There are 63 Journal Items on 8 page(s) and you are on page number 7
LOOK AT THEM TOE-LICKERS, AIN’T THEY SOMETHIN’?
One of the great advantages of spending the first fifteen years of my legal career as a prosecutor is that it resolved for me once and for all the question of whether there is life on other planets. There is. I know this because I know without a doubt that humans simply cannot be as good as it gets.
This conclusion is inescapable whether you believe in a deity or not. If you spend enough time in criminal courts, it becomes clear to you that even Random Chance wouldn’t waste its time with all the chemical and biological labor involved in cooking up intelligent life if the ultimate result was going to be stupid felonious hairless (relatively) bipeds.
According to my Bible – which provides a stunningly conservative estimate of the time involved – God or Random Chance has invested several thousand years and six days in the manufacture of this planet and development of its cultures.1 Yet every day we devolve into a less-advanced life form. Either God’s taking another day of rest or R. C. has come up snake-eyes on 26 consecutive passes.
So help me, if Charles Darwin had been a prosecutor, he would have rejected evolution out of hand. You spend a week preparing a felony trial calendar in a major metropolitan area and the idea that life evolves into something better – or even more efficient – would never cross your mind again. Either that, or you’d conclude that the process peaked sometime a few days before the assassination of the Archduke Franz Ferdinand and we’ve been barreling downhill like a runaway Peterbilt ever since.
The conclusion I – and the other six members of my new religion, Jehovah’s Pentecostal Cabal and Focus Group – have come up with is that this planet must have been one of the unsuccessful pilot projects. The really cool life forms developed by God and Gabriel and all the heavenly minions are out on some planet somewhere else being good and just and kind and not Googling Paris Hilton.2
I share all this with you now because I sense the opportunity to make a few converts to my way of thinking.3 Reuters has presented me with the kind of irrefutable evidence I never seemed to get when I was a prosecutor – a veritable smoking gun of evolutionary rebuttal.
It says – and let’s face it, Reuters is not exactly known for its zany sense of humor so we can probably accept this at face value, if we can only figure out what that might be – it says, “The Dutch Labour Party wants to pass a law making unsolicited toe-licking an offence after police were unable to prosecute a would-be Casanova with a taste for female toes because he had committed no crime.”
So help me, you could have thrown those thirty-five words into a hat and drawn them out at random and come up with a sentence that would make just as much sense.
I know this because I did. I came up with, “committed prosecute a toe-licking unsolicited offence toes because an wants to a he crime The making Casanova party pass police female 7 3/4 had no were for taste unable after a Dutch to with law would-be Labour.” This, to my mind, is as intelligible and believable as the Reuters sentence, and, had it not been for a dubious 7.6 from the Russian judge, would have gotten a better score.
Here’s what the Reuters sentence means. Women in Rotterdam were complaining that a man4 was sneaking up on them and licking their toes. Police arrested him, but had to let him go because, according to a police spokesman, “Licking a stranger’s toes is rather unusual but there is really nothing criminal about it.”
So here we are, four years into the new millennium5 and not only are we sneaking up on each other for nefarious toe-licking, but the parliament of one of our first world countries is pretzelizing6 itself, trying to figure out whether that should be a crime.
You wanna make that pro-evolution argument to me now? You wanna quote Immanuel Kant and tell me man is “the last end of nature?” You think this is what Yahweh had in mind? I thought not.
“Peter van Heemst, a Labour member of parliament, asked Christian Democrat Justice Minister Piet Hein Donner on Friday to explain why Dutch laws forbid littering but not uninvited toe-licking. He demanded an amendment prohibiting it.”
According to Reuters, “A spokesman for Donner said the minister could not immediately comment.”
This was only partially correct. What the spokesman wanted to say was, “The minister cannot comment until we revive him. He was so flabbergasted that anyone could ask such a moronic question that he fainted dead away. Give us a minute here.”
Obviously, the answer to Mr. van Heemst’s question, which Justice Minister Donner decorously did not say out loud, is, “Because nobody ever dreamed we’d need a law like that, you twit! We knew we needed littering laws because we could see people driving down the street tossing their McDonald’s wrappers out the window. But – until now – none of us ever dreamed there were people crawling up to strangers and licking their toes! At least no one in MY party ever dreamed that was going on; did YOUR party know about it?”
Obviously, there is still some decorum left in some major governmental bodies. “Shove it,” and “Go [commit an anatomically impossible act],” – both of which I would offer as American government’s contributions to my extraterrestrial-life-must-exist-because-evolution-is-clearly-a-crock argument – have apparently not yet entered the lexicon of Dutch government. But toe-licking soon will.
At least it will as soon as they figure out what to call it. The immediate problem confronting the Dutch legislature – other, that is, than reviving the justice minister – is that they have to come up with a name for the new crime.
Toe-licking betrays how petty and trivial it really is. That won’t do. If it’s gonna be a crime, it should sound like something serious and bad. Since American courts no longer use “the infamous crime against nature,” that’s available, but the rhetorical Grand Guignol so beloved by Americans is not really in keeping with the Dutch character.
We need one of those wonderful sesquipedalians people who spreken Deutsche are justifiably famous for; you know, the 26-letter, nine-syllable word that applies to “washing your face while eating pudding on a Tuesday.”7 Something like Geschwendigkeitsüberschreitung (speeding) or Gepäckaufbewahrungsschein (which means luggage claim check, but sounds like something you wouldn’t want to admit to, doesn’t it?).8
Unfortunately, the Dutch don’t speak Deutsche. They speak Dutch. Deutsche, it turns out, is German.
This, of course, makes no sense at all. Clearly, the Dutch should speak Deutsche and the Germans should speak . . . Germansche. That is how a truly evolved species would do things. But we aren’t, so they don’t.
The Dutch Parliament will probably come up with some really pedestrian construction which translates out to “illegal toe-licking,” and which – obviously – no one in the Netherlands will be able to take seriously. I mean, let’s not forget that the Dutch have gone several hundred years without feeling any compulsion to deal with prostitution or drugs; how likely are they to devote a major portion of their Gross National Energy to stamping out – so to speak – toe-licking?
Here is how David Downie in Salon.com describes Dutch drug laws: “Use is not a crime but possession of any drugs, hard or soft, is. More ambiguity: Possession of small quantities for personal use (5 grams and 0.5 grams, as per above) is generally tolerated, unless the user is a repeat offender or a troublemaker (i.e., causes a public nuisance). In any event, all illicit drugs, no matter how small the quantity, found during police searches of persons or places are systematically confiscated. The number of searches and seizures continues to rise dramatically. Importing, exporting, selling, trafficking, manufacturing or growing any illicit drugs is also a crime subject to fines (5,000 to 1 million Dfl, or $2,500 to $500,000) and/or imprisonment (four to 16 years).” Regardless of how you feel about the merits of that policy, trying to sort it out is a trainwreck in a blizzard.
So imagine the task of some poor legislative aide, who is going to come in one day and find that it is her9 task to draft the new – urgent – anti-toe-licking statute so as to fit into this tradition of legislative swamp-frolicking.
This will be a pretty good indicator that her career is not on a fast track and it may be time to update the resume again. But in the short term, she’ll just have to swallow hard and do it.
This will be the legislative equivalent of the Augean stables. There’s just all kinds of . . . excrement . . . she’ll have to shovel. Even after she comes up with a name for the crime, she has to ask herself what its peripheries are going to be. Are we going to prohibit it entirely, or merely in public? Does it matter to us whether the licker and the lickee are of different genders? Will we allow people to consent to this or bar it absolutely? Will we allow children to consent to it? What will be the age of consent for toe-licking?
This is the problem with work in the legislative branch: The elections are great fun, but then you have to do the actual job of legislating, which is just a tremendous pain in the . . . Gepäckaufbewahrungsschein.
Which is why I’m going to limit myself to the judicial and metaphysical branches of government. Yeah, I know there’s no metaphysical branch of government. Yet.
But I figure all I gotta do is send this column to Governor Schwarzenegger10 and he’s gonna want me and the Jehovah’s Pentecostal Cabal and Focus Group to move to Sacramento and start one.
It’s the only way we can be ready when the aliens arrive.
