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Q U I C K   L I N K S

The Web page giving my two Open Letters to California state legislators, with follow-on correspondence, and plaintiff’s documentation for San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL, decided 7/15/2015 by Commissioner Peter S. Doft, first published in July 2015.

Michael Hiltzik’s column, “New Law Is One for the Books” (Los Angeles Times, 16 October 2016, pp. C1 and C8), retitled “Legislative Misfire: Lawmakers Targeted Memorabilia Scams but Hit Corner Bookstores by Mistake” for online posting.
   Hiltzik documents yet another example “of the unintended consequences of inattentive lawmaking” in California — in this case, Assembly Bill 1570 (authored by Assemblymember Ling Ling Chang), which Hiltzik describes as “inexcusably sloppy” legislating, calling for “a wholesale revision of the law.”

Two voices for competing public interests debate the need for reforming another California law in the op-ed dialogue, “Boon or Burden?” (San Diego Union-Tribune, 5 March 2017, pp. B9 and B11).
   SUMMARY: “The California Environmental Quality Act, a landmark law for the state, was enacted in 1970 to protect the state’s air, wetlands and other natural resources. But for years, critics have called for reforms to stop what they call abusive, economy-damaging uses of CEQA. Here are two perspectives on the issue.”
   1. Op-ed FOR reforming CEQA: “Law an Obstacle for Housing” by Scott Peters.
   2. Op-ed AGAINST reforming CEQA: “CEQA Works for All of Us” by Donna Frye.

Daniel Victor on the complexities of drafting good state law, when million-dollar lawsuits hinge on such subtleties as proper use of the serial comma: “Lack of Oxford Comma Could Cost Maine Company Millions in Overtime Dispute” (posted to the New York Times website, 16 March 2017).
   “The language in the [Maine] law [governing overtime] followed guidelines in the Maine Legislative Drafting Manual, which specifically instructs lawmakers to not use the Oxford comma. Don’t write ‘trailers, semitrailers, and pole trailers,’ it says — instead, write ‘trailers, semitrailers and pole trailers.’
   “The manual does clarify that caution should be taken if an item in the series is modified. Commas, it notes, ‘are the most misused and misunderstood punctuation marks in legal drafting and, perhaps, the English language.’
   “‘Use them thoughtfully and sparingly,’ it cautions.
   “Legal history is replete with cases in which a comma made all the difference, like a $1 million dispute between Canadian companies in 2006 or a very costly insertion of a comma in an 1872 tariff law.
   “Varying interpretations of a comma in the Second Amendment have figured in court decisions on gun laws, including a Federal District Court overturning a Washington gun ordinance in 2007. (The Supreme Court later overturned the law in the case known as District of Columbia v. Heller.)” (D. Victor, n. pag.)

Website for the California State Assembly, with message from Speaker Anthony Rendon: “Welcome to the California State Assembly’s homepage. If you would like to contact your legislator, read about bills, or learn about the Capitol, this is the place.  ¶  There are also links to several other sites you may find useful as well. Remember, we’re here to represent you. So I hope you will let us know your thoughts — on legislation, issues, or even how this site can be improved.”

Dan Walters on the California Legislature’s biennial session terminating the end of August 2016, when I was still hoping to hear back from counsel for the Assembly Judiciary Committee, “Legislature did much, but full impacts of big items remain unknown” (posted to the website for The Sacramento Bee, 1 September 2016).
   According to Walters, the “biennial legislative session that ended very early Thursday morning amassed a very substantial record of action – some positive, some negative and much whose real effects won’t be known for years.” (Walters, n. pag.)
   And this legislative session was not just busy, but also contentious: “... the Assembly is reasserting itself vis-à-vis the Senate, which has dominated legislative policy for the past two decades, and that led to some sharp clashes between the houses this year.  ¶  A very obvious late session example was a stalemate over reforming the dysfunctional State Bar, which is supposed to regulate the legal profession but has been wracked by scandal and mismanagement.  ¶  Cross-Capitol sniping over the future of the agency, which also involved Chief Justice Tani Cantil-Sakauye, resulted in failure of competing reform measures that would allow it to continue collecting annual dues from lawyers. Just before midnight, the Senate passed a bill that the Assembly had already declared dead-on-arrival and the conflict will resume in the next legislative session.  ¶  The failed State Bar dues bill also exemplified two other trends – a new willingness to challenge the status quo in powerful state agencies, and the difficulty in reforming them.  ¶  Not only did State Bar reforms stall out, but efforts to bar or at least limit private ‘ex parte’ communications by interest groups with members of the Coastal Commission and Public Utilities Commission also crashed on the final day.” (Walters, n. pag.)

Patrick McGreevy re. the “Tab for State Lobbying Reaches $309 Million: Oil, climate, labor and health groups drive spending, which is short of 2015 record” (Los Angeles Times, 5 Feb. 2017, p. B3), retitled “Spending on Lobbying in California Tops $309 Million, the Second-Highest Amount Ever Recorded in the State” for online posting.
   According to McGreevy, “Interest groups spent $309 million on lobbying California government officials last year [i.e., 2016], with new records showing the oil industry, environmental groups, labor unions and the health industry poured the greatest amounts into legislative and regulatory battles.  ¶  It is the second time in the state’s history that more than $300 million has been spent in a year, just short of the record $314 million paid out for lobbying in 2015.” (McGreevy, B3)

John Myers re. California “Assembly Expands Cap on Legislation” (Los Angeles Times, 11 December 2016, p. B3).
   As if we don’t have enough laws on the books already — including multiple new statutes, of questionable merit, from which flow “many inconveniences” for ordinary Californians — new and returning members of the California Assembly have been given a 25% increase in the limit placed on the number of bills each Assembly member is allowed to write. On 4 December 2016, “the 40-bill limit put in place in December 2002” was expanded “to 50 bills per Assembly member”; “The state Senate, on the other hand, kept in place its previous rule of 40 bills per member.” (J. Myers, B3)
   As Myers suggests, the raised 50-bill limit is a boon for the professional lobbyists pushing their special interests, but at odds with the public good: “the simple existence of any rule makes clear that a limit on bills is seen as a good thing, perhaps even a necessary thing when it comes to writing laws some 40 million Californians will ultimately be required to follow.” (J. Myers, B3)

More on Raphael’s fresco known as the School of Athens, in the IN BRIEF topic on the “Sect of antient Philosophers” known as Pythagoreans.

For those like Commissioner Peter S. Doft who don’t value the artisanry of a master mason, and believe that a wall is “just” a wall: Carolina A. Miranda’s report on the Salk Institute for Biological Studies in La Jolla, CA, designed by Louis Kahn: “Past 50, Architect’s Salk Institute Is Aging Gracefully” (Los Angeles Times, 24 Nov. 2016, pp. E1 and E6), retitled “Louis Kahn’s Salk Institute, the Building that Guesses Tomorrow, Is Aging — Very, Very Gracefully” for online posting. As Miranda notes, the “function” of this icon of Modern architecture “may be for science, but Kahn’s structures feel more like a temple to nature.” (E1)
   Also of interest, the online edition of Miranda’s article includes a link to Christopher Hawthorne’s review of the retrospective on Louis Kahn (“Louis Kahn: The Power of Architecture”) held at the San Diego Museum of Art, November 2016 through January 2017.
   The master mason who built my wall also did some renovation work at the Salk Institute.

An IN BRIEF topic on Thomas Cromwell’s land grab, c.1532: John Stow’s first-hand account in A Survay of London (first printed in 1598, rev. 1603) of “the remarkably arbitrary act” perpetrated by Thomas Cromwell against his neighbors.
   Stowe’s documentary record establishes that predatory neighbors have been a significant problem for property owners (in cities and suburbs) since at least 1532.

Wikipedia page re. the historical controversy over enclosure.

More about John Evelyn’s Fumifugium (1661) — the 1st English book on air pollution and urban planning, which recommends enclosing suburban developments with double fences — in the 2nd-window aside for She-philosopher.com’s webessay entitled “The New She-philosopher.com: a Note on Site Design” (scroll down to the link for “In comparison, reading lots of close-set black letter these days feels effortless!”).

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The historical use of plants — along with “fragrant and health-breathing Trees” (Henry Oldenburg, “An Accompt of Some Books,” Philosophical Transactions of the Royal Society of London, 1675, 114.324) — to fight air pollution in big cities is brought up-to-date in the 2/20/2017 airing of Fred de Sam Lazaro’s “Fighting to Breathe in the World’s Most Polluted City” (another segment in his excellent “Agents of Change” series for the PBS NewsHour).
   “Delhi now [as of Feb. 2017] outranks Beijing as the world’s most polluted city. Carbon dioxide, ozone and fine carbon particles get trapped over India’s capital, mostly due to dirty fuels, causing long-term health consequences such as lung and heart disease. Special correspondent Fred de Sam Lazaro reports on some efforts to lessen the environmental toll on residents,” including the introduction of plants as a “central air cleaning system” for office buildings and homes. “FRED DE SAM LAZARO: Plants do more than produce oxygen, he [environmental activist and designer, Kamal Meattle] says. They are natural air purifiers. Their roots eat bacteria and fungi and they absorb chemicals like formaldehyde and benzene produced by office products. [...] Most importantly, he says, these are common, fast-growing species and should be in every home for clean air benefits to both lungs and brains.” (n. pag.)

