Tuesday, September 17, 2013

Blackstone: The Laws of God vs. The Laws of Man

In today's world of political correctness, there has been an effort to sanitize the public square of references to Deity.  What some view as an honest expression of belief, other's view as an offensive and potentially oppressive display of advocacy.  

In light of this climate, I found the words of William Blackstone in his work Commentaries of the Laws of England: Vol. 1, to be striking.  In this discourse, Mr. Blackstone, England's premier legal scholar and magistrate in the 1760's, lays out the foundation of law at the time in England.  I have reproduced large excerpts which come from the second chapter of the book:

"LAW, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey. 

Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all movable bodies must conform.
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of plants, from the seed to the root, and from thence to the seed again;—the method of animal nutrition, digestion, secretion, and all other branches of vital economy;—are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator. 

This then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience.

Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, 
And consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will. This will of his maker is called the law of nature. 

For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.
 As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." This is the foundation of what we call ethics, or natural law.
 And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error. 

This has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these."
Though Mr. Blackstone was not a theologian, one cannot ignore the deep respect and reverence he expresses in his sentiments.  It is quite fascinating for many reasons.

Monday, September 16, 2013

JUSTICE FOR ALL: The Case for Reforming Utah's Court System

Last year I drafted legislation to look at reforming Utah's court systems. At that time, out of deference to local stakeholders in my district, I agreed to send the bill to interim study for further review.

In the bill, I propose modifying our court structure which is currently modeled around the two pillars of Justice Courts and District Courts. My proposal calls for the creation of a third pillar, called the Circuit Court. The effort is a holistic approach to solving a myriad of problems plaguing our current system.  Let me explain.


Article VIII, Section 1. - Utah Constitution   
            The judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish. The Supreme Court, the district court, and such other courts designated by statute shall be courts of record. Courts not of record shall also be established by statute.

Early in our state's (and territory's) history, Justice Courts were established as a means to settle simple disputes in the community.  If Farmer Brown's cow wandered off and ate Grandma Greenthumb's lettuce patch, the dispute could be settled by a Justice Court. These courts were intended to handle rather mundane cases.  As such, they were designated as "not of record".  So what does that mean?  It means that in the eyes of the other pillars of our legal system, these cases are 'invisible' to them.

For instance, let's presume Farmer Brown's cow was found to be neglected and Farmer Brown was fined for the oversight.  The case would be closed.  Since the infraction is minor, possibly not even a misdemeanor, Farmer Brown could not appeal his case to a higher court.  In the eyes of the broader court system, the case does not exist.  It's end is in the Justice Court.

Now, lets suppose that Farmer Brown has also been fermenting some mash in his barn and brewing moonshine.  One day Farmer Brown gets tipsy one day and drives his tractor into town blowing through stop signs and parking in a handicap parking spot before police catch up with him.  He is cited with a DUI and heads to court.  In this case, the Justice Court.  In that court he is found guilty.  However, Farmer Brown's attorney is well paid and knows a funny thing about Utah DUI law.  In Utah, DUI and domestic violence cases can be heard in Justice Court and/or District Court.  Thus, dissatisfied with the outcome in Justice Court, Farmer Brown's attorney files a motion to have the case heard again but this time in District Court down the street.  Due to better preparation on the technical details, Farmer Brown's attorney is able to convince the District Court that his client is not guilty and Farmer Brown is exonerated and sent home.

This scenario is not far fetched.  In fact, it is common practice in Utah's Courts today for unsatisfied parties to retry their DUI and domestic violence cases in District Courts when they receive an unwanted outcome in the Justice Courts.  The reason this is possible is because Justice Courts are 'not of record'.  Thus, the District Courts do not 'see' and cannot consider the previous trial or outcome of the Justice Courts.    If you are charged with a misdemeanor and don't like the outcome from the Justice Court, you get a mulligan and can start over fresh in the District Court.  Thus, defendants unfairly get two bites at the justice apple in a process called trial de novo.

This 'Not of Record' status held by Justice Courts also means that there is no appellate oversight of their work as there is in the District Courts courts.  Disputed cases in District Courts are sent to the Appellate Courts.  Disputes in the Appellate Courts are sent to the Supreme Court. Each court can overrule its subordinate court. But in Justice Courts, there is no appeal and no higher court.  This is unfortunate because the judicial review and oversight that is present through the appeals process acts as a kind of quality control for the court system.  Questionable verdicts solicit second opinions through an appeal.  This secondary review acts as a check on the lower courts who may stray from standard and accepted sentencing practices or findings.  Justice Courts, as they are constituted today, lack this appellate oversight.  Thus, the volatile and inconsistent sentencing we see today across Justice Courts in Utah should not surprise us.

