Tuesday, April 3, 2012

Ask the Chief Justice.... [The Desert Sun would not publish; will they ask?]]

[The following is a blog entry that I have tried to post 6 times over several days in the Desert Sun.  Curiously, it will not post.  I know the Sun has allowed itself to be used by certain judges to suggest to unknowing audiences that there is something "different" about judicial elections from other political positions and it has allowed those judges to advance the political heresy that sitting judges should not be ousted by the electorate absent overwhelming misconduct being demonstrated. Of course, the state Constitution makes trial judge positions subject to contested elections every 6 years, so any suggestion otherwise is constitutional misconduct, if uttered by sitting judges. I regret that the Sun is allowing itself to be misused for others' political agenda.  However, if the Sun is truly interested in understanding the Constitution and what this Republic is all about, it will consult me: none other, regardless of station, is a better or more knowledgeable authority. But they really do not care.]
The Chief Justice of California, Hon. Tani Cantil-Sakauye, will be in our area April 19, to address the Desert Bar Association, and it would be a great service to the community if the Desert Sun covered the significant event and posed certain questions.
The chief justice wears many hats in this state, one of which is serving as the titular head of the entire judiciary [which itself has ultimate authority over those practicing law in this state], and another one being as the chair person of the Judicial Council, which establishes rules governing judges. She also has the unlimited power to assign retired judges to any court in the state, and they are beholden only to the chief justice.
The press should pose questions to the chief justice about matters involving the judiciary, especially since she has decried the quality of judges, and has decried the low esteem in which the public holds the judiciary, and she has charged the attorneys of the state with a duty to help improve the quality of the judiciary and to educate the public about it. Of course, the public cannot be inspired to respect the judiciary until the judiciary deserves it. Commanding one to address a person as “Your Honor” does not translate to a substantive reality that he or she conducts himself/herself with honor.
So, to help inform the debate, the following are among many questions the press should pose to the chief justice, and on which they should press her for an answer. These are not theoretical matters; they have all happened, or are in the process of happening, or are current realities.
Madam Chief Justice:
1. Given that the state Constitution expressly provides for contested elections of trial court judges, do you think sitting judges should try to convince the electorate that they should not vote for other than an incumbent? That is, should judicial elections really not be contested, notwithstanding the Constitution, and should the voters automatically re-elect sitting judges unless the judge has been in trouble with the regulatory system or the appellate system?
2. Do you have a personal view about whether trial court judges should be subjected to contested elections? Do you think sitting judges should impose their personal view of that constitutional question onto voters, who really do not have an understanding of the real politics behind judicial selection and service?
3. Do you think it proper for sitting judges to ban together with a local attorney and strong arm private organizations into not letting candidates against incumbent judges speak at their events? Do you think it proper for sitting judges and a local attorney to form a political cabal to strong arm social and political groups into revoking already-issued invitations to candidates to express their otherwise free speech views, if those candidates are running against incumbent judges? [If you think that does not happen, and right around here, think again! Your faith in the judiciary exceeds its substance.]
4. Do you think it proper for traffic court judges to demand that those who plead not guilty on traffic infraction accusations pay a “bail” before the judge will give them a traffic court trial, without any finding of flight risk required by the excessive bail clause of the 8th Amendment to the U.S. Constitution for setting bail? If you think it is proper, do you think the 8th Amendment does not apply to traffic infraction matters? Do you know of any authority that has said that the 8th Amendment excessive bail clause does not apply to traffic court matters? If you think it is improper for the judges to demand bail for trial, do you think it is or is not a valid electoral issue that a trial court judge routinely demanded “bail” payments before he would afford the accused persons their constitutional right to trial?
5. Do you agree with the growing use of penalty assessments and fees on traffic and criminal fines, now approaching five times the base fine? Do you agree or disagree that penalty assessments and fees on those fines are a purposeful detour around Proposition 13’s intended limitations on the power of government to increase taxes? Do you agree that those assessments and fees are really taxes with a different label? Do you think the judiciary should be a party to detouring the voting public’s power to limit the ability of government to pass taxes? Do you think that using the judiciary as a glorified but pretentious internal revenue agency is consistent with the high purpose of and for the Third Branch?
6. There seems to be a dramatically increasing use of retired/assigned judges throughout the state. Those judges cannot be removed by the voters at the ballot box, nor do they fall under the jurisdiction of the commission on judicial performance for their misconduct, nor are they required to attend continuing legal education classes. It would appear that the sole criterion for a retired judge to sit on the bench for the rest of his life is whether or not the chief justice likes him. Do you think that sort of personal judiciary, owing allegiance only to the chief justice, is healthy in a republic where there are supposed to be checks and balances on all people exercising the public’s power? Do you think the framers of the state Constitution intended the chief justice to have the power to routinely assign retired judges anywhere for any reason for an unlimited period of time, instead of in specific places for a limited time for a specific and limited emergency? Does the existence of that unlimited sort of judiciary, now around 400 judges, which is solely accountable to the chief justice, smack of judicial despotism? Do you take any steps to make sure the retired judges you assign out to distant communities like ours are up to speed regarding developments in the law? What steps?
7. Do you believe in term limits for trial court judges? Why or why not? Are the tasks for judges more worthy or complex than those of other government functionaries who are subject to term limits? How?
8. You have expressed a desire for the Bar to get involved in improving the public’s perception of the judiciary of this state. Are you satisfied with the overall quality of the judiciary of this state? If the public is not treated with respect by the judges, is there a reason the judiciary should expect respect from the public?
9. Do you think the commission on judicial performance is doing an adequate job of policing the courts? Should it have direct authority over assigned/retired judges and commissioners, who can do as much damage to the system and to the public’s perception of it as can regular sitting judges? If not, why not?
The chief justice is a public servant, as are all judges, and the public has a right to know her thoughts about her execution of the public’s power. And the public’s power it is.

Part of the horror stories giving rise to these questions is why
I am running for Seat number 2 of the Superior Court for Riverside County
in the June 5 primary election;
Vote for Kennedy for Superior Court Judge, Seat 2
An originalist, constitutional scholar who cannot be bought nor dissuaded.

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