not to say that there should not be a limit to the numbers of people in treatment in any particular location, but do they really feel that this is the right way to keep those numbers down?

So I encourage you to support Proposition 5. It provides additional funding and other resources for drug treatment. It will reduce the number of non-violent drug offenders in our jails and prisons, and it also give judges more discretion to “call the shots” in determining how these drug users should be handled. And, yes, it will reduce the penalties for the possession of less than an ounce of marijuana.

But most importantly, it will also help judges and other health-care professionals to attack the disease of addiction head on, and thereby reduce crime and the expenses to the taxpayer. And along the way it will also allow us to devote more money and prosecutorial attention to address the actions of the violent offenders who are causing so much harm to us all.

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JAMES P. GRAY is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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09/28/08
BUDDHISM AND HUMANISM (58)
Filed under: General
Posted by: Jim Gray @ 7:45 pm

BUDDHISM AND HUMANISM (58)

The Buddhist religion dates back to about 563 BCE with the birth of Siddhartha Gautama in Lumbini, Northern India, which now is in Nepal. He was the son of a king, and in childhood was completely sheltered from the real world. But when he was eventually exposed to the miseries of the world, he also encountered a monk who had found peace through contemplation and the renunciation of material objects. Siddhartha was so impressed with that approach that at the age of 29 he renounced his crown and family and set out on a journey to seek the Truth.

After a lengthy period of self-denial, discipline and meditation, he attained Supreme Enlightenment. Thereafter as he worked to share his teachings with others he became known as the Buddha, or “the Enlightened One.”

The teachings of Buddha were not actually written down and finalized for about 500 years. Nevertheless, Buddhism slowly spread to numerous countries all over the world, and this resulted in the development of the religion. Today there are an estimated 350 million Buddhists in the world, with the largest concentration in China and Southeast Asia.

Buddha is not a god, and Buddhists do not believe in a god that is the creator of the universe. Instead, Buddha is the highest form of morality and the Supreme Teacher. Hence, the name Buddha is derived from “budh,” which means “to awaken and be aware or completely conscious of.”

Buddhism today is divided into large numbers of denominations, but most of these share a common set of fundamental beliefs. One of these is reincarnation, which is to say that people are reborn after dying, and this may be done repeatedly. Then after many cycles, if people release their attachment to desire and to the self, they can attain the state of liberation and freedom from suffering that is known as Nirvana.

Most Buddhists also believe in three trainings or practices that can lead to Nirvana. The first is Sila, which is virtue, good conduct and morality. This is in turn founded upon two principles: equality, which means that all living entitles are equal, and reciprocity, which is like the “Golden Rule” in Judaism and Christianity.

The second practice is Samadhi, which is concentration, meditation and mental development. Developing one’s mind is the path to wisdom, which in turn leads to personal freedom. The third practice is Prajna, which is discernment, insight, wisdom and enlightenment. This is the heart of Buddhism. Wisdom will emerge only when the mind is pure and clear.

There are also four “Noble Truths” that most Buddhists accept. They are Dukkha (Suffering exists. It is real and almost universal.); Samudaya (The cause of suffering is human failings, such as a desire for wealth, power, fame, sensual pleasures, etc.); Nirodha (There is an end to suffering when the mind reaches Nirvana, which is freedom, liberation and non-attachment.); and Magga (Following an 8-fold path of right understanding, thinking, speech, conduct, livelihood, effort, mindfulness and concentration).

So with the Buddhist cosmology, there are a variety of heavens and hells into which people may be born, but they are not forever. Therefore people can “fall” from a heaven, or “rise” from a hell, based upon their prayers (and other people praying for them) that repent for past transgressions and sincere vows not to repeat them, and an overarching respect for all life, which is shown by refraining from the killing of any living beings.

Humanism is more an ethic than a religion. It affirms each person’s ability and responsibility to lead meaningful and ethical lives that add to the greater good of humanity. It has its roots in ancient Greek culture (with its emphasis upon improving society), the Renaissance (for its advancement of science), the Enlightenment (with its concept of the separation of church and state), and 19th Century “freethought” (with its challenges to discrimination and advocacy of reform).

Most humanists do not believe in a supernatural power, but draw a clear distinction between belonging to a religion, on the one hand, and being “religious,” on the other. This leads humanists to explore the meaning and possibility of having a religion without having an actual god.

In his book “A Common Faith,” John Dewey described the humanist philosophy. He began by noting the “religious” attitudes that devotees had toward their religions. From this he argued that people could equally possess that religious attitude toward the ethics of most religions for the betterment of mankind, without ascribing to the dogma of any of those religions. In other words, Dewey tried to emancipate the religious experience from the religion itself.

Instead of a faith founded upon ideals guaranteed to exist by a supernatural authority, humanism is a moral faith founded upon ideals inherent in the natural relationship existing between man and his environment. And the higher purpose is to meet human needs in the here and now. In fact, most humanists believe it is immoral to wait for God to act for us. Ultimately the responsibility for the kind of world we live in rests with each of us.

We began this short series of columns on religions with a discussion about the critical importance of the separation of church and state. Then we discussed some of the world’s great religions in an attempt to learn from them, and grow from that learning. We now end the series by noting that governments could avoid many problems if they would adopt Humanism’s “religious” higher purpose to meet human needs in the here and now, instead of adopting the tenets of any particular religion. That was the approach adopted by our Founding Fathers when they said that there was a natural order of things, and that some “truths were self-evident,” and that approach should be re-emphasized and continued today.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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09/23/08
“THE RELIGIONS OF ISLAM AND HINDUISM”
Filed under: General
Posted by: Jim Gray @ 9:26 pm

           

            “THE RELIGIONS OF ISLAM AND HINDUISM”  (57)

 

The response to the column about Judaism and Christianity was good, and many people requested to be informed about the time and date of our session in which I have invited my friend Rabbi Marc Rubenstein of Temple Isaiah in Newport Beach to further discuss Judaism.  That will be this coming Tuesday, September 23 at 5:00 pm in room 109 of Heath Hall at Vanguard University.  Please join us.

 

            So now continuing our short series about some of the world’s great religions, we turn our attention to the religions of Islam and Hinduism.  The religion of Islam, which is the world’s second largest religion after Christianity, is monotheistic, which is to say that there is only one God.  And Islam, like Judaism, traces its roots to the prophet Abraham.  Moses is believed to have descended from Abraham’s son Isaac, and Muhammad is believed to have descended from Abraham’s other son Ishmael.  Consequently, due to lineage, one will find commonalities among Christianity, Judaism and Islam.

 

            The word “Islam” means “submission,” or total surrender of oneself to Allah, which is the Arabic word for God.  A person who follows the Islamic religion is known as a Muslim, which means one who submits to God.  Muslims believe that prophets were chosen by God, and those prophets include Adam, Noah, Abraham, Moses and Jesus, among others.  All of these prophets were human and not divine, though some were able to perform miracles to reinforce their claims. 

 

Muslims strongly believe that God revealed his final message to the prophet Muhammad, who is so revered that when his name is spoken, it is almost always followed by the phrase “Peace be upon Him.”  Muslims also believe that on numerous occasions during the period between 610 and the date of his death in 632 BCE, Muhammad received the Quran orally from God through the archangel Gabriel.  Then Muhammad passed God’s words on to his companions who, in turn, wrote them down.  Since these literally are considered to be the words of God, the Quran, which means “recitation,” is the central religious text of Islam. 

 

Like Judaism but unlike Christianity, Islam is a religion that emphasizes faith combined with “good works” to earn God’s forgiveness and favor.  Muslims follow the Five Pillars of Islam, which are: “There is but one God, and Muhammad is His messenger;” ritual prayer 3 or 5 times per day that is meant to focus people’s minds upon God; alms-giving; fasting during the month of Ramadan to encourage a feeling of nearness to God; and the Hajj, which is a once in a lifetime pilgrimage during a particular time of year to the City of Mecca, for those who are able.

 

            After Muhammad’s death there was a political schism into Sunni and Shia that was caused by disagreements over who would succeed Muhammad in the religious and political leadership of the Muslim community.  About 85 percent of Muslims are Sunni, and 14 percent are Shia, and 1 percent other.  But there are actually few theological differences between Sunnis and Shias.  Unfortunately, today when people think of Islam, they often think of violence.  This is, of course, a stereotype that disturbs the overwhelming majority of Muslims because they believe that Islam completely rejects violence against innocent civilians. 

