There ain't no good guys, there ain't no bad guys; There's only you and me and we just disagree . . .

Let me start with an anecdote.

In litigation, many decisions are left to the discretion of the trial judge. While there are rules guiding who should be allowed to serve on a jury, or what evidence should be allowed to be presented, or dozens of other decisions that get made in the course of bringing a case to trial, many of them are left to the discretion of the trial judge.

When I was a young lawyer, I was helping one of my heroes try a case. After a long day of trial work, I was complaining that the judge had totally blown a decision to our detriment. "Dan, it was a decision within his discretion," he said, taking a drag on his pipe (yes, it was that long ago that he was smoking a pipe in the office). "He has the discretion to be wrong, too."

In other words, the judge's job is to make the decision and my job was to persuade. Complaining after the fact was pointless.

A friend who knows me pretty well emailed me this week asking whether I still support certain city councilmembers after they signed on to the misguided volunteer ordinance. Like me, this person views the attack on volunteers for the city as a premature over-reaction to an undecided lawsuit and a harmful restriction on the role of volunteers in our city. I've written to them all, in a very polite and professional manner, and only one (Jan Marcason) has even bothered to reply. (Yes, I'm disappointed with the other 8, some of whom are quite efficient in writing me when they're seeking support.)

I disagree with people all the time. I strongly disagree with people on occasion. I strongly disagree with nine members of the City Council on this. I've looked at the issue from the idealist perspective, I've looked at it from the practical perspective, I've looked at it from the perspective of a Funkhouser supporter, and I've looked at it from the perspective of how I would feel if someone else were in the Mayor's office, making decisions I would oppose.

It remains my opinion that this is a very bad ordinance, chock-full of unintended consequences and bad results.

But nine city councilmembers disagree with me. And they, in Ted Mullen's description, have the discretion to be wrong.

Does this mean the rest need to be voted out? Does this mean that I can assume that the others are either so stupid they can't see things as clearly as I do, or so fearful of Tony's criticism that they panicked, or that they've joined with the entrenched development crowd to undermine Funkhouser's attempts to stop the give-aways? Are all 9 stupid, panicked and/or corrupt?

Of course not. (Not all 9, anyhow.)

Perhaps, unlikely as it seems, I'm somehow missing out on understanding how throwing up huge, expensive hurdles on volunteerism is actually a good thing.

Perhaps, as happens in real life, inexplicable and apparently wrong steps are taken in a journey toward a greater result.

Perhaps they're just wrong.

For now, I'm going to go with the final explanation. They have the discretion to be wrong, and they blew it.

That doesn't mean that they're bad people, or even bad councilmembers. I disagree with them on this. I disagreed with them on their irrational decision to shower Wayne Cauthen with money and job-security after he had been caught lying on his resume, and several of them now privately admit that they were wrong.

None of us is perfect, city councilmembers and bloggers most definitely included.

If a judge consistently makes bad calls with his or her discretion, smart lawyers start taking a "change of judge" (an automatic right to get the judge changed at the beginning of a case) when that judge gets assigned to their cases. But not after a couple of bad decisions. That's just disagreement - but you learn to be alert for a pattern.