May 19, 2009 Special Election

I am voting NO on all of the propositions in the May 19, 2009 special election. The legislature needs to do the job it was elected to do. If not, then every one of them not willing to compromise in good faith should resign.

What will it take for the California legislature to do its job? Instead of passing a budget, it delayed the hardest decisions and deferred to voters. At what cost? The propositions do not even balance the budget or structurally change how budgets are made or how money is spent. The propositions only move money from one set of pots to to another in a apparently symbolic move. It is like moving deck chairs on the Titantic as cold Atlantic waters stream into a big gash in the side of the boat. Hello, there are structural problems causing California’s budget woes! Worse, these are temporary measures that delay or exacerbate the problems faced by the state government. Really, what do passing these initiatives get us?

via California Legislature: Where cost-cutting plans go to die – Los Angeles Times.

“Republicans pitched most of the plans to help deal with the deficit — which is expected to hit $8 billion by summer — but even some from moderate Democrats were rejected.

State officials have projected the midyear budget shortfall as a result of the recession. And if voters reject the budget-related ballot measures in the May 19 special election, the deficit could top $14 billion.”

via State will need to borrow more than $20 billion S.F. Chronicle.

“California will have to borrow more than $20 billion unless state leaders close another multibillion-dollar deficit that will deepen if voters reject budget-related ballot measures on May 19, according to a report Thursday by the nonpartisan Legislative Analyst’s Office.

In addition, California may have to pay hundreds of millions of dollars in additional borrowing costs as a result of the banking crisis. In previous years, the state was able to secure lower interest rates by purchasing loan guarantees from commercial banks.

But banks have told state finance officials that they can at best back about $1 billion in loans, far short of the state’s borrowing needs, said Tom Dresslar, a spokesman for state Treasurer Bill Lockyer.”

The articles say so much more than what I flash here. Really, they are worth reading to educate yourself. Really, these propositions do little to help the situation.

via Californiaâ??s Cash Flow Crisis: May 2009 Update.

Without significant budget-balancing and cash management actions by the Legislature or unprecedented borrowing from the short-term credit markets, the state will not be able to pay many of its bills on time for much of 2009-10.

  • $23 billion: Amount in loans from private investors needed in the fiscal year beginning July 1 if voters reject the May 19 ballot measures and the Legislature does not act;
  • $17 billion: Amount in loans from private investors needed if voters approve the ballot measures
  • $14 billion: Budget shortfall if voters reject Propositions 1C, 1D and 1E (i.e. the measures bring in $6 billion to budget).
  • $8 billion: Budget shortfall if voters approve Props. 1C, 1D and 1E

And here are highlights from the Official Voter Information Guide distributed by the Secretary of State followed by my commentary, labeled [DFB]. Highlights are mine.

Proposition 1A:

  • “Possible greater state spending on repaying budgetary borrowing and debt, infrastructure projects, and temporary tax relief. In some cases, this would mean less money available for ongoing spending.”
  • [DFB] In other words, we will borrow money now but we will be required to pay more for debt servicing and paying interest on that debt in future budgets. Moreover, we will need to cut spending in future years to pay for our budget woes now. Where will that money come from?

Proposition 1B: Fiscal Impact:

  • “Potential state savings of up to several billion dollars in 2009â??10 and 2010â??11.””Potential state costs of billions of dollars annually thereafter. “
  • [DFB] There are no estimates attached to this future cost. The voter guide says “it is difficult to know how this measure would change the state’s finances.” Voter Guide, page 21.

Proposition 1C:

  • “Impact on 2009â??10 State Budget: Allows $5 billion of borrowing from future lottery profits to help balance the 2009â??10 state budget.”
  • “Impact on Future State Budgets: Debt-service payments on the lottery borrowing and higher payments to education would likely make it more difficult to balance future state budgets. This impact would be lessened by potentially higher lottery profits. Additional lottery borrowing would be allowed. “
  • [DFB] Get this part: “would likely make it more difficult to balance future state budgets”? Yes, the authors of this measure are trying to address a difficult to pass budget by hamstringing future legislators by making it difficult to balance/pass future budgets. Isn’t that how we got into this mess? It infuriates me to no end to see this level of misfeasance. [bleeped out so I do not make a statement against my penal interests – sorry, I had a Criminal Procedure exam earlier this evening ;)]

Proposition 1D:

  • “Redirects existing tobacco tax money to protect health and human services for children, including services for at-risk families, services for children with disabilities, and services for foster children. “
  • [DFB]: This is an example of moving money from one pot to another. It is temporary and lasts five years. What happens in five years? This whole mess begins anew.

