A plea for reason and a statement of my (mostly or completely Objectivist) philosophy on politics and economics

Please, for the good of yourself (primarily), and the good of various individuals who comprise this country (secondarily), watch Yaron Answers videos on Youtube. Try to dispute him point by point. None of this, he's part of a conspiracy nonsense, or, he just doesn't understand nonsense, or he has the mind of a kindergartner nonsense. Tell me exactly why his perception is wrong, why, if given his premises, he would be wrong, or why, based on reason, his premises are flawed. Do you dispute, for instance, that you should not give a part of yourself to bad people (Do You support non-coercive altruism?)? Or, do you think that it is bad to offer better products for lower prices than your competitors (Why is Walmart so hated?)? Or that some group of people have the right to tell others that the world is overpopulated?

Of course, if you don't watch Yaron Brook, but you read Ayn Rand, even better, but please, please think for yourselves and don't sell yourself, and a large number of others, short by some absolutely bankrupt and irrational policies.

I don't mean to be an expert on Ayn Rand. My ideas are not completely original, but are based on Ayn Rand's fiction and non-fiction, as well as the works of Leonard Peikoff, Yaron Brook, and other Objectivist scholars. In fact, I have a million things to learn myself. However, I think this country has been sold out by a number of horrendous policies that have enslaved the population. By people's individual faults, they allow intellectual con artists to convince them to believe all sorts of destructive ideas, and let the system continue by default. It is a situation where government has grown so ungodly massive and intrusive that people, with good reason, have given up on any attempt to untangle the mess.

The problem with our political discussions is that no one is speaking in terms of essentials anymore. All we have are debates on how to fix laws that should not exist in the first place. In 1913, congress passed laws creating the Federal Reserve and the IRS, and somehow convinced states to vote for the heinous 16th Amendment. That is a turning point in history. Why does the government have the right to take a percentage of someone's hard-earned money? We can go back even further to the first Anti-Trust law, in 1890, or other policies enacted in the 1870s. Once we accept the premises that these are legitimate government functions, why even bother debating issues? It's only a matter of time before every man is a slave to government.

The simple truth is that there are three basic realms which are appropriate for government: police, defense, and court systems. The point is that people need to be free to be as rational as possible, but rationality ends where coercion begins. So, the function of government is to prevent individuals from coercing other people. Ayn Rand, Capitalism: The Unknown Ideal. In these three basic elements, the government should fund and run the system to the deepest extent of its funding, wherewithal, and zeal as humanly possible. All other functions of government should be eliminated. Instead of regulation, we need to establish clear property rights to everything, and then police the system as much as humanly possible, based on rational laws. Instead of tort reform, we need a fully-functioning civil justice system. Instead of allowing crony capitalists to get away with their crimes, we need to punish them fully and appropriately. Instead of several half-baked overseas campaigns, if a goal, like eliminating ISIS, is a legitimate one, (necessary to maintain safety and passes the cost-benefit test in all particulars) we need to pursue that to the best of our abilities. Remember the adage, anything worth doing is worth doing well? None of the discussion of rights, leniency, or Islam not being the problem will do. Instead of spending resources rounding up drug dealers and prostitutes, we need to legalize all victimless crimes and put the police to work preventing the harm that will come of malam-in-se crime, including: murder, property theft, white-collar crime, gangsterism, etc.

Capitalism is NOT good because it works, it is good because it is moral for ALL people to have complete freedom to engage in productive work of his choosing, to the greatest extent possible.   Even if some statistical study suggests that by pooling resources, certain goals can be better handled, that does not mean that coercion is the means to do so.  Even in the best of circumstances, we need to completely reverse the trend, of first thinking that benevolent leaders or the people can solve a problem better than an individual can for himself.  That is nonsense.  We need to be skeptical of any such claim and err on the side of the individual.  If you think government needs to pilfer money in the form of taxes to accomplish any of these goals, check your premises.  Would that be true if government were true to the founding principles?  Would that be true if government were rational, protected property rights, and allowed us to flourish?  There are also ways smart people can invent to fund government, by persuading people to do so, or selling things like lottery tickets.

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This blog does not constitute legal advice in any way, only the opinions of one man, and there is no guarantee that every fact listed here is correct or current.  I have ZERO desire to represent anyone or practice law in Montana, California, nor any other federal, state or foreign jurisdiction, and there is ZERO attorney-client privilege, so anything you write may not be private in any way.     Don't tell me anything you do not want the public to know.   NO expectation of privacy here.

