2 PARAGRAPHS 4 LIBERTY: #207 "WHAT HAPPENED TO THE 10TH AMENDMENT?"

     On occasion as a judge I have the opportunity to swear in various officers into organizations like the bar associations and others.  So, as you know, all of these oaths of office require that people swear that they will uphold and defend the Constitution of the United States of America.  But after they say they will, I ask them to keep their hands up, and also swear that they will read the Constitution.  This normally gets some chuckles, but there is a purpose, because even some of the appellate opinions I have read make me question whether the authors have read the Constitution.  And this is a scary concept.

        The most egregious example is the 10^th Amendment, which holds unambiguously that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the People.”  And which powers are delegated to the federal government?  They are found in Article I Section 8.  Very briefly, they are: powers to lay and collect taxes, pay debts, provide for the common defense, borrow money, regulate commerce with foreign countries and among the various states, form rules for naturalization and declaring bankruptcy, coin money, punish counterfeiting, establish post offices, provide for a system of patents, establish a court system, punish offenses that occur on the high seas, declare war, raise and support an army and navy and make rules to regulate them, call forth a militia to suppress possible rebellions, and make rules to govern military posts as well as a capitol city (which eventually became Washington DC).  Yes, sometimes issues can be complex and ambiguous, but since that time the federal government has expanded far beyond the expectations of the Founders.  For example, it owns large amounts of land within the various states, controls wildlife, enacted laws of Drug Prohibition, and has entered into the fields of healthcare, housing, education and the arts.  In fact, the list of powers the feds have entered into and even controlled goes on and on.  But our country was founded upon the concept of federalism, which allows our “50 crucibles of democracy” each to try out various approaches to address issues, and then we all can learn from each other.  So ask yourself the question: “Who believes the federal government has all the answers?”  If you say no it doesn’t then help us Libertarians go back to the approach in the Constitution.  And we can start that approach by reading it.

  Quote for the week: “I hate it when people don’t know the difference between the words “your” and “you’re.”  There so stupid!”  Fortunately Anonymous

Judge Jim Gray (Ret.)

2012 Libertarian candidate for Vice President, along with

Governor Gary Johnson as the candidate for President

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Government belongs to us - by Judge Jim Gray

IT’S A GRAY AREA: Government belongs to us - by Judge Jim Gray 11/09/08

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.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.

“ARE WE HAVING A DISCUSSION?” by Judge Jim Gray

 “ARE WE HAVING A DISCUSSION?” by Judge Jim Gray 01/27/08


  I am not a fan of politics. Often politicians engage in appeals to our fears and other emotions and our more base instincts. But I am a fan of addressing the issues of our day. So on two occasions in the last eleven years I took an unpaid leave of absence from my duties as a trial judge and ran for partisan offices. The first time was as a Republican running for Congress against Bob Dornan and Loretta Sanchez, and the second was as a Libertarian running for U.S. Senate against Bill Jones and Barbara Boxer. The first time I ran to win; the second I was so concerned about the direction our country was headed, I ran just to be a part of the discussion about the issues.  


In neither election was I successful in my goals. So now I tell my friends that “I am not a politician, and I have the votes to prove it.”


  Among other things, I learned from my experiences that most people do not really involve themselves in the election process. I also learned that money is much too important in that process, and, of course, most of the money is provided by special interests. And they want something in return for their “investment.” I also learned that in politics, reality is completely irrelevant – it is only the voters’ perception of reality that matters.  


  But I still continue to have a desire to discuss issues. So I approached the editors of this newspaper and volunteered to write a weekly column for a year to discuss different problems, and propose resolutions to them. They agreed, and now we are half-way through the year – this is the 26th edition of our weekly column.  


  So how are we doing? The response and feedback to the columns have been okay, but not overwhelming. I certainly do not have all of the answers, but I have thought quite a bit about these various subjects, and want to stimulate others to think about them as well. Because when it comes down to it, simply voting is not a victory. What we need is people who are voting after familiarizing themselves with the issues. So are we having a discussion?  


The two columns that generated the most responses were my recommendation that we convert to the Metric System, and that the 11-99 Foundation that supports dependents for fallen CHP officers eliminate the practice of providing license plate frames and wallet identification cards to its donors, with the implication that the donors will be given favorable treatment from the CHP on traffic citations.