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Closer to home in Los Angeles, health officials believe that such mitigating steps as the use of indoor plants to soak up bad air from traffic pollution “are good, but that the only way to solve the problem is for city and county officials to stop residential building near freeways.”
   In their feature story, “Life in Freeway Danger Zones: Southern California continues a surge of residential building in high-traffic pollution zones, even though living there makes people sick” (Los Angeles Times, 5 March 2017, pp. A1 and A12-A13), Tony Barboza and Jon Schleuss report that “Public funds, including millions of dollars from California’s cap-and-trade program to cut greenhouse gas emissions, are going to developers to build new homes in freeway pollution hot spots” despite all the evidence that residing within 500 feet of freeways leads to “higher rates of asthma, heart attacks, strokes, lung cancer and pre-term births. Recent research has added more health risks to the list, including childhood obesity, autism and dementia.” (A1)
   But business groups and local politicians — such as Los Angeles Mayor Eric Garcetti, who “said that he grew up near the 101 and 405 freeways and that many in his family had cancer” — “have consistently opposed any suggestion of restricting development near heavy traffic.” (A12)
   Of note, “The failure of such restrictions to gain traction has left some local officials wondering if the only way to keep cities from building more homes near freeways is through a state law.” But once again, state law has come up short: “One precedent is a 2003 law California passed prohibiting the construction of new public schools within 500 feet of freeways out of concern for children’s health. But school districts have used exceptions in the law to keep building.” (Barboza & Schleuss, A13)

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Weighing in on this same dispute, the Times Editorial Board supports a both/and resolution of competing public interests in their related editorial, “3 Rms, Freeway View” (Los Angeles Times, 12 March 2017, p. A23), retitled “Los Angeles Needs Housing, Yes, but Not Right Next to Its Freeways” for online posting.
   They editorialize here that an improved quality of life is possible in freeway pollution hot spots with better design of the built environment, including the planned use of trees: “If cities do allow housing within 500 feet of freeways, research has shown that both sound walls and a thick planting of trees can reduce the amount of pollution. Those measures should be required, as well as high-quality air filtration inside the buildings, which the city of Los Angeles now mandates for all new homes within 1,000 feet of freeways. Some developers have even designed their projects to put the hallways and elevators on the side of the building that abuts the freeway, with apartment windows and ventilation facing away from traffic.  ¶  Cities and developers can’t just throw up their hands and say, ‘We have a housing crisis,’ to justify building in dangerous places. We do have a shortage of housing, but that doesn’t negate the need to build safe, healthy places to live.” (A23)

For more on late-17th-century proposals for gun-control legislation, see the digital reissue (2014) of Thomas Tryon’s The Planter’s Speech to his Neighbours & Country-Men of Pennsylvania, East & West-Jersey ... (1684) at the subdomain known as Roses.
   An introductory discussion of Tryon’s early contribution to the gun-control debate in America is available at that website’s What’s Blooming news page (entry dated 5/9/2014).

The November 2016 presidential election brought to the fore intractable problems of representation & governance in a diverse and divided democratic union. We learned that the U.S. body politic is riven by partisanship and factional geopolitics, not just at the federal level, but at the state and local levels, too.
   Is the answer to our democratic troubles “a multiparty, proportional representation system”? That’s what Lee Drutman proposes in his op-ed for the Los Angeles Times, “The Devastating Power of the Presidency” (LA Times, 5 March 2017, p. A23), retitled “How a Too-Strong Presidency and a Too-Weak Congress Are Destroying the American Experiment” for online posting.
   Wikipedia provides a detailed explanation of Drutman’s recommended “proportional representation” voting system, in which each party gains seats in proportion to the total number of votes it receives — a form of representation based on numerical rather than regional division of the electorate. This electoral method is usually contrasted with a winner-takes-all, or plurality/majoritarian voting system, favored in much of the U.S., in which “votes cast for losing candidates or votes cast for winning candidates in excess of the number required for victory” are “wasted votes,” as happened in California with the presidential election of 2016. Donald Trump’s election strategy, by which he won the popular vote (often by slim margins) in 85% of the counties across the U.S. (2622 counties out of 3112), resulted in few wasted votes. On the other hand, Hillary Clinton’s win of “the popular vote” nationwide (receiving almost 3 million more votes than Trump), and loss of the presidency, exemplifies what some see as unrepresentative winner-take-all electoral systems: “a large majority of votes may play no part in determining the outcome.” (Wikipedia article, accessed 3/15/2017)
   For a far-reaching criticism of institutionalized winner-takes-all politics in the U.S. — leading to rising inequality; economic crisis; and government of the plutocrats, by the plutocrats, for the plutocrats — see the book, Winner-Take-All Politics. How Washington Made the Rich Richer — and Turned its Back on the Middle Class (Simon & Schuster, 2010), by political scientists Jacob S. Hacker and Paul Pierson. The book’s arguments — which focus more on matters of political economy than electoral politics — are summarized at Wikipedia.

graphic marking new content A good analysis of the 2014 Princeton study of political influence, by Martin Gilens and Benjamin I. Page, was posted to the website for The New Yorker on 4/18/2014: “Is America an Oligarchy?” by John Cassidy.
   Cassidy points out that, to their credit, Gilens and Page “acknowledge another possible objection to their conclusions: ‘Average citizens are inattentive to politics and ignorant about public policy; why should we worry if their poorly informed preferences do not influence policy making? Perhaps economic elites and interest group leaders enjoy greater policy expertise than the average citizen does. Perhaps they know better which policies will benefit everyone, and perhaps they seek the common good, rather than selfish ends, when deciding which policies to support… But we tend to doubt it.’” Cassidy does, too.
   “There can be no doubt that economic élites have a disproportionate influence in Washington, or that their views and interests distort policy in ways that don’t necessarily benefit the majority: the politicians all know this, and we know it, too. The only debate is about how far this process has gone, and whether we should refer to it as oligarchy or as something else.” (J. Cassidy, n. pag.)

graphic marking new content A sobering look at the perils of Californians budgeting by ballot, using an initiative process dominated every bit as much by “special interests” as is the legislature, is provided in John Myers’ column, “Political Road Map: Californians’ Blind Spots on State Budget” (Los Angeles Times, 2/12/2017, p. B3), retitled “Political Road Map: What Does the State Spend More Money On, Prisons or Schools?” for online posting.
   Myers points out the hard truth that while “Voters want the power to craft state budgets” because of “underlying beliefs that the government is somehow not able to find its way to spending money on what’s most important,” annual surveys conducted since 2005 show that they “don’t know the basics of how those budgets are put together.” (J. Myers, B3)
   “Interest groups that place budget-related measures on the statewide ballot may promise their proposals — from taxes to spending mandates — will only help California. But without a better understanding of the fundamentals, voters could make the state fiscally weaker, not stronger.” (J. Myers, B3)

graphic marking new content For more on the 17th-century Diggers’ radical republican program of social, legal, and religious reform, click/tap here (designed to open in a small, floating second window).

N O T E

There are 8 “pop-ups” (or “hover” boxes) used on this Web page. To learn more about pop-up technology (and possible display problems with it), visit She-philosopher.com’s “A Note on Site Design” page.
   To view all 8 of this Web page’s hover notes in a second-window aside, click/tap here.


First Published:  18 September 2016
Revised (substantive):  25 May 2017

facsimile of early-16th-century fresco

^  Jurisprudence (or Justice). Ceiling vault medallion fresco from Raphael’s Stanza della Segnatura, for Vatican Palace, Vatican City (1508–12).
     Raphael’s Justice is personified with closed eyes, holding a scale (which is in balance) in her left hand, and a sword (raised above her head) in her right hand. She sits on a cloud, and is flanked by cherubs.