Overview of the Montana Supreme Court

Information Not Legal Advice.

The information contained on this website, individualwelfare.blogspot.com, is for informational purposes only and does not constitute legal advice.

No Promise or Warranty.

There is no promise or warranty as to the accuracy, completeness, adequacy, timeliness, or relevance of the information contained on this website,individualwelfare.blogspot.com, or any related website, include Facebook, Twitter, or any other form of social media.

No Contract or Attorney-Client Relationship.

• Neither the information contained on the individualwelfare.blogspot.com website nor the use thereof by a website visitor creates a contract or an attorney-client relationship.
• Viewing this website, or transmitting an e-mail message through this website, does not create an attorney-client relationship. Sending email to an attorney mentioned in this site does NOT create an attorney-client relationship between you and the attorney. Unless you are already a client of the attorney, your email may NOT be protected by the attorney-client privilege. Moreover, unless it is encrypted, email can be intercepted by persons other than the recipient. Deadlines are extremely important in most legal matters. You may lose important legal rights if you do not hire an attorney immediately to advise you. Many people do not check their email daily, and some attorneys do not respond to unsolicited email from non-clients.  Do not assume I will even respond to any email you send me.   I assume no duty to do so, nor to accept any clients from this website or elsewhere.  

In addition, and not by way of vitiating anything written above:
This blog does not constitute legal advice in any way, only the opinions of one man, and there is no guarantee that every fact listed here is correct or current.  I have ZERO desire to represent anyone or practice law in Montana, California, nor any other federal, state or foreign jurisdiction, and there is ZERO attorney-client privilege, so anything you write may not be private in any way.     Don't tell me anything you do not want the public to know.   NO expectation of privacy here.

The state of Montana, like all states, has an appellate court of last resort.  How many justices do you think the state has?  Which state supreme court, California's or Montana's, writes more opinions every year? If you guessed the Montana Supreme Court, then you are right.  There is NO intermediate appellate court in Montana, and most appeals to the supreme court are mandatory, though few cases are set for oral argument.  Can you imagine the consequences of this?  There is no recourse once a person appeals his case to the Supreme Court, unless he luckily has a federal issue, and the federal supreme court decides to grant certiorari.  Of course there are exceptions where a criminal defendant can start a new action in federal court, and others.  So, a person's fate is determined by seven justices. The current justices are:  Mike McGrath (Chief), Patricia Cotter, James Rice, Mike Wheat, Beth Baker, Joyce McKinnon, and James Shea.  Shea was appointed in 2014 after a year or more of vacancy on the court.  I think it was Justice McKinnon who commented about my enthusiasm, after the official swearing in, I was able to talk to some of the justices.  I think it was Justice Wheat who told me to use Lexis Nexis to get my questions about the court caseload answered, perhaps an early indication that the practice of law would not be any fun, but expensive and time-consuming. One would think that most appeals involve criminal defendants, but this is not the case in Montana.

Yes, the justices swear in all attorneys to the state bar, in a ceremony which occupies a negligible part of the court calendar for that day. The court is nice enough to provide refreshments to the young attorneys.  Justice Baker, although young, appeared to be the most standoffish of all justices.  The supreme court has its own building and courtroom in Helena.  The room may be fairly imposing for some.   I recall a lot of red, which probably also existed at Nuremberg.  Sometimes the supreme court travels to other cities, but not often.  Montana attorneys spend a lot of time driving to court.  It is such an issue that attorneys often charge clients for driving and there are some rules regarding this practice.

Justices in Montana are elected by the voters to eight-year terms, although most probably start out being appointed to fill vacancies between elections.   They must have practiced law for at least five years before becoming justices.  As far as I know, there is no requirement that federal supreme court justices practice law, though they all probably have.   The governor has 30 days to make his pick after being present with a list of 14 or so prospective justices, and all of their resumes and writing samples.

The public is also entitled to read the qualifications, writing samples, resumes, other work, of prospective justices, and make their opinions known in a public hearing.  The justices review all matters submitted by applicants from lower courts, grant all necessary motions and handle a limited number of their own trials,  It is my understanding that trial courts provide court recorders as a matter of course, which makes appeals a little easier to manage in Montana.  In California, only family matters and few others have court-appointed reporters, as an attempt to save money.  Most civil cases have no such thing.  Unless a party provides his own reporters, gathering the record for an appeal is an awful mess, involving the parties' attempts to submit a stipulated record, with disputes over all rulings upon which they cannot agree.  