Another systemic issue facing Justice Courts is their role in municipal budgets.  Since Justice Courts are able to levy fines for infractions, that revenue goes to the coffers of the municipality that issued the citiation.  While some municipalities are very responsible in handling this privilege, others are not.  Recently, I was made aware of a city in Utah that increased their budget by $1 million by counting on an increase in revenues of $1 million from their Justice Court.  Since their population isn't growing fast enough to justify that increase, are they expecting their population to become more criminal in nature or become worse drivers?  In this case, the only way to meet the enlarged budget is to enlarge the number of citations issued.   Baking new Justice Court revenue into the city budget cake is a recipe for injustice.


Article VIII, Section 5. - Utah Constitution  
            The district court shall have original jurisdiction in all matters except as limited by this constitution or by statute, and power to issue all extraordinary writs. The district court shall have appellate jurisdiction as provided by statute. The jurisdiction of all other courts, both original and appellate, shall be provided by statute. Except for matters filed originally with the Supreme Court, there shall be in all cases an appeal of right from the court of original jurisdiction to a court with appellate jurisdiction over the cause.

Now lets move on to the second pillar of courts called the District Court.  Utah's District Courts are charged with hearing the meatier cases.  Sex crimes, homicides, and heavy felonies fill the docket of the courts.  Also included in the court's jurisdiction are family law issues such as divorce, custody, and alimony decisions.  Lastly, as was previously mentioned, the courts can also hear DUI and domestic violence cases...both misdemeanors.

Judges in the district court are selected through a rigorous process.  Candidates names are presented and screened by a panel.  The recommendations of the panel are forwarded to the Governor's office who then selects the candidate he wishes to appoint.  Then, that appointment is debated and confirmed by the State Senate.  All along the way, the candidate is placed under scrutiny by both the executive and legislative branches of government.

Unfortunately, this vetting process is not followed for everyone hearing cases in Utah's District Courts.  In metropolitan districts, the workload can be more than one judge can handle.  So, rather than hiring another judge, a commissioner system has been established to help manage the cases.  The commissioners act as a judge in hearing cases but lack the authority to mandate court action.  Instead, they hear the case and make a recommendation to the judge.  The judge then authorizes the court action typically based on the recommendation of the commissioner.

So how are commissioners chosen?  They are hand picked by the District Court judges with little public scrutiny.  If these commissioners are going to be acting as pseudo-judges, wouldn't it be better just to hire another judge that is fully vetted through the established process?   This lack of scrutiny in selecting commissioners creates some obvious problems of oversight and accountability to the public.  Such problems are manifest in recent news reports about a rogue commissioner who was stripped of his authority to hear cases due to misconduct.


So, to mitigate the many weakness of our current system, it seems that a holistic approach would be best.  Rather than trying to patch a dozen or so problems with convoluted statutory changes, it seems that a simple solution would be the more desirable answer.  That solution, I believe is reconstituting the Circuit Courts.  You can read my draft legislation below:

This bill creates a Circuit Court system in Utah.  The goal being to cure these pervasive weaknesses in our system and improve the quality of justice in our state by providing for efficiency and specialization.

The bill does the following things:

1.  Removes misdemeanors from Justice Courts and District Courts and places them in the exclusive jurisdiction of the Circuit Courts
2.  Removes family law from the District Courts and places them in the exclusive jurisdiction of the Circuit Courts.
3.  Creates a series of Circuit districts that mirrors the current District Court districts.
4.  Provides that Circuit Court judges are to be nominated, vetted, and appointed just as District Court judges.
5.  Details the distribution of fines and fees obtained through convictions in the Circuit Courts.

By creating a Circuit Court, many of the weakness of our Justice Court system are eliminated.  The Circuit Courts will be courts of record and will prevent trial de novo abuses we currently see.  Defendants will have the option of appealing an undesirable verdict to a higher court if they feel that is in their best interest.  However, the higher court will now be able to take the case information and deliberations into consideration when making their finding.

Also, as courts of record, they will also have appellate oversight by the higher court.  With higher court judges reviewing the casework of their colleagues in the Circuit Courts, this peer review will provide an excellent incentive for professionalism from the Circuit Court. This review should provide a moderating force in court decisions and verdicts.