facsimile of early-16th-century fresco

^  Wall depicting Law (or Justice), one of four wall frescos in Raphael’s Stanza della Segnatura, for Vatican Palace, Vatican City (1508–12).
     Commissioned by Pope Julius II, as decoration for the pope’s small private library in his new residence on the second floor of the Papal Palace in Rome, the Stanze of Raphael depict on the library’s four walls the four principles of human knowledge and four pathways to truth, which together signify the virtues and learning most appropriate to a pope: the spiritual (Theology), the intellectual (Philosophy), the imaginative (Poetry), and the social (Law).
     Theology is represented on the library’s entry wall, in the fresco known as the Disputà; Philosophy is represented on the opposite wall, in the fresco known as the School of Athens; Poetry is represented on the wall to the right of the Disputà, in the fresco known as Parnassus, showing the great poets of the past (including a beautifully serpentine Sappho) gathered round Apollo; and Law is represented on the last wall of the room, by scenes of the great lawgivers Gregory IX, Moses, Justinian and Solon.
     The lunette of this last wall (representing Law) shows the three cardinal virtues of (from left to right) Fortitude, Prudence, and Temperance, juxtaposed with Justice, who sits enthroned above them in a roundel on the ceiling vault (see above, first illustration, for detail). On either side of the fourth wall’s shuttered center window (below the lunette) are painted (at right) Gregory IX Approving the Decretals Handed to Him by St. Raymond, the pope being a portrait of Julius II, and (at left) Emperor Justinian Receiving the Pandects. These two scenes celebrate the institution of Ecclesiastic and Civic Law respectively.
     In the alternate visual tradition of heraldry, “Law, is depicted with an old grave countenance, in a purple Robe, seeded or set with golden Stars; with a Mantle of Carnation fringed with Gold; the buskins purple, and yellow: holding a Scrowl, or Roul in his hand.” And “Government, is clad all in Armour.” (Randle Holme, The Academy of Armory, or, a Storehouse of Armory and Blazon, 3 vols., 1688, 2.413)

California’s “Good Neighbor Fence Act of 2013” (aka Assembly Bill 1404 or AB 1404)

On 12 March 2013, the California State Assembly Committee on Judiciary introduced

An act to repeal and add Section 841 of the Civil Code, relating to real property.

as documented here. Before being passed into law (approved by the governor and chaptered by the Secretary of State), the new statute was amended twice by the legislature: the first time, in the state Assembly on 30 April 2013; and the second time, in the state Senate on 14 June 2013.

A summary history of the legislative procedure relating to Assembly Bill 1404 is available here.

My special interest in “Section 841 of the Civil Code, relating to real property” dates to 2011, when I first began having problems with predatory neighbors in the adjoining subdivision. I proceeded to safeguard my property and security (as well as that of my subdivision neighbors) based on my understanding of the rights we had under Cal. Civ. Code § 841, as originally enacted in 1872, and still in force as of 2011. The original statute read in full:

841. Coterminous owners are mutually bound equally to maintain:
     1. The boundaries and monuments between them;
     2. The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards incloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.

One hundred and forty years later, the only law I know of to offer California citizens protection against predatory neighbors was repealed and replaced by the flawed “Good Neighbor Fence Act of 2013.” For reasons which I have yet to learn, the authors of Assembly Bill 1404 severed Cal. Civ. Code § 841’s historical linkage between fencing and the process of enclosure — a connection dating to the middle ages in the common law of England, which was adopted by the American states, including California. And in so doing, they weakened state laws protecting long-time property owners like me.

In January 2011 — after new tenants in a rental property (8485 Menkar Road) in the adjoining subdivision removed their subdivision boundary fencing, altered the engineered grade between subdivisions (formerly protected by that subdivision boundary fencing), encroached on our private property, and began using our private fencing for purposes of enclosure — I contacted the tenants and their landlord, and based on my reading of Cal. Civ. Code § 841, asked that they maintain the original boundaries between our two subdivisions and cease their illegal enclosure. The tenants responded by expanding their trespass, and I responded in writing that, by law, I was entitled to compensation if they persisted in using my private fencing for enclosure. I also contacted our local regulatory agency (Neighborhood Code Compliance Division, Development Services Department, City of San Diego) to see if they could intervene to preserve the historical boundary between subdivisions (they couldn’t), and I sent a three-page letter documenting his contested construction activities to the adult male tenant’s employer — the CEO of a local construction company and government contractor, Kevcon, whose website touted the company’s core values of discipline (“Consistently doing the right thing right. We demand the highest standard of excellence and ethics from our employees.”) and integrity (“Always doing the right thing even when no one is watching. Every day we practice uncompromising honesty, moral, and ethical principles.”). In December 2011, the tenants finally ceased their illegal enclosure and put up new subdivision boundary fencing; they did not, however, maintain the original subdivision boundaries, choosing instead to locate their new fence well within the 21-inch graded clearing that had separated our two subdivisions since 1975.

In 2014, when the new homeowner of another property (8491 Menkar Road) in the adjoining subdivision escalated their encroachment on our private property, I again wrote letters asking that they either cease their illegal enclosure (and rebuild their subdivision boundary fencing) or compensate me (I asked for rental payments) if they chose to continue sharing my private fencing. After multiple deadlines had come and gone, and I received no response at all to any of my written demands (2 letters and 6 invoices), I filed suit in small claims court, based on my understanding of my rights under Cal. Civ. Code § 841(a):

Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.

(as revised in the “Good Neighbor Fence Act of 2013”)

and on my common-sense interpretation of the “spirit” of the old (Cal. Civ. Code § 841(2)) and new laws of 1872 and 2013 — that it is unjust to freeload off others, without permission, and that the law requires us to compensate those whose private property we make use of and/or benefit from.

A miscarriage of justice

I lost my small claims court case in what I believe to have been a miscarriage of justice, resulting in an unprecedented verdict for the citizens of California, issued on 15 July 2015 by Commissioner Peter S. Doft (San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL).

I further believe that Commissioner Doft, who was a vigorous advocate for the defendant (at one point even advising her to take legal action against me) during my hearing, wilfully misinterpreted the law when he ruled that Cal. Civ. Code § 841(a), which states:

Adjoining landowners shall share equally in the responsibility for maintaining the boundaries and monuments between them.

(as revised in the “Good Neighbor Fence Act of 2013”)

does not apply to subdivision boundary fencing, or to any other fencing that is not specifically required by law.

Not only did Commissioner Doft rule that there is no legal requirement for the defendant (or any other property owner) to maintain her subdivision boundary fencing, he also encouraged new property owners to remove existing subdivision boundary fencing whenever there are two boundary fences in place, arguing that double fences serve no purpose. Moreover, to my considerable surprise, he placed no obligations on the new property owner who decides, on a whim, to remove her subdivision boundary fencing (no requirement to give “prior written notice to each affected adjoining landowner,” as specified under the “Good Neighbor Fence Act of 2013”; no requirement to have her property surveyed, before removing historical markers; no requirement to protect or maintain the engineered grade between subdivisions, as established by double fences; no requirement to reimburse the adjoining landowner for use of their existing fence, even when that fence is not a shared fence, but private property).

Equally troubling, Commissioner Doft disallowed common-sense definitions of the terms “use” and “enclosure,” which I believe places an excessive burden on plaintiffs in small claims court, where the presumption is that the rules of evidence and procedure will be informal. When common-sense definitions of fence use, benefit, and enclosure are excluded from legal arguments, how are ordinary citizens to understand their rights and obligations under the law?

How does the average citizen manage disputes with neighbors over fencing when only professional lawyers can grasp the legal technicalities involved?

And what’s the point of having a state law about fences that has so little to do with common-sense standards of fairness, and community values of right and wrong, that homeowners who construct and maintain fences misconstrue their rights & responsibilities vis-à-vis those very fences?

Most of us believe that, under the U.S. political and economic system, we are guaranteed certain private-property rights. I was shocked to discover that long-time homeowners such as me can be forced, against our will, to share our private property and to subsidize the home ownership of predatory neighbors in an adjacent subdivision.

Holding lawmakers accountable

Believing that Commissioner Doft made “a legal mistake” in interpreting Cal. Civ. Code § 841(a), I sought clarification of the “Good Neighbor Fence Act of 2013” with my first Open Letter of 30 July 2015, published to a restricted-access area of She-philosopher.com’s beta test site on 7/30/2015. My Open Letter No. 1 is addressed to the author(s) of California Assembly Bill 1404, and I submitted the URL for it to the office of Brian Maienschein (Assemblymember for the 77th District, and San Diego’s Member of the California State Assembly Committee on Judiciary) on 7/30/2015. His office replied promptly, without being responsive, as documented in the Updates section at the top of the Web page giving my open-letter comments on Assembly Bill 1404. That Web page’s Updates section includes a complete copy of all communications that have passed between me and legislative officials since I posted my first Open Letter to lawmakers on 7/30/2015.

Six months later, on 10 February 2016, I posted a second Open Letter to lawmakers and continued to correspond with Brian Maienschein’s office through the end of February 2016, until his office stopped responding (see Follow-Up No. 7 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404). I waited to hear back from Maienschein’s office until April 2016, at which point I decided I was being stonewalled by Assembly officials who, for some reason, have still not explained why Cal. Civ. Code § 841(2), as originally enacted in 1872, was repealed instead of updated, ignoring key historical issues relating to fencing. Specifically, I continue to ask

3. Why are issues relating to enclosure, and unlawful enclosure, not addressed by AB-1404?

(from Follow-Up No. 17 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404)

— a query I first posed in a 2/26/2016 e-mail to Robert Knudsen (in Brian Maienschein’s office), which has yet to be answered.