Proposition 1E:

  • “Amends Mental Health Services Act (Proposition 63 of 2004) to transfer funds, for a two-year period, from mental health programs under that act to pay for mental health services for children and young adults provided through the Early and Periodic Screening, Diagnosis, and Treatment Program.”
  • “The proposed temporary redirection in Proposition 63 funding would make less money available for mental health programs. To the extent that such programs are reduced, state and local governments could incur added costs for homeless shelters, social services programs, medical care, law enforcement, and county jail and state prison operations. The extent of these potential costs is unknown and would depend upon the specific programmatic changes that resulted from the redirection of Proposition 63 funding.”
  • [DFB] This is another temporary measure lasting two years that moves money from one pot to another. As the analysis shows, there is a big budget gap that will be left for cities and counties to make up, perhaps from thin air.

Proposition 1F:

  • “Encourages balanced state budgets by preventing elected Members of the Legislature and statewide constitutional officers, including the Governor, from receiving pay raises in years when the state is running a deficit.”
  • Minor state savings related to elected state officialsâ?? salaries in some cases when the state is expected to end the year with a budget deficit.”
  • [DFB] This is like being bitten by a minnow. A Delta smelt, perhaps? It lacks teeth big enough to pierce the skin. Worse, it will have a negligible effect on the budget. I’d rather see a sliding scale that forces the legislature to deliver a structurally balanced budget by July 1. Every week after would see a 10% reduction in pay for that period. If a legislator was paid $100,000 per year they would be paid based on $90,000/year the following week and $81,000/year the following week. At week 29, they would be paid based on $5,233/year salary. See the chart below. Now that ought to get their attention in contrast to the slap with the pinkie finger the legislature has given itself.


Of course I only cherry picked the items that caught my eye or that I should call attention to. Read the propositions yourself.

To be fair, voters are part of the problem. We have tied the hands of the legislature with proposition after proposition to support our pet projects, idealogical views, and pocket books. What we have collectively done is force legislators to do the equivalent of cloud seeding. Fortunately, we’ve had a prosperous enough time where money came easily in coincidental alignment with those revenue seeding experiments. Now, the magic is gone and we need to fess up to reality. Money does not grow on trees or fall from the sky. Debt is not cheap. And California’s budget is a briar patch that needs to be dethorned.

There should be no “third rail” to this debate. That overused political colloquism should go out the window in this conversation. There is nothing that should be held too sacred in conversations about how to fix – how to truly fix – the state budget. Prop 13, Prop 98, Prop XX, all need to be considered without reservations. It may take a vote of the people to undo some of the mess we created but at least put something valuable and constructive for us to debate and vote on instead of something from a sewage plant, spit-shined and treated like Cinderella’s glass slipper. At the end of the day, the conversation must be about the balance sheet: revenue versus expenditures; and how to make each more stable and controlled.

California Debt Payments

I personally do not mind paying taxes. After all, I prefer not to live in anarchy, like to drink clean water, drive the roads, ride the rail, etc. All those are paid by my tax dollars. That doesn’t mean don’t care where those tax dollars go. One place I do care about is how much we pay for interest payments and loan servicing. In Sacramento, they call it Debt-Servicing.

As of November 2008, debt-servicing is expected to cost us about $6 billion this fiscal year, or about 5.8% of the state’s revenues. Since the early 1990’s debt-servicing generally cost between 3 and 5% of revenues. It is now expected to reach 9% or more in the next 5 years. And since the last set of projections made in November 2008, the special election was set and we are now urged to increase that debt service ratio further. Proposition 1C will cost us $350 to $450 million more each year for debt-servicing. The governor and Department of Water Resources are also drumming up support for $20 billion in upgrades to our water infrastructure (Peripheral Canal, part II). That would potentially cost $1.3 billion per year more in debt servicing. Those are not figured into the numbers, either.