The creation of the Circuit Courts will also insulate municipalities from the temptation to fill their coffers with fines generated from local Justice Courts.  While it is reasonable that cities receive fine revenue from citations issued in their city, it is important to safeguard against abuse.  This bill as currently written will have the state paying for the operation of Circuit Courts and the fines and fees split between the State and the municipality the case originated from.  With Circuit Court judges being nominated, vetted, and appointed in the same manner as District Court judges, this should provide for more highly qualified individuals and also an arm's length relationship between the judges and the cities within their jurisdiction whom benefit from the verdicts of the court.    

Finally, the reduction in caseload at the District Courts should reduce a lot of the demand for commissioners.  That reduction should improve the quality of work done in the courts and also work toward improving the public's faith and trust in their court system.

There are several other nuances that will be addressed in the bill regarding the structure of the Justice Courts and their role in our justice system but we will discuss those subtleties another day.

Critics of this effort will cite the costs and say we are moving backwards and not forward.  The costs are yet to be known while the problems our current system has are real.  I look forward to a vigorous discussion with stakeholders and colleagues as we work to provide better justice in the State of Utah.

For those of you interested in the discussion, you can also read a recent article on the subject.

Blackstone: Don't Be A Bonehead Legislator

I recently finished William Blackstone's meaty tome Commentaries on the Laws of England: Vol. 1.  Written in 1763, it is considered one of the first popular books written on the subject of English law.  Previous works on the subject were found in obscure and hardly understandable texts from centuries previous.

Blackstone had a brilliant mind and a strong determination to argue for the supremacy of the English system of laws, especially when compared to those of continental Europe of the time.

One of the interesting insights Blackstone shares is the proper role that Legislators play and the proper preparation they should take in administering their work:

"But those on whom nature and fortune have bestowed more abilities and greater leisure, cannot be so easily excused.  These advantages are given them, not for the benefit of themselves only, but also of the public; and yet they cannot, in any scene of life, discharge properly their duty either to the public or themselves, without some degree of knowledge in the laws."  
Keep in mind that not everyone in politics lives a life of leisure.  A flexible schedule and a means of subsistence are required to fulfill the duties of office. These prerequisites qualify many aged yet a few young, like myself, to run for office.  However, I will concede that political life is much easier for the seasoned and affluent than it is for those raising young families.  This was especially so in Colonial Era England. Nevertheless, Blackstone points out, regardless of circumstances, the need for legislators to know about the law.  Blackstone continues:

"But in order to attain these desirable ends, it is necessary that the magistrate should understand his business; and have not only the will, but the power also of administering legal and effectual justice.  Else, when he has mistaken his authority, through passion, through ignorance, or absurdity, he will be the object of contempt from his inferiors, and of censure from those to whom he is accountable for his conduct." 
Indeed, I have seen legislators replaced because those to whom the legislator was accountable questioned the passion or ignorance of the legislator's efforts.  This must have been a more frequent occurrence in Blackstone's day.  Utah has 104 members of it's Legislature (both Chambers) with a population of 2.8 million people.  By comparison, in Blackstone's day, Great Britain had 558 members for a population of 6.5 million.  

Blackstone has this to say about the weighty responsibility of the legislator:

"Yet further, most gentlemen of considerable property, at some period or other in their lives, are ambitious of representing their country in parliament; and those, who are ambitious of receiving so high a trust would also do well to remember it's nature and importance.  They are not thus honourably distinguished from the rest of their fellow subjects, merely that they may privilege their persons, their estates, or their domestics; that they may list under party banners; may grant or withhold supplies; may vote with or vote against a popular or unpopular administration; but upon considerations far more interesting and important.  They are the guardians of the English constitution, the makers, repealers, and interpreters of the English laws; delegated to watch, to check, and to avert every dangerous innovation; to propose, to adopt, and to cherish any solid and well-wighed improvement, bound by every tie of nature, of honour, and of religion, to transmit that constitution and those laws to their posterity, amended if possible, at least without any derogation.  And how unbecoming must it appear in a member of the legislature to vote for a new law, who is utterly ignorant of all the old!  What kind of interpretation can he be enabled to give, who is a stranger to the text upon which he comments!"
Finally, he quips about how the law has endured under the stewardship of legislators:

"The common law of England has fared like other venerable edifices of antiquity, which rash and inexperienced workmen have ventured to new-dress and refine, with all the rage of modern improvement.  Hence, frequently it's symmetry has been destroyed, its proportion distorted, and it's majestic simplicity exchanged for specious embellishments and fantastic novelties."   

In every freshmen class of legislators there is always one or two who feel it is there call in life to make sweeping changes in one aspect of the law or another.  Fortunately, in Utah, unless backed my popular sentiment, most of these aspirations are moderated by the experience and prudent minds of seasoned legislators.

