Judge Cox Won't Accept Debate Challenge!

I have sent, by post and by e-mail, the following debate challenge to Judge James A. Cox, and he has not accepted, nor even responded.  And for good reason - there is nothing he can make palatable about his conduct, and there is nothing that he can make acceptable about what his chums on the bench are trying to do for him by squelching debate, and he could never voice a, explanatory position that voters should tolerate. So, it seems as though he should retire now, because if he loses at the polls [as he should by refusing to debate me on fundamental points], he cannot sit as a retired/assigned judge; if he retires now, he can cash in on that cushy double-dipping that most judges eagerly seek. The real question is what kind of people, especially attorneys and judges, still support Judge Cox? And why? What is their quid pro quo?
The unanswered [and unanswerable] debate challenge:
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April 27, 2012

Honorable James A. Cox

Superior Court
3255 East Tahquitz Canyon Way
Palm Springs, California 92262

RE: Debate

Dear Judge Cox:

As you know, I am running against you for Seat 2 of the Superior Court for Riverside County.  There are things regarding the reason I am running, and now things surrounding communications being made to the public about people running for judicial offices, that deserve a full and complete airing in the public.  Because of that, I am challenging you to a public debate, to be hosted by some organization agreed to by our respective campaigns.

What pressed me to run against you surrounds an incident I observed, and which almost victimized me, when you were presiding over traffic court cases in the Banning court years ago.  I’ll present here an excerpt of what I have broadcast to the public about that event:

Years ago, when I was still working in the Victorville Public Defender’s office, I drove through Beaumont, and I had an eye-opener.  I saw a bevy of young local policemen all over the place, and they were stopping people right and left, for the most minor of offenses.  One even harassed a young kid gently wheeling his bike down the sidewalk.  They were out and out picking on people.  So I stopped to watch.  It became clear they were running some sort of traffic enforcement harassment scam.

I sat and watched for a half hour or so, and one of the youngsters with a badge came up to me and asked what I was doing.  I told him I was sitting there watching their little traffic scam and their harassment of citizens of the Republic.

He stutteringly said he was going to give me a ticket, and he had to reflect for a moment on what he could ticket me for, and he then came up with driving without a seatbelt.  I politely informed him I wasn’t driving and reminded him that he had seen me there watching their little gambit for over half an hour.  He said he was going to give me one anyway.  I said if he was, I wanted to be cited to the county seat.  He said he didn’t know what I meant.  I said I have a right to be cited to the county seat [given that my place of employment was closer to Riverside than to the Banning courthouse].  He again said he didn’t know what I meant, and I allowed how it didn’t surprise me – they probably did not want the downtown court to see what goes on out there.

He then called for backup, since people standing on their rights are obviously troublemakers.  The backup asked if I know what was involved in that request, and I told him I did but doubted that he did.  He said he would have to arrest me, take me into custody, tow my car, and drive me in handcuffs down to Riverside.  I smilingly told him that was incorrect – they just put the downtown courthouse address on the ticket.  He said he would do it the other way. [That is illegal, by the way!]

I said fine, cite me to the local court, since it is obvious no one wants the central court to see what goes on out in that area, so I would be interested in seeing what goes on there.

I showed up on my arraignment day, and I was appalled.  The judge told everyone if they pled not guilty on their ticket, they would have to post “bail” before they would get a trial!  Remember we fought a Revolution for the right to trial before liberties and property could be taken from us.  And “bail” can only be imposed under the federal Constitution if one is a flight risk.  But everyone who wanted to plead not guilty were told they had to post bail to get a trial, and they could not make payments.  But when they caved in and pled guilty to avoid having to pay that coerced bail, the fine was often less than the “bail” amount, and it could be made in payments.  Guess which direction virtually everyone went!/?  That is extortion!

When my case was called [I was in fatigue clothes, looking most unlawyerly!], I approached and announced that I was pleading “not guilty” and wanted a trial and I instructed the judge to not “play that Bail game with me.”  The judge was taken aback and asked what I meant.  I said “you know what I mean.”  I sternly pointed out that bail can only constitutionally be imposed on one who is a proven flight risk, I was there in court and hence not a flight risk, and I said that it was “clear to me what is going on here.”  The judge told me to sit down until the end of the calendar, because, I guess he thought,  I obviously was poisoning his trial court scam well.

I cooled my heels while “bails” were demanded and guilty pleas were thus coerced for another hour or so, until I was called up again for an explanation.