 

Hinduism is generally considered to be the oldest of the world’s religions, having its roots back to 1500 BCE.  It does not have a single founder, a specific theological system, or a single system of morality, but instead has thousands of different religious groups, and it is the dominant religion of India and Nepal.  The most sacred scriptures for Hindus are the Vedas, or “Books of Knowledge,” that were written in Sanskrit from about 1500 BCE to 100 CE.

 

There are some bedrock concepts on which most Hindus agree.  For example, like the religions of Islam, Judaism and Christianity, Hindus believe there is only one, all-pervasive and Supreme Being.  This is a “three-in-one” God known as Brahman, who is composed of Brahma (the Creator), Vishnu (the Preserver), and Shiva (the Destroyer).  But contrary to Christianity, Brahman is not a faraway God in some remote heaven.  Instead this Supreme Being is inside each and every soul, waiting to be discovered.  This turns the focus of Hindus inward to their own soul for Brahman, which is the ultimate divine reality.

 

Hindus also worship the “wives” of Shiva, such as Kali, or one of Vishnu’s ten incarnations or “avators.”  But this is only the beginning, because there are literally millions of Hindu gods and goddesses, with concurrent religious festivals and holy days.

 

Hindus also believe in Karma, which is the law of cause and effect by which all people create their own destiny by their thoughts, words and deeds.  Thus both good and bad actions come back to people in the future, which helps them to learn life’s lessons and become better people.  Therefore, with good Karma a person can be reborn into a higher caste.  A fundamental tenet of this is to live with a minimum of “hurt” to other living beings, because all life is sacred.  This means that peace and non-violence, as espoused by Mahatma Gandhi, are ingrained into the Hindu religion. 

 

For Hindus the soul leaves the body at death, but does not die.  Instead it will be reborn, or “reincarnated,” which is otherwise known as the “transmigration of souls.”  Then after a soul evolves well enough spiritually, it can be released from the cycle of physical rebirth to an Enlightenment, which is attained by becoming in tune with the Brahman within.  This condition is called Nirvana, and this is the ultimate goal of the Hindu.

 

 

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

 

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09/07/08
“COMPARING THE WORLD’S GREAT RELIGIONS”
Filed under: General
Posted by: Jim Gray @ 6:12 pm

“COMPARING THE WORLD’S GREAT RELIGIONS”

For a long time I have wanted to take a class about the comparative religions of the world, but it has never worked out. Nevertheless, and especially considering last week’s column about the dangerous situations all around the world due to the merging of church and state, I thought I would try to learn about and then discuss one or two of the world’s great religions in each of our upcoming columns for the next few weeks. Unfortunately, our public schools seem to have treated this fascinating and critical subject as taboo for many decades, but there is no logical reason for this situation to continue.

Please join me in this endeavor. Each day the world seems to become a smaller place, which means that all of our “neighbors” keep getting closer to us. So it would promote peace in the world for all of us to have a better understanding of each other’s religions, customs and points of view.

But as we begin, please understand that, although I will consult with knowledgeable people, I myself have no particular expertise or background in these subjects. That means I might at times misspeak or make other mistakes. Please do not take offense if I do, and please feel free to correct me. But if this will make us all a little less ignorant about our own and other people’s religions, it will be well worth the effort.

Of course, let us also not delude ourselves that simply by espousing universal education about each other’s religions, or engaging in interfaith dialogue we will somehow miraculously close the divide among Muslims, Christians, Jews and others. Throughout history, even a common religious background has not deterred significant difficulties among people of the same faith, such as Catholic and Protestant Christians, Orthodox and Reformed Jews, and Sunni and Shiite Muslims. But such efforts will at least allow us to focus upon real differences instead of false or even imagined ones.

Let us begin by making the point that each of the world’s great religions has similar values of peace, justice and respect for our parents and elders. Of course all of them are quite different from each other in many ways, but their basic values are similar. In addition, it is also true that each of the holy books of the Jewish, Christian and Muslim faiths contain some “problematic” passages that can be interpreted as asserting superiority of its particular faith over all of the others.

For example, a passage in the Gospel of Mark in the Bible says: “He who believes and is baptized will be saved; but he who does not believe will be condemned.” Similarly a verse from Deuteronomy in the Hebrew Scriptures says: “(O)f all the peoples of the earth the Lord your God chose you to be his treasured people.” And also chapter 5, verse 51 of the Koran says: “Anyone who takes (Jews and Christians) as an ally becomes one of them - God does not guide such wrongdoers.” As we have seen, some people in each of these religions have used their interpretations of these passages for their own radical ends.

But despite these problems, let us try to move toward a mindset of “respect” for the religions, values and beliefs of others, as long as they do not profess or condone violence or subjugation over others, as opposed to a “tolerance” for those beliefs. The former connotes that all people who worship sincerely in their communities are entitled to be respected. The latter basically implies that other people’s beliefs are really mistaken or even silly, but we who have the “true faith” will patronize and humor those people by allowing them to persist in their deluded conditions.

Actually, the seeds of these articles were planted when I heard Dr. John Huffman include in his sermon at St. Andrew’s Church in Newport Beach a reference to a book written by Charles Colson and Harold Fickett entitled “The Faith: What Christians Believe, Why They Believe It, and Why It Matters.” So I decided that if this book had Dr. Huffman’s “seal of approval,” I would read it.

I did so, and thus discovered many things I did not know about my own protestant religion. This led to further reading adventures about other religions, which disclosed much additional interesting information. For example, Jews have between 4 and 7 “expressions” or denominations of their religion, depending upon how you count them. Moslems have a score or more, and Buddhists even a greater number. Hindus, Mormons, and other faith groups also have quite a few divisions as well.

But Christians take the cake. They have literally thousands of denominations or expressions around the world. In fact there are somewhere around 470 denominations in the United States alone. Generally, most Christians see this diversity as both good and bad. It is “good” in that it speaks to how many ways there are to approach God and to worship and follow Him, and it also allows for individual personality and cultural needs. It is “bad” in that it is can be confusing to others, and also because so many of the religious differences are over seemingly small issues. But to summarize, and to quote my own pastor, to talk about Christianity is to talk about differences.

So in the coming few weeks I invite you to join us in exploring the Christian, Jewish, Muslim, Hindu and Buddhist religions, as well as humanist and some other atheistic views of life. We will begin next week with an exploration of Judaism as well as Christianity, which I openly acknowledge as being my faith. And throughout these weeks to come, if you have a different good faith perspective about any of the religions we discuss, please feel free to share it with all of us on the Daily Pilot’s website.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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“JUDAISM AND CHRISTIANITY”
Filed under: General
Posted by: Jim Gray @ 6:07 pm

“JUDAISM AND CHRISTIANITY”  (56)

When I completed a draft of this column I forwarded it to several people for their comments, including a local rabbi friend of mine.  I want to share his response with you.  He said: “I would really like you to talk about the essence of what it is to be a Jew.  In ‘Jew,’ J stands for Justice, e for education, and w for worship. Judaism is based on this life and its focus is helping his fellow man.  Christianity’s focus is more on the self and of getting to Heaven.  They are like two different sports: baseball and football.  Jews often get upset when Christians see (Christianity) as the fulfillment of Judaism.  Most Jews feel that the two religions emphasize different things.  Like Jews have no concept of salvation or grace and emphasize obedience to Jewish law.  There are many other differences too, like God has no body in Judaism and there is no concept of hell or the devil.  I would like to discuss more about this with you in person.”

I am fully going to accept the rabbi’s invitation, and plan to meet with him for a discussion in about two weeks.  I have also invited several classes at Vanguard University to join us.  If you would like to meet with us as well, please contact me by e-mail message and I will give you the time and place.

Otherwise, I have learned that a Jew is not a race of people, because race is determined by genetics and cannot be changed.  Instead it is defined as either a person whose mother was a Jew, or someone who has gone through the formal process of conversion to the religion of Judaism.  But Jews do see themselves as a “family,” and trace their descent from the Israelites of the Bible, or from others who were exiled from Babylon in the 6th Century, BC.