Nevertheless, Blackstone makes some excellent points on being competent in legislative work.  I have done my best to acquaint myself with the many and varied departments of government, their impact on the lives of our citizens, and the policies that will best affect the happiness of people in my district.  While my knowledge isn't yet perfect, it is improving steadily; and for that, I am grateful.  May our current legislators and future legislators be perpetually engaged in preparing their minds to do the people's work.    

Saturday, September 7, 2013

Heaven and Earth: Rededicating Ogden's Historic 4th Ward Chapel

When we build, let us think that we build forever.
Let it not be for present delight nor for present use alone.
Let it be such work as our descendants will thank us for;
and let us think, as we lay stone on stone,
that a time is to come when those stones will be held
sacred because our hands have touched them,
and that men will say, as they look upon
the labor and wrought substance of them,
“See! This our father did for us.”
—John Ruskin
For the past two years, our chapel has been under renovation.  Finally, the seismic upgrades and restoration work is complete and we prepare to rededicate the building.

The chapel was originally dedicated in 1937.  It took 8 years and nearly $1 Million of member donations to complete the structure.  I was fortunate enough to gain access to a copy of the original dedication booklet.  David O. McKay lived in our ward for a time and he shares a message in the booklet.

The original 4th Ward building was on the 21st block of Madison Ave.  However, it was too small for the growing ward.  The building was razed and the bricks from that building were used to form the inner layers of brick for the newer chapel.  In the safe under the entry stairs, we found this stone dating to 1888.

The work in the chapel has involved extensive historic paint restoration work.

It has also involved rework to the lighting, HVAC, seismic safety upgrades and more. 

In my capacity as a high counsilman for our Stake, I offered the Salt Lake Tribune some time to walk through the building to help promote awareness of the rededication.  Tom Wharton does an excellent job in his story:

Our building is unique in many aspects.  One of the most unique features is the Tower Room.  At one time, it served as a place to conduct some portions of sacred temple ceremonies prior to the building of the Ogden temple.  

OPEN HOUSE:  Saturday, September 7th  3:00pm - 6:00pm
REDEDICATION:  Sunday, September 8th 6:00pm

If you miss either of these events, you are welcome to come any Sunday and sit with our family.  I am sure you will find the spirit of our Sunday services refreshing and edifying.

Monday, September 2, 2013

POISON PILL: Common Core's Pornography Push?

I recently received an email from activists concerned about Utah's implementation of Common Core standards in our public schools.  In the email, there was a claim that the recommended reading list for high school students included offensive and "pornographic" material.

This seemed like a serious allegation so I decided to check it out.  What I found shocked me.  While the material turns out not to be "recommended" by the state of Utah it does appear in the Appendices of USOE's Core Standards for English Language Arts as an example of material that complies with Common Core standards.

Here is an excerpt from the Utah State Office of Education PDF outlining example reading materials for our students.  I have excerpted the front page and page 145 from the appendix linked above:

The book in question is written by Toni Morrison, an honored African-American author, called The Bluest Eye,

It turns out that national Common Core standards include this book for its "complex" language style.   Shockingly, what high school students get instead is a graphic experience of incest, rape, and child molestation from the first-person perspective of the perpetrator!

I could barely get through the excerpts.  They are highly disturbing and will ruin your day so feel free to trust me and move on.  If you feel compelled to read them, they have been distilled from the book by the Politichicks blog:   

So if this isn't on Utah's official "recommended" list, why is this even an issue to bring up?  The concern arises because some Utah School teachers are bypassing the State recommend lists and instead using the national text example list (see page 152) to flesh out their curriculum.  Why would they do this?  Because the Common Core standardized tests are correlated to the national Common Core standards and recommendations not necessarily the State's recommendations.

Hence, the 15% variation that Common Core affords the States in their standards does not necessarily mean that the States' variances will show up on the standardized tests.  I am speculating, but this might explain why the variances permitted were so small.  Nevertheless, the appearance of poisonous material on the example literature list shows negligence on the part of national Common Core staffers or worse.

I like to give people the benefit of the doubt, but this example illustrates the risks of depending on an unaccountable interstate entity to do our bidding.  The alarm has been rung and our senses are now heightened.  In the quest for efficiency and academic homogeneity, we need to be careful of what we wish for.  Caveat Emptor.

Update 9/13/13:  Today yet another book on the USOE and Consortium list of exemplar texts surfaces.  People must finally be reading through these books.  Today's sultry title is Dreaming In Cuban which happens to immediately follow The Bluest Eyes in the table of contents of USOE's example texts.  In this book, the kids get exposure to rough sex.  You can read the lurid excerpts here: