Monday, March 28, 2011

Governments need to outsource services - by Judge Jim Gray

My Aug. 12, 2007, column recommended that all governments pass sunset laws requiring each of their agencies to receive a positive vote every six or seven years from their legislatures in order to be funded again. The government would abolish the agency if it did not receive a favorable vote.
Sunset laws would allow everyone to see more clearly what each governmental agency had accomplished since its last review period, and what its plans would be for the future. We could see if we were getting sufficient "bang" for our tax buck.
Private companies continually follow these basic Libertarian principles, although less formally, as they monitor their own activities in trying to maximize revenues and reduce expenses. Governments should be forced to do the same, and sunset laws would help significantly.
Much of the work done by these agencies simply should not be done by governments at all. Instead it should be done by competent companies as successful low-bid contractors with those governments.
The city of Costa Mesa should be applauded for moving in that direction — if somewhat tardily. This is the fiscally responsible thing to do, and other governments should follow Costa Mesa's lead.
Of course, Costa Mesa's actions have had an impact on some good and faithful city employees who have received layoff notices. Our hearts should go out to them, and they should be treated fairly under the law.
But that also happens in the private sector, and most of those employees were doing work that never should have been done by the city in the first place. Why? Because private companies can virtually always do the job as well but for much cheaper.
For example, why should the state have an agency like the California Department of Transportation? Fundamentally, it is silly for the state to own and maintain all those dump trucks, bulldozers and other heavy equipment, and pay the salaries and other benefits of all of those workers. Instead the state should employ a few people to enter into low-bid contracts with qualified private companies, and then supervise the work those companies do.
As another example, a friend of mine owns a private company in San Diego that contracts with cities to issue each city's building permits, and then inspects the jobs when the work is completed. And the results have been great for everybody. The permit and approval work is done well and with integrity, but the cities have not had to employ and pay for all of those workers; the client builders are happy because each city's rules are applied fairly, but the waiting time has been seriously reduced; and my friend's company is making good money. There is simply no reason that this approach cannot be replicated in other areas as well. In fact, it is financially foolish not to do so.
And can this apply to the federal government? Absolutely.
The first thing to do would be to abolish the Bureau of Indian Affairs. Every time I have asked Native Americans what they think about the BIA, they have said they hate it. And when you discover what is happening, you would agree with them.
Just put yourself in the place of Native Americans. According to, it is the mission of the Bureau of Indian Affairs to be involved in the "prudent management of the federal dollars we are entrusted with as we work to strengthen Tribal Nations."
In other words, the federal government, even after keeping the Native Americans under its "protection" for more than 200 years, still does not think that they can effectively manage their own lives.
What would you think if the federal government had an agency to "protect" you because it was so concerned that you as a people were not smart, wise or sophisticated enough to take care of yourselves? Is that not the definition of arrogance? But why stop there? Why do we not have a Bureau of Scottish American Affairs to "protect" me and my family? It would be much better for the Native Americans to be forced to take responsibility for their own decisions, just like everyone else.
Of course, the additional fact that historically the BIA was the policeman that broke their treaties, deprived them of their lands and put them on reservations is difficult for the Native Americans to forget. And to that history we also can add that the BIA has been sued on four separate occasions in class actions for tens of millions of dollars of damages by the Federation of Indian Service Employees for various grievances, as well as for "misplacing" hundreds of millions of dollars of Native American assets gained from the leasing of their lands. So it is not surprising that the Native Americans have no sense of humor about these federal agencies.
And neither should we, if only as taxpayers. The 2012 budget has dedicated $2.5 billion to provide education and health care services for Native Americans and oversee their lands. If you were a member of Congress, how would you vote on whether or not the Bureau of Indian Affairs should be continued or abolished? I'll bet you would vote just like I would.
How many more federal, state, county and city agencies should be abolished and/or their work referred to private companies like has been done by the city of Costa Mesa? None of us know, but it is time to find out.
JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at or Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

