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Posts published in “Jones”

Vietnam in the present day


The Vietnamese are gearing up to celebrate Tet, the lunar new year, with happy new year signs wherever one looks.

It is also the 50-year celebration of the Tet Offensive, which is often cited as the turning point in the Vietnam War. When I returned from my tour of duty in August of 1969, I thought we were on our way to winning the war. It did not turn out that way and that still causes me great pain. However, I think Vietnam is moving on a positive track and has a bright future.

I lived among and worked with South Vietnamese soldiers during most of my tour of duty and got to know many civilians. They were wonderful people and I have fond memories of them. During two weeks in Vietnam these decades later, I have encountered many people just like them from Hanoi to Saigon and points in between. They have been friendly, welcoming and often go out of their way to make a visitor feel at home. When we had to catch an early flight from Dalat to Saigon, the hotel opened breakfast service early to accommodate us.

One of the remarkable things is the courtesy the people show to one another and to foreigners. For instance, the streets of the larger cities are swarming with motor bikes. You would think that a pedestrian would be risking his or her life by trying to cross a crowded street. But, if you can get up the nerve to cross through the traffic, riders will give way so that you feel like Moses must have when the Red Sea parted.

The food is great, the service is friendly and helpful and people are quick to show a genuine smile. My wife are I have enjoyed our interactions with the people of this country. We were in Hanoi when Vietnam beat Iraq in the soccer semi-finals. Young people took to the streets in a lengthy and noisy, flag-waving procession through the city streets to celebrate. When the team won their next game with Qatar during our visit to Hoi An, the same thing happened. They were proud of their country and we were cheering with them.

We watched the soccer final with Uzbekistan at our hotel in Dalat. There we met a bright young man who attributed his almost perfect English to having spent 3 high school years in Boston. He will go far. China is making a play for the affections of Vietnam and people like him. Because of a long history of thorny relations between those countries, Vietnam would like to strengthen its relationship with us. I hope America's recent inward turn does not push them away. We need friends is this region.

The country is not perfect because the people still are unable to exercise some of the freedoms that Americans take for granted. That does not take anything away from the people, who are genuine good folks. We certainly have reason to know that because the Vietnamese who came to the U.S. as refugees after the war have been great additions to the American landscape.

Saigon is a bustling city with lots of development happening. Hoi An is a charming city where my wife, Kelly, and I took Vietnamese cooking classes. Hue is an old imperial city. Hanoi is awakening from a development standpoint and full of friendly people. Our war with the Communists ended badly for us, but I think the outlook for friendship with Vietnam into the future is very positive, if we work to make it happen.

Vietnam revisited


As our plane was descending to land at Hanoi International Airport on January 17, I remembered back to my first landing in Vietnam 50 years ago.

That time, the World Airlines plane made a steep descent into Tan Son Nhat Airport in Saigon so as to reduce its exposure to ground fire. Looking out the window then, I saw bomb craters and other evidence of the fighting in the vicinity of the airport that had taken place during the Tet Offensive just five months earlier. This time the descent was normal, but it felt odd to be landing in a place that I had wanted to be blown off of the face of the earth in 1968.

My wife, Kelly, and I enjoyed our interaction with the Vietnamese people we met in Hanoi. It is hard to believe they were bitter enemies not so long ago. One person brushed off the “American War,” as just an interruption in the long history of Vietnam.

We made the obligatory visit to the Hanoi Hilton, the old French prison where American POWs were held and brutally mistreated during the war. I was disappointed that about 90% of it had been demolished to make way for a commercial building. Seems like it should have been maintained as a memorial. A thing that gave great offense at the facility was the propaganda claim that American prisoners had been humanely treated there. Ho Chi Minh may have been a nationalist, but he was also a brutal dictator. But, you can’t hold that against the good people living there now. The majority of the country’s population was born after the war.

We arrived in Hue, the old imperial capital of Vietnam, on January 21. It is a wonderful city. The main attraction is the Citadel where Vietnam’s emperors lived and ruled through the 19th century and well into the 20th. Much of the Citadel was destroyed during the 1968 Tet Offensive that saw the most intense urban fighting of the Vietnam War.

