March 15, 2015
Honorable Joe Simitian
Member of the Board of Supervisors
County of Santa Clara
State of California
Dear Supervisor Simitian,
Like many other people in this country, I am thinking about the 2016 elections and seeking ways to make government more responsive to the needs of the people. I am driven by the fact that, upon close examination of our individual lives, a clear pattern emerges: Most people (everybody except the wealthy) are subjected to a wide range of risks, the awful possibility that their needs will not get met—their needs for housing, for food, for education, for health care, and so on.
As the saying goes, most of us live a paycheck away from disaster, but the funny part is that the widespread stress and deprivation are unnecessary and completely avoidable. Let’s be candid: Our 21st century governments are primarily devoted to enhancing the privileges and fortunes of the rich, and any government uplift afforded to the mass of people is pretty much designed to stave off revolt and starvation. We ignore the central purpose of the Constitution that is set out in the Preamble: to promote the general welfare.
Take your district, for example: Santa Clara Valley, also known as Silicon Valley, one of the wealthiest places in the world, home to Apple, Google, Facebook; the place where the doctrine of corporate personhood originated (Southern Pacific Co. v. County of Santa Clara (1886)); somehow your willfully depleted local governments are closing down desperately needed homeless shelters and outdoor encampments, depriving people of a safe place to sleep.
In my congressional district, Santa Cruz and Monterey Counties, we have an additional, equally cruel imposition on poor (mostly farm worker) families: unknown to virtually everyone, our Congressman Sam Farr twenty years ago quietly worked the international system to his advantage (the Senate Republicans, who recently blurted out everything to the whole world in their clumsy letter to the Ayatollah, could have learned a lot if they had watched this subtle Congressman operate). The corporate strawberry growers back then wanted to use methyl bromide on their fields in order to maximize profits, but it had been banned worldwide along with chlorofluorocarbons (“CFC’s”) in an international treaty of the mid-1980s called the Montreal Protocol, largely because these chemicals were slowly destroying the Ozone Layer. But methyl bromide also happens to be one of the most toxic substances known, and it migrates to its surrounding environs after it is injected into the soil, despite the plastic coverings on the fields. One result is that in the Salinas Valley and the Pajaro Valley pregnant mothers living near the corporate strawberry fields are having low birth-weight babies; the closer to the fields the lower the weight, according to studies conducted by the UC Berkeley School of Public Health.
Sam Farr knows about these and other ill effects, but allows this corporate cruelty to continue unchallenged. He gets away with it because hardly anyone in his district even knows about his stealthy participation. The corporate press never report his role in obtaining the methyl bromide exemptions, and as a result there is virtually total ignorance, even among environmental activists and lawyers, of his skullduggery in service to the corporate bottom-line.
There is the nub of the problem of government dysfunction: the people have so little information and insight about how our government actually works that, despite all our digital communication capabilities, we’re all still pretty much in the dark, innocent bystanders on the wrong side of all those closed government doors where the real negotiations, deals, and decision making quietly take place.
We could have nipped the methyl bromide scheme in the bud if we’d had the chance to listen in on those strawberry agribusiness lobbyists’ meetings with Sam Farr. If we even had just been able to read his emails to and from the lobbyists, we would have learned how many hundreds of thousands of dollars of campaign contributions they paid him to work his awful magic.
Well, yes, but the bedrock fault is with the People—for far too long in our silence we have watched and enabled the ever-more complete privatization of public office. By now we have no effective process by which to stay informed or to hold our officeholders publicly accountable; modern elections and human nature being what they are, we are left with government that works only for the rich and powerful.
But it is a great source of hope that at least some of the people are determined to intervene, to open up those closed doors and then bring our publicly-elected officeholders forward on television and the internet every 30 days, for genuine public dialogue; conversation about the real issues, in which we can ask follow-up questions. Such public conversations carry the potential for getting the politician to go through an open and public reevaluation of opinion and change-of-mind.
The citizens wanting to participate would put their names in a hat and, if chosen, each would have the option of choosing a proxy spokesperson (Rush Limbaugh, Noam Chomsky, Medea Benjamin, etc.) to appear in their places. Our town hall meetings and press conferences are wired in advance to serve as mere platforms for propaganda. The concerned citizen or journalist gets twenty or thirty seconds to lay out the problem and ask a question, and the officeholder then takes fifteen minutes, if necessary, to utter a fully biased response concerning the facts and the reasoning.
In addition to these public dialogues, we also propose a further reform measure: Just as with our peace officers, whenever our elected officeholders are carrying out public business, their words and actions should all be digitally recorded and archived and made easily accessible to the public. We have the technology; we should use it for these urgent public purposes.
Think of the quality of political education, discourse, and participation these new processes would bring. We’d have a coherent ongoing national conversation for the first time that carries the potential for positive change in all areas of public life, with free access to the information that would make it all possible.
I have two reasons for directing my thoughts to you: First, I ask you to reconsider your public stance against the principle of periodic sessions of public accountability for officeholders. In a 2007 town hall meeting in Santa Cruz (when you represented part of Santa Cruz in the State Senate in a gerrymandered district) you took the position that officeholders should not be compelled to appear in public and answer questions. You argued that freedom of speech includes the right to remain silent and that officeholders should therefore have this option. But if officeholders have that privilege, it would be impossible to hold them accountable in public, so if you still feel that way, I would challenge you to defend your position in a public debate.