Tuesday, March 22, 2011

Interpreting the 14th Amendment - by Judge Jim Gray

Why are Arizona and an increasingly large number of other states taking their own action regarding illegal immigration? It results from the frustration of the federal government's inactivity. As was discussed in this column from July 22, 2007, Congress could resolve this problem fairly easily and quickly if it wanted to, but the reality is that it has no such desire.
Why? Because many powerful Republicans want continued access to cheap labor, and many powerful Democrats want people to continue to come here illegally with the hope that eventually they will vote for Democrats. In the meantime, countless numbers of good people are being seriously injured.
Thus, I never get mad at illegal immigrants. They are simply doing what the system so strongly encourages them to do, which is to pursue a better life for themselves and their children. Of course, this is why our ancestors came here as well!
Besides, it is often dangerous and expensive now to come into this country illegally, so there is a strong self-selection process that usually excludes all but the most hearty and dedicated. So mostly I admire them.
The solution is a simple three-step process.
First, we decide how many people we need to enter our country to perform different types of labor and how long they should stay.
Second, we issue counterfeit-proof identification cards, probably based upon fingerprints or cornea images to people from other countries who legally apply for those positions.
Third, anyone who employs workers who do not have a passport or this card would be prosecuted.
The cards would allow people to come into our country and work for a prescribed period of time, and then require them to leave. The migrant workers would have reduced benefits and tax obligations while they were here, and probably could not bring their families.
But within the specified time they could cross the border without a problem, and could have driver's licenses and access to our courts because they would be here legally. Of course, people who did not have this card would increasingly find it difficult to secure or maintain a job, so they would soon be inclined to go elsewhere.
Our present, untenable situation is also being allowed to continue because, although it has all the power, the federal government doesn't have to pay for the costs of illegal immigration. Thus, it has no particular incentive to do anything about it.
Instead, most of the costs are paid by state and local governments, and the school systems. So the incentives to resolve the problems will only be present when the federal government is required to pay for things such as the health care, education and incarceration of illegal immigrants.
Arizona is attempting to enforce the federal immigration laws. Not only is there nothing wrong with that, Arizona should be applauded for doing so! Furthermore, if the federal government does not agree with Arizona's actions, it has the absolute ability to stop them cold.
How? Simply change the federal law.
And then there is the question about whether the 14th Amendment should confer automatic citizenship upon all babies born within our borders. The applicable language cited for that result is: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States … "
Up until now, this provision has been interpreted to stand for automatic citizenship. But the interpretation should be re-examined.
As you will recall from your history classes, the 14th Amendment was passed in July 1868 after the Civil War, and intended to confer citizenship upon former slaves. But the framers of the amendment simply could not stop with the words "all persons," because when the Constitution was ratified, slaves were officially recognized only to be 3/5 of a person. Thus, additional language was needed to address those people.
Nevertheless, if the framers were here today and asked whether that amendment would confer automatic citizenship upon a baby who, for example, was on an airplane flying from Mexico City to Toronto, but was born while the plane was refueling in St. Louis, they would give you a four-word response, which would be: "What, are you crazy?" And they would also give you the same answer if asked about children born in our country to parents who were here illegally.
Then, after pondering the situation a bit further, the framers would say: "Wait a minute, we already addressed these issues in the amendment itself by inserting the clause 'subject to the jurisdiction thereof.' If we had meant literally anyone born here would become a citizen, we would have left that clause out!"
And that is the answer. If a citizen of Japan is arrested here while on vacation, he doesn't call our embassy; he calls the Japanese embassy because he is still subject to the jurisdiction of Japan even though his physical presence is here. Thus the 14th Amendment does not need to be amended, just correctly interpreted.
Re-interpretation is certainly not something to be done lightly, but it has happened before. For example, in Brown v. Board of Education in 1954, the U.S. Supreme Court reversed the 1896 precedent of Plessy v. Ferguson by holding that "separate but equal" public schools were not equal and were therefore unconstitutional. In a similar fashion the Supreme Court should re-examine the 14th Amendment.
Finally, only after we regain control of our borders by implementing this new program and interpretation should we address the truly emotional issues of "amnesty." There truly are some special equitable considerations that must be taken into account for people who have been in this country for so long that they really have no other country to which to return. So special allowances should be made for those people.
But first things first.
JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at or Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

Monday, March 14, 2011

Justice must come before peace - by Judge Jim Gray

Probably the biggest tinderbox in the world today is the Holy Land, with the problems between Israel and Palestine continuing to deteriorate. But before I say more, I want to affirm as forcefully as I can that I completely support Israel and its right to exist, live peacefully, and thrive.