Frustrated that, even in an election year, legislators apparently feel no need to be accountable to their constituents, in April 2016 I contacted the new Speaker of the Assembly, Anthony Rendon (63rd Assembly District), “as my alternate representative in the California State Assembly” (see Follow-Up No. 9 in the Updates section at the top of the Web page giving my open-letter comments on AB 1404). Speaker Rendon’s office acted promptly on my request, and I soon entered into a more fruitful correspondence about AB 1404 with counsel for the Assembly Judiciary Committee, even though they, too, have yet to answer my question no. 3 concerning the repeal of historical language dealing with matters of enclosure.

I understand that the close of the California Legislature’s biennial session (the legislature adjourned 31 August 2016) was hectic and contentious, with hundreds of pending measures, and that Judiciary Committee counsel had no spare time for further correspondence with me explaining the rudiments of the legislative process and the logic undergirding the rewriting of Cal. Civ. Code § 841. But I’ve been seeking answers to my questions about Assembly Bill 1404 since July 2015 and, as of September 2016, have had enough of the excuses and delays.

This is an election year, and it’s past time to hold legislators publicly accountable for the flawed “Good Neighbor Fence Act of 2013,” under which long-time California property owners like me have lost rights & security.

To this end, I have converted the Web page giving my two Open Letters to California state legislators, with follow-on correspondence and full documentation of my small claims court case from restricted-access content (as originally formatted when first published on 7/30/2015) into a She-philosopher.com study, publicly accessible to a broad international audience, as well as to the world’s most popular commercial search engines.

In addition to holding California state legislators accountable for the laws that they write, I hope also with this study to raise awareness of another troubling development: that activist small-claims-court judges in California are now taking on the legislature’s policy-making role (as exemplified in my small claims court case, San Diego Superior Court Small Claims No. 37-2014-00312813-SC-SC-CTL).

I oppose this trend, because I believe it is fundamentally undemocratic. And it is symptomatic of a failing political system where powerful special interests already have too much control over what the government (local, state, and federal) does.

We desperately need legislative reform, whereby legislators write better laws, which serve the people of the state, rather than the special interests with enough wealth & power to buy influence the rest of us lack. Ordinary citizens ought to be able to interpret state law governing fences — something with which most of us must interact on a daily basis, thus having a huge impact on our quality of life — without having to hire a lawyer (indeed, I would argue that this money would be better spent on a surveyor, who will give you true information as to your property boundaries that should stand up in any court of law, even the most arbitrary small claims court hearing). We ought to be able to conduct and settle run-of-the-mill disputes with neighbors (over fences, trees, boundaries, noise, pollution) following the law and a legal process that levels the playing field, such that every citizen can know and assert their rights, especially those who cannot afford an attorney.

As noted in my first Open Letter “To the author(s) of California Assembly Bill 1404” I am a big fan of Nolo’s step-by-step guides “for making the legal system work for you” and the associated do-it-yourself law movement. But even the best self-help guides can not make up for a flawed state law, such as California’s “Good Neighbor Fence Act of 2013.” That requires legislative action by our elected representatives in the California state Assembly and Senate.

In closing, I wish to note that two members of the Assembly, both representing San Diego, who were involved with the passage of AB 1404 are running for office again this year:

  Brian Maienschein, Assemblymember, 77th District
    (Maienschein is a member of the Committee on Judiciary, which authored AB 1404.)
     If you live in one of the following zip codes
          91942, 92014, 92020, 92024, 92025, 92027, 92029, 92037, 92040, 92064, 92065, 92067, 92071, 92074, 92075, 92091, 92109, 92111, 92117, 92119, 92120, 92121, 92122, 92123, 92124, 92126, 92127, 92128, 92129, 92130, 92131, 92142, 92145, 92150, 92159, 92161, 92172, 92177, 92182, 92191, 92196, 92197, 92198, and 92199
making up California’s 77th State Assembly district, you can vote for or against Brian Maienschein in the upcoming November 2016 election.

  Toni Atkins, formerly the 69th Speaker of the State Assembly (from 12 May 2014 – 7 March 2016) and Majority Leader of the California Assembly (from 1 September 2012 – 12 May 2014), and a candidate for California’s 39th State Senate district in 2016
    (AB 1404 became law under Atkins’ watch as Majority Leader.)
     If you live in one of the following zip codes
          91911, 91932, 91941, 91942, 91945, 92007, 92014, 92020, 92024, 92025, 92027, 92029, 92037, 92038, 92039, 92064, 92065, 92067, 92071, 92075, 92091, 92092, 92093, 92101, 92102, 92103, 92104, 92105, 92106, 92107, 92108, 92109, 92110, 92111, 92112, 92113, 92114, 92115, 92116, 92117, 92118, 92119, 92120, 92121, 92122, 92123, 92124, 92126, 92127, 92128, 92129, 92130, 92131, 92132, 92134, 92135, 92137, 92138, 92140, 92142, 92145, 92147, 92152, 92155, 92159, 92160, 92161, 92162, 92163, 92164, 92166, 92167, 92168, 92169, 92171, 92172, 92175, 92176, 92177, 92178, 92186, 92187, 92190, 92191, 92192, 92193, 92195, 92196, and 92198
making up California’s 39th State Senate district, you can vote for or against Toni Atkins in the upcoming November 2016 election.

I would like to ask both politicians to explain how they would fix California’s “Good Neighbor Fence Act of 2013” such that Cal. Civ. Code § 841 once again protects me from predatory neighbors in the adjoining subdivision.

Post-election (8 November 2016) update

The general election results for my San Diego-region representatives in the California state legislature are reported below:

CALIFORNIA STATE ASSEMBLY – DISTRICT 77
(districtwide results for 11/8/2016 election)
Brian Maienschein - Rep 121,140 votes 57.83% of votes
Melinda K. Vásquez - Dem   88,344 votes 42.17%
CALIFORNIA STATE SENATE – DISTRICT 39
(districtwide results for 11/8/2016 election)
Toni Atkins - Dem 258,686 votes 62.52% of votes
John Renison - Rep 155,053 votes 37.48%

Both Maienschein and Atkins won clear majorities. I did not vote for Brian Maienschein, and was disappointed — but not surprised — that he was re-elected. On the other hand, I did vote for Toni Atkins, in the belief that her experience as 69th Speaker of the State Assembly, and her intimate familiarity with that institution’s culture, enable her to initiate and enact the sort of legislative reforms that my other representative in Sacramento, Brian Maienschein, has shown he will not. Unlike some, I tend to judge career politicians on their individual merits — rather than lumping them all together in a “swamp” of corruption needing periodic drainage — and I appreciate real legislative expertise where I find it. I am hoping that Toni Atkins can be persuaded to lead on this, despite the fact that

Atkins’ first term in the Senate is expected to be a busy one as California legislators grapple with homegrown problems like affordable housing and infrastructure repair, along with national issues like health care and immigration.

(“Senator Toni Atkins on her Priorities for San Diego,” by Megan Burke and Maureen Cavanaugh, posted to the KPBS website on 3 January 2017, with link to video podcast of Toni Atkins interview with Ebone Monet)

These are grand legislative ambitions and, in comparison, fixing California’s “Good Neighbor Fence Act of 2013” may not seem like a political priority, but I would argue that it should be, for several reasons.

While AB 1404 may seem like a relatively inconsequential law, it actually has a profound impact on the quality of life of property owners and others throughout California. When I am forced, against my will, to subsidize the home ownership of predatory neighbors in an adjacent subdivision — a subdivision that did not exist when my family purchased our house — it impacts my health (stress levels through the roof!) as well as my finances. Having lost control over a large portion of my own small piece of real estate, I no longer use my back garden or exercise daily in my swimming pool (a key component of the water-conservation plan I implemented decades ago when we had our first serious drought, but when I’m no longer swimming laps daily, the pool, which used to be a valued resource, becomes nothing more than an expensive waste of precious water). I have also stopped all work on an ambitious home-improvement project, because there’s nothing smart about investing further in my home and neighborhood when it is predatory neighbors, not me, who reap the benefits. And the consequences of such household cutbacks reverberate through my community: when I do only the bare minimum in repairs and upgrades to my home, property values decline for me and my subdivision neighbors; local artisans lose out on promised work and the chance to partner with enthusiastic homeowners on innovative “green building” experiments in a working-class neighborhood; and there are still more costs — again, borne by everyone except the predatory neighbors — from lost revenues to local businesses up and down the supply chain.

But perhaps even more important is the psychological toll all this takes on regular folk, as trust in our legal institutions and political system continues to erode. It’s laws like AB 1404 that feed the sort of NIMBYism that reigns in our communities. When legislators in Sacramento can’t even craft decent fence laws — which protect the private-property rights of California citizens who dutifully pay their taxes and play by the rules — how can we trust them to tackle such complicated, intractable problems as homelessness and affordable housing? In my experience, some of the worst fears a community has about signing on to more or different development in an adjacent tract of land may well be justified. When the law no longer protects us from predatory neighbors, is it any wonder that many of us feel the best way to protect ourselves & our property is to keep out those very predatory neighbors — who may well end up with more rights than we have — in the first place?