Unlike California, there are lower courts in Montana, city courts, and justice-of-the-peace courts handling small misdemeanors and limited civil cases.   In California, there are divisions which handle smaller matters, but these are housed at the Superior court in each county (such matters also have another level of review in the appellate division of the superior court).  All such trials are entitled to an automatic appeal (essentially a retrial) in the district court.   Montana is divided into 22 districts spread over 56 counties,  Where do you suppose district one is located?  Why, in Lewis and Clark County, of course (Where Helena, the state capital, is located).  My conjecture is that the most legal cases are heard in Missoula, where the only state law school is located, though Billings is the largest city in Montana.  Missoula is a fairly close second, and, due to its liberal nature, probably more litigious, though this may be overcome by the increased business activity near Billings, in eastern Montana.   I have not found a district with more than four judges, though this may have changed recently.  All courts are small and quaint, like the courts in small northern-California counties.  Jurors there are referred to by their given names, not numbers.   Imagine, 56 counties spread over a large area, more than half the size of California, though covering a population of just over one million.  This, and the fact that its people tend not to be litigious, might explain why lawyer salaries are THE lowest in the nation.   One justice of the peace (limited criminal judge), Daniel Wilson, told me that the state is currently overrun by large firms which leave too few matters for the small firms.  This would make sense.  Also, California has a massive need for attorneys, at least in the public interest (clients who cannot pay), so it can handle a fair number of attorneys who were not educated at ABA-approved lawschools.  Montana does not admit attorneys who did not attend ABA schools.   Most attorneys entering the state either attended The University of Montana (the only state lawschool), or are coming to Montana to retire, after a successful practice in another state.   On the other hand, there is the possibility of admission by motion, and the supreme court is contemplating the option to lower standards for passing the new UBE exam, which is also recognized by several states. At my administration, I passed at a time when the pass rate had been the lowest ever,  2/3.  How pathetic, by California standards.  Oh well, I suppose the state wants anyone who asks to be miserable to have that opportunity.  The supreme court admits attorneys and also handles most, if not all, attorney discipline.   There is almost nothing private, and maybe one in ten attorneys are subject of client complaints every year.   Imagine a frivolous report triggering a red flag on the attorney file for all to see.  The California Bar has a very efficient means of disposing of such claims.  Also, Montana adopted the model rules of professional responsibility, which requires attorneys to report other attorneys who appear to be engaging in malpractice.  So, any time a new attorney appears not to have every detail well rehearsed and polished, he could be subject to an investigation.  No such law, to my knowledge, exists in California.   Little income and exacting standards,  No thank you.

You would think that, because Montana is a small, relatively rural state, law is practiced with a degree of informality.  I assure you, this is very wrong, at least since the new state constitution was ratified in 1972.  However,  Montana does not seem to place much stock in common law, relying on the legislature to spell out the laws, which judges often apply in as mechanical a fashion as possible.  Still, however, there are several unanswered questions, to which the judges look to other states, such as Wyoming and Idaho, for guidance.   To facilitate the process, Montana has adopted mostly Model and Uniform Laws.  This is a questionable practice in and of itself.  Model and uniform laws are written mostly by businessmen, and may be adopted wholesale by state legislatures.  This is an especially large problem if the businessmen who write the laws write them to benefit themselves at the expense of others. Some of the uniform laws may make a lot of sense, but they need to be judged on their own merits.  Montana is NOT a community-property state, opting instead for an all-property common-law system, which requires judges to exercise discretion to a much larger extent in dividing property than in California,  and has adopted the Model Penal Code, which is very different from the California penal code.   The definition of murder or "intentional killing"  is much more straightforward in Montana.   Perhaps the most interesting law, in my opinion, is that no employee is an at-will employee.  Most states, including California, hold the presumption of at-will status.  This means that an employer in Montana needs cause to fire an employee, unless the employee clearly understands his job is probationary, and then only for a limited time.   In California, at-will employees still find ways to access the courts on wrongful termination actions. Great solace for employees there, who can slave away for 26,000 a year; they have the job for life.   There are also water courts and workers compensation courts.  Workers Compensation law is also very interesting in Montana, as is contract law. Montana is probably as adamant as California about eliminating the protections for business under the FAA.  There is a great argument to make, that poor, uneducated, unsophisticated people have arbitration clauses and class action waivers shoved down their necks in adhesion contracts, for which there is little, and in some cases, no alternatives, and for which they had or took no time to examine before entering the contract, thanks to government intervention in such areas as healthcare.  The law is very objective, however, so I can see myself on the losing end of this debate, especially when I am up against some thoroughly-read libertarians.    Perhaps a better objective law is to state that parties may never, a priori, agree to change any legal procedure, for that vitiates the legal procedure in the first place.  Courts, which are a legitimate exercise of government, exist in order to provide justice and prevent one party from initiating force against another,  and the legal procedure is an integral part of that function.  If parties come to an argument and find it in their interests to arbitrate the dispute, that is a different story.