Some people will misunderstand my suggestions, and some may even do so intentionally. But having said that, the best way for peace in Israel to be obtained is to provide justice to the Palestinians!

How would you feel if you had a friend whose house was bulldozed by the Israeli government because one of their family members was suspected of harboring a terrorist? Often, according to the Palestinians, this happens with no notice, hearing, charges or redress!

How would you feel if you were born in a "temporary relocation camp" 30 years ago and are still living there?

How would you feel if you had lost your job because it was on one side of the security wall and you lived on the other, and it takes hours to get from one side to the other? And how would you feel if your loved one was injured, but soldiers would not allow her ambulance to cross through a security checkpoint to get to a hospital?

If these things were to happen to me, I probably would first try to approach some government officials and request more understanding. If that didn't work, and it most likely would not, then I would probably write some letters and carry some picket signs in protest. If that didn't work, and it most likely would not, my actions might escalate into joining groups of people with similar grievances, maybe even start throwing rocks at soldiers. I believe all of these things would be natural human responses that would evolve from genuine frustration.

I hope I would be sensible enough never to be manipulated into lobbing grenades at civilians or becoming a suicide bomber, but I could see that others could be led into these acts as well. Radical actions can come from people who lose their dignity and hope. In fact, it is a truism that there is no one more dangerous in the world than one who has nothing left to lose. So I can see how this has happened to some Palestinians.

Having said all of that, I truly also share the frustrations of the Israelis as well. For many years, and in many and repeated ways, they have tried to reach agreements with the Palestinians, including several occasions in which they implemented unilateral disengagement plans. But it is virtually impossible for the Israelis to work out disagreements or implement plans for peace when they do not have responsible people to deal with who actually represent the Palestinians. To that effect, I believe that Yasser Arafat, whom I view as almost entirely corrupt, more deserved a Nobel Peace Prize for dying in 2004, than he did for reaching his "agreement" with Yitzhak Rabin in the Oslo Accords in September 1993.

So how can peace come to that truly troubled land? The best way to de-radicalize any area is to implement a system of justice for everyone. This will have a neutralizing effect, and lead to more positive and lasting results. Maybe the Palestinians can form a responsible government that can control their more radical elements and even govern effectively, and maybe not. But regardless of that outcome, that should not keep all people subject to the Israeli government's jurisdiction from being able to have their grievances pursued and resolved in a fair and neutral setting.

For almost the entirety of my time sitting as a judge in Orange County I had a hand-printed sign on my bench that said "There Can Be No Peace in a Land without Justice." I used it to remind myself that each case I had was important to someone, and every decision I made would affect those people and also their views about our government. So I tried to do my best with every ruling under the facts and law of the case, and to explain my conclusions. People actually can accept losing, but what they cannot accept is laws applied in an unbalanced or arbitrary fashion. And what is true regarding the people in our country is also true for people everywhere else.

The American government can help, in fact, it can help where probably no one else can. But for years the perception has been with all Arab countries that our government has ratified the actions of the government of Israel, regardless of its merits. And that has resulted in our government relinquishing its moral authority to be a leader in that area of the world, and with some justification. But just because we have disagreements with the Israeli government on some issues does not at all mean that we do not support Israel's security, any more than when a husband and wife disagree about financial decisions means that they do not love and support each other.

Actually, my wife and I have a trip planned to the Holy Land in July, so maybe I will change my perceptions during my visit, although I doubt it. I will report back to you again on this subject after we return. But in the meantime, I encourage everyone to project themselves into the position of all of the people in the Holy Land: Palestinian and Israeli alike. Justice in our country, coupled with the appearance of justice, has gone a long way in defusing racial strife and violence, and it will do the same thing in the wonderful but deeply troubled land of Israel and Palestine.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at or Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

Monday, March 7, 2011

Could clean water come from coal? 0 by Judge Jim Gray

This column a few years ago discussed nuclear power and how our country was underutilizing it in generating electricity.

A man who works for a company called ConvertCoal, Inc., or CCI, recently contacted me because of that article. The company, founded in 2005, claims to have a process that will enable it to generate petroleum, clean water and cleaner-burning coal fuel from the low-rank coal that is readily available here in the U.S.