The Communist forces attacked and overran Hue during a truce that had been called to celebrate the Chinese New Year. It took a month of brutal, close-in combat to dislodge them. South Vietnamese troops fought well, suffering 452 killed and 2,132 wounded. U.S. forces sustained 1,584 wounded and 216 killed in action. More than 5,000 Vietnamese civilians died, more than half of whom were executed by the Communists.

The government has restored a good deal of the damage but much more work lies ahead. You can see large areas where bullet holes were plastered over but many still remain there and elsewhere around the city. After all the mayhem, it does not seem right that a red flag with a yellow star should fly over the Citadel but that’s just the way it is.

The Communists expected the citizens of Hue to rise up in support of the offensive but they did not. Many citizens were traumatized by the mass executions. Maybe I read too much into it, but many of the older folk who were likely in Hue during the offensive would return a nod or smile to me on the streets. Could it be they had formed a warm spot in their hearts for Americans in those tragic days?

Why allow people from sh-thole countries?


The President recently posed the question of why people from, shall we politely say, crapper countries should be allowed into the U.S.

Before answering, I should disclose that my ancestors were all from crapper countries - Germany, Scotland, Wales and France. When proper citizens of Rome were lowering their bottoms onto indoor toilet seats, my ancestors were using the woods to do their business. I suspect they just squatted and pooed without the benefit of a hole. Julius Caesar considered my ancestors to be barbarians who were so ignorant they deserved to be slaughtered or enslaved. They certainly could not become citizens of Rome, at least until several hundred years later when they took over the place.

Apparently, the President’s query related to people from Africa and Haiti, as opposed to blond and blue-eyed Scandinavians. The short answer to his question is that people from crapper nations have proven to be good residents and citizens of this country.

0n January 10, the Statesman featured an insightful opinion piece on how the environment is enhanced by smart building codes. It was written by a bright young lady whose parents fled here from the Congo to escape horrible violence. They just wanted what we all want, a safe place to live and raise their family. That young lady will continue to be a caring, contributing person in the Idaho community.

Last year, I met a young woman from Afghanistan whose family spent years as refugees in Pakistan and Russia to escape a war that we started in her country. She now has an engineering degree from BSU and a good job at a fast-growing tech company in Boise. She is and will continue to be a credit to this State.

After the U.S., with some justification, initiated the Afghan war, we veered off into an unnecessary war in Iraq, creating a new flood of refugees. Many of the people who sought refuge in this country as a result are doctors, engineers, IT experts, and the like. Some are still awaiting licenses to practice their professions, but working hard at other jobs to support their families in the meantime. It is shameful that about 50,000 Iraqis who risked their necks to help American forces, and are still in danger for having done so, are still awaiting entry into the U.S. I bet they wish they had known we would not stand behind them before they agreed to help us.

I am currently working with a young woman who was born in England to Nigerian parents, raised in Nigeria before returning to England, got several advanced degrees including one in law, and then immigrated to the U.S. We are putting together a program to help refugees and other immigrants adjust to the American legal system. She is dedicated to helping the wider community and works hard to make our State a better place for everyone.

The people in the immigrant community are like those who have come from other nations in the past-- to escape famine like the Irish, to escape religious persecution like the Pilgrims, or simply to find a better way of life, like my wife’s grandmother from Slovenia. The First Lady may also have come to America from Slovenia in search of a better life.

We are better than belittling people who come from war-torn and poverty-plagued countries. When those people take root in this land of opportunity, they start businesses at double the rate of home-grown Americans and they contribute their fair share and more to the economy of our State and country. They have much in common with those of us whose ancestors came to this nation of immigrants from formerly “sh__hole”

Too far on non-competition


The Legislature put the shoe on the wrong foot in 2016 when it passed a bill requiring employees to prove they did not harm their former employer if they violated a noncompetition agreement. The new law presumes irreparable harm to the employer, unless the employee can present proof to the contrary. The law is unfair, unnecessary and should be repealed.

During my private law practice before going onto the Idaho Supreme Court, I wrote a number of employment contracts with noncompete clauses and litigated on both sides of the issue. In 12 years on the Court, I authored a number of opinions on noncompetes and was probably more favorable to employers than most of my colleagues. I grew up believing people should keep their word and honor their contractual commitments.