1 A term which every day seems to me to be closer to the same thing whether you are referring to civilization or a petrie dish. back
2 Even allowing for the fact the numbers may be slightly inflated by people looking for a hotel room, the fact Paris Hilton is the single most common search on Google has to be distressing news for the evolution camp. back
3 If you’ve ever read my stuff before, you can imagine how rare such an opportunity would be. Come to think of it, if you’ve read my stuff before, you’re probably struggling with whether the phrase “my way of thinking,” assumes facts not in evidence. In either event, stop what you’re doing and get back to the tenuous thread of the main text before you lose it. Now. back
4 I hate the fact that it’s always a member of my gender pushing the envelope of criminal ingenuity. Seems to me if evolution works, the genders should be equally capable of imbecilic behavior. My wife assures me that McCourt’s Corollary to Darwin’s Theory, “Testosterone is stronger than evolution,” explains this, but that’s another story entirely. back
5 Or five, depending on which side of that inane, “Does it begin in 2000 or 2001,” debate you were on. Seems to me a truly evolved species would be able to count to a hundred. back
6 Of course I know it’s not a word. I also know I’m not in the mood to look one up right now. You get a column, you can make up words, too. back
7 Mark Twain once noted that, “Some German words are so long that they have perspective." back
8 Gewürztraminer would be perfect. Lots of syllables, sounds really gross and disgusting. Alas, it’s already taken. back
9 Has to be a feminine pronoun here. If we could trust men to deal with this issue, we wouldn’t have to deal with it. back
10 Hey, that would be a good name. back
William W. Bedsworth on Thursday, September 09, 2004 at 19:42
The Politics of Vegetables
I love Republicans. I’ve spent a good deal of time trying to figure out whether I am a liberal Republican or a conservative Democrat, eventually deciding it made little difference because both sides despised those wings of their party so I’d be better off just going to the meetings and keeping my mouth shut.
But I’ve always felt the Republicans were more fun. They tend to be more optimistic. While the Democrats are always yelling at me about global warming and human rights and people living below the poverty level, the Republicans tend to be a lot more reassuring: If I just honor the flag and trust in capitalism and go to church regularly, all that other stuff will work itself out. This is what I like to hear, so I spend a lot more time with Republicans than with Democrats.
Another reason I’ve spent so much time in the Republican Party is that their ideas on nutrition are closer to my own. This seems to me to be a badly neglected aspect of the parties’ platforms. And it’s one where Republicans always excel.
You see, I am not what you would call a nutritional fanatic. I like to think of myself as a moderate on issues of nutrition, but my wife Kelly says my views are really more in keeping with mainstream nutritional nihilism.1
Left to my own devices, I eat almost nothing that doesn’t come with cooking instructions stenciled on the box. And if the instructions are more complicated than “Microwave on high for three minutes,” I just eat the box. If God had meant for me to cook, She would not have made me afraid of fire and electricity.
My idea of a balanced meal is one in which the cookie dough and the chocolate chips weigh the same.
As near as I can determine, the great chefs of the world have all come from Mexico. Since I don’t have time to go to Mexico for every meal, I would be content to spend the rest of my mealtimes at Wahoo’s, El Pollo Loco, and Del Taco.
And I don’t eat green things. At least not much. An occasional bowl of lime sherbet, maybe a scoop of guacamole if my tortilla chips are stale. And sometimes a slice of bread that I don’t look at closely enough before slathering it with mustard.
Trix is for kids and lettuce is for rabbits and never the twain shall meet. That’s word for word from Leviticus; you can look it up.
These are rock-ribbed Republican eating tenets. No tofu. No radicchio. No free-range squab. No carbonated water. And only enough vegetables to keep the Department of Social Services from declaring me neglectful, removing me from my own custody, and putting me in a foster home somewhere.
That’s why I love the Republicans. Remember in 1981, when President Reagan’s Department of Agriculture tried to move catsup and pickle relish into the vegetable column for schoolkids? I applauded that.
I had two little kids whose teachers were telling them to eat green leafy vegetables and things that looked like little trees (broccoli, cauliflower, etc.). This, of course, was contrary to the teaching I was giving them at home, where bacon and tortillas were the standard breakfast fare, and tamales were considered a sacrament.
Needless to say, I couldn’t tolerate that kind of governmental interference with my parenting. I was preparing a freedom of religion challenge that would have made Elk Grove Unified School District v. Newdow look like a walk through the arugula fields. And I had standing!
But then the Reagan administration stepped in and restored order. “See,” I told my kids, “catsup is a vegetable; I eat catsup every time I have scrambled eggs.” “Pickle relish is a vegetable; when’s the last time we went to a ballgame and I didn’t eat a half-dozen hot dogs?” “Your dad eats lots of vegetables. And you should, too. Here, have another CORN dog.”
The Reagan administration’s demonstration of good nutritional judgment in the executive branch derailed Bedsworth v. Saddleback Valley Unified School District and kept the world safe for doughnuts and chimichangas. And it nudged me farther from conservative Democrat and closer to liberal Republican.
But I must admit, I’ve been doing some backsliding since. Kelly’s lured me down the garden path of foods whose first listed ingredient isn’t a chemical. She and my gall bladder have convinced me that maybe there’s a smidgen too much fat in my diet.2 They want me to eat more fresh vegetables.
And God bless the Republicans; they’ve ridden to my rescue again.
My new best friend, Richard Schell, a federal district judge in Plano, Texas3 has agreed with the Department of Agriculture that frozen French fries qualify as “fresh vegetables” under USDA standards.
Yep, that’s what it says. I’ll wait while you go back and read it again, but it’s gonna say the same thing. In the opinion of the Department of Agriculture of the United States of Astounding – after years of study and application of the expertise of the very best scientists, agronomists, linguists and grammarians our government could find – frozen French fries are fresh vegetables.
This is, at best, counter-intuitive. My dictionary defines “fresh” as “not preserved, as by canning, smoking or freezing.” And I’d really rather not contemplate the responses I’d get if I walked around the farmer’s market this weekend asking for frozen French fries. But it somehow makes sense to the USDA.
Here’s how this happened. In 1930, Congress passed the Perishable Agricultural Commodities Act (PACA). It was meant to protect depression-era farmers. Seventy years later, somebody at the Frozen Potato Products Institute – and tell me it doesn’t make you want to stand up and sing the national anthem just to find out there IS SUCH A THING as the Frozen Potato Products Institute in our great country – somebody at “The Institute”4 appealed to the USDA to change its definition of fresh produce. After all, they reasoned,5 if enclosing a cucumber in wax to preserve its freshness is acceptable under PACA, then so should be COATING A FRENCH FRY IN BATTER.
Well now, how can you argue with that? How can you possibly respond to such irrefutable logic?
Other, that is, than just screaming at the top of your lungs, “They’re coating French fries in batter!!?? How could I not know about this? This is nature’s perfect food! Lemme at ‘em!”
And we’re gonna call them fresh vegetables?! Batter-dipped French fries are a fresh vegetable!6 Who knew?7
Here’s how the United States Department of Agriculture and Federal District Judge Richard Schell see it: We’re gonna dip a lump of starch in a slurry of more starch and then freeze it so you can later lower it into a vat of boiling OIL. The batter will help the potato absorb three or four smidgens8 of oil and then you can ingest it. This is something you will probably want to do if you do not have a large schooner of warm lard handy to pour down your throat and it’s absolutely imperative that your gall bladder explode within the hour.
To facilitate this process, the USDA adopted in 2003 what the Chicago Tribune says is described in court documents as the “Batter-Coating Rule.” As I understand it, this means that while batter-coated French fries are fresh vegetables, ordinary French fries may not be. It’s the batter-coating which somehow transmogrifies them from snack foods of questionable patriotism to flag-waving, All-American fresh vegetables. I, of course, will opt for the presumably more nutritious fresh vegetable and eschew ordinary fries from now on. Bring on those batter-coated bad-boys!
Naturally, the pantywaist vegetable lobby crackpots are up in arms. They seem to think there’s something wrong with a rule under which a box of chocolate-covered cherries would be indistinguishable from apples.
But I’m confident the USDA didn’t come to this conclusion rashly. After all, they studied it for three years before handing down the “Batter-Coating Rule.”9 And, as their lawyers argued to Judge Schell, “It is still considered ‘fresh’ because it is not preserved. It retains its perishable quality.”
To which I say, as, apparently did Judge Schell, “Huh? Oh, sure, sure. Whatever. That sounds fine to me. Now, can you please hand me some of those onion rings?”