More costs are expected. Worse yet, CALPERS “has been reporting an expected rate of return of 7.75 percent for the past eight years, and 8 percent before that…. Its annual return during the decade from Dec. 31, 1998, to Dec. 31, 2008, has been 3.32 percent, and last year, when markets tanked, it lost 27 percent.” (via Bloomberg). We’ll need to borrow to bail it out as well since the pension fund is guaranteed by the state treasury.

via  California’s Fiscal Outlook: LAO Projections 2008-09 Through 2013-14 (issued Nov. 2008)

“The Spending Forecast. General Fund spending for debt service on bonds used to fund infrastructure is estimated to be $4.3 billion in 2007â??08, $5 billion in 2008â??09, and $5.9 billion in 2009â??10. In total, debt service is projected to grow at an annual pace of 9.9 percent annually over the forecast period.

Debtâ??Service Ratio (DSR). [T]he ratio of annual General Fund debt-service costs to annual General Fund revenues and transfers [abbreviated DSR] — is often used as one indicator of the stateâ??s debt burden…. We estimate that:

Projected Debt-Service Ratio

  • The DSR for infrastructure bonds will rise to 7.8 percent in 2011â??12 before falling to 7.5 percent by 2013â??14. Thereafter, it will steadily decline as outstanding bonds are paid off.
  • If the stateâ??s deficitâ??financing bonds (known as Economic Recovery Bonds) are included in DSR, it would peak at 9.4 percent in 2011â??12. It is anticipated that these bonds will be paid off following our forecast period, at which time the DSR will drop down to reflect only infrastructure bonds.

As noted in the figure, the DSR we are projecting is considerably higher than in past years. In part, this reflects the sharp fallâ??off in General Fund revenues we are projecting, which has the effect of driving the ratio up for a given level of debt service. It also is important to note that to the extent additional bonds are authorized and sold in future years beyond those already approved, the stateâ??s debtâ??service costs and DSR would be higher than projected above. For example, each additional $1 billion of bonds authorized would add roughly $65 million annually to debtâ??service costs once they are sold.”

Debt is not evil. It is not the work of the devil or some other unearthly creature.

Debt is a useful tool to people and governments to build infrastructure that costs a lot of money up front but lasts for many years and, more importantly, provide the tools necessary to build an economy. Using it to pay down past debts and for operating costs is a misallocation of resources. It puts a the state into a precarious perch and positioned for a spiral downward that is hard to recover from. We should all be mindful that, instead of paying for necessities such as teachers, police, and repaving, we will end up cutting services to pay for the extra debt payments. I think returning to the historical norm should be the goal and will allow us to build and restore infrastructure without putting on too much debt servicing burden.

The Arid West

This quote puts into perspective the current drought and battles over the Sacramento-San Joaquin Rivers Delta ecosystem for city/ag water use.

The consequences of aridity multiply by a kind of domino effect. In the attempt to compensate for nature’s lacks we have remade whole sections of the western landscape. The modern West is as surely Lake Mead and Lake Powell and the Fort Peck reservoir, the irrigated greenery of the Salt River Valley and the smog blanket over Phoenix, as it is the high Wind River Range or the Wasatch or the Grand Canyon. We have acted upon the western landscape with the force of a geological agent. But aridity still calls the tune, directs our tinkering, prevents the healing of our mistakes; and vast unwatered reaches still emphasize the contrast between the desert and the sown.

Wallace Stegner, Where the Bluebird Sings to the Lemonade Springs, page 47.

The quote came up while researching my water law paper.

IMG_5384A river dammed – American River in Sacramento.

California: We’re almost out of water

Calif. to cut water deliveries to cities, farms – Yahoo News.

The Department of Water Resources projects that it will deliver just 15 percent of the amount that local water agencies throughout California request every year.

This is horrible news. Rationing should have started with the drought, followed the snow level, and definitely followed the drier pumps. We had better all pray for a wetter than usual winter.

BTW: Agriculture accounts for about 80% of water used in California.

Dire warnings issued again about the Sacramento and San Joaquin Rivers Delta

SF Chronicle: Panel issues dire warning on Delta

A task force appointed by the governor warns that California must build new dams, canals and desalination plants and amend its laws or face economic and ecological disaster.

The state must elevate environmental needs for water to a standing equal to that of human needs to restore the state’s ailing water network, a report by the Delta Vision Blue Ribbon Task Force said.