While I routinely ruled that people should live with their contractual undertakings, noncompete provisions were a slightly different animal. They were often foisted on the employee on a take-it-or-leave-it basis in contracts where the employee had very few rights. Courts around the country have taken a jaundiced view of such contracts and Idaho has moved in that direction.

When I broke my wrist in 2002, I had a great physical therapist. About six months after my treatment ended, he called with noncompete troubles. He had taken a job with a local hospital and would be caring for its patients. His former employer headquartered in Texas was threatening a suit for violation of his noncompete, which he did not recall seeing in the contract. The threat against him was outrageous because there was no way he would be competing for patients of the former employer. This was not an uncommon situation.

Where the seller of a business agrees not to compete against the person buying the business, the buyer should be protected against a breach of the noncompete. In the regular employment setting, if the employer pays the employee extra for entering into a noncompete, or invests in specialized training for the employee, or gives the employee access to private business secrets, there are grounds for protection of the employer. If those elements are not present and the employer just wants to keep the employee chained to his or her job, protection may not be warranted.

In normal contract cases, a person suing for breach must prove all of the elements--that there was a contract, that the defendant violated it, that the plaintiff was damaged and the amount of damages. The 2016 bill removed the third element for noncompetes, requiring a former employee to prove the employer was not damaged. I am not aware of any reason why noncompete clauses should be treated differently than any other contractual provision.

During my private practice, I sometimes brought suit to enforce noncompete clauses. Just like any other contract case, if an employer has a good case it can win. If not, it shouldn’t. Noncompete cases do not warrant special rules. Noncompetes can serve valid interests, but they can also be used to unnecessarily stifle competition, to keep talented people from advancing, or to squelch the innovative employee who wants to strike out on his or her own. The pre-2016 legal landscape was properly balanced. That balance should be restored by repeal of the 2016 legislation.

Why warehouse low-risk drug offenders?


I’ll be the first to admit that it was a mistake to support mandatory minimum sentences for drug traffickers during my tenure as Idaho Attorney General in the 1980s.

Most observers have come to realize that long mandatory sentences are not appropriate for every offender. Legislatively mandated sentences tie the hands of judges who are best positioned to tailor the appropriate punishment for the crimes committed by a particular defendant.

And, while they do not reduce recidivism, they do needlessly inflict damage on the families of low-risk offenders. In 2014, Idaho adopted the Justice Reinvestment Act to provide for earlier release of low-level offenders, to ensure their success by providing them greater supervision, to reduce the number of repeat offenders, and to reduce the cost of Idaho’s prison program. The legislation had broad-based support and holds out great promise for success.

Throughout the 1980s, there was a perception that judges were not being tough enough on high-volume drug traffickers. It was thought that requiring judges to impose mandatory minimum sentences would keep these big fish off of the streets and reduce the drug problem. In 1992, the Legislature enacted legislation to require minimum sentences for persons in possession of certain quantities of illicit drugs, with longer sentences for larger amounts. The mandatory sentences were based solely on the quantity of drugs the person had.

It has not worked so well. The drug problem has gotten worse and many people who were simply users, and not a substantial danger to society, have taken up prison space and taxpayer dollars for no good purpose. The longer such people stay in prison, the harder it is to keep them from re-offending.

Having observed the judicial system from the inside for twelve years, I believe that our trial court judges have a good feel for who deserves to be incarcerated for a long stretch and who shows promise for staying out of further trouble. Our judges take into account who is before them and whether they pose a societal risk, rather than just the weight of the drugs they had in their control. That is how justice is served. It is not served by a one-size-fits-all system of sentencing where a set of scales determines the length of the prison term.

The court system has worked hard to educate judges as to the correct balance between incarceration and rehabilitation. Judges share information about sentencing for various offenses throughout the state to bring about a certain amount of uniformity. The judicial system has developed drug courts to help lower-level offenders get free of drugs and put their lives back on track. These are the measures that can reduce recidivism, salvage those who can be rehabilitated, and keep families together. Mandatory sentences do not. My 1980s mindset was wrong, as was the 1992 legislation.

