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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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