Notes From Babel

Archive for October 2010

ECG Files Suit Against City of Los Alamitos for Unlawful Trash Contract

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The OC Register today has a story on the new lawsuit filed yesterday by my law firm, Enterprise Counsel Group, in Citizens for a Fair Trash Contract v. City of Los Alamitos.  From the article:

A group of Los Alamitos residents filed a lawsuit against the city, a trash company and three City Council members, accusing them of awarding a multi-million dollar trash hauling contract as payback for contributions made to their campaigns. Citizens for a Fair Trash Contract filed the action in Orange County Superior Court Wednesday seeking to overturn the decision of the Los Alamitos City Council last June, when in a 4-1 vote, the council awarded a garbage contract to Consolidated Disposal Service.

The lawsuit also alleges that prominent businessman George Briggeman Jr., Consolidated and other individuals and entities contributed at least $36,500 to promote the election campaigns of council members Troy Edgar, Marilynn Poe and Ken Stephens in 2006 and 2008. These contributions were made “with the express or implied agreement” that the council members would vote to approve a trash collection contract with Consolidated, the suit alleges.

“City Council members Edgar, Poe and Stephens voted to award CDS the trash collection contract to repay Briggeman and CDS for the campaign support provided, and expected to be provided in the future, by Briggeman and CDS,” the lawsuit states.

I’ll post updates as this case of yet another betrayal of the public trust by local politicians progresses.


Written by Tim Kowal

October 29, 2010 at 5:14 pm

The Lasting Impact of Jerry Brown’s Supreme Court

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By now, in these final days before the election, most Californians have been reminded about Jerry Brown’s infamous appointment of his campaign chauffeur, Rose Bird, to the state’s high court.  Specifically, voters have been reminded that Justice Bird, and Brown’s four other Supreme Court appointees, thereafter proceeded to overturn 64 death penalty convictions—including that of Rodney Alcala, arguably one of the worst serial killers in American history.  “Soft” doesn’t quite capture it—the Brown/Bird Court was positively doughy on crime.

Predictably, in an effort at damage control, Brown now disowns his prior appointees—three of whom made history in 1987 when they became the first appellate justices in California history to be tossed out of office in a recall election.  Yet, Brown previously proclaimed that “the most important thing you do as governor is the judges you appoint.  I’m proud of every one of them.”

The fact remains that Brown’s five appointees to the Supreme Court decided hundreds of cases that are still the law in California.  As we look to the future to determine who will appoint the next slate of California judges, it is worth looking at the legacy Brown left us. The following highlight reel demonstrates how Jerry Brown’s hand-selected judiciary subverts the democratic will and continues to repel business from the Golden State.

First, in the 1982 case of Turpin v. Sortini, The Brown/Bird Court held, for the first time by any court in the nation, that a plaintiff can actually sue for being born.  Specifically, if a doctor doesn’t spot a genetic defect that, if detected, might have caused the parents to abort the future plaintiff, the doctor may be held liable in this state for “wrongful life.”  This decision is a thinly veiled inducement to California’s doctors and hospitals to shift their policies toward those of Margaret Sanger and the eugenics movement by recommending aborting unborn babies with disabilities. It also incentivizes doctors to err in favor of making false-positive diagnoses to this end.

Yet, the Court excoriated a doctor for making a false-positive diagnosis two years prior in the case of Molien v. Kaiser.  There, a misdiagnosed syphilis patient complained the error strained her marriage.  The Brown/Bird Court thus held that a plaintiff could recover for emotional distress, even without any evidence of physical harm, and even suggested that any false-positive diagnoses could constitute slander.  The dissenting opinion noted the decision works “a disservice to the public—who must ultimately bear the cost—by sanctioning claims for hurt feelings.”  This is one of the reasons Californians’ personal health care spending is among the highest in the nation.

The Brown/Bird Court also made employment costlier.  In a routine slip-and-fall case in 1983, a 422-pound employee decided to travel 3,000 miles and spend nine months at what was touted as the nation’s top obesity clinic.  The employee stuck his employer with the bill, and the Supreme Court ruled it had to pay.  This decision strikes fear into the heart of any employer hiring employees with disabilities.

As a final example, in the 1978 case of Cooper v. Bray, the Brown/Bird Court held a mechanic liable for negligence when he gave a lift to a customer, as a courtesy, after her car repairs were done.  The statute protecting the mechanic was struck down as unconstitutional.  The message to California’s automotive service industry:  No good deed goes unpunished—keep customer courtesy to a minimum.

California Supreme Court decisions tend to impact the shape of our state’s law—and our economy—for several decades.  With four of our current Justices approaching or already beyond the age of 70, our next governor will likely have the ability to redefine the Supreme Court, in addition to the lower courts.  Californians ought to consider whether they would have another “Brown/Bird”-style activist court, or whether they prefer to continue chipping away at the damage done by Jerry Brown’s former appointees.