I love this most because it takes a lot of pressure off me. I interpret statutes for a living, and I worry about getting them right. Learning that a whole lot of smart people working for the Department of Agriculture think the term “fresh vegetables” can mean the same thing as the term “batter-coated frozen French fries,” convinces me that no matter how badly I screw up in the next six months, it won’t be the worst call of the year.
But also I love it because it gives me so much ammunition in my ongoing battle with the nutritional ideologues of the world. I no longer need fear all those vegezealots who keep haranguing me about my produce intake. I’ll just toss Judge Schell’s ruling in their face and toss down another éclair.
Couple more rulings like this and the Democrats will never see my face again.
Or my belt buckle.
1 Kelly insists I’m going to be the first person in two hundred years to die of scurvy. back
2 Smidgen is an archaic term of measurement like “cubit” and “hectare.” As near as I can determine, a smidgen is the equivalent of forty pounds of body fat. back
3 What must it be like to be a federal district judge in Plano, Texas? Wizard of Oz? King of Fredonia? back
4 I don’t know for sure this is what they call themselves, but if I were working at the Frozen Potato Products Institute, that’s what I’d call it. back
5 And I’m using the word “reasoned” here in its most expansive sense. back
6 Sorry about all the exclamation points, but, as you can tell, I’m pretty excited about this. back
7 Who, that is, other than the Frozen Potato Products Institute? back
8 See footnote 2, supra. back
9 In fairness, they could have decided the issue in two years, but they were understandably confused about whether French fries and Freedom fries were the same thing. back
William W. Bedsworth on Thursday, July 29, 2004 at 15:29
Planes, Trains ... and Cows
Subititled: “A paen to appellate literature of the first water”
Legend has it that the publication of The Great Gatsby pushed Ernest Hemingway into a deep depression. Hemingway is supposed to have confided to friends that he found it difficult to write after reading Gatsby because it had been his dream to write The Great American Novel and Fitzgerald had beaten him to it. Now I know how he felt.
My dream was less homeric than Hemingway’s. I figured with my talent, I needed to set the bar lower. Setting it on the ground seemed appropriate, but I was afraid if the bar were lying in the dirt, others might have difficulty recognizing it as a bar and trip over it, exposing me and the state1 to civil liability. So I set it about ankle high.
I set it not at the Great American Opinion, nor the Great Californian Opinion. I wasn’t even going for the Great American Assumption of the Risk Opinion or the Greatest Single Issue Discussion of the Last Decade. Those all seemed way too high for my modest leaping ability.2
I set my sights on the perfect paragraph. That seemed high enough to keep people from tripping over and low enough to be doable. I figured I had twelve years before the electorate got wise to me and threw me out at the end of my term, and in that time I should be able to write one perfect paragraph.
I may have been right. I’m halfway through my term now and haven’t done it yet, but I’ve written a few I liked that survived the Supreme Court’s scythe. It may be that another six years of honing my skills might have resulted in one perfect paragraph. But I’m afraid my heart’s not in it anymore.
The Court of Appeals for the Eleventh Appellate District in Portage County, Ohio, did it a few months ago. And now anything I wrote would be a pale imitation of their Gatsby paragraph.
Say what you will about me, I know when I’m beat. Here is the first paragraph of Mayor v. Wedding, 2003 WL 22931354 (Ohio App. 11 Dist.) : “In this case we are called on to determine whether a cow is an uninsured motor vehicle under appellants’ insurance policy. We hold that it is not.”
How could you improve on that? I mean, that’s “Call me Ishmael.” That’s
“All happy families are happy alike, all unhappy families are unhappy in their own way.” That’s “It was a dark and stormy night . . .”3 No one could read that paragraph and stop. It is, therefore, not only the perfect paragraph, but the perfect opening paragraph. My desolation is complete.
Oh, sure, you could quibble about the “that” in the second sentence. It serves no obvious purpose, and slows down the sentence. But, then again, maybe you want to slow down the sentence at that point. Content this rare should be savored, and slowing the reader down there may provide an extra moment to luxuriate in the richness of two sentences of such magnificent lunacy. Maybe that “that” makes it the pluperfect paragraph.4
It’s truly inspiring to see colleagues rise to the level of their material. I mean, when you get a case which actually requires you to decide whether a cow is a motor vehicle, it deserves some beautiful writing, and this court – most notably Judge Cynthia Westcott Rice, who authored the opinion – provided it, right from the overture.
Why don’t I get cases like that – I mean why besides the fact we have fewer left-handed Nepalese Communists than cows wandering the roads of Orange County.
That’s how this came up.5 The Mayors were driving along Interstate 76 one evening when their car struck a cow owned by Mr. Wedding. Since Mr. Wedding and his cow were uninsured for this eventuality, the Mayors sued their own automobile insurance carrier, contending they should receive compensation under the uninsured motorist provision of their policy.6 The insurer, predictably hypertechnical and mendacious, fell back on the picayune cavil that in order to have a motorist – insured or uninsured – you need a motor vehicle, and that the cow did not qualify.
Apparently, large farm animals in the road is a recurring problem in Ohio. In deciding this case, the court was able to refer to not just one, but two precedents in which motorists had tried similar arguments. Wow. You give me that kind of run support, I could throw a few shutouts myself.
Honest. Two precedents. In 1984, the Ohio appellate courts decided State Automobile Mutual Insurance Co. v. Cleveland Carriage Co., 98 Ohio App. 3d 361, which, according to the Mayor court – and I have no reason to doubt them – held that a horse was not a motor vehicle.
Then, extending that ruling to hitherto unimagined lengths, they decided in 1991 that attaching a buggy to the horse did not turn either the horse or the buggy into a MOTOR vehicle. (Wilbur v. Allstate Ins. Co., 11th Dist. No. 90-G-1000, 1991 WL 252851). Ohio is obviously a tough place to be livestock, but apparently Shangri-La for appellate counsel.
So how, you might ask, did the courts in Ohio come to the conclusion that neither a horse nor a cow is a MOTOR vehicle? How, you might wonder, did they sift through all the legal chaff to find the kernel of logic that separates warm-blooded barnyard animals from lifeless, steel MOTOR vehicles.
Go ahead, ask. Wonder.
Was it by taking judicial notice of the conspicuous absence of MOTORS in cows and horses? No, no. That would be way too easy. Nobody remembers opinions like that. No one writes odes to such prosaic analysis. Who would remember Mays’ catch in the ’54 World Series if he’d turned at the last moment and caught it facing home plate?
No, the 11th District went for the three-cushion, double-kiss into the side pocket, using a bridge to make the shot. Their analysis (drumroll, please):
There appears to be no dispute that there was a collision; the cow was not insured at the time of the collision; and that the cow caused the collision. The dispute in this case is whether the cow was a “land motor vehicle” as defined in the policy. While a cow is designed for operation on land, we do not believe a cow is a “motor vehicle.” The policy at issue does not separately define “motor vehicle;” therefore we must look to the common, ordinary meaning of this term.
The American Heritage Dictionary defines “motor vehicle” as, “a self-propelled, wheeled conveyance that does not run on rails.” Id. at 817. A cow is self-propelled, does not run on rails, and could be used as a conveyance; however, there is no indication in the record that this particular cow had wheels. Therefore, it was not a motor vehicle and thus was not a “land motor vehicle” as defined in the policy. The trial court properly found that appellants were not entitled to uninsured motorist coverage. [Citations to the two precedents noted above.]
That’s right. The reasoning process wasn’t that you can’t be a motor vehicle if you don’t have as motor. It was that YOU CAN’T BE A MOTOR VEHICLE IF YOU DON’T HAVE WHEELS!
Lord help the people of Ohio if their legislature ever passes laws pertaining to “wheeled vehicles.” The whole state appellate system will herniate trying to figure out how to define “wheeled vehicles” now that they’ve already defined “motor vehicles as vehicles with wheels.
Actually, I never met these people, but my instinct is that Judge Rice and her concurring colleagues, William M. O’Neill and Diane V. Grendell, are having more fun than any of us west of the Taft family ever suspected. And I don’t for a moment begrudge them that fun. In fact, if I could get me, Corrigan and Gomes – or me, Gilbert and Parilli, or even me and two people who drink too much – transferred to the same division, we could probably come up with some pretty fancy ways to differentiate cows from automobiles or ducks from tangerines or sheep from shinola. We might even find a way to match Mayor v. Wedding.