Last year, Representatives Ilana Rubel and Christy Perry introduced legislation to eliminate the mandatory minimum sentences in the 1992 statute. Their bill retained the maximum sentences for drug trafficking but left the length of the sentence up to the judge, who can set a minimum prison term of his or her choosing. That legislation will come up again this year and people should urge their legislators to support it.

Two outstanding public servants


This year witnessed the passing of two Idahoans who dedicated their lives to public service. Neither Orval Hansen nor Larry Boyle held public office to enrich themselves or others but, rather, to give of their time on this planet to make it a better place for the rest of us.

I became acquainted with Congressman Orval Hansen when I went to work for former Idaho Senator Len Jordan in January of 1970. Senator Jordan told me they had worked closely on Idaho issues since Orval’s election to the House of Representatives in 1968. Jordan said Orval was one of the best people he knew in Washington. He admired Orval for the way he dug into the issues and was able to work with his House colleagues to get things done for Idaho. That was high praise from a man who did not pass out compliments freely.

During the three years I worked with Orval’s office, I came to appreciate why Jordan held him in such high regard. Most of that work was through Dave Oxford, my counterpart in the Hansen office. Dave described how Orval became knowledgeable on nuclear issues by studying massive amounts of material during nights and weekends. That work paid off in the growth of the nuclear facility near Idaho Falls (the INL), largely through Orval’s efforts. He approached every other issue with the same vigor, gaining a reputation for his ability to get things done. One of his crowning achievements was getting the Sawtooth National Recreation Area legislation through the House.

Although Orval’s hard work served his state and nation well, producing results for constituents does not necessaryily produce votes. While Orval was diligently working nights and weekends in the nation’s capital and not doing a lot of tooting of his own horn, his 1974 opponent was shaking every hand in sight and won the election that year. That did not stop Orval, though, because he continued to serve the public interest in important ways, as documented in his memoir, Climb the Mountains.

Larry Boyle was another product of eastern Idaho. I met Larry in the 1970s when he was practicing law in Idaho Falls. He had a solid reputation amongst the lawyers in the area, but I did not appreciate how solid until he applied for a district judgeship in 1986.

The Idaho Judicial Council was charged with the responsibility of interviewing candidates for the district bench and submitting a list of 2 to 4 candidates to the Governor for appointment. Larry was the only person who applied for the position so the list sent to the Governor had just his name. We were told that when the lawyers heard Larry had applied, they recognized that he was the perfect choice so nobody else put in an application. I was Attorney General at the time and was presented the question of the legality of appointing from a list of one. The statute called for at least two candidates, so would it be appropriate for the Governor to appoint Larry? I said there had to be another name on the list, so it went back to the Judicial Council. Again, Larry was the only person who applied. When presented with the same question a second time, the ruling was that the appointment should proceed.

District Judge Larry Boyle did an outstanding job on the bench and was appointed to the Idaho Supreme Court in 1989. In 1992 he was appointed as U.S. Magistrate Judge for the federal court in Idaho, where he served with distinction for many years. In addition to being a distinguished jurist, Larry was heavily engaged throughout his life in civic and church matters that bettered his community and our state.

Both of these Idahoans were outstanding individuals who acted in the interests of the people of this state. They were both honest and honorable - something we see too little of this day and age in the public arena. They will be missed.

Republicans may be reawakening


There are a few encouraging signs that my dear old Republican Party may be returning to its roots.

This is the party I grew up in - a party that was wary of too much government but insisted that vital public needs be adequately funded and competently handled. Members of the old GOP did not vote lockstep on virtually every issue, but studied the issues and exercised independent judgment. I have seen some stirrings lately that indicate a possible return to those days.

My mentor and former boss, Senator Len Jordan, who served our state as Governor (1950-1954) and later as Senator (1962-1972), set the example for me. Although there were some party-line votes while he was in the Senate, he was a rugged individualist who followed his own moral compass in representing Idaho and the nation.

Jordan would never have voted to confirm a nominee for a federal judge position who was not qualified, no matter how politically connected the person was. He bucked his own President on two appointments to the U.S. Supreme Court - Clement Haynsworth and Harold Carswell - finding both to be unqualified for that lofty position after independently studying their records. We have seen very little of that lately from the party Jordan loved.