Montana also adopted the vast majority of the Federal Rules of Civil Procedure as their own   I am not a fan of this action.    The FRCP may suit the federal courts, but are way too restrictive to handle the diversity of state actions, and unforgiving of pro-per litigants.  I would hope federal courts never have the problem of pro-per filers in civil litigation.  Bankruptcy is a different story.

Montana cities don't usually have rent control, but there is a state law which provides significant protection for tenants. As far as practicing law in Montana, there are significant differences.

People may not have even heard of the IRAC style of writing papers, briefs, etc in that state.  and the decisions and briefs look very different. There is no pleading paper, and very unusual, but simple, headings.

When I reviewed several laws and decisions in 2014, I came to the assumption that Montana is trying to be as liberal, and that is to say, statist as California.  So, who would want to live in a state that has all the disadvantages of California (very tough business climate) and none of the advantages (no large cities, beaches, or good weather)?  However, this may not be the case, and the justices may actually be attempting to break with California precedent.  In the federal system, to which Circuit Court do you suppose Montana belongs?  The Ninth Circuit, which also includes California, Hawaii, Alaska,and most every state west of Montana.  It is by far the largest federal circuit.  I don't recall if I joined the Ninth Circuit. I joined the state and US District Courts in Montana. There appears to be one justice stationed in Montana at the circuit level, as well as Federal District Courts in Helena, Missoula, Great Falls, and perhaps other cities.  

Perhaps because the supreme court has so many mandatory appeals, the judges appear very unforgiving: most any incorrect procedure is dismissed immediately, without any consideration of the merits. In the criminal arena, a large percentage of the cases seem to involve sex with children,    A most unfortunate feature of Montana culture.

As far as I know, there is a state income tax, lower than California's, but no state sales tax, though local jurisdictions may create their own sales taxes.  Property tax rates don't appear much higher than those in California, though it may not have the family transfer protections of property that California does. Consult an attorney, NOT me, on any legal matter.



CORRECTIONS:

Montana Justices are elected for EIGHT-year terms.

Montana has 56 counties, not 46.  California, by the way, has 58.   Montana's least populous county is called Petroleum, the seventh least populous in the US.  The least populous in the US is Loving County, Texas.   Good inaptronym, huh?

Since I wrote this article originally, the Montana Supreme Court has approved a motion to lower the bar-passing score from 270 to 266, and making the change retroactive for the past three years.

Nickerson v. Stone Bridge Life Insurance Company: Good excuse for a detour on punitive damages and other issues

Justice Leondra Kruger probably made a sensible ruling in this case, which amounts to a pretty mundane issue.  Indeed, if public officials were engaged in work which is proper to government, their lives would normally be very uninteresting.  However, the legal background underlying this decision is much more interesting.

Facts:  Nickerson is a veteran.  He is entitled to full medical benefits, which appears to have been provided by Stone Bridge Life Insurance Company.  He is a paraplegic, paralyzed from the waist up, etc.  He was injured severely on February 11, 2008.  He was admitted to the hospital, and for some reason stayed there for over 100 days.  He filled out a request for coverage and was denied for all fees incurred after January 29, 2008, since none of those fees were considered necessary medical expenses, in accordance with his policy, and received a bill in addition.  Nickerson sued Stone Bridge not only for breach of contract, but also for torts (bad acts).  On the tort claims, the jury awarded $35,000 in compensatory damages, found the insurance company engaged in fraud,  and awarded 19 million in punitive damages.  Several things.  Why did this case go to trial?  Why couldn't the insurance company settle the dispute?  Why did the jury award damages for tort claims when this seems to be a simple contract dispute?  The court, under stipulation by both parties, decided an amount to compensate the victim for attorney fees under Brandt.  