Concerning the Metric System, most people were in favor, except one person who saw it as a conspiracy to take away our individuality. Representative comments were that “Are Americans too ignorant or lazy to embrace new ideas? I say let’s get on with it,” and “The success of the US is often to be found in its willingness to upgrade existing conditions.” One person even recommended we go “hard metric” right away, that is not to have a transition period, because it would be less expensive. One even (humorously?) recommended we also utilize a ten-hour clock. But I was also gently chastised by one reader who said that the “term ‘centigrade’ has been obsolete for almost 60 years. The official term is ‘Celsius.’” (That means that I have been in error about this since I was three years old.)


The 11-99 Foundation column received some of the expected responses, such as “Shame on this judge for writing such an editorial without a shred of evidence proving any kind of favoritism,” and telling me to “get your facts straight before insulting all CHP officers.” There were others from current or retired CHP officers who wrote in support, such as one that said “I wrote tickets to several drivers racing one time together with their Lambo’s with 11-99 license plate frames and badges, and the corrupt leadership at my office had all of them voided.”  


One of those officers was unintentionally supportive when he said “The 11-99 Foundation frowns upon its donors from seeking favoritism. I have seen them revoke membership from individuals who recklessly use this charities’ good intentions just to avoid a citation. Does it ever happen? Sure. Is it a guaranty? No.” Another officer provided the sobering comment that “I have stopped a number of judges and every single one made it a point to tell me they were a judge.” (I am forwarding that comment on to the California Judges Association for its information and possible action.)


There was even a local police officer that discussed the law of unintended consequences when he said that he and some of his fellow officers did not particularly like the CHP, so sometimes they tended to give more citations to cars that had the 11-99 Foundation license plate frames.  


This last comment from a current CHP officer closely matches my own experience: “On almost all of my traffic stops I was looking for a reason to not give a citation. It’s amazing how often people made this difficult. (But) I do think the license plate frames are a little much and should be discontinued.”


Finally, I sent a personal letter to Commissioner Mike Brown of the CHP, along with a copy of my original column and requested his thoughts. So far there has been no response of any kind, which, unfortunately, says more than he would probably want. But I will give him another chance to defend the practice by sending him a copy of today’s column.


The column about Restorative Justice received comments that can be divided into two categories. The first is from people who see that prisons do not rehabilitate anybody, but some rehabilitative programs actually do work. Some of those people provided first-hand experience. So they agreed with the quote in my column that “We should reserve prison space for people we are afraid of, and not for people we are mad at.” The second group was deeply concerned about having drug rehabilitation facilities in their own neighborhoods. (This is a genuine issue that, in my view, requires a balance. People who have drug problems but are trying to return to mainstream life need to live in mainstream environments. On the other hand, too much can be too much.)


The column about trying to revitalize tourism in the United States similarly drew two types of comments. One group was concise and said things like “It’s the Threat, Stupid!” The other group called the threat of terrorism “baloney,” and told me not to pull my punches. (I never said and I do not feel that the threat from terrorists is not significant. I simply would respond to that threat differently than our government is.) 


Concerning my critique upon the failure of our welfare system and our minimum wage laws, many people said that my “logic was severely flawed,” and that “Everyone should have the right and opportunity to earn a living wage. In reality, such laws are a major positive force in every Western society.” (Not surprisingly because it is such an emotional issue, none of the critics of my suggestions even addressed the fact that every time we raise the minimum wage, lots of people lose their jobs. And that is probably true in every Western society. Nor did they address my conclusion that these programs actually contribute to the increase of poverty, instead of its reduction.) But everyone appreciated my attack on the welfare system for the wealthy.  


The most notable comment about the Happy New Year column about prosperity and choice, which centered upon the federal government relinquishing much of its accumulated power back to local governments and individuals, was “We do have federalism in this country. Local governments do what the feds don’t control.” (That’s the point, it should be the other way around!)


After discussing the increasing problem of childhood obesity, one man suggested we follow the lead of Brazil by planting public areas with fruit and nut trees, which, he said, would provide “a delicious way to fight obesity.” And the column about resolving our nation’s healthcare problem by encouraging Medical Savings Accounts drew the discouraging but accurate comment from a medical doctor that “We are often forced to opt for a less optimal treatment in favor of the insurer’s profit margin.”  