But, low and behold, Senator John Kennedy, a Republican from Louisiana, recently refused to support two federal judicial candidates that the American Bar Association (ABA) found to be “unqualified” to sit on the federal bench. One of them, Brett Talley of Alabama, was nominated for a lifetime district court position even though he had practiced law for less than three years and never tried a case. His only claims to fame were operating a political blog and being married to a woman who worked for the President’s White House Counsel. Although Talley was approved on a party-line vote by the Senate Judiciary Committee, Senator Kennedy jumped ship to oppose Talley when it was discovered that he had failed to disclose his wife’s job and the potential conflict of interest. Senator Johnson said he would vote against Talley “in a heartbeat - twice if I can.” Thanks in large part to his principled stand, Talley’s nomination was withdrawn.

It is important to put individuals with strong experience on the federal bench because those judges handle serious civil and criminal cases. It is not the place for an inexperienced rookie or political hack. The ABA performs a valuable role in evaluating and rating candidates and should not be ignored.

Senator Richard Shelby, an Alabama Republican, provided the other ray of hope when he said he could not vote for Roy Moore for a seat representing his state in the U.S. Senate. Besides being the subject of credible allegations of molesting teenage girls, Moore had been kicked off of the Alabama Supreme Court twice for defying the law of the land. A judge can disagree with the law but he or she takes a solemn oath to uphold it and commits a serious breach of that oath by claiming to be above the law. Senator Shelby’s courageous stand harkens back to the ethics of the party that I remember from years ago.

This is not to say that the other party does not also engage in party-line tactics, but it is not the party in power now and the leaders set the tone. It is time for the GOP to get back to its past ethical standards - the standards set by Abraham Lincoln, the GOP’s founder. I think he would approve of the recent independent thinking of Senators Kennedy and Shelby, but be disheartened by the no-compromise, take-no-prisoners attitude too often exhibited by many of the others.

Time for immigration reform


A September 16 article on the Politico website caught my eye because of its Jerome, Idaho, dateline. It is not often that my home county gets national coverage, so I obviously had to read the article. It was written by Susan Ferriss, a reporter for the Center for Public Integrity, and titled How Trump’s Immigration Crackdown Threatens to Choke Idaho’s Dairy Industry.

The article points out that Idaho has become one of the nation’s top milk-producing states, with 2012 direct sales by dairy producers and processors in the amount of $10.4 billion. In 2015, Idaho dairies employed about 8,100 workers statewide and their work supported 3,700 dairy-processing jobs, as well as 27,600 jobs in other businesses. Idaho’s producers of cheese and yogurt are reliant on the dairy industry, which in turn relies on a steady supply of labor.

The problem is that dairy jobs are not particularly desirable and dairymen have a hard time finding reliable local labor to keep their operations running. Most home-grown folks won’t do the work. Because of that, the dairy industry has come to rely upon foreign-born workers. Some of them are lawfully in the country, but many are not. It is estimated that 85-90% of Idaho’s dairy workers are foreign-born and about 70% of those are undocumented.

How did we get here, what are the problems, and what should be done to fix them? When I was growing up on the family farm near Eden in the 1950s and 60s, it was just assumed that farm kids and local hired hands would do the hard work. However, beginning in the 70s, farmers had increasing difficulty in finding reliable workers to handle that work. Workers started coming from south of the border to fill the gap, some of them with temporary work permits but many without any documentation. The northward flow of workers increased after the North American Free Trade Agreement went into effect in 1994. Hundreds of thousands of Mexican farmers went out of business because they could not price-compete with U.S farmers. Many headed North to get farm jobs that Americans did not want.

Many of the undocumented workers put down roots in Idaho because of the difficulty of going back and forth each year. They had children in this country who became U.S. citizens. Those who came seasonally had to do a lot of paperwork and there were generally not enough temporary permits to fill the need on Idaho farms. Temporary permits did not allow workers to spend the entire year, which was a necessity for work on the dairies.