There is no specific dogma or formal set of beliefs that a person must have to be a Jew.  To the contrary, it is mostly a religion of “good acts,” where a person must earn God’s forgiveness and favor.  Nevertheless, Jews have and treat as holy the teachings of the Torah, which is a divinely-inspired and hand-written parchment scroll that is so sacred that it is only kept in a synagogue, which is the Jewish house of worship. 

To Orthodox Jews the Torah consists of only the first 5 books of the Old Testament.  This is “the Law,” and it must be strictly followed in every respect.  Conservative Jews generally believe that the laws and traditions must be interpreted based upon the times, except that most observe some form of dietary rules (kosher) and other traditional practices.  Jews who are a part of the Reform / Liberal / Progressive Movements generally believe that people can choose which particular traditions to follow.  And many non-orthodox Jews believe that the Torah consists of the first 5 books of the Old Testament, which is “the Law,” as well as the next 8 books, which constitute “the Prophets,” as well as the last books, which constitute “the Writings.” 

To this many Jews add the oral teachings of the Torah, which is the Talmud and other collections of writings about Jewish law and traditions.  The Talmud contains the arguments, debates, agreements and disagreements of literally tens of thousands of Jewish scholars, who, over thousands of years, have studied each and every aspect of the biblical text in an attempt to distill the wisdom contained therein.  One of the best known of these scholars is a 12th Century scholar named Rambam, who wrote the “13 Principles of Faith.” 

This widely accepted document basically teaches that there is only one God, who is unique, eternal and incorporeal, which is to say that He is not a physical being; that prayer is to be directed to God alone and no other; that the words of the prophets are true, and Moses is the greatest of the prophets; that the Torah was given to Moses directly by God; that God knows the deeds as well as thoughts of human beings, and will reward the good and punish the wicked; and that the Messiah will come.

Of course in many significant ways the religion of Christianity evolved from Judaism, since Jesus Christ was a Jew.  But Christians believe that Jesus as the Messiah and the Son of God was sent down to earth by God to die for the sins of mankind.  By this act, Christians would be forgiven, and could obtain everlasting life by giving themselves to Jesus.

Like Jews, Christians believe in only one God, but they describe God as “Three persons in One.”  Therefore God is the Father and Creator; God also is Jesus; and God is also the Holy Spirit, whose being is present as guide, comforter, wisdom and sustainer.

Jesus on the cross unconditionally reaches out to everyone in an attempt to reconcile each person to God as well as to one another.  The central theme that makes reconciliation possible is forgiveness.  And when forgiveness is put into practice, it is life changing, and even world changing.  Why?  Because it can break the cycle of violence.  At the same time, the contrary life of unforgiveness is a curse.

The three major historic divisions of Christianity are Roman Catholic, Orthodox, and Protestant, and those have many, many subdivisions.  The beliefs and practices of Christians come from the Holy Bible, which is a divinely-inspired combination of the Hebrew Scriptures (or Old Testament), and Christian writings (or New Testament). 

But Jesus as revealed in the Bible is understood by most Christians as fully divine, and also fully human.  His divinity means that He is understood to part of “the Godhead,” which means that God is fully present.  His humanity means that He was an historical figure who felt pain and joy.  His teachings are given power by His willing death and His resurrection, which is a clear sign of God’s doing something new in the world.  In fact, Jesus is often called “The New Adam” as a way of emphasizing the new beginning He signaled.

Most Christians believe that even though theirs is not a religion of “good acts,” “being Christian” also means that their faith should make a difference in their private as well as public lives.  Some denominations go so far as to have lists of “dos and don’ts.”  Others avoid lists, except for the Ten Commandments, and instead say to use the reason and intellect that God gave them to “be a little Christ” or to “follow the example of Christ.”  Therefore, most Christians believe that their experience of God’s love means they should reflect that love to others through forgiveness and acts of charity and mercy - both individually and for society.  This explains the many hospitals, orphanages and educational institutions that Christians have established.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2009), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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08/28/08
“A BIG QUESTION OF OUR DAY”
Filed under: General
Posted by: Jim Gray @ 11:42 pm

            “A BIG QUESTION OF OUR DAY”  (54)

 

A big question of our day, and one of the largest issues that will affect the peace of the world is: Can people keep religion and government separated?  For the next decade or two, a major part of the issue of whether the world will be at peace or at war will be determined by the answer to that question.

Most people in the world hold religious beliefs of some form.  That is certainly a positive thing, and for people to derive morals from religious tenets and teachings is both natural and appropriate.  But to claim one religious tradition as the basis for civil or criminal law can lead to internal and external strife, chaos and, eventually, war.  So that is why the doctrine of the Separation of Church and State, as recognized by our Founding Fathers, is so critically important.

For evidence in the Muslim world, we need only look at the actions of Al Qaeda in Afghanistan and Pakistan.   By the decree of the governments that they influenced, non-Muslim books of all kinds were banned and burned, free discussion was not tolerated, and it was not only acceptable but increasingly justified to kill the infidels, who were defined as the “enemies of Islam.” 

It is harmful enough for individual people and groups to espouse such beliefs, but for governments to be run under these dictates is much more serious.  Remember recently when the government of the Sudan charged a British teacher with “inciting religious hatred,” which is a crime punishable by anything from 40 lashes to death, because she allowed her students to name a teddy bear Muhammad?  Some fundamentalists considered this act to be an insult to Islam and successfully invoked the sanction of government “to uphold their religion’s honor.”  This was one of the better-known incidents, but in countries with religious governments incidents like this occur frequently.

Another example is found by the government of Iran enforcing the wearing of Muslim head coverings by women.  Religious requirements like these are fine, as long as they are adhered to voluntarily by individuals who are applying their own religious convictions.  But for a government to impose religious dictates upon anyone - believers or non-believers alike - is dangerous.

Governments in Saudi Arabia and other Muslim countries today have gone to the extreme in establishing Departments for the Promotion of Virtue and the Prevention of Vice, and putting the sanctions of the government behind them.  And whose concept of vice and virtue is being enforced?  The religious fundamentalists.

Of further enormous concern is the current practice by Wahhabi sheiks from Kuwait and Saudi Arabia, who are using some of their vast oil revenues to fund religious schools called madrassas in Pakistan and Afghanistan, as well as in their own countries.  These schools teach young people to be violently intolerant of non-Muslims, to subjugate women, and to follow other radical single-mindedness.  Wahhabi is a fundamentalist offshoot of Sunni Islam, is the official state religion of Saudi Arabia, and is steadily expanding its influence around the world.  For example, the growing “Religious Right” movement in Europe is Muslim fundamentalism, so attitudes like this in Europe are on the rise.

I obtained much of this information by reading Gary Mortenson and David Oliver Relin’s book “Three Cups of Tea.” Mortenson has established about 32 schools in Pakistan and Afghanistan, as well as healthcare facilities and centers where people can learn and practice small business skills like sewing and mountain climbing.  After learning about Mortenson’s work, I join with him in believing that the best way to combat terrorism is to combat ignorance.  I strongly recommend this book to you.

Disturbingly, the breaking down of the barrier between church and state is also going on here in America as well.  For example, some Christian fundamentalists openly argue that governments in America must come under the control of religious leaders like them.  With many of these people there are only two camps: Good and Evil, and they preach that not to be firm in what they define as “good” would be to tempt God’s disfavor and wrath.

This Christian fundamentalism movement has been greatly assisted by the increasing polarization of the people in our country.  For example, I originally welcomed the coming of cable television with its large numbers of channels because I thought this would expose people to more varied points of view.  But now I see that the reverse has actually occurred.  Most of these channels cater their reporting and editorial comments to people who already have a fixed outlook and philosophy, and those people mostly only watch those stations.  So this results in these people’s established views only getting more reinforced.

Aside from the concern that Christian religious fundamentalists could take us back to the mentality of the Spanish Inquisition or the Salem Witch Trials, the time has long-since passed that we can become a nation officially dominated by Christianity, or any other religion. One of the significant reasons is that at this point we have large numbers of Jews, Muslims, Hindus, Buddhists, atheists and others who rightfully see America as their country too, and the likelihood that they would respond violently if they were to be officially subjected to Christian or any other religious doctrines and dictates would be substantial.