In addition to new dams and reservoirs, the plan calls for other measures, including: designating the estuary a National Heritage Area by 2010, increasing the amount of recycled water in the state to 1.5 million acre feet annually and cutting California’s water use 20 percent by 2020.

The goals of this report are laudable. One major problem with the plan is that there is only one truly suitable dam site left in the state – Temperance Flat. We will end up relying on desalination and toilet-to-tap plants, like the one Singapore operates. Although I wonder if such projects will provide enough water for agriculture, which uses 80% of the water in the state.

Mountain Lions in Sunnyvale?

Apparently, a Mountain Lion was spotted in Sunnyvale, along the San Francisco Bay shoreline. This is the last place I’d expect to see a cougar roaming about. Yikes. I wonder if Mountain View posted warnings at Shoreline Park or Sunnyvale at Baylands Park.

This email was sent by my company this week.

Subject: Mountain Lion Sighting: Be Cautious on Trails Surrounding the Sunnyvale Campus


Please use caution when using the trails surrounding the Sunnyvale campus. This past Saturday, several trail users reported seeing a mountain lion within 100 yards of our campus, just north of Twin Creeks Field #4 near the trail of Baylands Park.

If you plan to use the trails

Mountain lions are quiet, solitary and elusive, and typically avoid people — attacks on humans are extremely rare.  However, conflicts are increasing as California â??s human population expands into mountain lion habitat.

Here are a few tips to follow:

  • Do not hike, bike or jog alone.
  • Avoid hiking or jogging when mountain lions are most activeâ??dawn, dusk, and at night.
  • Keep a close watch on small children.
  • Do not approach a mountain lion.
  • If you encounter a mountain lion, do not run; instead, face the animal, make noise and try to look bigger by waving your arms; throw rocks or other objects.  Pick up small children.
  • If attacked, fight back.
  • If a mountain lion attacks a person, immediately call 911.

For more information about mountain lions, visit the California Department of Fish and Game:

lost and found

We noticed these flyers a block apart while walking downtown yesterday. I know the bay area is likely just a little out of the norm; whether these flyers makes it more or less normal is left to be determined.

Lost: Tortoise

Found: Duck

If only the flyer regarding the duck was in regard to a rabbit. But then again that would be a truly hare-ey situation. 😉

Aging Boomers could further burst housing bubble

The bad credit and housing markets has helped to breath new life into an old story – that boomers retiring (or dying) will lead housing prices down, starting by about 2010. It is worth reading.

Aging Boomers could burst housing bubble – SF Chronicle

“[A]according to a study by two University of Southern California researchers, a bubble of even more monumental proportions lies just ahead. They call it the “generational housing bubble,” and maintain that it will be fueled by the same Baby Boomers who have been bidding up prices since 1970 as they moved higher and higher on the housing ladder.

Now, though, the 78 million Boomers are about to enter the years when people tend to become sellers rather than buyers. And as a result, they expect “many more homes (will be) available for sale than there are buyers for them.”

Myers’ and Ryu’s foreboding prophecies bring to mind a 1989 study by a pair of Harvard economists, who predicted a 47 percent decline in housing prices during the 1990s because Boomers would stop buying as they aged. Housing-industry economists lambasted that forecast as pure poppycock, and it eventually blew up in smoke.

Mankiw and Weil “may have miscalculated the timing of the decline, predicting its beginning 20 years or more prematurely,” the new study says. “But the Baby Boomers will finally start retiring from the housing market.”


Myers and Ryu project that the ratio of those 65 and over to people 25 to 64 will surge 30 percent in the decade between 2010 to 2020 and 29 percent more in the 2020s, altering the delicate balance between buyers to sellers for the foreseeable future.

Historically, seniors don’t become net sellers in Arizona, Florida and Nevada until they reach 75. In 12 other states – Arkansas, Colorado, Delaware, Georgia, Hawaii, Idaho, New Mexico, North Carolina, Oregon, South Carolina, Tennessee and Utah – they become net sellers when they hit 70.

But the opposite is true in 13 other states – Alaska, California, Connecticut, Illinois, Indiana, New Jersey, New York, Maryland, Massachusetts, Michigan, Minnesota, Ohio and Rhode Island. In those states, the crossover point starts at age 55.”