History shows that, from the beginning of what we now call the United States, legislators have made plenty of mistakes when legislating, and as laws get tested in the real world, have had to amend or alter legislation. The laws passed in 1682, 1688 and 1693 establishing one of the first small claims courts in the U.S. are an interesting example of what used to be a responsive and flexible legislative process.

pointer  [ 1 March 1682–28 March 1682 ]  Passed by New Jersey’s General Assembly, “began and holden at Elizabeth Town, in this Province of East New Jersey, the first day of the month called March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments thereof, until the twenty eighth day of the said month of March”:

An Act to erect a Court of Small Causes.

FOR the more orderly hearing and determining all matters and cases of controversy between party and party, and for the due execution of the laws. Be it enacted by the Governor, Council, and Deputies in General Assembly met and assembled, and by the authority of the same, that in every town in and throughout this Province of East New Jersey, there be one court held monthly, and every month throughout the year, on the first Wednesday of the month, for the determining of small causes and cases of debt to the value of forty shillings, or under; which causes and cases shall be heard, tryed and determined by three persons without a jury: the process or warning to this court, shall be a summons under the hand of a messenger belonging to the said court, which being personally served by him, or left at the defendants house, four days before the court, shall be sufficient authority to and for the members of the said court to proceed on such cases or causes, and determine the same in the defendants absence, if the members of the court see not cause to the contrary, and to grant execution thereon against the defendants person, and for want thereof, his estate, which the messenger shall and may serve. Be it further enacted, that plaintiff or defendant desiring a jury it shall be allowed, but at the proper costs and charges of the person desiring the same. Be it further enacted, that this act or any thing therein contain’d, shall not infringe the liberty or priviledge of any grant, or charter already granted.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 229–30)

pointer  [ 1 March 1682–5 December 1682 ]  Passed by New Jersey’s General Assembly, “begun and holden at Elizabeth Town, in the Province of East New Jersey, the first day of March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments, unto the fifth day of December following”:

An Act concerning the Monthly Court.

WHEREAS in a General Assembly amongst other things there was an act made, that there should be in every town within this Province, a monthly court, consisting of three members to end all small causes of debt, to the value of forty shillings, and finding by experience that one of the three may be absent or have a case depending. Be it therefore enacted by the Governor, Council and Deputies now met, and by authority of the same that if any two of the three members shall be present they may proceed to act; any thing in the said act, to the contrary in any wise notwithstanding.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 271–72)

pointer  [ 14 May 1688–24 May 1688 ]  Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, the fourteenth day of May, one thousand six hundred eighty and eight, and in the fourth year of the reign of our sovereign lord James the Second ... and there continued by several adjournments thereof, until the twenty fourth day of the said month of May”:

An act for a Court of Small Causes for the out Plantations in Bergen County, and another for Acquickannick, and New Barbados.

Forasmuch as the inhabitants of the out plantations of the county of Bergen and of Acquickanick, and New Barbados, in the county of Essex, having made frequent complaint of the daily loss they sustain for want of a monthly court, or court of small causes in each respective place, as is already granted in each town in and throughout this Province. Be it therefore enacted by the Governor, Council and Deputies now met in General Assembly, and by the authority of the same, that for the orderly hearing and determining all matters, and cases of controversy between party and party, and for the due execution of the laws, that after publication hereof, there shall be held at the house of Lawrence Andriss of New Hackensack, in the said county of Bergen, a monthly court, or court of small causes, upon the second Wednesday in every month, for the ending of all differences between party and party, to the value of forty shillings, and under the said court to be held after the same forms and methods as are prescribed in former acts of Assembly, for courts of small causes in every the respective towns within this Province. And be it further enacted by the authority aforesaid, that there shall be also held at the house of Doctor Johannes, upon Hackensack river, in the said county of Essex, upon every first Wednesday in every month, the like court of small causes for the ending of all differences of the like nature, amongst the inhabitants of Acquickanick, and New Barbados, aforesaid.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 304–5)

pointer  [ 14 May 1688–24 May 1688 ]  Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, the fourteenth day of May, one thousand six hundred eighty and eight, and in the fourth year of the reign of our sovereign lord James the Second ... and there continued by several adjournments thereof, until the twenty fourth day of the said month of May”:

An Act concerning small Causes.

WHEREAS at a General Assembly, begun and held at Elizabeth Town, in the county of Essex, in the month of March, 1682, a court of small causes, or monthly court was establish’d for the tryal of all cases to the value of forty shillings or under; nevertheless many persons have taken liberty contrary to the good intent of the said act, to trouble their neighbours, by commencing suits of debts under the denomination of actions of trespass upon the case in the county courts, or courts of sessions, wherein the sum due has been found to be under the value of forty shillings; for prevention whereof be it enacted by the Governor, Council and Deputies now met in General Assembly, and by the authority of the same, that if any person or persons, shall (after publication hereof) bring or commence any action or actions whatsoever, in any of the courts of sessions or county courts, in and throughout this Province, wherein upon tryal, the debt or damages assest in such action or actions, shall not exceed the sum of forty shillings, that then and in such case, the said court wherein the same shall be try’d, shall allow to such plantiff no costs of court, excepting in such cases where such plantiff shall make it appear before the justices of such court, that the defendant hath refused to come to an account, or to refer the same to two indifferent persons in the neighbourhood. And be it further enacted by the auhority aforesaid, that in all causes and cases whatsoever, and at all times, when and so often the messenger of any of the courts of small causes in and throughout this Province, shall from and after publication hereof, take the body of any person or persons in execution, for any sum or sums of money by virtue of any precept of such court, that then and in such case, the sheriff of such county is hereby required, to take and receive from such messenger, all such person or persons, and them safely keep in close prison until he or they shall pay all such debt, damages, and costs of court as hath been recovered against them, and for which he or they are taken in execution.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 310–11)

pointer  [ 12 October 1693–3 November 1693 ]  Passed by New Jersey’s General Assembly, “begun and held at the town of Perth Amboy, in the County of Middlesex, and Province of East New Jersey, upon the twelfth day of October, in the fifth year of the reign of our sovereign lord and lady William and Mary ... Anno Domini 1693, and there continued by the several adjournments thereof, until the third day of November following, for the public welfare of the said Province”:

An Additional Act to the Court of small Causes.

WHEREAS in several acts concerning the court of small causes, there is no provision made obliging non residents upon summons, to stand tryal, which may be to the great damage of the inhabitants of this Province; for the prevention thereof, be it enacted by the Governor, council, and Deputies now met in General Assembly, and by the authority of the same, that the clerks of the respective courts of small causes, shall have power, and is hereby authorized and impowered, to issue out a warrant to arrest or attach the body of any non resident, which said warrant, the messenger shall have power to serve and hold the said non resident to bail, and upon refusing to give bail to stand tryal, to convey him to the sheriff of the county, who is hereby required to take and receive from such messenger, all such person or persons, and them safely keep, till he or they shall give bail or come to tryal.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 326–27)

At the same time the General Assembly of New Jersey struggled with setting up what proved to be a very popular small claims court system for the colonial citizenry, they also enacted a late-17th-century fence law, of interest today because of what it shows about developments in Anglo-American legal thought. Even in the late-17th century, when European notions of private property first began supplanting traditional American notions of the land as an inheritance held in common by the indigenous peoples, fence law focused on setting standards for fence heights (back then, their primary concern was with minimum heights for fences whereas, today, we concern ourselves primarily with maximum fence heights). Of note, at that point in time, division fencing was legally mandated (i.e., “boundaries and monuments between them” required by law), unlike today in California.

pointer  [ 1 March 1682–5 December 1682 ]  Passed by New Jersey’s General Assembly, “begun and holden at Elizabeth Town, in the Province of East New Jersey, the first day of March, Anno Domini, 1682, and in the five and thirtieth year of the reign of King Charles the Second ... and there continued by several adjournments, unto the fifth day of December following”:

A Bill for the more regular Ordering of Fences.

Be it enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by authority of the same, that all persons in and throughout this Province, whose house lots hath been improved, or shall hereafter be improved and joining to another persons house lot, that in such case all persons so concerned, their house lots, joining together, shall make and maintain his proportion of a sufficient division fence, except he and his neighbour shall otherwise agree. Be it further enacted by the authority aforesaid, that all fences that are four feet and three inches high, shall be accounted sufficient height for fences.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 262)

Double fences in suburban developments were also the norm, as we find in John Evelyn’s late-17th-century public-policy tract dedicated to Charles II, which recommended redesigning London as a Garden City, by which means air pollution was to be neutralized and abated. Evelyn attributed London’s choking smoke — by which “one half of them who perish in London, dye of Phthisical and Pulmonic distempers” and “the Inhabitants are never free from Coughs,” while the city’s trees would no longer even bear fruit — to a few polluting industries (“Brewers, Diers, Lime-burners, Salt, and Sope-boylers, and some other private Trades”), which he recommended be moved and/or regulated. Evelyn’s proposed remedy for London started with the construction of “plantations” enclosed by double fences:

That all low-grounds circumjacent to the City, especially East and South-west, be cast and contriv’d into square plots, or Fields of twenty, thirty, and forty Akers, or more, separated from each others by Fences of double Palisads, or Contr’spaliers, which should enclose a Plantation of an hundred and fifty, or more, feet deep, about each Field; not much unlike to what His Majesty has already begun by the wall from Old Spring-garden to St. James’s in that Park; and is somewhat resembled in the new Spring-garden at Lambeth. That these Palisad’s be elegantly planted, diligently kept and supply’d, with such Shrubs, as yield the most fragrant and odoriferous Flowers, and are aptest to tinge the Aer upon every gentle emission at a great distance: Such as are (for instance amongst many others) the Sweet-brier, all the Periclymena’s and Woodbinds; the Common white and yellow Jessamine, both the Syringa’s or Pipe trees; the Guelder-Rose, the Musk, and all other Roses; Genista Hispanica: To these may be added the Rubus odoratus, Bayes, Juniper, Lignum-vitae, Lavender: but above all, Rosemary, the Flowers whereof are credibly reported to give their sent [scent] above thirty Leagues off at Sea, upon the coasts of Spain: and at some distance towards the Meadow side, Vines, yea, Hops.