There are certainly many subjects about which I have no particular expertise, and the mining and processing of coal are among them. But what this man was saying intrigued me, so I decided to pass along his thoughts to you.

There are basically two types of coal in the world, high-rank coal and low-rank coal. High-rank coal is found deeper in the ground, which means it has been compressed by the weight of the mass of material above it and heated much more fully than low-rank coal. Thus there is less water in high-rank coal and that coal is also more concentrated, which in turn means that it takes less of it to run a power plant generator.

Since strip mining is not feasible because it is so deep, high-rank coal is also more expensive to bring to the surface, because the only practical way to mine high-rank coal is to use deep shafts and tunnels like those that trapped the miners in Chile. Unfortunately, that also makes the deadly "black lung disease" more prevalent due to the miners breathing more of the coal dust inside the mines.

About two-thirds of the Earth's known coal deposits are low-rank coal, and because it is cheaper and more plentiful, that is mostly what is used in the generation of electricity. In fact, about 35% of all the electricity generated in the United States is fueled by low-rank coal. But with the new process, according to CCI's brochures, that same low-rank coal can now be converted into a low-emission coal-char fuel, clean water and synthetic crude oil that can be refined into petroleum. CCI further says it can actually recover between a half to a full barrel of oil from every ton of coal that is run through its process.

That means that, since a standard coal conversion plant would convert about 10,000 tons of coal per day, that coal alone would produce about 500 gallons of clean water each minute, as well as 7,000 barrels of oil each day, along with sufficient upgraded clean-coal char fuel to run a 500 megawatt power plant — and all with fewer emissions! If this is true, and if it could be done economically, this process could spur an economic revolution.

In 2008, the recoverable oil reserves in the U.S. were estimated to be about 21 billion barrels, with an average production of 5.7 million barrels per day. (Since the cost of oil just recently passed $100 per barrel, we are talking about lots of money!) But according to CCI, the potential domestic production of oil from low-rank coal simply using existing power generating plants would be about 1.9 million barrels per day. So just based upon current capacity and using this new technology, we could reduce our oil imports significantly.

Although all of this certainly sounds attractive, I really have no idea whether this process works or not. But the thoughts I am left with are that if this process really does work as well as advertised, why haven't I heard of it before, and why aren't people already making millions of dollars putting it into operation?

When I asked my host these questions, he said the coal conversion process actually was successfully demonstrated in a project run in Gillette, Wyo., between 1992 and 1997. But the reason it was not put into operation at that time is that the process is not economically viable unless oil is priced at more than $60 per barrel. So now that it is priced well above that level, they are optimistically going forward.

Even more fundamentally, though, I am left scratching my head over the federal government's huge and continual subsidizing of corn-based ethanol as a gasoline additive at the rate of a 45-cent per gallon tax credit. The yield in energy from corn does not even approach the yield that could be obtained from the petroleum extracted from coal, if this process would work.

So why is the government doing this — particularly since the government's interference in the market has resulted in substantial increases in the worldwide prices of corn and corn products, such as tortillas, cereals and food for animals like pigs and chickens?

So all of this simply once again brings home the libertarian lesson that governments should put a quick and permanent end to their subsidy programs and leave the market alone! Fundamentally speaking, if there is value in this new coal conversion process, the market will support it, which means that the new technology will be implemented and society will be benefited.

And if there is no value in this process, it would and should fail, but along the way the markets for other products will not be upset, and society would be no worse off. In other words, politicians are not good at choosing what technologies will be successful in the marketplace, and they should leave those issues alone.

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at or Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.

Friday, March 4, 2011

A worthy celebration of the justice system - by Judge Jim Gray

I was privileged on Feb. 18 to attend a celebration of how our system works, particularly when good people use it for the right purpose. Sometimes it takes time and patience, but eventually we get it right. The celebration took place at the federal courthouse in Santa Ana, and featured Sylvia Mendez. When she was 8 years old, Sylvia, along with her brothers, Gonzalo and Jerome, was refused admission to an all-white public school here in Orange County.