To guard against this potential result we must stand firm in sponsoring a government that accommodates the free but peaceful exercise of one’s chosen religion, whatever it may be.  But if we ever allow religious “errors,” misstatements or even tastelessness to be prosecuted or even prohibited, we will be on the road to facing the same type of problems that exist in some of these Muslim countries. 

So in matters of religion, government must be strictly neutral.  People must be able to choose for themselves, even if they choose “badly.”  If particular religious doctrines are “right,” they will win people’s hearts and minds in the free marketplace of ideas.  But as soon as a government takes sides and starts to enforce one interpretation of religious “rightness” over another, religious zealotry will not be far behind.  And soon thereafter will come violence, chaos, war, and the loss of the America that we know and love.

Finally, and as importantly, by enforcing the Separation of Church and State, we will not only protect government from religious zealotry, but we will also be protecting religion from governmental zealotry as well.  So in the long run, religion and government will both win, and the world will also be more likely to be at peace.

 

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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08/18/08
“EXPAND YOUR CHILDREN’S HORIZONS”
Filed under: General
Posted by: Jim Gray @ 5:03 pm

“EXPAND YOUR CHILDREN’S HORIZONS” (53)                 

The two best ways to expand the horizons of our children is for them to travel, and for them to read.  In traveling they can be exposed to unfamiliar places and also see both the bad and the good of how other people live.  That allows them to learn first hand that there are places in the world other than Newport Beach, and both be stimulated by the differences and more appreciative of what they have here at home.  In reading they can vicariously live the lives of other beings of any time and any place, and this will in turn bring them a much deeper understanding of their own lives.

When I was 12 years old my parents took my older sister and me to Europe for six weeks.  We took the train back to New York and then a passenger ship to England.  Our parents did it this way so that my sister and I could see first hand how large our country is, and how far away Europe is from us.  Then we traveled in England, Scotland, France, Switzerland (the birthplace of my mother’s grandparents) and Denmark before flying home. 

That trip more than anything else in my life filled me both with a wanderlust and with a knowing that, as time went on, I could travel by myself too.  It was a great thing for my development and my independence.  What a gift my parents gave us by this trip!

A question I frequently ask other people is “where is the most fascinating place you have ever been?”  Then I say that they can define fascinating any way they want to.  The responses to that question have almost always been interesting.  In fact, I asked that question to Dr. Eugen Weber, who was my all-time favorite UCLA professor, and his wife.  They both responded that their most fascinating place was the Villa d’Est on Lake Como in Northern Italy.  So several years later my wife and I went there expressly because of their answer.  The Webers were right.  Other than being quite expensive, overall it was a truly wonderful and stimulating place.

So where is the most fascinating place you have ever been?  It would be fun to hear from you and to discuss it.  Then maybe we could share your answers with other readers.  My most fascinating place is Aphrodisias, which is in the Asian part of Turkey.  This was an 8th century B.C. city named for Aphrodite, who was the Greek Goddess of Love, and it absolutely captured me with its stadium, theater, forum, temples, baths - and stories!  Trying to project what life was actually like in this fascinating place continues to fill me with inspiration and wonder.

And what are your favorite books for children?  If we do not help to instill in our children a love of reading at a fairly young age, they will be deprived of one of life’s most fascinating and rewarding pleasures.  (And parenthetically their scores on the SAT and similar tests will truly suffer!) 

By the way, don’t forget to join a book discussion club yourself of about five to seven other people.  I recommend you have dinner together once a month, and then gather around and discuss a book that has been assigned to and read by everyone for that session.  There is virtually no limit to the enjoyment and stimulation that you will experience.

So do a big favor for your children, grandchildren and other children you care about, and expose them to books.  The best way to do that is to read to and with them at an early age.  When I was on the abused and neglected children’s calendar in Juvenile Court, I purchased numbers of copies of the book “Fox in Sox” by Dr. Seuss, and gave them to the children’s parents, grandparents and foster parents with instructions to read the book to and with them.  This is a wonderful, fun - and silly - tongue-twister of a book that lends itself perfectly to group reading.  I think it worked, and I strongly recommend this book and this practice to you.

What are other books that are great for children?  Again I would be interested in your sharing your input with us.  My favorites are Jack London’s “White Fang,” Pearl Buck’s “The Good Earth,” both Mark Twain’s “Tom Sawyer” and “Huckleberry Finn,” Frank Baum’s “The Wizard of Oz” (Our wonderful father read the entire series of these books to us as children.), and Wilson Rawls’ “Where the Red Fern Grows.”  Many people also recommend C.S. Lewis’ “The Lion, the Witch and the Wardrobe” and Dave Pelzer’s “A Child Called ‘It’,” although I think the latter book is pretty heavy duty depressing for a young child.

Although reading is one of the most fun and bonding things a person can do with young children, I acknowledge that traveling with them is not always fun, at least at the beginning.  But once you start seeing the expansion of their development and general interest in life, you will fully know that you have given them a great and lasting gift.   

So help to expand the horizons of the children in your life.  It is one of the best gifts that a person can give, or that a person can receive.

James P. Gray is a judge of the Orange County Superior Court, the composer of the high school musical “Americans All” (Heuer Publishing), and can be contacted at JimPGray@sbcglobal.net or at his blog site at JudgeJimGray.JudgeJimGray.com.

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08/10/08
“THE ANSWER IS: IT DEPENDS”
Filed under: General
Posted by: Jim Gray @ 11:22 pm

            “THE ANSWER IS: IT DEPENDS”  (52)

One of the lessons I learned in law school was that the answer to most questions is: it depends.  What does that mean?  Well, before you can give a reasoned answer to a question, you should know the circumstances and the context in which the question arises.

Another and slightly bawdy way of saying this is illustrated by one man asking another man the question “How’s your wife?” with the answer being: “Compared to what?”

Children often do not understand or employ the “it depends” way of thinking.  For them things are usually “all or nothing.”  But when they mature they begin to realize that the answers to most questions depend upon the situation, and the risks or benefits of action or inaction.  Even though most adults innately do understand this approach, many do not employ it consciously.

One example of where a question cries out for an “it depends” answer is whether or not we should drill for oil off our coasts and in Alaska.  For people to think only in terms of “drill everywhere,” or “drill nowhere” is shortsighted to the extreme.  Some important issues to consider are: Where is the oil?  How can it be reached?  What are the risks of oil spillage or other potential pollution problems at a particular site?  Will the extracting company be bonded for environmental problems?  Of course all of our land is sacred, but is this site particularly unique or picturesque?  In addition, will new developments in technology allow the oil to be extracted a longer way from the drilling site?  Only when we get answers to those and other similar questions can we begin to make intelligent decisions on the issue.

The same myopic arguments of all or nothing were utilized by some people in the debate several years ago about whether or not we should have constructed the Alaska pipeline.  Fortunately, other more sophisticated people used a risks and benefits analysis, made some modifications to the original proposed plans, and then went ahead with the project.  Not only has the pipeline been successful, I am actually not aware of any significant problems with it at all.  So for our elected officials now to take positions of all or nothing regarding offshore or Alaska drilling is irresponsible, and even insulting.  We are smarter than that; why aren’t they?

When you think about it, most issues lend themselves to a similar risk and benefit analysis, as symbolized by the “it depends” answer.  That even includes issues about our country’s security.  For example, should our government be able to wiretap telephone conversations between people here and countries like Libya, Pakistan and Iran?  The answer is (all together now): it depends.  What is the threat to our security, and how immediate is that threat?  What are the opportunities for the government agents to seek and obtain a judicial warrant?  What do our Constitution and judicial precedents say about this situation?  In other words, what are the risks and benefits both regarding our security and also regarding our precious liberties? 

The same is true about so-called mandatory minimum sentences in criminal cases.  Should a defendant be sentenced to a minimum of 15 years in prison if he has been convicted of a particular offense?  The answer once again is, it depends.  What were the circumstances of the offense?  Who is this defendant, and what is his background and past criminal record?  Who were the victims and how severely were they injured, if at all?  It is simply not possible for the legislature, or anyone else, to come up with an appropriate sentence in advance, because there is no way they can have answers to those and other similar critical questions.  These laws have resulted in some criminal sentences that are deeply inappropriate both for the defendants and their families, and also for the taxpayers.