Insurance company appealed on the basis of Gore and other precedents, that the punitive damage award was excessive.   The appellate court agreed, reduced the award to $350,000, ten times compensatory damages, and gave Nickerson the option to accept or to hold a new trial.  Amazingly, Nickerson rejected the court's offer.  What is he doing by rejecting the offer?  How much time and money was wasted on this nonsensical argument before the supreme court? Several issues were presented to the Supreme Court, the only one that they considered in this particular case, is whether the Brandt award should have been considered in applying the Gore test, to remit the extent of punitive damages.   The court decided that it should consider the Brandt amount, and remanded to the Court of Appeals to adjust the punitive figure accordingly. 

In case you did not know, the Supreme Court case of BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, held that punitive damage awards are subject to scrutiny under the due process clause of the Fourteenth Amendment, and can be set aside if excessive.  Related cases have identified three factors to decide whether this is excessive.  These are:  (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases."  

In my view, this is a mistake and a major miscarriage of justice.  Many disagreements can be found in a particular case as to whether the punishment is just, but to state that big businesses (and Gore was a case which gave special treatment to big business) should be protected by government, from large awards on the basis of due process, on the idea that the company lacks notice of the extent of punishment, is absurd.   Parties must be responsible for their actions, period.  To impose such a rigid view of the appropriateness of a punitive damage award is anathema to this process.  The fact is that every case is unique and needs to be judged on its own merits.  In a properly functioning trial, the facts should speak for themselves.  The idea that no punitive damage award should be over ten times the compensatory damage award is absurd, because just as there is no limit to the extent of profit companies can achieve if left alone, there is no limit to the extent of harm wrongdoers, acting irrationally, can inflict upon their victims. Punitive damages are designed to deter conduct, whatever is necessary to do so given the facts, is necessary.  A is A.   It should not matter that one company was only fined 50 dollars for the same conduct.  Companies can and have gotten away with egregious abuses, and now have a partial sanction from the government to continue doing so with limited consequences.  Companies, with the sanction of government, can continue to harm people, and write off the consequences of their harm as a cost of doing business.  In a properly functioning society, the court system will impose harsh consequences against wrongdoers, and have no regulations, which govern business before any wrongdoing has occurred.  Limiting the extent of punishment for wrongdoing and maximizing the extent of regulation is a painful, obvious, and unacceptable inversion.    In one consideration of the punitive damage awards under the Gore test, you will notice that the court must consider the government-imposed fines and sanctions for similar behavior,  therefore, encouraging society to enact more regulation, and engage in less litigation.  It should not be government's job to impose arbitrary punishments and regulation, but to run effective court systems to deter harmful conduct.  

Just as profit is and should be a great motivator to entrepreneurs, the possibility of large damage awards ought to encourage plaintiff's attorneys to fight for justice.  If the maximum fee for which the attorney can aspire is limited, what is left to motivate him to continue fighting for justice?  Plaintiff's attorney work might be the most dehumanizing, awful of all occupations, and eliminating that potential pot of gold at the end of the rainbow will have deleterious effects on the pursuit of justice for poor people, whom politicians seem to care most about.  

   

In Re Sergio Garcia. What was the court thinking?

If you don't know, Sergio Garcia was an undocumented immigrant living in California.  Somehow he managed to obtain an education and a JD in the United States.  He was admitted to the state bar in 2014.  It is true that Sergio Garcia applied for permanent residence over twenty years ago and has not been processed yet.  A great debate needs to take place on federal immigration policy.  That, however is not the point of my anger against the California Supreme Court.  The  California Supreme Court misinterpreted a federal statute and encroached upon the supremacy of the federal government in an egregious way.  The federal government, being run by sympathizers of undocumented immigrants, did nothing to protect itself.  So far as I know, nobody is making my sort of argument, nor has made the argument in the past.  

The state misconstrued the federal statute (8 USC 1621(d)), which I contend means is, the only way a state may ever grant a benefit to an undocumented immigrant [under 8 USC 1621(b)] is by passing  a law affirmatively providing for such benefit after 8/22/1996.)   Even if the literal interpretation of 1621(d) comports with California's interpretation, then that interpretation would lead to absurd results and interfere with federal objectives. I will explain below.  