Something is rotten in the State of California

It is no secret California housing prices have gone to the moon over the past several years. It is so expensive in California that only a small percentage truly can afford a home. But the bubble has popped, prices have stopped increasing, and foreclosures, although minimal, have climbed up. Three things that will happen as a result: (1) prices will come back to earth; or (2) inflation eventually will catch up to home prices; or (3) a little bit of both.

Merced, California is in the Great Central Valley near Yosemite. It is also home to the newest University of California (UC). And it has been a hot bed of property investing by people who thought a new UC would bring boom to the town and quick profits. Unfortunately for them, it’ll take fifteen to twenty years before the UC is fully built out. For now, it has about 1,800 students.

Today, Merced has 988 houses for sale, according to Trulia shows 1,269 homes for sale in Merced, of which 938 (74%) are in some stage of foreclosure. That means only 331 homes (26%) are not officially distressed sales. RealtyTrac, a company that tracks foreclosure activity says 1577 properties are in some stage of the foreclosure process: 716 in pre-foreclosure, 240 at auction, 548 bank-owned, and a smattering of others in other foreclosure categories. That is a huge, huge number in relation to the number of homes for sale. The RealtyTrac number is likely a harbinger of things to come. There are 25,000 housing units in Merced, according to the Census Bureau fact finder, thus approximately 6.3% of all homes in Merced are in some stage of foreclosure right now. Also, according to the Census Bureau median household income is $31,000 and the median home price is $344,000. Note: In the three days it took me to compile this post (between all the other things I’m working on) the number of homes for sale and in foreclosure on Trulia increased by about 10 each and the percentage of homes for sale in some stage of foreclosure ticked up a percentage point. In those same three days, the RealtyTrac numbers also increased: (a) homes in some stage of foreclosure: +48; (b) homes at auction: +23; and (c) bank owned: +23.

Compare Merced with Rancho Cucamonga, a sprawling city east of Los Angeles. Rancho Cucamonga sprung up as a bedroom community to house the many commuters and their families over the past decade.

Today, Rancho Cucamonga has 931 houses for sale, according to Trulia shows 1,272 homes for sale in Rancho Cucamonga, of which 754 (59%) are in some stage of foreclosure. That means only 518 homes (41%) are not officially distressed sales. RealtyTrac, a company that tracks foreclosure activity says 1,451 properties are in some stage of the foreclosure process: 703 in pre-foreclosure, 252 at auction, 423 bank-owned, and a smattering of others in other foreclosure categories. The RealtyTrac number is likely a harbinger of things to come. There are 52,000 housing units in Rancho Cucamonga, according to the Census Bureau fact finder, thus approximately 2.8% of all homes in Rancho Cucamonga are in some stage of foreclosure right now. Also, according to the Census Bureau median household income is $75,000 and the median home price is $525,000.

Now compare Merced and Rancho Cucamonga with San Jose, heart of the Silicon Valley which is in turn the heart of the technology and information economies. There are some who say prices never go down in the Silicon Valley.

San Jose has 3,100 houses for sale, according to Trulia shows 4,000 homes for sale of which 2,500 (63%) are in some stage of foreclosure. That means, only 1,500 homes are not officially distressed sales. RealtyTrac says 4,200 properties are in some stage of foreclosure: 2100 are in pre-foreclosure, 820 are up at auction, 1150 are bank owned. San Jose has 310,000 housing units according to the Census Bureau, in which case approximately 1.3% of homes are in some stage in the foreclosure process. Median household income is $89,000 and median home price is $683,000.

I know I’m relying upon web site listings of homes for sale which may not accurately reflect the true situation, but I think it is good enough to show a snapshot in time and the current trend. I’m not an economist but even I can tell this spells trouble. I dare say it is likely to spell trouble for the state as a whole if most every other community is facing numbers.

I wish I had more time to gather more of this information and plug the numbers into a spreadsheet, to research and forecast housing prices for when we’re ready to buy. Without much more, I dare say this is just the beginning. If there is a recession, subsequent lay offs are likely to push the housing market further toward a precipice. In the end, I think prices will return to a level that the average person with an average income in an area will be able to afford the monthly payments for, including San Jose. Fresnan’s murder conviction reversed

I’m a little behind in school work this week. The reason was worth it. I spent the past few weeks preparing for an evidentiary hearing with the Northern California Innocence Project (NCIP) that happened this past Wednesday in Fresno. It was successful. My clinic group showed up prepared and there was no DA – an empty chair sat at the DA’s table.

