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August 2008
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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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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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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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Posted by: Jim Gray @ 4:55 pm


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 na├»ve 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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