(John Evelyn, Fumifugium: or, the Inconvenience of the Aer and Smoake of London Dissipated, 1st edn., 1661, 24)

Also of interest to those of us making big claims about the values enshrined in the U.S.’s founding documents, in April 1686, New Jersey’s Assembly passed gun-carry legislation — an act against wearing swords, pistols and other weapons in public, and against giving or receiving challenges:

pointer  [ 6 April 1686–19 April 1686 ]  Passed by New Jersey’s General Assembly, “begun and held at the Town of Amboy Perth, in the County of Middlesex, and in the Province of East New Jersey, the sixth day of April, Anno Domini, 1686. and in the second year of the reign of King James the Second ... and there continued by several adjournments, until the nineteenth day of the said month of April”:

An Act against wearing Swords, &c.

WHEREAS there hath been great complaint by the inhabitants of this Province, that several persons wearing swords, daggers, pistols, dirks, stilladoes, skeines, or any other unusual or unlawful weapons, by reason of which several persons in this Province, receive great abuses, and put in great fear and quarrels, and challenges made, to the great abuse of the inhabitants of this Province. Be it therefore enacted by the Governor, and Council, and Deputies now met in General Assembly, and by authority of the same, that no person or persons within this Province, presume to send any challenge in writing, by word of mouth, or message, to any person to fight, upon pain of being imprisoned during the space of six months, without bail or mainprize, and forfeit ten pounds; and whosoever shall except [sic] of such challenge, and not discover the same to the Governor, or some publick officer of the peace, shall forfeit the sum of ten pounds; the one moiety of the said forfeiture to be paid unto the Treasurer for the time being, for the public use of the Province, and the other moiety to such person or persons as shall discover the same, and make proof thereof in any court of record within this Province, to be recovered by the usual action of debt, in any of the said courts. And be it further enacted by the authority aforesaid, that no person or persons after publication hereof, shall presume privately to wear any pocket pistol, skeines, stilladers, daggers or dirks, or other unusual or unlawful weapons within this Province, upon penalty for the first offence five pounds, and to be committed by any justice of the peace, his warrant before whom proof thereof shall be made, who is hereby authorized to enquire of and proceed in the same, and keep in custody till he hath paid the said five pounds, one half to the public treasury for the use of this Province, and the other half to the informer: And if such person shall again offend against this law, he shall be in like manner committed (upon proof thereof before any justice of the peace) to the common gaol, there to remain till the next sessions, and upon conviction thereof by verdict of twelve men, shall receive judgment to be in prison six month, and pay ten pounds for the use aforesaid. And be it further enacted by the authority aforesaid, that no planter shall ride or go armed with sword, pistol, or dagger, upon the penalty of five pounds, to be levied as aforesaid, excepting all officers, civil and military, and soldiers while in actual service, as also all strangers, travelling upon their lawful occasions thro’ this Province, behaving themselves peaceably.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 289–90)

This early gun-control legislation was later extended in 1694 with an act prohibiting slaves from appearing in public with guns and dogs.

pointer  [ 2 October 1694–22 October 1694 ]  Passed by New Jersey’s General Assembly, “begun and held at the Town of Perth Amboy, in the County of Middlesex, and Province of East New Jersey, upon the second day of October, in the sixth year of the reign of our sovereign lord and lady William and Mary ... Anno Domini, 1694, and there continued by the several adjournments thereof, until the two and twentieth day of the same month, for the publick welfare of the said Province”:

An Act concerning Slaves, &c.

WHEREAS complaint is made by the inhabitants of this Province, that they are greatly injured by slaves having liberty to carry guns and dogs, into the woods and plantations, under pretence of guning, do kill swine. Be it enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by the authority of the same, that no slave or slaves within this Province after publication hereof, be permitted to carry any gun or pistol, or take any dog with him or them into the woods, or plantations, upon any pretence whatsoever; unless his or their owner or owners, or a white man, by the order of his or their owner or owners, be with the said slave or slaves, upon the penalty of twenty shillings for the first offence, and for the second offence, thirty shillings, and so for every offence after so committed ten shillings more; the one half to the informer that shall prosecute the same to effect, the other half to the use of the poor belonging to the town where the fact was committed, to be recovered as an action of debt; forty shillings or under to be tryed at the court of small causes in the town where the fact was committed, and above forty shillings to be try’d by the county court where the fact was committed; the said action to be commenced against the owner or owners, of the aforesaid slave or slaves so offending; and after judgment obtained against the said owner or owners, execution to be levied upon their bodies or estates, for the satisfaction of the said penalty so recovered as aforesaid with cost. And be it further enacted by the authority aforesaid, that no person or persons within this Province, shall suffer his or their slave or slaves, to keep any swine, but what are of their owners mark, upon the penalty of twenty shillings for every swine otherwise marked; to be recovered of the owner or owners of the said slave or slaves as aforesaid. And whereas it is found injurious to many of this Province having slaves, that their slaves are withheld by the countenance, harbouring and entertaining of them by many of the inhabitants thereof, without their owners consent. Be it enacted by the authority aforesaid, that any person or persons on whom it can be proved, that they do presume to suffer any slave to be or remain in his house, not licensed by his owner as aforesaid, by the space of two hours, shall forfeit the sum of five shillings, and so proportionably for a longer time, to the owner wrong’d thereby; and that it shall be lawful for any person to apprehend and take up as a runaway, any slave that shall be found five miles from his owners habitation, or town of his abode, without a certificate for the same, and upon returning the said slave or slaves, to the said owner or owners, he or they so apprehending and returning as aforesaid, shall have paid them by the owner or owners of the said slave or slaves within ten miles distance, five shillings; if within twenty miles, and more than fifteen miles from the said owners habitation, ten shillings per head, and if further, than six-pence per mile more to be paid and recovered as aforesaid. And be it further enacted by the authority aforesaid, that if any person or persons shall lend, give or hire out to any slave, or slaves, pistol, gun or guns, the said person or persons so lending, giving, or hiring, shall forfeit the said pistol, gun or guns, or twenty shillings to the owner of the said slave or slaves, to be recovered as an action of debt as aforesaid.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 340–42)

Anglo-American history is full of examples such as these, where the art of law-making often falls short of the mark — the public good — thus requiring alterations or amendments of existing laws. For the legislative process to work in a democratic society, there must be a willingness to acknowledge mistakes and inadequacies and the “many inconveniences” that follow from the passage of a bad law, as New Jersey’s General Assembly did in October 1686 when they repealed an earlier “Act to regulate the passing of Silver” money, which had gone disastrously awry. The initial Act passed in April 1686 (to be repealed in October of the same year) was intended

to prevent the transportation of silver from the province by raising it above its true value in all business transactions; and so little were the mysteries of finance and the circulation of the precious metals understood by its framers, that the law does not seem to have been considered at all objectionable, or its effect doubted, until its evil tendencies were elicited in practice.

(William A. Whitehead, East Jersey under the Proprietary Governments ..., 1846, 115–16)

pointer  [ 6 April 1686–19 April 1686 ]  Passed by New Jersey’s General Assembly, “begun and held at the Town of Amboy Perth, in the County of Middlesex, and in the Province of East New Jersey, the sixth day of April, Anno Domini, 1686. and in the Second Year of the Reign of King James the Second, over England, &c. and there continued by several Adjournments, until the nineteenth day of the said Month of April, for the public weal of the said Province”:

An Act to regulate the passing of Silver.