But I know we couldn’t top it. Because I know that, confronted with the same case, I would have failed to rise to the material. I know I would not have produced the perfect paragraph.
My opinion would have recited the facts in a single paragraph and then held, “Hello? It’s a cow.”
That kind of work does not get you the office next to Ron George.
But, then again, I still have six years left.
1 Yeah, I know it’s supposed to be “the state and me,” but that misstates the relative importance of the parties. Sometimes grammar has to take a backseat to accuracy. back
2 Besides, as Tom Crosby used to say, “All my best stuff gets reversed.” back
3 There is absolutely nothing wrong with, “It was a dark and stormy night.” What got E. G. Bulwer-Lytton in trouble wasn’t the part of the line Snoopy always emulated, but the rest of it. The full quote is, “It was a dark and stormy night; the rain fell in torrents – except at occasional intervals, when it was checked by a violent gust of wind which swept up the streets (for it is in London that our scene lies), rattling along the housetops, and fiercely agitating the scanty flame of the lamps that struggled against the darkness.” Now that’s a sentence which can’t make up its mind. back
4 I will leave to others the question about whether the concept of “more than perfect” as my dictionary defines “pluperfect” makes sense. Seems to me to be the linguists’ equivalent of the jocks’ “110% effort,” but ... well, you be the judge.back
5 Cows, that is. Not Nepalese Communists. Try to keep up. back
6 Timothy A. Ita of Cleveland, Ohio, was able to make this argument to an appellate court with a straight face. Remind me never to play poker with Mr. Ita. back
William W. Bedsworth on Wednesday, July 07, 2004 at 15:23
Beds takes a look at the FCC
Two disc jockeys in Miami seem determined to prove the truth of le Comte de Maistre’s famous statement that the chief drawback of democracy is that “The people get the government they deserve.” What bothers me is that it looks like I’m gonna get the government the disc jockeys deserve.
According to the Associated Press, Joe Ferrero and Enrique Santos are the hosts of “The Morning High Jinks” show in Miami.1 This alone would be enough for me to stick them in front of a firing squad. Just about anything with a “morning zoo” kind of zeitgeist makes me marginally homicidal.
I’m old enough to remember when you could actually listen to music on your way to work, rather than a bunch of Rick Dees clones – usually in groups of two to five, based on the station’s perception of how many of them it will take to generate an entertaining idea each day – demonstrating their complete unfamiliarity with the concept of an unspoken thought. Were it not for books on tape and my comprehensive collection of Bob Seger CD’s, I’d probably have to turn off the radio and direct all my attention to driving.
But Ferrero and Santos represent the cutting edge – or whatever is the equivalent when a blunt instrument is involved2 – of shock jock radio in Miami. Their latest prank was to call Fidel Castro and, after first softening him up with a string of mundane pleasantries, call him an assassin.
This is not an interview technique taught in most journalism schools. Most world leaders react badly to certain words, and “assassin” is generally high on that list, so I think it’s safe to assume this was not an attempt to conduct an interview so much as an attempt to hack off a head of state.
It was, in short, the kind of crank call we all made when we were at an age when we could still count our pubic hairs. According to AP, Castro reacted with a “stream of vulgarities” and the Federal Communications Commission reacted with a $4,000 fine against the radio station.
Now there’s just all kinds of things I don’t understand about this story. As a judge, I am, of course, fascinated by the amount of the fine. Sentencing is probably the hardest part of being a judge, so I’d love to know how the FCC came up with a $4,000 wallet-lightening as an appropriate punishment.
By comparison, the FCC socked Clear Channel Communications $495,000 for subjecting the nation to Howard Stern and another $755,000 for Bubba the Love Sponge. I’ve never heard Bubba the Love Sponge, but if he was 50% worse than Howard Stern, I have difficulty understanding how no one went to prison on that one.
Howard and Bubba’s crimes were basically the same ones we dock our kids a week’s allowance for, so I can only assume the FCC figured out what Clear Channel’s weekly allowance was and worked from there. Apparently WXDJ, the Miami station responsible3 for Ferrero and Santos, was fined less because it has a smaller allowance than Clear Channel, which, last time I looked, had a slightly higher net worth than God.4
But as much as I love sentencing issues, 5 I must admit it’s the crime itself that really fascinates me here. I mean, how can it be that easy to get Fidel Castro on the line. I can’t name – offhand – three members of the California Supreme Court who’d take a call from me. And we’re on the same team. 6 So how do two guys in Miami pick up the phone and five minutes later find themselves saying, “Fidel . . . Buddy . . . how’s it hangin’?”
According to AP, Ferrero and Santos “used snippets of an earlier prank involving Venezuelan President Hugo Chavez to move the call from a receptionist up the chain to Castro in a five-minute broadcast June 17.” So these guys are making a living calling Latin American dictators and insulting them? Can it be this easy?
I couldn’t get through to Juan Castro, the Cincinnati third baseman, but Alias Smith and Jones can reach Fidel Castro, the President of Cuba, by using their previous conversation with the President of Venezuela? Do they not have secretaries south of Juarez?
The next thing I don’t understand is how can you be a good enough journalist to get a job with the Associated Press and not feel the need to tell us WHAT CASTRO SAID? How can that not be a major feature of the story?
It says he “denounced the callers with a stream of vulgarities.” How can they not tell us what those vulgarities were?
Castro at one time aspired to be a major league pitcher. He had a tryout with the Washington Senators.7 My experience is that ballplayers know how to curse. For many of them, this is the most cerebral part of the job.
Wouldn’t you love to know whether Castro’s epithet repertoire is up to the standards of some famous foreign ballplayers – say, Eric Gagne (Quebec) or Odalis Perez (Dominican Republic) or John Lackey (Texas)? Let’s be honest, these are the questions we really care about, aren’t they?
These, and the really-obvious-elephant-in-the-parlor question: Why in hell does the FCC care about this?
I mean, let’s review, class. We have terminated diplomatic relations with Cuba. We have subsidized its invasion, blockaded its coasts, embargoed its products, made it illegal for our citizens to travel to or do business with it, and crippled its economy . . . but we draw the line at crank calls?
How does that work? “Dear President Castro, the nation which bankrolled the Bay of Pigs and once seriously considered ways to poison your coffee, hereby apologizes for interrupting your phone service with a crank call.” That’s a little bizarre, even by the standards of the last two administrations.
And how would we deliver that message to Castro. We have no ambassador to Cuba. There’s nobody in a swallowtail coat and top hat to drive by the palace and convey our regrets. What do we do, call him up?
You think his secretary’s gonna fall for that? Can’t you just hear her? “FCC, my . . . donkey.8 Whaddya think, I’m stupid? The last girl who had this job got fired for letting a better story than that one get through to El Presidente. Come back when you’ve got Hugo Chavez with you, you twit.”9
For the record, what offended the FCC was not that these guys were calling people they couldn’t buy cigars from, or that they were insulting a guy who has an air force,10 but that they failed to get Castro’s permission to put him on the air.
Honest. You’re not allowed to put people on the radio without their permission. Under New York Times v. Sullivan, you could slander Castro ‘til you were blue in the face, but if you want to put him on the radio, you have to say, “Mother, may I.”
The radio station came up with a novel defense. They argued “the rule requiring people to be notified before their voices are used does not apply to people in Cuba.” There’s a certain surface appeal to that argument, but somehow I’m reassured by the fact the FCC rejected it.11
It didn’t really have much chance. The FCC’s only got one Spanish-speaking staff investigator to cover 626 Spanish-language radio stations. Newsweek seems to feel this may have something to do with the fact that FCC prosecutions of Spanish-language cases aren’t exactly thick on the ground. They weren’t about to let this one wriggle off the hook on a jurisdictional point.
I dunno. Part of me says this is not worthy of FCC involvement – not when there are big issues like why only one breast was bared on television during the entire Super Bowl. I mean, if Castro wants his calls screened, let him buy an answering machine like the rest of us.
But I suppose we can’t let just anyone make us look stupid to foreign governments. As de Maistre recognized, that’s the job of our elected leaders.