The column about illegal immigration drew numbers of responses like: “Take off your rose-colored glasses. People come here and learn quickly how to get free services and food stamps,” (I agree, but they mostly do come here originally to work.) and “No amnesty. Legal immigrants first!” (I only mentioned that we would discuss amnesty after we installed a system that utilized fool-proof identification cards, which drew this comment:) “You’re not naïve enough to actually believe that a ‘tamper-proof’ ID card is possible, are you?” (Yes, I think it can be done based upon the iris in a person’s eye.)  


In response to the column that government impedes business, one man responded that he agreed that beauticians and barbers should not be required to get a license, but went on to ask “why should lawyers be protected with licenses from the competition of others who want to lawyer?” (I agree, and there is actually a movement in that direction.) The column about citizens’ rights and responsibilities, and the lack of support for our Veterans generated no comments to speak of. That was discouraging.


One response I am sure many of you agreed with was “Shorter please! Be honest, how many of you actually read the judge’s comments?” I acknowledge many of the columns were longer than I originally intended (including this one), but it is difficult to address and give suggestions about how to resolve complex and multifaceted problems in only 800 words. So I appreciate your sticking with me!


In the weeks of the scheduled year that remain, this column will address issues about how we can improve our public schools through competition; that the biggest threat to our national security is our dependence upon foreign oil, and what we can and must do about it; a suggestion to scrap the Internal Revenue Service and instigate either a national sales tax or what is called the FAIR tax; how we should address mental illness; the critical importance of the Separation of Church and State; why we should revitalize the Hemp industry; and numbers of others.  


Throughout this time, I again ask everyone to remember that none of these issues has a “solution.” Life cannot be made to be perfect, and neither are any of my proposals – or anybody else’s. The problems only have “resolutions,” which attempt to do what is best for the maximum number of people, while still protecting minority interests.


The fact remains that this is OUR government. That means that the things that are not going well today are our responsibility. And what we need is leadership. In my view, we still have the Jeffersons, Washingtons, Lincolns and Martin Luther Kings living in our society today. But we must find them and support them.  


Unfortunately, people can be manipulated and misled. I know that is not a popular thing to say, but it is true. That means that we must rely upon our democratic institutions, and upon dedicated and public-spirited leaders, who need our active support and guidance.


So please contemplate these and the other issues of our day, and join our discussion. This can be done either publicly at DailyPilot.com, or privately with me at the e-mail address given below. I will respond to all e-mail messages. Good government begins with our active involvement.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.

“CHARITY BOLSTERS CHP FAVORITISM” by Judge Jim Gray

“CHARITY BOLSTERS CHP FAVORITISM” - by Judge Jim Gray 10/18/07

  Recently a good friend of mine who lives in Northern California bought a new, expensive and fast car. When his neighbor, who has a similar type of car, noticed it he told my friend that he would now certainly want to make a $5,000 contribution to the California Highway Patrol’s 11-99 Foundation. “Why was that?” asked my friend. “Because that is like buying insurance against being cited by the CHP for speeding and other traffic violations. It has worked form me, my son and numbers of my friends,” was the answer.


  So what is the CHP 11-99 Foundation? This charitable organization receives contributions from the public and uses them to provide financial support for widows and orphans of deceased CHP officers, scholarships for deserving dependents, and similar worthwhile activities. Donations in any amount are accepted with appreciation. But, according to the nice lady at the foundation who responded to my call and according to the brochure she sent to me, those who donate $5,000 or more receive an engraved license plate frame that says “Member, 11-99 Foundation” on it, and they also receive a pocket-sized wallet complete with a card with the donor’s name and lifetime identification number engraved in relief upon it.


  Now there is absolutely no question that the family members of deceased officers of this great and professional law enforcement organization should be supported, and a foundation of this kind is a perfectly appropriate vehicle to accomplish that goal. But the furnishing of a license plate frame that will allow all law enforcement officers to see that the automobile owner supports their “families in need,” or a wallet that places proof of membership in this organization conspicuously close to that person’s driver’s license will at best be misunderstood by the public. And at worst they will appear to be what my friend’s neighbor said they are: an invitation for favoritism in the criminal justice system for people who donate to this cause.