Sylvia had been born in Santa Ana, and was living there with her family while they rented a farm from a Japanese-American family that had been sent to an internment camp during World War II. But when her aunt took the three children to the all-white school, she was told she could enroll her own children because they were light-skinned, but Sylvia and her brothers would not qualify because they were Mexican.

So Sylvia's parents, Gonzalo and Felicitas Mendez, joined forces with the Gomez, Palomino, Estrada and Ramirez families. They filed a lawsuit on March 2, 1945, in federal court in Los Angeles against their respective school districts to enjoin them from such discriminatory policies. This act showed fortitude and courage, but throughout this ordeal all of these families were assisted by many of their relatives and friends, and also by lots of lawyers (which is yet another reason why I am proud of our profession!).

On Feb. 18, 1946, Judge Paul J. McCormick ruled in favor of the plaintiffs and enjoined such segregationist practices in the public schools. He stated without equivocation that: "The equal protection of the laws pertaining to the public school system in California is not provided by furnishing in separate schools the same technical facilities, textbooks and courses of instruction to children of Mexican ancestry that are available to the other public school children regardless of their ancestry. A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school associations regardless of lineage."

The original idea for the event came when my colleague, Judge Rick Aguirre of our Superior Court, asked my good friend, Judge Andy Guilford of the federal court, if he would agree to make his courtroom available for a small celebration of the Mendez case on the 65th anniversary, exactly to the day, of Judge McCormick's ruling. Of course, Judge Guilford enthusiastically agreed.

Those two judges were quickly joined by attorney Paul Greenwald and Sandra Robbie of Chapman University, and the four of them began to organize the festivities. But as soon as the word got out about what would be happening, the organizers were forced to move the event to the larger ceremonial courtroom to handle the people who had already responded to the invitation. Then, they also had to use Judge Guilford's courtroom as well as an extra one for a video feed.

By the time the day of the event arrived, three Orange County courtrooms and the jury assembly room, plus additional federal courtrooms in both Los Angeles and Riverside, were all pressed into service to handle the crowds. But this heartfelt celebration of heroics and a steadfast belief in our system of laws and justice was worth all of the efforts. What a day!

Just three days earlier, on Feb. 15, President Obama awarded Sylvia Mendez the Presidential Medal of Freedom at the White House in recognition of those families' contributions to our country. On Feb. 18, she proudly wore that medal at our celebration. In addition, representatives of each of the other four families — one of whom was 99 years old — were also in attendance.

At this point, everyone that counts now agrees that Judge McCormick issued the right ruling. But we should all keep in mind that this was a full eight years before the United States Supreme Court's much more famous ruling in Brown v. Board of Education of Topeka, Kan. Of course, that was the case that held that "separate but equal" schools for black students were a violation of the Equal Protections Clause of the 14th Amendment. And that case changed history.

But many legal scholars feel that Brown would never have been decided the way it was without Mendez leading the way. While the Mendez case was going through the court system, Earl Warren — who would go on to be the chief justice on the United States Supreme Court when Brown was decided — was still governor of California, and it is a virtual certainty that he followed the arguments while they were being presented to the courts in Mendez, as well as the eventual rulings.

In addition, while he was still a practicing attorney, Justice Thurgood Marshall represented the plaintiffs in Brown, and he used many of the successful legal arguments from the Mendez case when he argued the Brown case. And the final court rulings in each of those cases contain similar language.

In 2007, the United States Postal Service issued a stamp commemorating the final appellate court ruling in Mendez v. Westminster, and for good reason. This was a positive national historical event that took place here in Orange County, both because it marked the beginning of the end of racial segregation in our nation's schools, and also because it marked yet another occasion in which good and steadfast people followed an important mantra of good citizenship, which is to "Make our System Work."

Once again our system of justice was put to the test, and it lived up to the challenge — and that is something truly worth celebrating! In fact, it made us all proud!

JAMES P. GRAY is a retired judge of the Orange County Superior Court, the author of "Wearing the Robe: the Art and Responsibility of Judging in Today's Courts" (Square One Publishers, 2010), Why Our Drug Laws Have Failed and What We Can Do About It, A Voter's Handbook, Effective Solutions To America's Problems and can be reached at or Judge Jim Gray is also currently offering his 25 years of experience on the bench to ADR Services in Orange County for Arbitration and Mediation services.