1 According to Newsweek, the name of the show is “The Morning Blast.” Because “Hi Jinks” seems so dated, I suspect Newsweek’s translation of “El Vacilon de la Manana” is closer to accuracy than AP’s. But I can’t say for sure. In college I stupidly bet on the Soviet Union to outlive my father (they were born the same year), and studied Russian. Now when my daughter refers to me as “papa” I don’t know if she’s calling me “father” or “potato.” back
2 La cabeza de martillo? back
3 And this is clearly the wrong word to be using to describe any of the parties in this fiasco. back
4 This analysis will probably answer a lot of questions for those of you who had clients sentenced in my court. back
5 Which is why California – whose criminal sentencing system is a trainwreck in a blizzard – is the perfect place for me. back
6 The smart money says there will be seven different libel suits spawned by this sentence, but I’m betting that Justice George can cobble together at least a majority, so I’m betting on four . . . maybe only three back
7 Honest, I am not making this up. He was pretty good. Probably had a major league curveball, but his fastball didn’t move. How delicious is the irony that Cuba’s dictator failed as a Washington Senator? back
8 Burro? Trasero? Nalgas? In Russian it would be bochka or oodar; fat lotta good that does me. back
9 I did not unthinkingly make Castro’s secretary a woman. I thought about it. I figured since I was making up the conversation, I could make up the parties. And if I made the secretary male, the pronouns made it hard to figure out who was talking. Not sexism, laziness. back
10 Always a bad idea. back
11 I understand the United States Supreme Court is going to wrestle with the issue of whether U. S. laws are available to people in Cuba; I’m sure the FCC will reopen WXDJ’s case if the outcome is different on this point. back
Justice William W. Bedsworth on Wednesday, June 09, 2004 at 12:23
Watching the Cookie Crumble
Years ago, I wrote a column in which I derided something our state legislature had done, complaining that they “turn out laws with the same vapid rapidity with which Famous Amos turns out cookies.” It was the best column I ever wrote.
Granted, this is not an exceptionally difficult accolade to earn. It would probably be a lot tougher to distinguish the best vintner in East Palo Alto or the most edible meal I ever cooked. But the Famous Amos column has always been my favorite thing I ever wrote because it got me a response from Famous Amos.
Not Amos himself. Actually, I was contacted by Wally Amos’ lawyer.
This is usually not good news for writers, but the lawyer turned out to be a terrific guy named Sanford Anker, who sent me a letter from Encino saying that their cookies were most assuredly not produced with “vapid rapidity,” they were produced by hand, from scratch, using only the finest flour, sugar, farm-fresh eggs and creamery butter. 1
In short, the cookies felt they had been libeled by their comparison to the California codes. Mr. Anker invited me to tour the factory and see for myself, presumably so I could write a retraction.
He did not have to ask twice.
I had a great day with Sanford Anker, toured the factory, ate a ton of cookie dough and came home with enough cookies to feed Bangladesh for a week. It was, up to that point, the most I’d ever been paid for my writing.
The next month I wrote a column comparing our legislature to Mercedes-Benz, Sony, and Micro-Soft.
Nothing. Nada, zip, zilch, bupkis. No car, no television, no computer. Not even a factory tour. Nichevo. Only inexplicable silence. It was almost as if they hadn’t even read the column.
The good news was that as near as can be determined, the legislature hadn’t read anything I’d written, and had therefore not taken umbrage. It has since been pointed out to me, rather pointedly, that for judges, the thigh bone is connected to the hip bone is connected to the wallet bone is connected to the legislative goodwill bone. Taking shots at the legislature is the judicial equivalent of “living in a powder keg and giving off sparks.”2
About all I can say about my earlier indiscretion is that we are indeed fortunate in California that our present legislature is made up entirely of people of unexcelled intelligence and wisdom, graced with fashion model good looks and picture-perfect golf swings. And all the legislators about whom I wrote in that earlier column have long since died and gone to hell.
Or maybe they didn’t go to hell. Maybe they went to Greenland.3
I mention this possibility not because I think hell may have been too harsh a judgment to visit upon our legislature,4 but because the penological system of Greenland looks a lot like you would expect a penological system to look if it were designed by people getting large checks from prison guards’ unions.
According to The Wall Street Journal, “A day in jail starts with a breakfast buffet of five imported cheeses, various breads, marmalade and honey. To relieve the wintry gloom, the table is lit by a holly-festooned candle. Lunch is a hot meal and dinner consists of cold meats. The walk-in freezer is stuffed with slabs of reindeer meat, remnants of summer hunting trips.
“Each convict gets a personal coffee machine, compliments of the jail. The unisex bathrooms are spotless. For those disinclined to venture out into the Arctic cold, a local shop owner drops by once a week to sell cigarettes and other supplies.”
Yep. That’s what it says, “a holly-festooned candle.” This is – obviously – an unusual penitentiary system. Not much holly festooning takes place in western prisons.
Then again, in our system, not many inmates are free to choose between buying from a visiting shopkeeper and going into town for their smokes. But in Greenland, the inmate decides whether exercise or convenience is the priorite du jour.
And the “slabs of reindeer meat” described as the remnants of summer hunting trips? Those would be hunting trips BY THE INMATES.
Furthermore, in Greenland, prison inmates are only incarcerated AFTER THEIR 9:30 PM CURFEW, and are routinely given WEEKEND FURLOUGHS! Virtually everyone gets those, and, according to the Journal, one in five are “free to come and go as they please.”
If you were a prison guard, isn’t this where you’d want to work? I know if I had just received my guarding degree and were trying to choose a prison system in which to begin my career, I’d be inclined to pick the one where they were sometimes unable to muster a quorum for the riot.
Now, to use the words of a great penologist whose opinion of such a system we can all imagine, “I know what you’re thinkin’.”5 You’re thinking the freedom of movement and an occasional weekend at home for a white-collar criminal or small-time sneak-thief doesn’t offend you.
Well, how do you feel about Jakob Lindenhann – a three-time rapist whose victims included a 7-year-old girl – who wanders into town three times a week to pick up food and DVD’s? Lindenhann is serving a life sentence, largely by listening to U2 and watching his DVD collection (which includes “Gangs of New York” and something called “Sorority Girls”) when he isn’t out shopping.
I don’t know. It’s becoming more and more clear to me that I am sadly out of step with the other occupants of this planet, but my personal opinion is that multiple child rapists should not be browsing the aisles at Blockbuster.
Apparently some of the Greenlanders feel that way, too. One, the head of a woman’s shelter,6 says, “The system is too old-fashioned – we should have a closed prison.”
I love that. At the same time Americans are wondering if their system of locking up people who commit crimes is too “primitive,” Denmark7 is wondering if not locking them up is behind the times. According to the Journal, Greenland’s adoption of noted sabermetrician/ mathematician/penologist Pete Rose’s “Prison Without Walls” concept has resulted in Greenland becoming “one of the most violent societies in the world.”
And it’s liable to become more violent. Remember the reindeer meat I mentioned? The meat that came from the inmates’ summer hunting trips? Every summer – so help me, the quoted material which follows is from the Wall Street for-crying-out-loud Journal, not the Weekly World News – every summer, “the inmates are given shotguns and allowed to hunt reindeer and seals.”
“The only requirement for such hunting trips: They must be accompanied by armed guards, and, according to Soren Soedergaard Hansen, chief judge of Greenland, ‘They cannot be drunk.’”
Well, that’s a great idea. How in hell has that one eluded us here in California. We issue shotguns TO THE INMATES and send them out hunting with armed prison guards. I mean, as long as we tell them they can’t be drunk, what could possibly go wrong?
Incredible as it may seem, they have had a few problems with this approach in Greenland.
Not the ones you would expect. Apparently, they have, mirabile dictu, roughly the same number of prison guards and prisoners after the annual summer shotgun safaris as they had before, which causes me to conclude that their inmate culture differs in some respects from the ones which exist at Pelican Bay and Folsom.
No, the problem created by the hunts is too much seal meat.8 Chief Guard Benny Christensen, described as having a “blue sweater, neat tie, and gentle demeanor,”9 explains that seal meat became a problem so they stopped serving it at the prison. “They all . . . want their seal meat cooked differently. It was too much, so we stopped it.” Now the seal meat is piling up.
And, of course, there is the perennial problem of inmates who aren’t back in time for curfew. In the United States, this is handled with spotlights and sirens and tommy-guns and dogs. In Greenland, they wait a few days and then go pick them up – usually in one of the local bars. While this seems clearly the more humane and rational approach to the problem, it has not yet caught on in our country. Probably because the bar owners have lobbyists.