  To be honest, I do not know how effective those invitations are in obtaining favorable treatment from law enforcement officers on our streets and highways. I myself have asked several CHP officers if it makes any difference to them, and they have consistently denied it. But even the thought that these objects might work in even a few cases, or even appear to work, is enough to require that this part of this otherwise worthwhile program be disbanded.


  As a practical matter, we will never run out of worthy causes for which donors could be considered for favorable treatment from government agencies. If we follow this lead, soon the California Franchise Tax Board could be giving favorable interpretations on close tax questions to donors who support the agents’ children’s scholarship funds, or the county board of supervisors could be giving the “benefit of the doubt” and approve land development projects for those who donate to the supervisors’ “pet charities.”  


  You might not be aware that judges are ethically prohibited from informing law enforcement officers about our status under circumstances in which that knowledge might affect the officers’ decisions about issuing us a traffic or other citation. That was not always so, to the degree that when I first became a judge back in 1983 I was offered a wallet with a badge right across from where I carried my driver’s license. (Actually some people might feel that this might hurt us more than help.)  


But times and morays have changed, and I believe that restrictions of this kind are fully appropriate, and an overwhelming majority of judges understand and embrace those restrictions. But should not the same standards be applied to supporters of even such worthwhile programs as the 11-99 Foundation?


Now I agree that sometimes it is hard to draw the line. For example, I have a small “organ donor” sticker pasted right on the front of my driver’s license. Does this mean that under certain “close call” circumstances I might be treated with more deference by a police officer than someone without it? Probably not, but maybe so. I know that there is a socially justifiable reason for that sticker to be there, and I never really focused upon this issue until I began thinking about this column. In addition, I really think that the chances that this sticker would even be noticed by an officer much less be the cause of any special favoritism would be miniscule, but should I take the sticker off just to be sure? No, it is still there.


  But seemingly there is no reason for the CHP to provide license plate frames or these particular wallets except to provide the opportunity for favorable treatment. Of course this is a legitimate organization commendably addressing a community need. Furthermore, the CHP officers I have encountered appear to be fine individuals who routinely provide a difficult and much-needed community service, often without sufficient appreciation by the public they serve. But at the end of the day, no matter how fine the organization, improper influence is just that: improper. 


Many times in this column we have discussed things that are complicated and difficult to change. But here we have a specific area of ostensible inappropriate influence peddling that can be fixed right now. Accordingly, I request each of you to join me in doing whatever we can to cause the following three results to be realized:  


1. The practice by the CHP’s 11-99 Foundation of providing any form of object that can be used to call the attention of law enforcement officers to the identity of donors to this worthwhile cause be immediately curtailed;

2. Officials at the highest levels of the California Highway Patrol be encouraged to instruct all of their officers that they are not in any way to be affected by the presence of such information if it is encountered; and, 

3. Those people who are presently carrying wallets with those identification cards and/or have those license plate frames on their cars be encouraged as a matter of personal integrity to dispose of them.


Some unintended consequences of discussing a program like this publicly could be that by calling attention to it we could actually start a “cottage industry” of people who would steal the license plate frames and sell them to others who would hope to benefit from some special treatment. Other results could be that people who did not otherwise know about the program now would make the requisite contributions so that they too might receive this special treatment. And finally, it is possible that some members of the CHP who might view this article will see it as another example of the public’s lack of appreciation of the invaluable services they provide, sometimes at the risk of harm, or worse. I hope not to be the cause of any of those results.


But equal justice under the law cannot exist in a climate that confirms some people’s already jaded view that government can be bought. As such, people of good will should do everything they reasonably can to help do away with even the hint that any influence peddling is occurring today in any fashion with the California Highway Patrol.

James P. Gray is a Judge of the Superior Court in California, the author of Why Our Drug Laws Have Failed and What We Can Do About It - A Judicial Indictment of the War on Drugs (Temple University Press, 2001) and Wearing The Robe - The Art And Responsibilities of Judging In Today's Courts, has a blog at http://judgejamesgray.blogspot.com/. http://www.judgejimgray.com, and can be contacted at www.judgejimgray.com.