   
The California Supreme Court admitted Sergio Garcia to the bar because:: 

1.  The state assumed, that 8 USC 1621(a) would ordinarily bar Garcia's admission.
2.  Nonetheless, 8 USC 1621(d) allows states to grant any benefit to an undocumented immigrant, if it passes a law providing for such benefits after August 22, 1996. 

3. The state clearly passed such a law in 2013, well after 1996. 

4. No other state or federal law prohibits admitting an undocumented immigrant to the bar.

5. Sergio Garcia met all other requirements for admission.

The state's conclusion falls apart if premises 2 through 5 fail. Premise 2 fails, or, at the very least, proving the correctness of the state's interpretation of the statute required significantly more analysis than the supreme court provided in the opinion, choosing instead to leave the details to other cases, which also did not cover the matter in sufficient detail. 

The federal statute, 8 USC 1621 (d) reads:
" A State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit for which such alien would otherwise be ineligible under subsection (a) of this section only through the enactment of a State law after August 22, 1996, which affirmatively provides for such eligibility."

1. "Only through" is not the same as "through." 

The state would have you believe that this statute says that a state can provide any benefit to an illegal immigrant if it passes a law so providing after 1996.  But, the words actually say ". . . a state may provide that an alien . . . is eligible . . . for  any [benefit] . . for which [he is] otherwise ineligible under subsection (a) . . .  only through [ enacting a law ] which affirmatively provides for such eligibility. "   

What the statute says is, a state may provide benefits ONLY BY passing a law.

In this context, A only through B, has the same meaning as A only if B.   Then, this reduces to an LSAT problem.

Well, then, logically speaking, A if B means if B, then A (B is a subset of A), but A only if B means  if A, then B (A is a subset of B). Here, A only if B is the construction used, and the A is (providing benefits) and B is (enacting a law after August 22, 1996). so, at best, the statute says, if a state provides any benefit to undocumented immigrants, then it passed a law after August 22, 1996.

The syllogism the state of California assumed without argument is, if a state passes a law . . . , it may provide benefits.  But that is absolutely the opposite syllogism that logically flows from the statute.

Imagine a person making any other A only if B statement,  Take for example, "A person may fly anywhere he wants, only if he is on an airplane."  May a person go anywhere he wants if he steps onto an airplane?  Not at all; myriad unstated premises must also be met.  (I can't go anywhere if I step onto the Air Force One plane which is parked at the Reagan Library). Likewise, stating, a state may give benefits to an undocumented immigrant only if it passes a law affirmatively providing for such does not mean passing a law automatically confers benefits.

Surprisingly, the State Senate policy statement on the bill that would become California Business and Professions Code 6064, which the Applicant cited in his supplemental brief as satisfying the federal statute, omitted the word, "only" in its quote of the federal statute, a key omission in my opinion, suggesting that the state senate saw precisely the problems in interpretation I am advancing, and purposely avoided discussing the issue.  I also have not seen any serious attempt to interpret the federal statute in any of the briefs filed with the state court.  Even Martinez, a prior opinion in which a benefit was allowed to inure to an undocumented immigrant, likewise made no serious attempt to interpret the federal statute. This prior opinion formed the basis for the Court;s reading of the federal law in this case.  

2. Subsection d of the federal statute does not state that it applies notwithstanding any other law.  it only says that states can provide benefits to illegal immigrants that would otherwise be impermissible under subsection a, and subsection a states the general rule that no illegal immigrant is eligible for any state or local public benefit. Then, it can only provide such benefits if it enacts a law that affirmatively provides for such benefits.  Likewise, the note at 1621 (a), "Notwithstanding any other provision of law and except as provided in subsections (b) and (d) of this section . . . " does not explicitly state that b and d are separate exceptions to (a) and in fact, the words "(b) and (d)" suggest that subsections (b) and (d) were meant to operate in tandem, not separately.

3.  In fact, the argument that b and d are not separate exceptions is bolstered by the structure of 8 USC 1621, If (b) and (d) are independent exceptions to (a), then congress could have so indicated by clustering the subsections together instead of placing a definitions subsection between the two "exceptions" subsections. 

Piecing this evidence together, that the actual wording of (d) provides no substantive right to states, and the construction that if the state somehow manages to provide a benefit otherwise prohibited by 8 USC 1621(a) it must have passed an affirmative law, indicates that the proper construction of the statute is, "the only way for a state to invoke a subsection b exception to subsection a, is to affirmatively pass a law providing for a particular subsection b exception" for b is the only subsection which affirmatively provides for the state's right to grant a benefit to undocumented immigrants. If d were a new, substantive provision, why not call it subdivision c, and move the former subclause c to d? Congress could have done this but decided not to do it. If subdivisions d and c were added together to the same law, that further bolsters my position.