But what really bothers me about the Greenland system is that the inmates are watching the same tv shows I am. I’m not sure why that offends me, but it does.
I can deal with the thought that Charlie Manson and Randy Kraft and Ted Kaczynski have roughly the same television privileges I have. I just reassure myself that they’re watching boxing and “The Apprentice” and “Fear Factor” so I’m not really sharing with them. I know it’s probably an elitist fantasy, but I’m willing to quitclaim them my rights to “Elimidate” and “The Best Damn Sports Show Period.”
But the Journal says inmates in Greenland get “prison-supplied tv sets with three satellite stations, including the Discovery Channel.” With only two alternatives, some of them have to be watching the same documentaries I am at any given time.
And what’s not only worse, but more ironic, we’re watching “Trading Spaces” together.10 While I’m sitting there yelling at the set that you can’t have peach walls with a taupe carpet, some Danish puppy-raper is doing the same thing.
Now that’s just not right.
1 This, I think, is, where the legislature had gone wrong. Not enough butter. back
2 Bonnie Tyler, Total Eclipse of the Heart. Words and music by Jim Steinman, Lost Boys Music, 1982. Proof positive that one judge . . . once . . . listened. back
3 A distinction fine enough to require months of legislative hearings to resolve. back
4 My position on this is much like Clarence Thomas’s position, as expressed during his confirmation hearings, on Roe v. Wade: I really just haven’t thought about it much. back
5 Harry Callahan. Turns out I listen more often than anyone thought; I’m just selective about who I listen to. back
6 And I’m guessing this is a growth industry in Greenland. back
7 Greenland is a “semiautonomous region of Denmark.” So help me, reading the WSJ is like being stuck in a bad History of Western Civilization class: you learn all kinds of stuff you really didn’t need to know. back
8 Like I said, different inmate culture. I think it’s safe to say the person who hung up on me at the California Department of Corrections was indicating that over-abundance of seal meat is not a problem in our state’s prisons. back
9 Okay, apparently our country’s guard culture is the same as Greenland’s. That’s interesting. back
10 Seems to me that allowing prison inmates to watch a show called “Trading Spaces” borders on inciting to riot. back
Justice William W. Bedsworth on Monday, April 19, 2004 at 23:38
A COMET YCLEPT CROSBY (1940-2004)
The smartest, coolest madman on the whole West Coast is dead.
And if all the integrity in the state could be had last month for a hundred dollars, you could get it today for $87.50. A large part of our collective conscience has moved on, and he will not easily be replaced.
On a personal level, I have lost as good a friend as I ever hope to have. Brilliant, fiercely loyal, and absolutely fearless, he was someone I knew I could always count on. But mostly I counted on him to remind me that life is for laughing. He laughed easily and completely, joyously and often. His opinions were memorable, but his laughter was unforgettable.
I loved him. And although we played Gladstone and Disraeli for three decades, I miss him terribly.
I met Tom Crosby thirty-two years ago. It was October of 1971, and I had landed a job as a law clerk in the Orange County District Attorney’s Office while awaiting my bar results. I was so wet behind the ears, you could have grown rice on my neck.
Having spent two weeks working for Oretta Sears (later our county’s first elected woman judge) and two weeks working for Alicemarie Stotler (now of the federal district bench), I was shunted off to the Fraud Unit, which at that time consisted of a future judge, a future bank president and Cros.
He was electric even then. In an office firmament which included an all-star team of nova-magnitude line lawyers, you had to shine pretty brightly to stand out. Tom did.
He was scary smart – one of those people for whom life is a chess game in which they easily see five moves ahead. He was adept at not just understanding the law, but understanding how its application would affect the real world. I didn’t realize then what a rare talent that is.
And his enthusiasm for prosecution was positively incendiary. He made me excited to be working in a prosecutor’s office and excited to be working on fraud cases. He made the bait and switch of a television set sound like ethnic cleansing. He made the case sound like it belonged at Nuremberg, and he made me want desperately to find legal precedents that would put anyone who would commit such heinous crimes in jail.
At the time, I thought he hated criminals. I later learned he hated untruth – no matter what its source, no matter what its outcome, no matter whom it benefited. The truth was his gospel; anything less was anathema.
Years later, when he joined the criminal defense bar, that abhorrence of falsehood stood him in good stead. Tom had the lowest righteous indignation threshold of anyone I’ve ever met. He could get genuinely irate about things most of us shrugged off.
I thought it was a quirk at first. But over time, I realized it ran much deeper than that. Tom became indignant because Tom saw what many of us blink at. Tom saw that any violation of the rules – whether by the accused, the police, the prosecution, or the court – is basically a lie. And a lie not only diminishes all of us . . . but also desensitizes us to the next lie, and the one after that, and the one after that.
I am embarrassed to admit that it was a long time before I was able to realize he wasn’t just the biggest pain in the ass in the entire defense bar, he was the most effective and relentless pain in the ass in the entire defense bar. And, as I began to see how effective and relentless he was, I came to understand that he was right about little lies being the precursors of big ones. And I began to agree with him that while we might understand a flawed justice system, we should never tolerate it.
And – paradoxically – I began to love my job more. Because Cros made me see how important every case was. Because I realized I could fight for justice just as hard from my side of the table as he could from his. He made me see that the battlefield wasn’t the counsel table. It wasn’t a file or a statistic or a point of law . . . it was people’s lives. And watching him fight for people’s lives inspired me to fight just as hard.
He was a great defense attorney. In a county where you could find an Olivier-caliber performer plying his trade in the criminal courts almost any day, Tom Crosby was always a marquis name.
But he will best be remembered as a justice of the Court of Appeal. It was a job he loved and a job that loved him.
I’ve never known a smarter lawyer than Cros. And his legacy would have been secured by the mere dint of bringing that spectacular intellectual firepower to bear on the legal problems he faced in his two decades on the court. Nobody as smart as Tom Crosby could fail to leave his mark on the state’s law.
God, what a wonderful mind. Only sixteen years of Republican governors stood between him and the California Supreme Court. And, while he loved to joke that the Supreme Court played a box-and-one defense on him – that the junior justice of the court was assigned to do nothing but scan Crosby’s cases for the treacherous error doubtless lurking in all of them – he had the admiration . . . and apprehension . . . of every member of every appellate court in the state. No one rested easy who found himself on the other side of an issue from that mind.
But Tom never decided a case with his intellect alone. He was blessed with a blast furnace of a heart. And every opinion formed by applying his intellect to facts and law was tested for impurities in that passionate kiln. His mind made him good; his heart made him great.
It is often said about appellate justices – as a compliment – that every case was a big case to them, that they never saw a case they regarded as unimportant. I’ve never understood that as a compliment. It suggests the judge didn’t know any better, that only a lack of discernment caused him or her to work hard on every case.
I guarantee you Tom Crosby knew the difference between big, important cases and little, unimportant ones. The measure of his greatness was that he did know that and still devoted the same unrelenting effort to all of them. Whether it was a hundred million dollar judgment or a twelve thousand dollar attorney fees award or a life sentence or a topless bar ordinance, Tom Crosby was on it like ugly on a bulldog.
Because somewhere in every case – civil or criminal, big or small – there was untruth. Someone in every case – intentionally or inadvertently – was flying the banner of falsehood. And that would always pull Tom Crosby into the fray, regardless of whether it looked big or small to the rest of us.
But the ones he loved most – the ones that lit him up and caused people to turn in the hallway to see what was causing that bright light at the other end of the building – were the ones where he felt the individual was being abused by the state.
Tom had spent his entire life doing battle with adversaries who proved unworthy. So when he found himself on the side of the individual, with all the power of the state arrayed against him, when he found himself convinced that justice favored a small-time crook against all the people of the State of California, or a band of homeless vagrants being turned out by the municipal machinery of the City of Santa Ana, then he had an adversary worthy of his considerable skills. And he was always at his best when he could take out that formidable pen and do battle with dragons.
The field that lies behind him now is littered with dragons. He was an awesome force in the Court of Appeal. Those of us who worked with him there know just how different the law is today from what it would have been without him. And all of us who knew him know the world is a better, fairer, more just place for all of us because he passed through it, even if he passed through it too quickly.