FORASMUCH as it is daily found by experience, the growth and prosperity of this Province, is much obstructed by the continual draining the silver money, that is most valuable, by persons that come only to trade and carry away the money in specie, without either turning or trading the same amongst the inhabitants of this Province, whereby whatever money persons bring hither from England, or Scotland, or any other part, not knowing the value thereof, it is presently exhausted out of their hands by non-residents, so that the country is not at all benefitted by such silver money, neither is the growth or produce of the Province at all wasted or made use of by such traders, which is a grievance much prejudicial to the inhabitants, and redounds much to the impoverishment of the Province, so that the commodities arising by the growth and produce of the place, are not estemable by persons bringing commodoties from foreign parts, but the best of the coin is carried away for England, and other places as returns, or else pay’d away to neighboring Provinces for their commodities; for the better regulating therefore of this inconveniency, and the future preserving amongst our selves such good bullion that is brought into this Province, and as much as in us lieth, to put a stop to transient traders transporting the money so suddenly out of the Province before it hath been traded withal by the inhabitants thereof. Be it therefore enacted by the Governor, and Council and Deputies in General Assembly met and assembled, and by the authority of the same, that from and after the publication of this act, all pillar pieces of eight Mexico or Seville, good silver not weighing less than fourteen penny weights, shall pass as current coin in this Province, at six shillings each piece, half pieces for three shillings four-pence, a double bitt for twenty pence, a single bitt for ten pence, and a half bitt for five pence. That Peru pieces of eight, not weighing less than fourteen penny weight, shall pass at five shillings each piece, and lesser pieces in proportion. That an English crown, which is sterling money, shall pass at seven shillings and one penny each crown, an half-crown for three shillings and six-pence half-penny, a shilling for seventeen-pence; and so in proportion all other sterling money. That a guinea current gold, shall pass for thirty shillings. That a New England shilling, shall pass for thirteen-pence. That all rix dollars coined under Prince electors of Germany, shall pass for six shillings six-pence each peice, and in proportion all the less peices. That all ducatoons, shall pass for seven shillings nine-pence; and in proportion all the less peices. That all Scots coin, called the four mark peices, shall pass for six shillings and four-pence, the quarter peices at nineteen pence, and so in proportion all the less peices. That all French crowns, shall pass for six shillings four-pence each crown, and so in proportion all the less peices. And every peice of eight exceeding fourteen pennyweight, shall pass for each penny weight, four-pence more. Provided always, that this act shall no ways alter the value of any money, due by contract or otherwise before the publishing hereof.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 285–86)

Six months later at a subsequent session of the same Assembly (October 1686), the act regulating the value of silver coin was repealed.

pointer  [ 6 April 1686–29 October 1686 ]  Passed by New Jersey’s General Assembly, “begun and held at the Town of New Perth, the sixth day of April, Anno Domini, 1686, and in the Second Year of the Reign of our Sovereign Lord James the Second, over England, Scotland, France, and Ireland, and there continued by several Adjournments thereof, until the twenty ninth day of October following”:

An Act to repeal a former Act for regulating the passing of Silver.

WHEREAS at a General Assembly begun and held at the town of Amboy Perth, the sixth day of April last past, there was an act made and past in the said General Assembly, for the raising of silver money, above the then current value in this Province, and it being already found by experience that many inconveniences may attend the same. Be it therefore enacted by the Governor, Council and Deputies in General Assembly met and assembled, and by the authority of the same, that the said act, and every article, clause, and thing therein contained, be from henceforth repealed, and made null and void, to all intents and purposes as if it had never been made; any thing in the said act contained to the contrary in any wise notwithstanding.

(The Grants, Concessions, and Original Constitutions of the Province of New-Jersey, compiled by Aaron Leaming and Jacob Spicer, 1758; 2nd edn., 1881, 295)

Unfortunately, as my experience suggests, legislatures nowadays too often lack the political will to respond promptly when it is “found by experience that many inconveniences may attend” a law. This means that it’s up to us to hold legislators accountable, and to push hard for legislative reform when the “many inconveniences” warrant it.

graphic marking new contentInjunctions against predatory neighbors date back to the Christian bible, where the following is one of the Ten Commandments given in the Old Testament’s “Second Booke of Moses, called Exodus”:

Thou shalt not covet thy neighbours house, thou shalt not covet thy neighbours wife, nor his man servant, nor his maid servant, nor his oxe, nor his asse, nor any thing that is thy neighbours.

(King James Authorized Version of The Holy Bible, 1st edn., 1611, Exodus 20:17)

[ BIBLICAL TEXT MODERNIZED AS:  You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor. (Exodus 20:17) ]

The Bible was often invoked as a divinely-sanctioned guide to just social conduct during the early modern period, and as such, influenced English common law which, as noted above, was adopted by California and other U.S. states.

Legal protections against covetous neighbors date to the 17th century in the U.S. (e.g., in the founding texts of American law quoted above), embodying Christian values held in common by Anglo-Americans across the sociopolitical spectrum — from right to left, and from top to bottom. Even the social-justice visionary, Gerrard Winstanley (bap. 1609, d. 1676), a leader of The Diggers — a mid-17th-century group of agrarian communists who cultivated waste lands to feed the poor — argued that the radical land reforms proposed by The Diggers — challenging “the inequitable and unchristian nature of private property and its unequal distribution” — would leave the gentry “free to enjoy their enclosures while the poor could cultivate the commons,” mostly Crown and Church lands. (ODNB entry for Winstanley by J. C. Davis and J. D. Alsop, unpaginated) Even in a revolutionary “world turned upside down” when communistic principles were applied to the land, personal property would continue to be protected by law.

If any say, This wil make some men to take goods from others by violence, and call it theirs, because the Earth and fruits are a Common Stock; I answer, The Laws or Rules following prevents that ignorance: For though the Store-houses and publike Shops be commonly furnished by every families assistance, and for every families use, as is shewed hereafter how: yet every mans house is proper to himself, and all the furniture therein, and provision which he hath fetched from the Store-houses is proper to himself; every mans wife and every womans husband proper to themselves, and so are their children at their dispose till they come to age.
     And if any other man endeavor to take away his house, furniture, food[,] wife, or children, saying, every thing is common, and so abusing the Law of Peace, such a one is a Transgressor, and shall suffer punishment, as by the Government and Laws following is expressed.
     For though the publike Store-houses be a common Treasury, yet every mans particular dwelling is not common, but by his consent, and the Commonwealths Laws are to preserve a mans peace in his person, and in his private dwelling, against the rudeness and ignorance that may arise in Mankind.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 24)

The whole point of law in the Diggers’ communistic utopia is to protect against transgressions — committed by “one against another” — arising from the “ignorant and rude fancy in man” (G. Winstanley, The Law of Freedom, 23):

And because the spirit in Mankinde is various within it self; for some are wise, some are foolish, some idle, some laborious, some rash, some milde, some loving and free to others, some envyous and covetous, some of an inclination to do as they would have others do to them: but others seek to save themselves, and to live in fulness, though others perish for want.
     Therefore because of this was the Law added, which was to be a Rule and Judg for all mens actions, to preserve common Peace and Freedom; as Paul writ, The Law was added because of Transgression, one against another.

(Gerrard Winstanley, The Law of Freedom in a Platform: or, True Magistracy Restored, 1st edn., 1652, 32)

[ Click/tap here to open a second-window aside with more about the Diggers’ Mid-17th-Century Program of Law Reform. ]

It is most disturbing, then, that in a 21st-century liberal democracy, such as that of California, protection of personal property is no longer a legislative priority. With no apparent regard for the rich and revolutionary history attaching to complicated issues of enclosure, California lawmakers acted in 2013 to undermine foundational principles of the Anglo-American church and state. And when asked in July 2015 to return to these foundational principles — or to explain why they feel Californians should not — lawmakers chose instead to simply ignore detailed complaints about the fall-out from their ill-advised legislation. Our elected representatives in Sacramento would neither defend nor fix California’s “Good Neighbor Fence Act of 2013” (Assembly Bill 1404), hoping instead to palm off disgruntled constituents onto local government bureaucracies.

All of this suggests to me that our system of representative government has collapsed. No one appears to be representing the interests of ordinary citizens any more. Studies show that the influence of regular folks on U.S. policy may be at an historic low — “negligible,” according to the oft-cited Princeton study by Martin Gilens and Benjamin I. Page (579n44). Even in a state like California, with an out-of-control initiative process whereby voters seek to drive policy by legislating from the ballot box, the average citizen, like me, has no real voice. Moreover, our problems of governance are systemic, and cross the divide of partisan politics — e.g., I have bipartisan “representatives” in Sacramento (Brian Maienschein is a Republican, and Tony Atkins is a Democrat) — as registered by opinion polls showing that both major parties are now deemed “irrelevant” by a growing number of voters.

It will not be easy for the common people to take back our democracy. There are no quick-and-easy solutions which will magically give us real influence over state-wide policies that affect 39 million Californians. Indeed, as my experience shows, it is a long and arduous proceeding just to get your voice heard ... let alone effect real legislative reform. I would say the process is best described by the old Chinese proverb from the Tao Te Ching, Englished as:

A journey of a thousand miles begins with a single step.

To overcome unrepresentative government, you have to be willing to agitate for years; you must be patient ... determined ... and have plenty of grit, or the system will wear you down. It should not be this hard for common people to influence policy in a democracy. I’ve been lobbying my “representatives” in Sacramento since 30 July 2015, and no one in power has yet (as of May 2017) committed to defending or fixing California’s “Good Neighbor Fence Act of 2013.”