Written by Tim Kowal

October 28, 2010 at 7:06 pm

Jerry Brown: Admitted Deceiver

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One of Jerry Brown’s recent lies concerns his attempt to pull attention away from his record on judicial appointments as former governor.  Recall that in 1978, voters removed 17 California judges, 8 of which were Brown appointees within just the prior 3½ years.  By 1982, Brown had re-appointed 8 of the removed judges.  Then, in 1987, three of his Supreme Court appointments—Chief Justice Rose Bird, and Justices Cruz Reynoso and Joseph Grodin—were the first three California appellate justices ever to be removed from office in a recall election.  Many of his other judicial appointments were criticized for using illegal drugs, using prostitution services, and engaging in the pornography business, among other things.  One judge was held in contempt of court for refusing to comply with an order to make his child support payments.  Many of these judges were cronies of Brown.

In his current political effort at damage control concerning his abysmal judicial appointments, Brown has disowned them, suggesting he was unaware of their ideologies, or that he was somehow duped. He remarked in a recent debate: “As far as appointing judges, Dwight Eisenhower appointed Earl Warren, the most liberal justice in all of history, and he certainly didn’t expect that.” Yet, in 1982, Brown proclaimed that “the most important thing you do as governor is the judges you appoint. I’m proud of every one of them.”

There are four California Supreme Court justices right around the age of 70.  Jerry Brown will likely have more than just a four year term to leave his stamp on California policy if permitted to appoint more awful Supreme Court justices.

Written by Tim Kowal

October 25, 2010 at 9:55 pm

Posted in Politics

Tagged with ,

The New Science and the Abolition of Objective, and Especially Religious, Morality

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I came across this new batch of stats, linked from Howard Friedman’s blog, declaring that religion’s messages about homosexuality is “negative.”

The PRRI/RNS Religion News Poll, conducted by Public Religion Research Institute in partnership with Religion News Service, found that more than 4-in-10 Americans gave religious organizations a “D” (18%) or an “F” (24%). The number of Americans giving places of worship low marks is more than twice as many as give them high marks; Only 5% of Americans give them an “A,” and only 11% give them a “B.”

A plurality (43%) of Americans say the messages coming from places of worship are negative, and 4-in-10 Americans believe that these messages contribute “a lot” to negative perceptions of gay and lesbian people. One-third (33%) of the public also believe that messages from religious bodies are contributing “a lot” to higher rates of suicide among gay and lesbian youth, and another third (32%) say these message contribute “a little;” only 21% say they do not contribute at all.

There is a bunch more percentages and numerators and denominators in the original article.  Thinking about it, the whole thing is frightening.  Notice that the emphasis of the poll is whether church messages about homosexuality are “positive” or “negative.”  What might that mean?  The only metric suggested is whether these messages are “contributing ‘a lot'” or “‘a little'” to higher rates of suicide.”  There is no methodology set out that would explain why there is any merit to this correlation.  And one wonders whether the recent and widely publicized suicide of a young homosexual student colored the perception of the poll’s respondents.

Getting to the point, no account is taken of the difference in values among the poll’s respondents, other than to refer to the fact that church-going respondents are likely to give their own churches higher marks, and to suggest younger respondents were harsher on religion than older ones.  Do the respondents believe homosexuality is good?  Bad?  Indifferent?  What proportion of the respondents hold these respective values?  Were they asked to consider their values when responding to the poll?  To disregard their views?

This is the point, of course.  Values are not merely besides the point of this study.  They are the enemy of it.  First, consider this short passage from Eric Voegelin’s The New Science of Politics about our modern/post-modern/post-post-modern/whatever era and its steady march in the agglomeration of ever more facts, studies, polls, and data.

The use of method as the criterion of science abolishes theoretical relevance.  As a consequence, all propositions concerning facts will be promoted to the dignity of science, regardless of their relevance, as long as they result from a correct use of method.  Since the ocean of facts is infinite, a prodigious expansion of science in the sociological sense becomes possible, giving employment to scientistic technicians and leading to the fantastic accumulation of irrelevant knowledge through huge “research projects” whose most interesting feature is the quantifiable expense that has gone into their production.

Now consider the focal point of the contemporary discussion about values.  Mainstream Christianity, as well as Judaism and Islam, take morality to be objective, that actions and things in nature have values in themselves.  The relativist strain of normative thought, in contrast, teaches that morals are not “out there,” but that they are instead subjective, personal assessments.  Thus, the moral objectivist looks at a waterfall and says “that is sublime,” whereas a moral relativist looks at the same scene and says, “no, the waterfall has no such content in itself.  Rather, by looking at it, I have sublime feelings.”

As C.S. Lewis put it in The Abolition of Man:

Until quite modern times all teachers and even all men believed the universe to be such that certain emotional reactions on our part could be either congruous or incongruous to it—believed, in fact, that objects did not merely receive, but could merit, our approval or disapproval, our reverence, or our contempt. . . . The man who called the cataract sublime was not intending simply to describe his own emotions about it: he was also claiming that the object was one which merited those emotions.  But for this claim there would be nothing to agree or disagree about.

. . . .

[On the other hand, in the relativist view in which value statements refer only to emotion], the world of facts, without one trace of value, and the world of feelings without one trace of truth or falsehood, justice or injustice, confront one another, and no rapprochement is possible.