When I was a boy, my daily curfew was 5:30. I had to be home by then for dinner. In winter, the sun was down by 5, but there was enough light to let us play ball for another half-hour, if we really worked at it. And we did. I was never home a minute early; I hated to see those days end, and I squeezed every drop of light out of every one of them.
Well, now the sun’s gone down again. As bright and warm a day as we shall ever see has come to an end – long before we were ready to let go of it. But daylight is never extinguished; it just moves to another part of the heavens. While Cros can no longer be seen in our firmament, it will be a long time before his brilliance fades from the sky. And it’s our task now to squeeze every drop of light out of the incandescence that was this great man.
I will not see Halley’s Comet again. But I saw Tom Crosby. That’s good enough for me.
Justice William W. Bedsworth on Thursday, April 08, 2004 at 22:12
Nail this to the Door
. . . this loathsome combination of Church and State.
---- Thomas Jefferson
. . . the fatal theory of the separation of Church and State.
---- Pope Leo XIII
Today’s lecture – as you may have surmised – is on the topic of separation of Church and State. There will be a slight break in the program at this point to allow all of you leaving the room to exit without hurting each other.1
Alright, for those of you still here,2 let me explain why I chose separation of Church and State as a topic. I have before me an article from the Los Angeles Times, a paragon of journalistic repute now owned by the Chicago Tribune, which also includes among its many subsidiaries the Chicago Cubs, so you can imagine how much longer we’ll be citing the Times as authority. But for the time being, the Times is considered a better source than your neighbor kid who sniffs glue, and here’s what it said, right on page B15: “The Lutheran church has suspended a minister for saying that God doesn’t exist and there is no eternal life.”
Yep, that’s what it says.
Turns out one Thorkild Grosboel, pastor of Taarbaek, a town of 51,000 just north of Copenhagen, said in a recent interview that “there is no heavenly God, there is no eternal life, there is no resurrection.” According to the Times, this “mystified” church leaders3, and Grosboel’s bishop responded by suspending him.
For a week.
That’s right. A Lutheran pastor announced a personal theology that denied the existence of God, resurrection, and eternal life and the response of the church was a one-week suspension.
Wow. Talk about turning the other cheek. That’s some serious tolerance of dissent. If Pope Leo X had been that forgiving toward Martin Luther, we wouldn’t have Lutherans.
I didn’t know whether to be impressed that Lutherans were so open-minded or confused about what their job description for pastors must look like. “Wanted: Educated, well-meaning individual who believes in gravity, covered-dish potlucks, cold fusion, puppy dogs, Mars bars or any combination thereof, to counsel parishioners and conduct religious services. Or not.”
Now I was raised never to discuss religion or politics in polite company or print. I was told it was rude in polite company and stupid in print.
So I always preface any discussion of religion by reminding people that I don’t claim any divine guidance here. I happen to be a Protestant. Mostly I protest the fact there appears to be no organized religion on earth which shares my theology. As Gandhi said, “I consider myself a Hindu, Christian, Moslem, Jew, Buddhist, and Confucian.”
In short, I am the only member of my church. And I don’t throw rocks at others.
But it just seems to me that if you profess yourself to be a Lutheran, your creed should include certain essentials – God, resurrection, and eternal life being right up there near the top along with Jesus, a baseline of admiration for Martin Luther, the 95 Theses, the need for repentance, and relatives in the upper midwest. Pastor Grosboel’s position seems like the religious equivalent of saying, “I’m a strict vegan . . . except for the meat thing.”
So I was shocked – or, as we ex-prosecutors like to say, shockedandappalled – that Thorkild4 got off with a week’s suspension. Seems to me he deserved much more punishment. Maybe even a firm slap on the wrist.
A week’s suspension!? That isn’t a punishment, it’s time off to work on his short game.
What do you get if you set fire to the church? A written reprimand?
My first thought was that Denmark’s Lutherans had been studying the American system of employment dispute resolution. We no longer fire anyone. We suspend them with pay until they die.
It’s like a new system of pensions. Every week I pick up the paper and read a story which says something like this:
“County Supervisor Francis Mafuffnick has been arrested for embezzling six million dollars from government coffers. The supervisor, who admits having gambled the money away on last month’s Silver Broom Curling Championships in Winnipeg, Manitoba, also confessed to poisoning puppy dogs at the local pound and importing large quantities of cocaine from Colombia. He has been put on paid administrative leave pending a complete investigation.”
PAID ADMINISTRATIVE LEAVE! Every miscreant in the country who has a job gets put on paid administrative leave when he screws up. And it lasts forever. We put them on paid administrative leave and then forget they’re out there. We had a deputy district attorney here in Orange County whose paid administrative leave lasted longer than FDR’s presidency.
I went to Presiding Justice Sills last week and asked him if he would please initiate an investigation into allegations I was sexually harassing Justice Rylaarsdam. He said he wasn’t aware of such allegations. I said there weren’t any yet, but I was awfully tired and would be happy to make such allegations myself if it would get me a few months of PAID ADMINISTRATIVE LEAVE.
So I thought that was what Pastor Grosboel had done. Brilliant. Deny the existence of God. That’s gotta be good for a few months R&R. Throw in rejection of resurrection and eternal life for good measure and we should be down for a year’s sabbatical in Tuscany.
I figured he was probably pretty disappointed when he only got a week. Jeez, you can’t even find a villa near a good golf course in a week – much less get any use out of it.
But I underestimated the good reverend. Turns out he only got a week’s suspension from the bishop because that’s all she5 could give. “In Denmark, Lutheran pastors are employed by the state and bishops cannot fire them.”
So Pastor Grosboel’s case has been kicked upstairs to one Tove Fergo, Denmark’s Minister of Ecclesiastical Affairs.6 As near as I can determine, nothing has happened since. I have scoured the internet, and have found literally dozens – which is to say I stopped counting at 24 – of reports of Grosboel’s suspension, but nothing about any action taken by Fergo except to lament the oxymoronic combination of Lutheran pastorhood and denial of God and the resurrection.
This happened months ago, folks. Hell, you don’t read me for news – I mean, neither you nor I has a clue why it is you do read me, but we’re damned sure it isn’t for news value – so the fact this story broke in June and is just now showing up in my column is not going to damage our relationship. The reason it’s taken this long is that I’ve been waiting to write about it until Tove Fergo7 took some action.
But apparently that’s not gonna happen. Keep in mind that Lutheranism is the state religion of Denmark.8 According to the Times and Christianity Today,9 magazine, 90 % of all Danes belong to the Danish National – which is to say Lutheran – Church, but only 5% attend. That kind of disparity is enough to make any bureaucrat ponder long and hard about just how to handle a churchman who denies the basic tenets of the church.
Ninety per cent of the country professes belief in the Lutheran faith but only 5% appear to find their belief actionable. So just where to come down on this suspension thing could be risky business. I’m betting Pastor Grosboel is in for a lengthy PAID ADMINISTRATIVE LEAVE.
Me, I’m going back in to Sills and tell him I no longer believe in the Constitution, Marbury v. Madison, or Auto Equity Sales.10 Then I’m gonna contact Pastor Grosboel and see if he knows a good realtor in Tuscany.
1 Please proceed in an orderly fashion; the ushers have been instructed to remove the doors from their hinges so as not to impede your desperate flight. back
2 Both of you. back
3 Hope to shout! back
4 I’m convinced I could do something with this guy’s first name (Killed Thor) and his “God is Dead” eschatology if I were a better writer. But I’m not, so I won’t. back
5 The bishop’s name is Lise Lotte Rebel. Whether the first or last name is more significant depends on whether you are more in favor of eliminating gender bias in the clergy or promoting irony. back
6 We don’t have a Minister of Ecclesiastical Affairs in this country, which is perhaps too bad, since everything I read indicates there’ve been a lot of them going on. back
7 These Danish names play havoc with my spell check. My screen has little red worms crawling all over it. Looks like the back of my eyeballs on March 18. back
8 Wake up, class; I think he’s getting back to the church-state separation thing. back
9 Christianity Today. I tell you, no one fully appreciates what I go through to write these columns. back
10 Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Now you’ll always know where you can find that citation. You do keep all my columns, don’t you?back
William W. Bedsworth on Tuesday, March 02, 2004 at 14:18
Bloodlusting Chihuahuas Kill Thousands
My 84-year-old mother, who spent more time cleaning snow from walks than anyone not convicted of a felony should have to, frets every New Year’s Day that people in cold places will watch the Rose Parade, pack all their belongings onto Tom Joad’s truck, and move to California. So help me, if she were feeling better, she’d be out there at Needles or Blythe with a thirty-ought-six and a sniper-scope, shooting out the tires of westbound cars.
