What's There to Say?

By Frank J. Gruber

Readers of this column familiar with my opining from time to time about various trivial matters may wonder why I haven't written anything about the trial of George Weller. Certainly the Farmers Market tragedy was the most momentous event in Santa Monica in the six years I have been writing for The Lookout.

There are two reasons. The first is that, and perhaps this reflects my legal training, I don't believe that anyone who has not sat in a courtroom day after day with the jury has standing to comment on a trial. There's no point in commenting on a trial secondhand. If you haven't seen all the evidence, if you haven't taken the measure of the witnesses, if you haven't, as this jury did, spent three weeks deliberating, you have no right to say of the jury, "Why didn't they [fill in the blank]."

The second reason is -- what's there to say? Or, rather, what's there to say that we haven't already all said to each other or to ourselves? An old man, apparently having lived a lifetime devoid of anything one might call malice aforethought, panicked and, in control of a dangerous machine, caused mayhem and death.

The jury, looking at the whole, made a determination from among accident, garden-variety negligence, or gross negligence and chose gross negligence. Who would second-guess them?

I will, however, venture an interpretation of the verdict. Given that expert witnesses favored the "pedal error" theory, i.e., "accident," the jury seemed to be saying that not correcting an accident for 20 seconds itself constitutes the "reckless disregard" for human life that is at the heart of "gross negligence."

The judge instructed the jury to apply the standard assuming that Mr. Weller was an "ordinarily, careful person," and this was not the case where the defense sought to excuse Mr. Weller's conduct because of his mental state.

Beyond that, there was a quote from Dist. Atty. Steve Cooley that made a lot of sense to me. He said, "We have always believed the difficult issues raised by this case needed to be aired in public and decided by a jury." That's important to keep in mind. Obviously, Mr. Weller and his family believe it's important to "clear his name," but beyond the verdict itself, it is hard to imagine how the judge can punish an ailing, 90-year-old man.

Yet regardless of the verdict or the punishment, the function of our judicial system is to get the facts out and put them before the representatives of the people, the jury.

It's certainly a tribute to the system that twelve citizens did such a conscientious job.

* * *

In the next two weeks I will be writing columns about the upcoming election, although now that I'm covering my fourth election in Santa Monica and since the issues and the candidates don't change that much, I'm tempted just to publish links to columns from prior election years.

I will start with state propositions that could have a particular impact on Santa Monica and other localities.

The most important are the state bond issues, Props. 1B through E (not to be confused with Prop. 1A, which is a state constitutional amendment making funding for transportation projects overly untouchable). The bond issues, for transportation, housing, education, and flood protection, will be, if approved, an overdue investment in California's infrastructure.

A lot has been said about Gov. Arnold Schwarzenegger's conversion since his electoral debacle last year to bipartisanship, and the bond issues are typically pointed to as Exhibit A. Fair enough; the bond measures did require the governor and the Democrats in the legislature to work together.

Nonetheless, it's just as important to note that the bonds on the ballot are much improved from the package of bonds the Governor originally proposed. His proposals heavily favored the "growth areas" of California as opposed to the already urbanized areas, notwithstanding that the worst problems of transportation, housing, and schools exist in areas that are already developed.

As rewritten and negotiated by Democrats in the legislature, the bonds are better balanced. Most important for Santa Monica, the transportation bond will provide funds to extend the Red Line subway down Wilshire toward the sea.

Although there is probably no one who approves every expenditure the bonds contemplate, voters should view them as a package that reflects the varying needs Californians have throughout this state of widely divergent interests. Vote yes on them all.

The other proposition that could have an impact on Santa Monica -- a disastrous one -- is Prop. 90, allegedly a "fix" for eminent domain abuse, but in reality a cynical measure designed to eliminate government's historic power to regulate the use of real property.

Santa Monicans are probably more familiar with Prop. 90 than most Californians because the prospect of its passage threw our City Council into a panic that caused the Council to throw the City's deliberate process of general plan revision out the window and pass a series of hastily conceived and overly complicated zoning changes. (see story)

If Prop. 90 passes, land use law in California will get even crazier than anything that occurred recently at Santa Monica City Hall. There is a reason that the list of opponents [http://www.noprop90.com/coalition/index.php] to the measure is a hard-to-believe example of "strange bedfellows" -- everyone from taxpayer organizations, to environmental groups, to businesses and developers.

Briefly put, Prop. 90 would, among other bad things, make any land use regulation susceptible to claims against the government from both property owners whose land is directly affected and neighboring property owners who could allege an indirect impact. They all could claim that the regulation causes them a diminution of the value of their property. No matter that these evaluations of financial impact would be wholly speculative -- one could hardly argue, for instance, that extensive regulation of land in Santa Monica has diminished its value; the purpose of the law is to paralyze government.

This isn't to say that redevelopment using eminent domain hasn't often both been unfair to existing property owners and unwise. Santa Monica lost most of its Ocean Park beachfront to luxury apartments and condos and a big chunk of its downtown to a suburban shopping center in the 60s and 70s, and many smallholders lost their homes and businesses.

This is a case where the law is best placed in the hands of state and local government. In California, for instance, redevelopment law has been much reformed. Ironically, however, when it comes to eminent domain, it's the right-wing conservatives who want to use the U.S. Constitution -- namely, the "takings clause" of the Fifth Amendment, applicable to the states by way of the 14th -- to deny the right of the people, through their elected representatives, to govern themselves.

I.e., the same justices who might not believe the Bill of Rights -- through the 14th Amendment -- limits state action that compromises the rights of the accused, or the rights of people to privacy in their own bedrooms, believe it does limit state action that compromises the right to own a particular piece of property.

Just proving that one person's legislator from the bench is another person's safeguarder of liberty.