It is not hard to see in which camp belong the pollsters who conducted the above study.  To focus only on how the respondents “felt” about the respective churches’ messages, without regard to whether the messages themselves are right or wrong, good or bad, strips the values expressed in those messages of any association with things in the world.  No longer are values about homosexuality actually about homosexuality—they are simply about how the declarant happens to feel about homosexuality.  And, as NPR’s CEO put it, feelings are between the man and his psychiatrist.  Once we’ve isolated the issue to the mind of the speaker, all that’s left is to call the speaker a bigot, escort him out of the public arena, and the issue is won.

Written by Tim Kowal

October 23, 2010 at 12:53 pm

Millman on The Social Network

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I had just the same reaction:

To me, the film was a disappointment. Honestly, I would have rather seen a movie about the Winklevoss twins. I found their story, and their dilemma, a lot more interesting than Zuckerberg’s. After all, we already know it’s lonely at the top, that to succeed you sometimes lose your friends; and we came into the movie prejudiced to believe that the nerds envy the jocks and are thinking about sex all the time. But a story about two gorgeous, rich jocks who are so envious of the nerd that they can’t let go of the notion that he stole their idea? That’s a story we haven’t heard before. That would be interesting.

Written by Tim Kowal

October 23, 2010 at 11:26 am

Posted in Movies

You keep using that word…I do not think it means what you think it means

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Your humble servant has no interest in subjecting you to any further commentary about a certain NPR journalist currently involuntarily enjoying all his accrued unspent vacation days.  Instead, I’m going to spin this as another in my series of posts about the abuses of language.  A couple days ago, Andrew Sullivan showed his work for the conclusion that Juan Williams is a bigot:

“Bill, I’m not a bigot. You know the kind of books I’ve written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous,” – Juan Williams.

No, Juan, what you just described is the working definition of bigotry.

What if someone said that they saw a black man walking down the street in classic thug get-up. Would a white person be a bigot of he assumed he was going to mug him? What percentage of traditionally garbed Muslims – I assume wearing a covered veil or some other indicator and being of darker skin – have committed acts of terror? And, of course, the 9/11 mass-murderers were in everyday attire, to blend in. So was the Christmas Day undie-bomber. The Fort Hood murderer was in US military uniform, for Pete’s sake.

Glenn Greenwald nods vigorously.  E.D. Kain dissents.

Bigotry.  That’s a nasty word.  And it seems lots of people are making the same accusation. Perhaps it’s time to dust off the dictionary and take a good look at this word we’re all chucking at anyone voicing a controversial opinion.  For your consideration, here are four definitions of the word “bigot”:


a person obstinately or intolerantly devoted to his or her own opinions and prejudices; especially : one who regards or treats the members of a group (as a racial or ethnic group) with hatred and intolerance.


a person who has strong, unreasonable beliefs and who thinks that anyone who does not have the same beliefs is wrong.

a person who is utterly intolerant of any differing creed, belief, or opinion.


A prejudiced person who is intolerant of any opinions differing from his own.

There are some stark differences among these definitions, but the indispensable elements appear to be:

  1. a strong belief, especially directed toward actions or characteristics of another person or group; and
  2. a refusal, especially an irrational refusal, to consider reasoned support for contrary views.

The second element is critical, else “bigot” would become another synonym for “opinionated.”  The entire blogosphere would qualify.

Clearly, then, the word cannot apply to Juan Williams.  In the first place, Williams was not discussing a “belief,” but rather a knee-jerk emotion he experiences—involuntarily it would seem—in certain circumstances.  (“No emotion is, in itself, a judgement:  in that sense all emotions and sentiments are alogical.  But they can be reasonable or unreasonable as they conform to Reason or fail to conform.  The heart never takes the place of the head:  but it can, and should, obey it.”  C.S. Lewis, The Abolition of Man.)  In the second place, nowhere did he express any refusal to reconsider his “reaction,” even supposing such a thing were possible.   In fact, the context of the statement makes him sound sheepish and even somewhat guilty about the conditioned emotional response he’s described.

It’s pretty obvious that those wielding the big mean word “bigot” aren’t doing so because it’s accurate or justified.  They’re using it because the word has accumulated great weight in our language, likely as a result of its employment against truly despicable acts of historical racism in popular movies and television programs.  What a shame, then, contemporary sophists seem to reason, that such a powerful word be limited to its narrow meaning, when it might be used to great success in blog-wars.

Thus, the word has become an expedient for scoring quick points and putting blog-versaries on the defensive, even where there’s not good faith basis for it.  It’s a cheap argumentative shortcut used by writers too lazy or careless to articulate a thoughtful, reasoned defense of a position.  Anyone who’s used it in this already-tired Juan Williams conversation owes an apology to every practitioner of the English language.

Written by Tim Kowal

October 22, 2010 at 11:52 pm

I’m embarrassed I didn’t know this

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From Volokh, the development of “separation of church and state” in our history and jurisprudence:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

Written by Tim Kowal

October 22, 2010 at 9:56 am