But there must be some issues that are so clear that the “it depends” answer is not necessary. For example, what about questions concerning the safety of our children?  Well, here again it depends upon the situation.  Should we not trust any children to cross any street by themselves until they are in high school?  That is a certainly a risky activity that can threaten our children’s safety.  But it depends.  What are the ages of the children?  What kind of streets are involved, and what are their safety features?  These questions should be answered before decisions are made.  Similarly, there are also definite risks in dating, so should girls not be allowed to date until they are 21?  So once again, even though these are important issues, the answer still is that it depends.

Nevertheless, we do not want to descend into moral relativism either.  There certainly are some things about which a moral society will not compromise, and in those cases the “it depends” answer does not apply.  For example, the answer to questions about slavery, apartheid, the sexual abuse of children, and Hitler’s extermination of millions of Jews, gypsies and others is not “it depends.”  In my mind there are ambiguities about many or even most issues in the world, but not those.  In fact, I will go so far as to say that in some areas there is even an Absolute Right and an Absolute Wrong Answer, but I may not always be intelligent or perceptive enough to know what that answer is.  But to further elaborate on those areas of religion and philosophy is far beyond the reach of this column. 

So what is the point of this column?  Too often many people, particularly those in government, fall into an “all or nothing” discussion about issues that is based upon politics or emotion or both.  Instead, I hope this column will help you to encourage those people publicly and privately to use a cost/benefit approach.  That will result in more intelligent decisions being made for us all.

Finally, should a cost/benefit approach be utilized in the next important issue that you will be confronting?  The answer is, of course: it depends.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), the composer of the high school musical “Americans All” (Heuer Publishing), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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08/03/08
“THE COSTS OF LITIGATION”
Filed under: General
Posted by: Jim Gray @ 4:55 pm

“THE COSTS OF LITIGATION”  (51)

At the conclusion of most of my jury trials I tell the jurors that our system of justice is probably the most expensive, time-consuming and unwieldy that has ever been devised - but it is also the best.  I also tell them that I hope they have received some gratification by contributing so substantially to it.  By the end of their service the jurors almost universally agree with my assessment, and even say they look forward to further jury service in the future - although that feeling probably wears off soon for many of them.

But litigation is expensive.  For openers, it costs $320 simply to file a civil lawsuit in California, and all defendants must also each pay a similar $320 appearance fee just for the privilege of appearing to defend themselves.  Of course the primary cost to the litigants is for their attorneys, who sell their time, experience, wisdom, and information-gathering abilities.  But there are also additional costs for paralegals, investigators, process servers, secretaries, electronic preparation and storage of documents and, of course, the “cottage industry” of expert witnesses.   

For personal injury cases many attorneys will often “front” the costs of the suit for the plaintiffs, and not charge them anything for their services unless and until there is a recovery from the defendants.  But when there is a recovery, the attorneys are reimbursed for their costs, and also receive anywhere from one-third to two-fifths of the proceeds.  The public benefit from this is that the contingency fees system allows good cases to be pursued by plaintiffs who otherwise could not afford to do so.

So when you hear about “large jury awards” in personal injury cases, remember that the litigation itself is expensive, and the risks of pursuing it can be large if not ruinous.  And also remember that the contingency fee system provides some safeguards, because attorneys are inherently inclined not to pursue cases that have no merit, since they can lose a great deal of time and money if they do.

I am also happy to report to you that within the last decade our court system as a whole has become much more pro-active in reducing expenses and heading off problems.  For example, we now assign most of our cases to a specific judge as soon as a case is filed.  That way the litigants get an earlier perception about what the eventual results might be based upon pre-trial rulings.  This also prevents a party from getting a second “bite at the apple” for the same losing arguments before a different judge.  That results in the cases moving more quickly toward a resolution.

In addition, and all importantly, the individual judges tend to work harder if the cases belong to them because their back log will build up if they don’t - and it is true that judges and staff members quietly note who has a higher or lower inventory of cases.  In other words, incentives matter in the courthouse as well as in the rest of the world.  As a result of this new approach, we now dispose of about 80 percent of all of our civil cases within 12 months of their being filed, as opposed to about 48 months under the prior system.

Other pro-active programs have been established to reduce future crime, such as screening out defendants charged with alcohol-related offenses who are addicted to alcohol.  Once these defendants are identified they are required to address and overcome their addiction problems, or they face additional punishments if they do not. 

Additional court screening attention and assistance are provided to juvenile offenders, defendants with mental disorders and dual diagnoses, people who are homeless, and parents who have neglected or mistreated their children.  Furthermore, both drug courts and the passage of Proposition 36 by California voters in November of 2000 have materially reduced the recidivism rates for people using illicit drugs by forcing them both to address their substance abuse problems and to be more responsible for their own actions.

As a direct result of all of these programs, many defendants have turned their lives around for the better.  Think of the crimes that are not committed, the victims who are not victimized, the police, prosecutors, defense attorneys, judges and jurors who do not have to investigate and litigate the offenses, and the reduced time and money that is wasted by the incarceration of the offenders.  Also think of the families that are not forced onto welfare roles because of the incarceration of their breadwinner. 

A final significant reduction in the expenses of litigation has been our programs of mediation.  These efforts have allowed the parties to “stop the bleeding” earlier by resolving their own problems through negotiation with the help of professional mediators.  Many years ago when I was still an attorney it was generally considered to be a sign of weakness even to discuss the possible settlement of a case.  But fortunately those days are now mostly behind us.

But the absolute best way of heading off problems and reducing the expenses of litigation is to avoid the litigation altogether by engaging in what I call “legal preventive maintenance.”  Along those lines, my all-time favorite bumper sticker is “Become a doctor and support a lawyer.”  Doctors are typically concerned about their patients, but they often are all too trusting and even naïve in their own business practices, and they mostly do not ask for help.

So I recommend people conduct inspections of their private and business property and look out for safety problems, and encourage their families and employees to be on the lookout for these problems as well.  I also recommend that people get a good legal preventive checkup of all of their business activities. 

“Saving” money by failing to get competent preventive legal advice is a classic way of being “penny wise and pound foolish.”  Why?  Because litigation is expensive, both financially and psychologically.  We in the court system are taking steps to reduce these expenses or avoid them altogether.  You should too.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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07/29/08
“THERE’S A WAY WITH A WILL”
Filed under: General
Posted by: Jim Gray @ 8:02 pm

           “THERE’S A WAY WITH A WILL”  (50)

At this point, if you don’t have a will, don’t talk about getting one, do it!  And do it now!  Not only is it stupid for you not to have a will, it is also selfish!  And the same is true for all of your adult family members.  But amazingly, you would be surprised at the number of people, even including attorneys, that do not have a will.  Do not allow yourself to be in that group of negligent people. 

The chances are good that a deceased person’s wishes will not be carried out - even if they have made clear by other means - unless they have prepared a legally-recognized will.  And not only is it important for your final wishes to be carefully and legally expressed, you can also save a great deal of uncertainty, grief and expense to your surviving family members and other beneficiaries by preparing a will.

So that brings up another question: should you use a pre-printed form as your will, or should you get an attorney to draft one?  In my view, many forms can get the job done acceptably well, unless complications arise.  The problem is that complicated matters may arise without you even realizing it.  And if that is discovered only after you have left us, then it will be too late.  So my recommendation is not to be “penny wise and pound foolish,” get an attorney to prepare this important document.  And that is even more evident if you want to consider establishing a trust. 

When you make an appointment with an attorney, many of them will send you a form that asks you numbers of questions about your desires.  If they don’t mention this questionnaire, ask for them to give you one.  Then take a few weeks, ponder the questions and fill out the form. 

You may want to consider some bequests to some favorite people that have helped you, been friends to you, or simply been nice to you over the years.  Along those lines, very likely you will want to consider leaving virtually all of your estate to your surviving spouse, with the provision or understanding that your spouse will eventually leave the balance of your estate to your children, etc.  Nevertheless, I think that it is nice to recognize your children at the time of your death with something tangible.  That often can generate good feelings at an emotional time of loss. 