Secondly, as a County Supervisor, you are in a strategic position to act in full accord with the state statute that requires all counties in California to fully protect the health of the poor. (Welfare & Institutions Code Sec. 17000) According to many authorities (including a broadly worded hint from the California Supreme Court in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, footnote 18). Applying common sense and common decency, this county-level duty would surely include providing a place to sleep for those who have no property right in any sleeping space.
We need to take a good hard look at the folly and the cruelty: At the urging of the Chamber of Commerce and their natural allies, our local police and sheriffs get paid for devoting a lot of time rousting homeless people from a night’s sleep, ticketing them, forcing them to move, confiscating their belongings and arresting them for “unlawful lodging” a misdemeanor under another state statute, Penal Code Sec. 647(e). Judges, lawyers, and jailkeepers also earn a lot of salary processing these “crimes”. But we need not bother to look for any binding judicial precedent decision that might protect the right to sleep though—there is no such precedent decision and, therefore, no right to sleep if you don’t have a preexisting property right. The upshot is that there is not a single square inch in the entire state of California where it is legal to sleep, and so far, despite the California Supreme Court’s broad hint, I have not found a single judge who is willing to stand up and explain just how and why the Constitution and the statutes fail to protect the right to sleep.
The higher courts routinely refuse to exercise their discretionary power to grant appellate review, and the entire issue gets repeatedly swept under the judicial rug, decade after decade. In my cases I point out to the judges how Congressman Theodore Sedgwick of Massachusetts stood up during the Bill of Rights debates in 1790 in favor of the proposed Ninth Amendment (“The enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people.”) He argued that he did not want to see judges and others in the government trying to control the sleeping habits of the people. But this legislative history seems to fall on deaf ears.
Judges today also blithely ignore the California Constitution, which provides that everyone has an inalienable right to seek and obtain safety, happiness and privacy; it also includes a Ninth Amendment-type of clause.
In January 2012 my client, Gary Johnson, slept out in front of the Santa Cruz County courthouse on a bench for four nights (he was only there from 8pm until 6am each day) with a sign propped up on his body saying “Sleep is Not a Crime”. We argued that his First Amendment rights to express himself and to petition the government for redress of grievances override the government’s power to punish him, particularly when there is no victim of his ‘crime’. He bothered no one by his sleeping. We also argued that the statute is void-for-vagueness because police officers and citizens would not know what ‘unlawful lodging’ means (for example, does it mean no sleeping on our tourist-covered beaches?). The judge ruled that it was not vague, and stated that the statute is perfectly clear in its meaning to citizens and police. Later, though, while instructing the jury, he was concerned that the jurors would not know what it means, so he made up his own definition for them: ‘lodging’ means ‘sleeping’.
We also argued it is cruel and unusual punishment to impose a two-year jail sentence for four nights of harmless sleep, but that too was rejected.
We appealed, and the Superior Court appointed only two judges to hear and decide the appeal; we objected to the lack of a third judge as a failure to provide due process, but they rejected that, too. We sought review in the Court of Appeal in San Jose, and after eighteen months they decided that three judges are required, so a new hearing at Superior Court Appellate Division is now set for Thursday, March 19th at 4pm in Santa Cruz.
My second challenge to you is, assuming the judges continue to ignore all considerations of ethics and humane governance and once again reject our constitutional arguments, are you willing to publicly debate me or a homeless person on the statutory duty of the County of Santa Clara to provide a place to sleep?
Given these patterns of judicial stonewalling and elected officeholder secrecy and isolation, we have effectively lost all right to petition the government for redress of grievances. Think, for example, how frustrating it is for protestors outside a Presidential nominating convention to be corralled behind police fencing a mile away from the hall. Mass public protest, though, is usually a blunt instrument for petitioning the government—we need the opportunity to reason calmly in public with our elected officeholders. The debate between you and me about homeless rights that I propose here would set a positive example.
If you reject this second challenge, we will file suit against the County of Santa Clara to enforce the statutory rights of people who have no abode, just as we plan to do in Santa Cruz and Monterey Counties.
These proposals and challenges I present to you are some of the opening initiatives of our strategic plan to require all 2016 ballot candidates all across the country at all levels of government to take a stand, yes or no, do you or do you not support open and accountable government? Finally we have a way to inject real meaning into an election season. This plan is spelled out in more detail in the Declaration of Intervention, which is set out at www.FullSpectrumDemocracy.org. There you will also find a letter to Jesus ‘Chuy’ Garcia, run-off candidate in the April 7, 2015 Chicago mayor’s election against incumbent, Rahm Emanuel telling Mr. Garcia of our hopes to make open and accountable government an issue in that race. In 2007 John Cullerton, President of the Illinois Senate, took the citizen-officeholder dialogue idea to his then-congressman, Rahm Emanuel, advocating a constitutional amendment to require monthly dialogues as a duty of every elected officeholder, but Emanuel ignored this suggestion. Four years later, however, when Emanuel’s boss, President Barack Obama, was hesitating to even comment publicly for an embarrassingly long interval while his ally, Hosni Mubarek, was threatened by revolution, the President finally stepped forward and said on worldwide television: ‘Mr. Mubarek, what you should do is establish a dialogue between the citizens and the government of Egypt.’ So our President thinks that the remedy for a troubled government is the very kind of public dialogue we are advocating.
Thus, your decision on these challenges we present here can be guided by the leader of your party as well as the likely future leader, Hillary Clinton, who solemnly and often vows to honor transparency in all aspects of government at all times.
I look forward to your prompt response to these matters.