With the increased enforcement effort by the current administration, there is concern in the dairy industry that essential workers will be deported. Workers are concerned about losing their jobs and having their families broken apart. Some say the workers could not have expected to be able to stay, but it is more complicated than that. For decades, the government and U.S. employers have known what was going on but little was done to develop a policy of allowing sufficient foreign labor into the country to meet the needs of agricultural employers. If undocumented workers are deported in order to get in line for legal entry, what are the farmers and dairymen to do in the meantime? You can’t just mothball the dairies, cheese plants and yogurt factory, while waiting years for papers to be shuffled and processed for legal entry. Idaho’s multi-billion-dollar dairy industry depends upon year-round workers.

And, the problem is not confined to Idaho or its farms. There are approximately 11 million undocumented immigrants in the country. About 800,000 of them came as children--the so-called Dreamers. Many of the undocumented people have children who are American citizens, which complicates the situation as to who is subject to deportation. With the low unemployment rate in our country, deportation will injure many employers, as well as the national economy. The American Action Forum estimates that deporting all undocumented immigrants would cost between four and six hundred billion dollars and reduce the country’s gross domestic product by one trillion dollars. And, quite frankly, about everyone knows that such a mass deportation won’t happen.

So, what should we do? Our members of Congress need to develop backbones and deal with the problem. Former President Ronald Reagan inspired Congress to deal with comprehensive immigration reform in 1986 and the current situation cries for similar action now. If members of the House and Senate were more interested in solving difficult national problems, rather than keeping their jobs, the immigration problem could be resolved. That would give employers and workers certainty and also contribute to economic growth in Idaho and the country as a whole.

The harm in Muslim-bashing


The President’s statements, tweets and retweets that demean, vilify or ridicule Muslims are harmful to American interests in a number of ways. Whether he is denigrating a Muslim Gold Star family or retweeting anti-Muslim video clips spewed out by a British hate group, it is dangerous for our nation.

Since 9-11, the U.S. has been engaged in an international conflict with radicals who espouse a perverted version of Islam. These people constitute a tiny minority of the world’s Muslims. Islam is the second-largest religion on earth, with about 1.8 billion members. We are allies with many Muslim-majority nations and we count on those countries for assistance in combating terrorist groups such as ISIS and al-Qaeda.

The U.S. is currently involved in armed conflicts in Afghanistan, Syria, Somalia, and Yemen, all of which are Muslim-majority nations. We have troops in many other Muslim nations in the Middle East and northern Africa. It is essential to the safety of our people in harm’s way that we maintain mutual respect with the people of those countries. When our President is generally characterizing people of the Islamic faith as common terrorists, it is not only a false narrative but it is dangerous for our service personnel on the ground.

Grateful beneficiaries of the President’s anti-Muslim activities are the very terrorist groups we are fighting. They seek to gain followers by claiming America is waging war against Islam. The President has played into that narrative with his words and actions, giving the terrorist groups ammunition to use against us in their propaganda work, not to mention the boost it gives to their recruitment efforts.

Incidentally, the anti-Muslim actions, such as the Muslim travel ban and the recent Twitter activity, are also music to the ears of American neo-nazis. David Duke is loving all of it. In response to the President’s retweet of the British hate-group videos, Duke rejoiced, “Thank God for Trump.” I’m not so sure God would want to claim credit.

The British, our closest allies, were obviously not pleased with the high profile the retweets gave the ultra-nationalist British First group. They could not be faulted for asking why the retweets were necessary--what valid U.S. interest was served by redistributing this harmful garbage.
Of course, the United States has about 3.45 million citizens who are members of the Islamic faith. I have met many here in Idaho and they are wonderful people who love this country, their country. When people in positions of responsibility make broad generalizations casting Muslims in an an unfavorable or menacing light, it is a form of undeserved religious bigotry. There is no place for that in a country that prides itself on religious freedom.

It is no wonder that hate crimes against Muslims increased over 19% from 2015 to 2016. Muslims constitute about 1% of the U.S. population but suffer 4% of the hate crimes. A recent survey conducted by the Pew Research Center disclosed that half of the Muslims polled say it has become more difficult to be a Muslim in the U.S. in recent years.

It is wrong to make a segment of the American religious community fearful for their everyday safety and well-being. It violates one of the bedrock principles upon which this great nation was founded. Let’s stand up and demand that our public officials recognize and support religious freedom for all Americans, regardless of their faith or beliefs.