Possible distributions to charities are other things to consider.  And, of course, you will certainly want to consider who the recipient(s) will be of the balance or residue of your estate.  In addition, you will want to set forth in your will who is to pay the estate taxes if the total amount is above the cut-off level.  Should everyone pay a proportional share, or are the taxes to be paid by the recipient(s) of the main part of your estate?  Your will should answer those questions.

But there is also a trap in all of this.  Do not use your will to give directions about how you wish your funeral or memorial service, if any, to be conducted.  Or how your remains are to be dealt with.  By the time your will is opened and read it will most likely be much too late.  Instead simply tell your spouse, children and other important people in your life what your desires are. 

As most of us who have been through this situation can attest, by far the primary issue that will be considered by your survivors is what your wishes were.  It is not morbid or inappropriate at a quiet and serious moment to bring up the subject of your eventual departure and discuss it with these important and caring people in your life.  Even better, you can make many of the necessary arrangements yourself, and then give the descriptive documents to your trusted survivors.  That considerate act on your part will make things go much more smoothly when your eventual time comes.

The other trap is that you should not use your will to set forth your desires for medical care in your last few days or months of life.  If you want any and all medical efforts to be taken to keep your heart beating for any reason, or not, get a “living will,” an Advanced Health Care Directive, or similar document.  Just like with your funeral, your will is not the proper vehicle to make your important views in this area known.  It will probably not be read until it is much too late.

Finally, you should review your will and trust at least every year, and modify them if appropriate in order to bring them up to date.  These acts will go a long way to carry out your wishes, and to avoid uncertainty, disputes and unnecessary hand-wringing by your survivors. 

We all tell ourselves that death is a part of life.  Nevertheless, it almost always is emotional and traumatic for those left behind.  But with a little care, foresight and consideration, you can reduce many of the problems and make the entire process less painful for those you care for and love.  So be considerate for them and for yourself, and do not put off this task.  Prepare a will, this is too important a matter to be ignored.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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07/17/08
“ABOLISH ATHLETIC SCHOLARSHIPS”
Filed under: General
Posted by: Jim Gray @ 8:21 am

                        “ABOLISH ATHLETIC SCHOLARSHIPS”  (49)                   

It is probably not wise journalism to write a column that a majority of readers will simply disagree with, but here it is anyway.  I believe that institutions of higher learning should not provide any athletic scholarships at all.  To anybody.  Instead, all scholarships should be based solely upon academics.  In other words, we should reserve the scarce spaces at universities for people who actually want to pursue academics, and not for those who want to use the institution simply as a stepping stone into professional sports.

As a practical matter, if this suggestion were to be implemented, most young athletes who only aspire to a future in professional sports would still have some viable choices after high school.  If they were good enough, they could either play professional ball in Europe or Japan, or very likely they could play in semi-professional leagues that would probably spring up all around our country. 

Understanding market economics, if these young star athletes were to become available, companies like Google, Toyota and Motorola would probably quickly sponsor semi-professional teams that would compete in league play amongst themselves.  Can you imagine the rivalry that could be generated by a competition between Pepsi Cola and Coca Cola? 

Think of the bragging rights and, more importantly, the advertising benefits that would result from such a rivalry.  And if those companies wanted to pay their worker/athletes to work part time and practice and compete the rest of the time on their way up to professional athletics, that would be a perfectly appropriate activity for the free enterprise system to engage in.

Upon analysis, what are the benefits of today’s system of providing athletic scholarships at the university level?  Yes, they undeniably increase the quality of college football, basketball and other sports teams.  This in turn increases ticket sales and television revenue.  In addition, it is widely understood that alumni gift-giving increases proportionally to the success of a school’s athletic teams.  And the profits from most men’s football and basketball programs are mostly used to support all of the other men and women’s sports programs.  And, importantly enough, athletic scholarships also provide many young people with their only real opportunity to gain a university experience and education.

So what are the negatives of athletic scholarships?  One is that since the competition to win is so fierce, it encourages the college coaches and other participants to bend or break the rules.  That does not display good leadership or mentoring to our young people.  Instead it reinforces the mantra that money is king. 

And since we are talking about potential big money when the young athletes eventually make the pro ranks, it also encourages individual sports agents and their assistants to provide illegal and undercover payments and materials to those athletes in an attempt to attract them and to “sign them up.”  Also, since the revenue to the schools can be so significant, there is a substantial tendency to allow the athletic departments too much control over the administration of the schools. 

To say that all of these results and pressures are unseemly at our revered institutions of higher learning is an understatement.  But the biggest negative is that it deprives many people who want to study academics at an institution of higher learning and gain their own university experience of the opportunity to do so.  This to me is the most persuasive argument.  

If truly gifted athletes like Kevin Love and O. J. Mayo actually want to be Bruins and Trojans, and they have the academic credentials to be admitted to those schools, they could certainly continue to play there.  But being at their respective schools for only a “one (year) and done” career is demeaning to the concept of what those universities stand for.  And overall the fact that the graduation rate for the top 25 university football and basketball programs nationwide is only about 50 percent, is an indelible blemish upon the entire system. 

Now I know that it is the purpose of a university to be used as a stepping stone.  That is what the university is actually there for.  But the real purpose of a university is to promote higher learning, not professional sports.  So academics is the focus.  Athletics is fine, but it is secondary.  That is the idea of being a Student Athlete - students first and athletes second.  And, like we have already discussed, there are other ways for those who only want to pursue athletics to get their requisite training and experience without taking up valuable spots from those that want to pursue academics.

Furthermore, just so we are clear, the competition at the Ivy League universities, which do not provide athletic scholarships, can be just as intense as at any other college or university.  I do acknowledge that the quality of the teams is generally not as high, but there is still fully as much “rah rah” and spirit when Harvard plays Yale in football as when UCLA plays USC. 

So if I were to be king (and I do think that the name King James has kind of a ring to it), this is one of the things that I would decree.  But don’t worry, I am in no danger of being elected or even appointed king.  Accordingly, I guess that the practice of providing athletic scholarships is going to remain safe and secure for a long time to come.  But I think it is a mistake.

James P. Gray is a judge of the Orange County Superior Court, the composer of the high school musical “Americans All” (Heuer Publishing), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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07/13/08
“THE JUDICIAL BRANCH OF GOVERNMENT”
Filed under: General
Posted by: Jim Gray @ 4:35 pm

                “THE JUDICIAL BRANCH OF GOVERNMENT”  (48)

 

Unfortunately in our world today, few people give much thought or have much knowledge about how we judges obtain our positions, what we actually do, or the ethical rules that we follow.  So this week’s column will focus upon the Judiciary, which is one of our three equal branches of government.

In our country we basically have two judicial systems, which are federal and state.  The federal courts try cases under the federal constitution and statutes, as well as resolve disputes among residents of different states that have an amount at issue of $75,000 or more.  The federal district courts are the trial courts.  Appeals from the trial courts go to the Circuit Courts of Appeal, and then to the United States Supreme Court.  But with only a few exceptions, the Supreme Court can choose what cases it wants to hear and decide.

There are only two qualifications that are required to become a federal judge at any of these three levels: be appointed by the President, and confirmed by the Senate.  That’s all.  And federal judges are appointed for life.  One does not have to be an attorney, a citizen or even an adult to become a federal judge.  Of course, the chances that someone would be appointed by the President and confirmed by the Senate without meeting at least those minimal qualifications would be remote, but they are still not required. 

For the most part, the state courts follow the same system, although they have different names for the different levels of courts.  In California, the Superior Court is the trial court level.  Formerly the Municipal Courts tried criminal misdemeanors and civil cases that involved claims of $25,000 or less, and the Superior Courts handled the felonies and civil cases in excess of $25,000.  But these courts were consolidated several years ago into one Superior Court.

Judges of the Superior Court must reside in the county in which they sit, have been licensed to practice law for at least ten years, and be an attorney in good standing.  And they must be elected by the voters to a six-year term.  Nevertheless, about 90 percent of the judges of the Superior Court originally obtain their position by being appointed by the Governor to a seat that has been vacated either by death, retirement or elevation to a higher judicial position.  Once the appointment is made, however, those judges are required to run for their seat in the next election.  But as a practical matter, since those judges are able to run as incumbents, they are seldom defeated. 