It made the front page of the Fresno Bee. Local: Fresnan’s murder conviction reversed

NCIP is focused on providing inmates an avenue for post-conviction case review to correct mistakes that do happen. It receives cases from inmates, lawyers, inmate families, and various other sources. Students then investigate cases under the supervision of an attorney to determine if an inmate has a claim for actual innocence, or not. I enrolled as a student for NCIP during the summer because I wanted something more practical than what I saw my first year.

I was initially assigned two cases to investigate. In one, I prepared a 1405 motion to start the wheels turning for DNA testing. 1405 refers to the California legal code section that provides for post-conviction DNA testing. I hope to file that motion soon, then will pass it off to some other student. In my other case, I researched a claim, exchanged letters with the inmate, and researched some more. I’ll also pass it off to another student to continue with the investigation. Because I wanted to file the 1405 motion in my first case, I stuck around for the fall semester.

Just before the fall semester began, Superior Court in Fresno responded to a petition for the writ of habeas corpus. That put in motion the processes that culminated in the court granting the petition and reversing two murder charges against our client, Armando. I cannot accurately describe how thrilled I am to have been part of the team who worked on Armando’s case. Most importantly it gives Armando a shot at the “effective” counsel he should have had the first time around. As Armando himself says, he’s now at “square one.”

Wednesday’s events were almost overwhelming. I didn’t know what to expect when our hearing began at 9:30 a.m. I don’t think any of us expected the judge to waive the need to hear evidence or arguments and to grant the petition. We had spent months preparing for a hearing to present evidence supporting the petition. I played a relatively minor in the whole affair. I looked into a potential conflict of interest and tried finding a Strickland expert to tell the court what a competent local attorney would have done during the first trial. I hadn’t heard of Strickland before the day it was assigned to me. For Wednesday’s hearing, I was to question Armando’s first attorney (a friendly witness), regarding his role and what information passed to the subsequent attorney. In addition to the questions I needed to ask my witness, I prepared for any potential objections on direct and to object, when necessary, during cross-examination. That meant I was expected to know the relevant evidence codes. Instead, I took notes as the judge provided a short history of the case, read the facts for the record, concluded that the AG and DA had conceded the facts as stated in the petition, and ordered a new trial. As a result, the judge granted the petition and reversed Armando’s two murder convictions and their life without parole (LWOP) sentences.

The highlight of the trip over to Fresno was meeting with face-to-face with Armando. We met Tuesday night in a classroom in Fresno County Jail to discuss the case. Then we we met with him after the hearing in the gymnasium – it looked more like a store room. He’s a very nice, polite, and respectful, not to mention grounded.


It should be noted that two cold-blooded killers are still on the loose.

This is an experience that the artificial world of a classroom cannot replicate. It provided me with a practical perspective. Instead of just studying Evidence, I was able to directly apply what I learned in the classroom to a real case with real people who have real problems. I was also able to create hypos from some of the real facts for my Evidence professor that help me better understand the relevant sections.

For this reason, all law students should be required to have a clinical law experience. Clinical programs such as the Northern California Innocence Project (NCIP) augment and reinforce classroom learning and better help prepare lawyers. If one thing is missing from the law school experience, it is a lack of focus on practical experience and training. In fact, I think law school should be more like medical school in that the first year is spent in the classroom with a core curriculum, second a mix of classroom with clinical training, and third focused on clinical programs. A fourth can even be created with some sort of placement program, similar to a medical residency. If law schools are guilty of one thing, is is not preparing law students to work as attorneys. That training currently comes after graduation. Law firms have complained for years that associates are ill prepared for the tasks given to them. No wonder why, with such focus on the classroom and the real world kept at such a distance. There, I said it. I’ve been meaning to share those ideas for a while but don’t really find that opportunity often enough.

If you’re thinking of law school, be sure to look at what clinical programs are offered and be sure to plan on at least one while you’re in school.

By the way, I have no intention of doing criminal work after law school. I’m on another track. I chose NCIP to get a chance to do criminal work that I won’t get to do after law school, because it provides essential research and writing skills, and because I like what the program stands for. To me, NCIP instills humanity back into the justice system. Not to mention, it provides justice.

For what it’s worth, I believe Armando is innocent of the murders. I think the evidence is overwhelmingly in his favor.