4. Even if the wording indicates a meaning different from my understanding, California's interpretation of 1621 (d) would lead to absurd results, because the federal government, then, would have allowed states to do that which subsection (a) prohibits by whim and simple majority vote, leaving the statute, 8 USC 1621, with little effect and preventing the federal government from ensuring that undocumented immigrants are self-sufficient, and removing incentives for immigration.

5. Also, the interpretation advanced by the state supreme court is preempted as interfering with federal objectives, under the supremacy clause of the constitution.  Because federal objectives are to ensure self-sufficiency among immigrants and to remove an incentive to immigrate (see 8 USC 1601), the state's providing for any public benefit to undocumented immigrants would thwart these objectives, Even if congress tried to permit states to thwart the  federal objective of one body of law by passing one statute, the attempt would be unconstitutional, because the supremacy clause is a constitutional command, which takes precedence over mere legislation.  The federal government is not able to give states the power to thwart otherwise clear federal objectives.

Counterarguments:

1. The heading of 8 USC 1621 (d) suggests that the state may provide any benefit to undocumented immigrants.  Headings, though, are merely guides, and cannot be used to contradict the terms of the statute.

2. The first clause of the statute seems to say, a state may provide any benefit, but, this at least creates ambiguity, because the statute says, it may grant benefits only through a  law enacted after 8/22/1996. At best, further analysis of the statutory meaning, by examining the statutory history should have been conducted.

Now that two years have passed, it would be interesting to see how many undocumented immigrants have received bar licenses.  As a self-hating attorney, I would be tempted to say, if illegals want to be miserable like the rest of us, let them.

Since my writing is probably too verbose, here's my interpretation of subsection d in a nutshell:  states may not give benefits to undocumented immigrants, except as provided by subsection b, and then only if the state writes an unambiguous law so granting such an exception, after 1998.  

Overview of the California Supreme Court

Before I start discussing decisions of the California Supreme Court, it would make sense for you readers to understand the court first.

The Federal government has its constitution, which is supposed to carefully define the limits of the government's authority and protect individuals from encroachment by government.  The state also has a constitution, only the California constitution is much larger and more unwieldy.  California also creates a system of courts in addition to the legislature and executive.  How many congressmen exist in California?   80 assemblymen and 40 state senators.  Of course, the federal government, through the supremacy clause, takes precedence over state laws.  The Federal constitution takes seriously the idea of individual rights and freedom from tyranny of the majority.  California obviously has no problem with tyranny of the majority. In our system, any person can recall any politician he does not like, and hold referenda to change the constitution at whim.  Which brings us to the court.  

The Supreme Court of California harkens back to an earlier state when there were only seven justices.   Now, the federal court has nine justices.   But California still has seven.  

These justices are NOT appointed for life.   They are appointed for twelve-year terms.  The governor appoints a justice, who serves if he is confirmed by the Commission on Judicial Appointments.  At the next general election, the justice stands for reconfirmation by the voters to maintain their seat.  I don't think a justice has ever failed to be reconfirmed.   C'mon people.   Maybe there was a justice who didn't deserve it.  Don't neglect the state courts.  The federal government is very limited compared to states.  States have much more contact with its people on a daily basis, There is almost no family law or estate planning law in federal court, and the vast majority of crimes are prosecuted at the state level, so its decisions very well could have more impact on your life than the federal.  If the federal court got it right in appointing justices for life, why do Californians think it is okay to subject judges to the political process?

The Supreme Court holds oral arguments two days a month, and otherwise meets to debate petitions for review and to consider other matters.  The rest of the justices' time is spent writing opinion, or perhaps that is done by legal assistants (of whichever title they have now: I am not sure if they are called law clerks, etc.) The oral argument is held in one of three places, San Francisco ( 4 times, in the main supreme court building on McAllister Street), Los Angeles (4 times, Ronald Reagan State building), or Sacramento (twice).  At their whim, the justices may accept invitations to hold arguments elsewhere.  