Appellate justices in California are appointed by the Governor, and then confirmed by a small commission consisting of a few judicial and political officers.  They are also subject to a re-election process, but it is different in that they are required to run every twelve years in “retention elections.”  That means that, although each one is on the ballot, the people simply vote whether or not to retain the justice for another term.

Not only must judges do everything in their power reasonably to apply the law to the facts of the case in reaching their decisions, but it must also appear to everyone concerned that this is what is happening.  That means that the search for justice is both a process as well as a result. 

In this regard, one of the most important aspects of obtaining justice is both the actual as well as the perceived neutrality of the judiciary.  As an illustration, I remember one time seeing a cartoon that showed a cat as a plaintiff in a case in which the defendant, the judge and the jury were all dogs.  Obviously, even if a just decision were rendered in the case, if the cat lost, it would be a difficult matter to persuade the cat of the fairness and impartiality of the result. 

Another equally critical aspect of seeking justice is maintaining the independence of the judiciary.  For example, the former Soviet Union was notorious for situations in which, before judgments were rendered, the judges telephoned their political leaders in order to determine what the “right” decision would be. 

That is probably an extreme example, but in our country today political parties are now allowed to endorse judicial candidates, even though the elections are supposed to be non-partisan.  That means that judicial elections are increasingly political, and judges who might be involved in highly visible and politically charged cases can at the same time be up for re-election.  Under those circumstances it is hard for any human being to ignore existing political realities in reaching a judicial decision.  One former justice of the California Supreme Court analogized this situation to trying to ignore a crocodile that is swimming in your bathtub.  No matter what happens and no matter what you do, you still know it’s there.  But one way or the other, that is what all judges simply must do. 

This situation can also call up the scary scenario of John Grisham’s book “The Appeal,” in which a wealthy company with an important appeal pending could find judicial candidates for appellate positions and help get them elected so that they could sit in judgment on that appeal.  Of course, no system is perfect, but politicizing judicial elections is a development fraught with peril.

In our judicial role, we attempt to fulfill the critical requirement of providing justice under the law to a multitude of diverse people and interests in a world of shrinking resources.  If you think about it, both the Executive and Legislative Branches are established to respond to the interests of the majority, because those are the people that elect them.  Consequently, that leaves only the Judicial Branch of government to defend minority rights and sometimes to make the hard and unpopular decisions under our laws.

As such, and in a very real way, judges are in the dissatisfaction distribution business.  But this role is critical if we are to have a functional and civilized society, and to maintain our way of life as we know it.  So in carrying out our role, we need all of the help, assistance and understanding that we can get as we attempt to pursue the concept as well as the reality of equal justice for all under the law. 

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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07/07/08
“PASSING SENSIBLE LAWS”
Filed under: General
Posted by: Jim Gray @ 10:16 pm

“PASSING SENSIBLE LAWS” (47)

             So now we have a new law in California that prohibits people from driving a motor vehicle while talking on hand-held cellular telephones.  Okay, I do not argue that holding a cell phone while driving can sometimes divert a driver’s attention from the important duties at hand.  But why prohibit only this diversion instead of so many other more serious ones?

            Dialing a cell phone probably causes more of a diversion than talking on one, so why is that act not banned?  And how about smoking a cigarette - or even worse, how about lighting one?  Or why not prohibit drivers from opening fast food packages and then eating the food while driving?  Or from reading a map while driving - or a newspaper! 

If it is really not safe to drive a motor vehicle with only one hand on the steering wheel, why not pass a law requiring that two hands must be used at all times?  That will address all of these potentially dangerous activities.  But isn’t the real issue that talking on a telephone is the dangerous act, instead of driving while holding the phone in your hand? 

One study found that the risk of motor vehicle collisions is four times greater when a driver is talking on a telephone - and heavy cell phone users were found to be involved in twice as many fatal collisions as light users.  And other studies show that a hands-free phone does not make telephone usage any safer.   

Furthermore, consider that under this new law when a phone rings, the driver will now be trying both to find his or her phone as well as the earpiece!  So in reality the law may be making the situation worse.  More ridiculously, text messaging is not prohibited under this new law.  Some drivers do that a lot, and that takes even more concentration - as well as the use of both hands! 

Why does our legislature pass laws with so little thought?  Every time the government prohibits one of our activities, it intrudes upon our liberties.  I am not arguing that this is always inappropriate, but if it must happen it should be done with care. As a Libertarian I believe that we should have fewer laws and instead hold people accountable for the results of their actions.  So if drivers negligently run into you while they are eating a fast-food hamburger, lighting a cigarette, text messaging, or talking on a cellular telephone, they should be responsible for the harms caused.

Now I know the response is that it would be much better if a law could keep the harm from occurring in the first place, and I agree.  That is why we prohibit driving a motor vehicle while under the influence of alcohol or similar mind-altering substances.  But when is the legislature overstepping its boundaries and unnecessarily taking away our freedoms?

The answer is that legislators have an obligation to consider the impacts and effects of all of the laws they pass.  If they cavalierly pass restrictive laws for political purposes just to show that they are doing something, instead of making sure that their laws will actually protect the public, then they have failed us.  I think that has happened here.  This new law superficially sounds good, but mostly it will only help the merchants that sell the new required earpiece devices.

Parenthetically, you shouldn’t be concerned that judges will not follow laws when they don’t agree with them.  We do that all of the time.  For example, one of the laws that I enforce as a judge is the so-called “wiretapping” law that makes it a felony for someone to record a telephone conversation even if that person is a party to it.  (See section 631 of the Penal Code.)  The legislature calls this an invasion of privacy, and that is certainly true for someone that is not a party to the call.  But when you know you are talking to a particular person on the telephone, why should it be an invasion of privacy either for you or the other party to tape record the conversation? 

As a practical matter, each of the participants can testify in court about what was said during the conversation, so why should it be a crime for a recording to be made that helps to make that testimony more accurate?  It seems to me that the present law simply rewards people that testify less accurately, or even untruthfully.  But as U. S. Grant said, the best way to get a bad law repealed is to enforce it, and, like it or not, that is what all good judges do.

So I certainly recommend you comply with this new law, and all other laws as well.  And they will be enforced by police officers and judges alike.  But along the way, please join with me in thinking about both the positive and negative effects that this law will have.  If you agree with me that it is not particularly well thought out, contact your legislator and ask that it either be repealed or at least amended to cover the conduct that really presents a threat to our highway safety and welfare.  Sacrifices of our liberties should not come without substantial consideration as to whether the benefits are worth the costs.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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06/29/08
“ALTERNATIVES TO THE INCOME TAX”
Filed under: General
Posted by: Jim Gray @ 5:46 pm

                        “ALTERNATIVES TO THE INCOME TAX”  (46)

Last week we basically “shot fish in a barrel” by discussing the failings of our present income tax system.  Not only does this system cost us taxpayers a whopping $200 billion just to keep records for the preparation of our taxes each year, it also costs an additional $194 billion each year to pay the administrative expenses of the Internal Revenue Service.  Two viable alternatives to this complicated and unwieldy system are the Flat Tax (and a variation of it called the “Fair Tax”), and the National Sales Tax. 

The Flat Tax is a greatly simplified income tax reporting and paying system that would reduce the size of our yearly tax reporting form to the size of a post card.  This would be accomplished by taking away all credits, deductions, loopholes, and exemptions, except for one generous family deduction that everyone would receive. 

The amount most often discussed for a deduction for a family of four is $30,000.  That means that a household of four people that earned $30,000 or less would not pay any income taxes at all on their income.  That would address the problems of the poor.  But thereafter, all people would pay the same percentage of their income to the government as taxes, regardless of what the amount of that income might be.  So a family that earned a million dollars per year would pay about ten times the amount of taxes that would be paid by a family that earned a hundred thousand dollars.  To most people, that would be a fair and reasonable result.

What would the tax rate be under this new tax system?  Of course the rate would be subject to change, just like under our present system.  But we can get some hints from the countries of the former Soviet Union that have already implemented the flat tax.  Estonia was the first, and it implemented a flat tax in 1994 of 26 percent.  Then Latvia chose a 25 percent tax rate, and Lithuania picked a 33 percent rate. 