I try to reassure her that the only effect these imagined Minnesotan hordes would have on her would be to drive up her property values and make it tougher for dad to find a parking place at the chiropractor’s, but she will not be calmed. With the dogged determination of a geophysicist studying Peruvian climatic variation for signs of global warning, she spends most of January monitoring traffic reports for telltale indications that traffic is increasing in Norco. Only the fact she can no longer handle a postholer keeps her from going out and stringing chain link across the interstates.
Of course, none of this dread and drama is necessary. Those folks aren’t coming here. They may curse their snows in Buffalo. They may drown in their own sweat in Houston or watch their houses float away in Wichita and Washita and Ponca City. They may draw straws ten times a year to determine whether Galveston or Pensacola or Jacksonville will be evacuated as Hurricane Hieronymus draws near. But they won’t come here.
Because we have . . . drumroll, please . . . EARTHQUAKES.
I defy anyone who has a friend or relative living east of the Colorado River or north of the Rogue to tell me they have never heard this question, or some variation thereof: “Really? California? How can y’all live out there with all them earthquakes?”
California earthquakes are the boogieman of the rest of America. People who smoke a pack a day, throw down three beers on the way home from work on icy streets, re-wire their garage during a rainstorm, and climb up on ladders to clean out their gutters, think we are death-defying daredevils because we live in a state that has earthquakes.
The rest of the country seems to have the impression that California is composed entirely of earth with the consistency and toxicity of jello shots. The general consensus is that the reason we do so much weird stuff out here is that our brains are constantly being concussed by all the shaking and quaking we have to endure.
And, of course, we do all we can to promote this impression. Unlike other parts of the country, where the mentally infirm are hospitalized and treated, here they are publicized and worshipped. We put pictures of our goofiest citizens on television and broadcast them all over the planet, terrifying the Rose Parade watchers, and convincing every member of the Sioux Falls Chamber of Commerce that our brains have been liquefied by all that rattling around during the last 6.1. They turn on their televisions to watch the MTV awards and think, “I’d probably wear an outfit like that, too, if my house was built on a paint mixer.”
All in all, it’s a great strategy.
We didn’t invent it. I have friends who live in Seattle. Beautiful place. So help me, everybody who lives in Seattle has a house on a hill or in a forest or overlooking a body of water. And to keep the rest of us away, they report rain every day. Rain or shine, downpour or cloudless sky, Seattle meteorologists report rain.
Turn on your tv tonight and watch the weather report. You’ll see a little black cloud over the Olympic Peninsula. It’s there every night. Saves them the cost of chain link and sniper-scopes.
Truth be told, they get three storms a year in Seattle. They film every minute of them, then edit them and send them out every day for the rest of the year as a weather report. It’s brilliant.
But not as good as earthquakes. Mom tells people the reason body piercing is so big out here is because you can tether yourself to a lightpole using your nose ring or eyebrow stud during the daily tremors. Our relatives are convinced every person they see on tv with a pierced belly button has a length of clothesline in his pocket to tie off to something sturdy.
And every time we have a quake, Mom tells the 26 people who call her from other states1 that it was “a big one.” Doesn’t matter if it was a 2.1 three blocks away or a 3.4 thirty miles north of Crescent City, she acts like we’re gonna spend the next three days digging out and looking for pets.
But even Mom couldn’t have dreamed up this one. Just in case you have some hardy in-laws not yet discouraged by earthquakes and brushfires and mudslides,2 you might want to mention the feral Chihuahuas. According to the Los Angeles Times, “A Los Angeles County Superior Court judge must decide whether feral Chihuahuas, confiscated from a ranch, are suitable for rescue or must be destroyed.”
That’s right. Feral Chihuahuas.
Sounds like something out of a 1950’s horror movie doesn’t it? Can’t you just imagine Peter Graves and Lucille Ball3 and hundreds of national guardsmen racing around in jeeps and troop trucks, shining spotlights on the hills searching for packs of atomically mutated Chihuahuas which have just wiped out Calabasas and somehow got through the firelines the scientists assured us would stop them?
Mom mailed this story to all of our relatives and the mayors of 620 mid-size cities in other states. I accused her of making it up, but – as she was quick to point out – I had no way of explaining how she could have gotten it into the Times if she’d made it up. I’m pretty sure they’re not allowed to print anything that isn’t true in newspapers.
So I have to believe that Emma Harter’s ranch really had been overrun by “scores of tiny dogs.” 236 of them, actually, which, according to county animal control officers, “had formed ferocious, feral packs.”
Now this is, obviously, a story not well-suited to the written word. This is a story made for the eleven o’clock news. I mean, I can’t do justice to the picture of a dozen ferocious, little piranha dogs attacking the ankles of helpless passersby. The image of the “Yo quiero Taco Bell” cur and twenty of his bloodlusting cronies chasing mountain lions through the streets of Irvine4 is one which cries out for a camera, not a keyboard.
But the picture I really abhor is the one my mother is sending to all the city councilmembers in the state of Wisconsin.5 It is what the Times calls the “candlelight vigil held by another Chihuahua6 rescue group [which is] lobbying hard to win freedom for the dogs it calls ‘angels on death row.’”
This should pretty much confirm all the condescension exhibited toward us by citizens of non-quake-stricken states. It tells them we not only have a “Chihuahua rescue group” – an admission so damaging it should have been preceded by a Miranda advisement – but more than one! Note the Times story refers to “another” Chihuahua rescue group.
Mom’s having a field day. Her fax machine is in danger of melting. She’s telling people groups are springing up out of the rubble of their crumbled homes all over the state to defend these little canine Freddy Krugers. And they’re holding candlelight vigils. For “angels on death row.” Because they want to release feral Chihuahuas on an unsuspecting populace.7 This fairly shouts “cerebral quake damage.”
Imagine how the picture of a candlelight vigil in favor of vicious nanopincschers will affect the snow-shovelers, and house-kayakers in other parts of the country?8 Personally, I think just reminding them we had Chihuahua dogs at all would have made the snow and floods and hurricanes look good to them. But the prospect of these little mutants sitting around all afternoon sharpening their fangs and arranging gang summits with Crips and Bloods, has to be enough to send them diving back into the root cellar until the spring thaw.
This should go a long way toward alleviating our population problems. So help me, if the Times had run a story announcing, “All non-incarcerated Manson families are holding a pot-luck supper at the Oakland Coliseum,” it wouldn’t have made people less interested in moving to California. Not to mention the Los Angeles county judges who will probably be announcing their retirement and moving out of state to avoid getting stuck hearing the feral Chihuahuas case.
All of which is pretty good news for Mom. I’m thinking once the news gets out about the packs of feral Chihuahuas – Chihuahuas so ravenous they can strip a full-grown mountain lion to the bone in a matter of seconds – a lot of Rose Parade watchers currently on their way to California will be turning around. Long before they get within range of Mom’s mortars.
1 You must get this, too. Aunt Estelle from New Jersey calls at 3 in the afternoon because her evening news just reported an earthquake in a city 500 miles from yours and she wants to make sure her grand-niece isn’t one of the hundreds of assumed casualties. And you tell her, “No, we’re all down here in the shelter; we’re safe as long as the canned goods hold out.” back
2 Mom tells our relatives we’re also endangered by mudquakes and brushslides and earthfires, just for good measure. It really doesn’t matter what you say; they want to believe the worst. back
3 How could you have a movie about Chihuahuas without Lucille Ball? back
4 Of course we have mountain lions on the streets of Irvine; my mother has pictures. back
5 And their heirs and assigns. back
6 Pronounced, “Chee-HOO-a-HOO-a” in Wisconsin, where they are lucky enough not to have had much experience with this murderous breed’s feral tendencies. back
7 At least I assume they’re unsuspecting. Have you been losing a lot of sleep lately over the prospect of a dozen canine killers leaping out of a gym bag at you? I thought not. Okay, so we’ll go with “unsuspecting.” back
8 Imagine how the picture of Tom Hanks presiding over a death row for puppy dogs, walking them down the hall to the chair, will affect them. back
William W. Bedsworth on Sunday, February 08, 2004 at 14:46