And I won’t be quitting my populist agitation until they do! In addition to posting and maintaining this detailed study of California Assembly Bill 1404, I have taken another step in my long journey for justice by writing to my newly-elected state senator, Toni Atkins (see Follow-Up No. 19, dated 2/1/2017, and Follow-Up No. 21, dated 2/15/2017, in the Updates section at the top of the Web page with my two Open Letters to California legislators). As of this writing (edits posted 19 May 2017) she has yet to respond to my request that she fix the law.

I expect She-philosopher.com’s two Web pages on California’s flawed “Good Neighbor Fence Act of 2013” will eventually gain a sizeable international audience, but it takes time to develop lasting reach & influence with this type of online communication. So I encourage those of you who are citizens of California to help out, by engaging in the nitty-gritty of our democratic political process and contacting your representatives directly, both in the California State Assembly and in the California State Senate. If your representatives were in office during the 2013–2014 legislative session, ask them how they voted on AB 1404; and if they voted for the law, ask them to explain that vote: e.g., why did she/he vote

1.  to repeal a law that, for 140 years, had at least minimally protected long-time property owners in California against predatory neighbors?

2.  to replace the minimal protections of that 140-year-old law — Cal. Civ. Code § 841(1) and Cal. Civ. Code § 841(2) — with a new law — Cal. Civ. Code § 841(a) and Cal. Civ. Code § 841(b) — that has no protections against predatory neighbors?

If your representatives are new to their elective office, and did not cast a vote on AB 1404, ask them where they stand on the law now: e.g., does she/he

1.  believe that there is a need to restore protections for long-time property owners against predatory neighbors?

2.  intend to do anything about altering or amending AB 1404?

Be vocal, and let your representatives know what you think about AB 1404, and whether it needs to be fixed, or not. I’m assuming there are others out there — like Commissioner Peter S. Doft, who ruled on my small claims court case, the authors of AB 1404, and Brian Maienschein — who disagree with me and believe that the new law serves the interests it’s supposed to and is just fine as is. We need to push those in power who take this position to at least own up to it publicly, so that single-issue voters have the information they need to take direct action and make better electoral decisions in the future. Remember: any California legislator can take on this populist issue and make it their own, especially if my second representative in Sacramento (Toni Atkins) continues to dither. Collaboration among state legislators should be encouraged, and anyone willing to serve as “the people’s representative” on this or other issues deserves our support, no matter what gerrymandered district we’re in.

If the politicians, or anyone in your circle, want to know more, refer them to this Web page, with URL:

http://she-philosopher.com/studies/California-AB-1404.html

I don’t use social media (e.g., Facebook, Twitter, Gab, Reddit, Tumblr, YouTube, etc.). Those of you in California who are active users of such online forums can help raise awareness of these important sociopolitical issues by starting your own discussions within your network of friends, family & followers. I’m sure there are plenty of ways to make creative use of social media to further legislative reform. We are all stakeholders in this process, which will only be as good as we make it. We can’t just vote every few years, and leave it to the elected officials (many with dubious popular “mandates”) and their advisors (who have no mandate) to handle things. We have to stay engaged, as best we can, and social media makes this a whole lot easier than it used to be!

facsimile of early-18th-century engraving

^  Judgement. Emblem 139 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
     Ripa’s male personification of Judgement is glossed: “A naked Man, attempting to sit down upon the Rainbow; holding the Square, the Rule, Compasses, and Pendulem, in his Hand.  ¶  The Instruments denote Discourse, and Choice, Ingenuity should make of Methods to understand, and judge of any thing; for he judges not aright, who would measure every thing in one and the same Manner. The Rainbow, that much Experience teaches Judgment; as the Rainbow results from the Appearance of diverse Colours, brought near one another by Virtue of the Sun-beams.” (P. Tempest, Iconologia, 1709, 35)

facsimile of early-18th-century engraving

^  Just Judgement. Emblem 186 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
     Ripa’s male personification of Just Judgement (or Good Counsel) is glossed: “A Man in a long, grave Robe, with a human Heart for a Jewel, engrav’d with the Image of Truth; stands with his Head inclin’d, and his Eyes fixt on open Law-books, at his Feet; which denotes Integrity in a Judge, who never ought to take his Eyes off the Justice of the Laws, and Contemplation of naked Tr[u]th.” (P. Tempest, Iconologia, 1709, 47)

facsimile of early-18th-century engraving

^  Justice. Emblem 188 in Pierce Tempest’s English edition of Cesare Ripa’s Iconology, entitled Iconologia: or, Moral Emblems, by Caesar Ripa (London, 1709).
     Ripa’s female personification of Justice is glossed: “A Virgin all in white; blinded; in her right Hand she holds the Roman Fasces, with an Ax in it; in her left, a Flame, and an Ostrich by her side.  ¶  The White shews that she should be spotless, void of Passion, without Respect of Persons, as she, being hoodwink’d, declares. The Fasces denote Whipping for Small Offences, and cutting off the Head for Hainous ones. The Ostrich, that Things should be ruminated upon, how hard soever they be, as the Ostrich, in time, digests hard Iron.” (P. Tempest, Iconologia, 1709, 47)

Tail-piece from John Bate's _The Portraiture of Hypocrisie_ (1589)

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Gregory IX — Pope Gregory IX (c.1170–1241). ::

St. Raymond — Saint Raymond of Peñafort (1175?–1275). ::

Emperor Justinian — Justinian I (482–565), Byzantine emperor (527–565). “Throughout much of his reign his troops were engaged in a defensive struggle against Persia in the east and a successful war against the barbarians in the west. Believing that they had lost their initial vigour, he hoped to revive the old Roman empire. His general, Belisarius, crushed the Vandals in Africa (533) and the Ostrogoths in Italy (535–553), making Ravenna the centre of government. His greater claim to fame lay in his domestic policy in which he was strongly influenced by his powerful wife, Theodora (c.500–548). He reformed provincial administration and in his Corpus juris Civilis he codified 4652 imperial ordinances (Codex), summarized the views of the best legal writers (Digest), and added a handbook for students (Institutes). A passionately orthodox Christian, he fought pagans and heretics. His lasting memorial is the Church of St Sophia in Constantinople.” (Oxford Dictionary of World History, ed. A. Isaacs and others, 2000, 333–34) ::

which has yet — As I write this on 9/18/2016. ::

the radical land reforms proposed by The Diggers — “The Diggers’ first manifesto, The True Levellers Standard Advanced, signed by Winstanley and fourteen others, appeared on 26 April [1649]. On a millennial account of divine history it built a particular historical application to post-revolutionary England. The earth had been created a common treasury in which all were to share equally. The Fall saw some enclosing the earth and excluding others, tyrants whose theft and implied murder made slaves of the majority. As long as they continued to work for others for hire, the slaves were complicit in their own slavery. The tyrants, however, were also oppressed in so far as their expropriation of others alienated them from creation right and common preservation. But the millennium approached and it was ‘the old world that is running up like parchment in the fire and wearing away’. More particularly, the [revolutionary] events of 1648–9 had promised to make the English a ‘Free People’ but oppression, destitution, and confusion were greater than ever. It was time to renew the foundations of the earth as a common treasury, freeing England from the legacy of the Fall and its particular consolidation in the Norman conquest. Essential to this restoration was that ‘the poor that have no land, have a free allowance to dig and labour the commons’. Begun on St George’s Hill [in Walton parish, adjacent to Cobham, where Winstanley and others first dug into the common land in April 1649, preparatory to sowing parsnips, carrots, and beans] was a restoration which would spread to ‘all the Commons and waste ground in England, and in the whole World’. These themes — the millennial context, the civil-war contract between parliament, army, and people, and the logic of a revolution which overthrew kingly government and declared the English a free people — remained constant.... Activism was justified by the direct command of God and the growing suspicion that neither parliament nor army would deliver on the promises of the revolution.” (ODNB entry for Gerrard Winstanley by J. C. Davis and J. D. Alsop, unpaginated) ::

the oft-cited Princeton study by Martin Gilens and Benjamin I. Page — “Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens” (Perspectives on Politics, vol. 12, no. 3, September 2014, pp. 564–581).
   The entire article is freely available online; see the bibliographic citation on She-philosopher.​com’s Secondary Sources page (in the References section) for a link to the downloadable PDF. ::

an out-of-control initiative process — There were 17 propositions on the ballot in California’s General Election on 11/8/2016, requiring a 223-page Official Voter Information Guide to explain the issues, of which I read every page, plus did additional research of my own, and am all too painfully aware that I still don’t grasp the full legal implications of my vote on each initiative. ::

the Roman Fasces, with an Ax in it — A bundle of rods bound up with an axe in the middle and its blade projecting. These rods were carried by the lictor, an officer whose functions were to attend upon a magistrate, bearing the fasces before him (as an emblem of the power and authority of the superior magistrates at Rome), and to execute sentence of judgement upon offenders. ::