But the tax approach in those countries spurred their economies so successfully that after a few years they became known as the “Baltic Tigers.”  So soon Russia instituted a revolutionary 13 percent flat rate tax of its own, and with that Russia’s economy began to prosper.  Why?  Its businesses flourished from the reduced tax rate, and the government itself realized more revenue both because income tax compliance became easier, and because tax evasion and avoidance became far less profitable. 

And then the flat tax revolution spread.  Serbia adopted a 14 percent rate, Slovakia chose 19 percent, Ukraine 13 percent, Romania 16 percent, and Georgia chose a rate of 12 percent, which currently is the lowest in the world. 

Computing taxes under the flat tax system would be simple.  Each household would report its wage, salary and pension income, subtract the family allowance and then determine the family’s taxable income, which would be taxed at a fixed rate.  That’s pretty much all.  So the tax return could be filled out by a normal ten year-old child in about fifteen minutes.  All businesses would file a similar form, no matter if they were Exxon-Mobil or a mom and pop diner.  The businesses would report their gross revenue, subtract their labor costs, costs of goods sold and investment costs, and from that compute their total net revenue as taxable income.  From that amount would be computed their total tax. 

No more complicated deductions, depreciation calculations, or favorable treatment for politically powerful entities.  And this would result in economic decisions being made for business reasons, instead of tax reasons.

The Fair Tax would be similar to the flat tax, except that it would add a provision for tax rebates every month to lower income people.  This would keep those people from having to wait until the end of the year for their tax refunds.

The second alternative would be a National Sales Tax.  Whenever people purchase any goods or services they would pay a sales tax to the federal government, just like the sales taxes that are levied today by most cities.  As a result, there would be no reporting of income to the government at all, which would result in an enormous savings to virtually everyone before one even considers what their taxes would be.

Concerns about this system falling too heavily upon the shoulders of the poor would be addressed by allowing everyone to have a tax-free allowance of rental or mortgage payments up to a certain amount, as well as an exemption for some of the staples of life, such as the purchase of non-processed foods.  This latter provision would also have the side benefit of encouraging people to consume healthier foods, since such things as milk, fresh fruits and vegetables, eggs, and non-processed meats, fish, poultry, beans, and rice would have no sales tax at all.  But sodas, canned goods, sugar snacks, and other processed foods, which are far less healthy or nutritious, would be taxed.

All money that people earn as income would stay in their own pockets.  This also means that we could actually eliminate the Internal Revenue Service!  But to satisfy people’s concerns that Congress would first adopt a national sales tax, and then subsequently bring back an income tax on top of that, we would probably have to repeal the 16th Amendment to the U.S. Constitution, which gives the federal government the power to implement a federal income tax.   

Otherwise, the main fears for the national sales tax would come from the potential loss of deductions for charitable donations for religious organizations and other charities.  But to the degree that these are considered to be overriding concerns, they could always be addressed by providing additional deductions or rebates for these payments.

So please take a reflexive moment and contemplate what life would be like under either of these alternative tax systems.  We would probably end up paying about the same amount of taxes, but along the way the monstrous “hidden taxes” of complying with our present income tax system would be eliminated, as would the unfairness of many politically and economically powerful groups receiving favorable tax treatment that is not available to the rest of us.  In addition, people would be encouraged to invest and otherwise save their money because savings and investments would not be taxed at all.  This would appreciably stimulate our economy.   In addition, our merchants would also be able to compete more fairly both domestically and abroad with the products of other countries because they would not be paying taxes to our government that foreign merchants are not required to pay. 

Finally, when we pay taxes we will at least be able to see what those taxes are.  Today our tax system is so complex that increases in taxes can mostly be hidden from us.  But under both of these systems, if taxes were to be raised or lowered it will be plain for all to see.  That refreshing development might be enough to warrant a change all by itself.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

1 comment
06/24/08
“IT’S TIME TO SCRAP THE TAX CODE”
Filed under: General
Posted by: Jim Gray @ 7:43 pm

                        IT’S TIME TO SCRAP THE TAX CODE”  (45)

            One of the best ways we could reduce the complexity of life, generally increase fairness in our society, and save virtually everybody an appreciable amount of money would be to scrap our nation’s income tax code and move to a different tax system.  In fact, our present income tax system simply cries out for change!

            Each year Americans spend about $200 billion just to keep records and fill out the paperwork for their income tax returns.  And along the way, they also spend about 5.8 billion hours keeping tax records and helping to prepare their tax forms.  This is enough to keep the equivalent of 2.7 million people doing nothing but tax-related paperwork all year long.

            To bring some additional perspective to the issue, average business owners each spend more than 100 hours every year in this same activity.  If that burden were to be lifted, each business owner could take a full two-week vacation from work with the time that would be saved.  And the situation is worse for larger businesses, because most of them actually have a tax agent physically stationed in their offices every working day.

Today the federal Tax Code is comprised of about 5 million words, and they fill 3,387 published pages.  And the code is so complicated that 56 percent of Americans pay someone else to prepare their taxes.  But that does not always help because many tax issues are so complicated that even tax experts working on identical problems routinely arrive at different results.

As a personal example, I believe that I am perhaps modestly intelligent, and I work for the government and simply receive a W-2 form at the end of each year, although I do have some investments.  But I feel lost in attempting to prepare my own tax forms, and have paid an accountant to do so for years.  You are probably in the same position.

At the other end of the process, the costs for the Internal Revenue Service in 2007 for administration, record keeping, tax filing, advice, collections, and enforcement was about $194 billion.  To put this into perspective, this was approximately the same amount of money as the entire federal budget in the year 1970!

And none of this is productive work, or, as economists say, this work does not produce wealth.  Instead it is a complete drain on our resources.  Wouldn’t it be helpful if we had a better, less complicated and less expensive system? 

Well, we do.  We could easily make our system more straightforward and fair by utilizing a Flat Tax,” or a variation of it which is known as the Fair Tax.”  Both of these approaches would severely reduce the complexity of the system as well as the involvement of the IRS.  A second option would be to phase in a National Sales Tax, which would have the benefit of abolishing the IRS completely!  In addition, if either of these options were utilized effectively, we should also be able to abolish the alternative minimum tax and also the death tax,” which taxes families on the savings they have accumulated after paying income taxes for years. 

So both of these changes would have an enormously beneficial change upon us individually, as well as upon our nation’s economy as a whole.  Just think of it, each of us would save all of the time, expense and frustration of the record keeping and other costs associated with the present system.  So even if we ended up paying the same amount of taxes, which when it came down to it we probably would, all of the accounting and preparation expenses would be saved, and our lives would also be much less complicated and fair.  In addition, the government would save most of the $194 billion yearly costs of the IRS.

Under our present system, the issues regarding taxes make such a huge financial difference to some taxpayers, that they frequently pay a tax specialist $50,000 so that they can save $150,000 in taxes.  For the taxpayer that makes perfect economic sense.  But for the nation at large, it is truly wasteful.  And along the way the financial reward to the specialist is so substantial that now some of the brightest minds in our country work on nothing but tax issues.  Wouldn’t it be more productive for our country as a whole for these intelligent minds to be addressing issues of free enterprise?

Of course if we follow our present course to its ultimate conclusion we may end up changing our tax return form to only two short items: 1) How much did you earn last year? and 2) Send it in.  (And congratulations, you even get to pay the postage!) 

So who is happy with the status quo?  Basically there are two influential groups that are profiting from our present system.  The first is tax accountants, tax attorneys and tax preparation companies like H & R Block.  They are making a good living under our present system and certainly do not want to change it. 

But the second group, which is by far the most adamant, is comprised of the members of Congress.  Providing special legislative tax breaks to their wealthy constituents brings these politicians major contributions for their re-election campaigns.  And this is a powerful stimulus to combat and thwart any change.  In fact, in my view that is the only major reason why the call for income tax reform has not been heard consistently all across the land.  In other words, taxation with representation isn’t all that wonderful either!

Those of you who would like to investigate some options to our present tax policy are invited to join us in this column next week.  At that time we will more fully explore both the flat tax and the national sales tax.  So stay tuned.

James P. Gray is a judge of the Orange County Superior Court, the author of Wearing the Robe - the Art and Responsibilities of Judging in Today’s Courts (Square One Press, 2008), and can be contacted at JimPGray@sbcglobal.net or at his blog at JudgeJimGray.JudgeJimGray.com.

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