So, there are seven justices.    The current Chief Justice is a Hawaiian woman appointed by Schwarzenegger, named Tani Cantil-Sakauye (Kant-eel Saka-u ay).  She sits in the center at all oral arguments.   To her right and left, the associate justices are seated by seniority.  The current justices are:  Kathryn Werdegar, Ming Chin (the one who seems to speak least), Carol Corrigan,  Goodwin Liu (a seemingly intelligent man who speaks fluent English),  Mariano Florence-Cuellar, and Leondra Kruger (who has a most-interesting hairstyle, but actually has obnoxious credentials, Yale Law School, etc.).  Prior Chief Justices have included Ronald M George, Roger Tobriner and Stephen Field.   Only the two most senior justices have been on the court anywhere near 12 years, so it begs the question of why.  

Very few cases must be heard in the Supreme Court.  There are mandatory appeals for all criminals sentenced to death.  Also, the Supreme Court has jurisdiction to grant habeas relief and other writs directing lower judges.  Otherwise, the cases are heard at the court's discretion by petition for review from appellate decisions.  Our state has trial courts in every county, and several districts of appellate courts, not unlike the Circuit Courts of Appeal in the federal system.  Appellate court appeals are mandatory, assuming that the appellant follows all of the procedures and pays all of the necessary fees.  There should be another discussion forthcoming about the state of the courts in California. Appellate time limits are JURISDICTIONAL in this state.  What does that mean?  It means that if an aggrieved party fails to file an appeal within the time limit,  no appeal can be heard, end of story. There is NO room for equitable considerations here. Also remember that the vast majority of actions taken by judge or jury cannot be appealed.  Only mistakes of law can be appealed, or egregious cases where the factfinder abuses his discretion.  One cannot appeal a decision because he does not like the outcome of the trial.  The constitution has a new provision that requires the justices to decide all cases within 90 days of submission or forfeit pay.   This law may be irrational, causing justices to make snap decisions and cause other problems. A thorough review is in order.   It should be frustrating on its face whenever a person thinks he can do the job of another better than the person who holds that job.  

Our court seems pretty reasonable most of the time, though they have picked their battles with the federal judiciary, including famous battles over the scope of the federal arbitration act.  Our state seems committed to consumer and plaintiff protection, so that is a long debate to have.  Also, there is plenty of room to be put off by our legislative choices, what the laws actually say.  My argument is only that, in their role as justices, not as lawmakers, our justices do a fairly good job most of the time. That is not to say I don't have profound disagreements with many of their decisions.    

Shooting in Orlando

So there is a lot of misinformation as well as good information circulating about the shooting in Orlando.   Omar Mateen killed at least 49 LGBT people and injured several others. He was an individual, a particularly flawed, sexist, useless, and evil person who was probably suffering from mental disorders.  He is an an illustration of what can happen when people give up the responsibility of thinking for himself.  Alas, he was only one anecdotal case, so to extrapolate his story to others, with no additional evidence would be a mistake and another abrogation of the duty to think.

Some things that are true, Islam is a religion, irrational on its face, like all religions.  Also sexist and anti-homosexual, like many religions, especially the Judeo-Christian-Islam school.  I have given up all religion.  I have decided, to the extent possible, to leave the room whenever a preacher starts speaking a foreign language.  In this modern society, there isn't any rational excuse to speak a language your listeners are not likely to understand and I won't stand for it.

Also true is that Mateen pledged support to ISIS.  This suggests that eliminating ISIS could lower the risk of future violence of this sort.  However this needs to be dealt with by cost benefit analysis.  Is it worth the expense to eliminate ISIs? What will change? Is it cheaper to police ourselves and fight Isis on a case by case basis? More security.  Also, a military draft is never the answer.

What is not called for: the idea of banning all assault weapons.  Crooks like Mateen will harm people regardless of our gun policy.  Also, not all Muslims will carry out harmful crimes, like Mateen.  So, how do we improve security without eliminating all immigration or freedom?

As for gay people.  I'm not gay myself, but homosexuality is intriguing.  It is certainly easier not to have children if you are turned on by the same gender as yourself.  Not having children is probably a decision only humans can make.  So, remember this whenever some preacher tells you that it is your duty to perpetuate your race.   That statement is insulting on its face.  In fact, not having children is the decision which is not only more deliberate, but more indicative of human achievement because it was made deliberately.  There are of course many people who became great despite of their decision to have kids.   There is also some evidence to support Milo Yiannopoulis's argument that homosexuals tend to be smarter than the general population.  Not all homosexuals are far leftists either.  Several of them are seeing reason and joining libertarian causes.