I said that I had come there to complain of the local police not knowing anything about citing one into the county seat, and then it became clear to me whey no one wanted anything from that area to go to the county seat!  The judge said “Well, you’re here now, why don’t we just take care of the matter now.”  I said I had a statutory right to go to the county seat in the first instance, but now that I see what is going on with these “bails,” I want a dismissal!  The judge looked me in the eyes, and then blinked, and then growled that my case was…. Dismissed.

People were ripped off right and left by that court, in service to that traffic infraction scam on the small town street.  That judge was James Cox, my opponent in this election.

I will never forget that horrid incident and the wholesale violations of citizens’ rights represented by it.  I hereby challenge you to a debate to discuss what you think is meant by reasonable bail under the 8^th Amendment, and whether you think local standards and practices in such matters trump the United States Constitution.  In that debate, I want to discuss whether you are authorizing certain judges [plus a local attorney] to run around the county trying to convince people that the state Constitution’s decree that trial court judges “shall” run for election every 6 years really means that judges should only be voted against if they have committed misconduct, and otherwise the electorate should re-install them, as if the standard were a retention election instead of a contested one.  I want to discuss whether you authorized those judges to put pressure on a local group of citizens and voters that had specifically invited me to speak about the election to uninvited me just before my presentation, a patent invasion of my First Amendment rights.  I want to discuss whether you have put those judges up to presenting the notion, or whether you agree with the notion, that the canons of judicial ethics prevent judges from speaking out on issues of law in general terms so voters know how the judges/judicial candidates think about their service to the Republic; the canons, of course, only prevent one from making commitments, not from making informative, educational statements.  I want to discuss what your understanding is of popular sovereignty and whether you think judges in this Republic are public servants or public masters.  [And we can discuss any other topic pertaining to the Republic, the Constitution, and the duties of judges in this Republic that you desire.]

I do not make big deals out of people’s small, personal peccadilloes, nor would I even mention them, but I am utterly intolerant of people in government abusing people whom they are supposed to be serving.

Please feel free to have your people contact my campaign manager Bob Richmond at the number above.

Sincerely,

MICHAEL J. KENNEDY

cc:     Bob Richmond

         file

Is it Really Inappropriate for Judicial Candidates to Discuss Issues?

While on the campaign trail for my candidacy against Judge James Cox, I keep hearing judges claim to inquiring audiences that they cannot discuss any legal issues. Garbage! I don't know if they are saying that because they do not want to reveal to the voters how they feel about their service, or intended service, to the Republic, where the people are sovereign, or if they do not have the facility to comprehend their role and to coherently express it. Let's discuss the law of the matter, since that is what one would hope judges deal with!

First off, you all will recall the noisy, opinion and facts driven discussions in the senatorial grillings of U.S. Supreme Court nominees, which are televised, and written about, and reported widely. Those nominees discuss everything about their views of the Republic and of the law; they just do not discuss things currently or likely to come before the High Court. But you have little question about their views of the system and of legal issues when it is all over. And that applies to candidates for judicial election in this state: the same canons apply.

Everyone running for election for a judgeship are governed by the same canons, whether they be sitting judges or attorneys seeking the public's support to become a sitting judge.
So, the rules: "A candidate...shall not (1) make statements...that commit the candidate with respect to cases, controversies, or issues that could come before the courts, or (2) knowingly, or with reckless disregard for the truth, misrepresent the identity, qualifications, present position, or any other fact concerning the candidate or his or her opponent."

"Commitments" cannot be made; that is a far cry from the frequent claim that one cannot discuss, generally, legal or constitutional issues.

The problem with all of this is that there is a growing elitism among those on the bench and among some of those seeking positions on the bench, in a Republic from which governmental elitism was evicted in 1776. Those in government [and the judiciary is government!], while mouthing constitutional and founding pieties, sometimes with misty eyes, really have no interest in truly embracing popular sovereignty nor in recognizing the founding proposition that power resides in the people, and they despise the truism that those chosen to exercise the public's power are servants, not masters. That being the case, too many of them, especially judicial candidates, do not want to reveal to the voters the extent to which they are [or are NOT!] committed to the notion of popular sovereignty.

So, when an inquiring voter asks what a judge or candidate thinks, philosophically, about, say, jury nullification, or reasonable bail, or gun rights, etc., the candidate is fully entitled to answer in generalities that reveal how he or she view the Constitution; "commitments" cannot be made, but wide-ranging comments are proper and should be demanded by the voters. That is because another portion of the rules provides that "Judges are entitled to entertain their personal views on political questions. They are not required to surrender their rights or opinions as citizens."

Commitments, and association with obviously inappropriate political-viewpoint organizations [don't attend a KKK, or communist "overthrow the government," rally, for instance, even if not speaking!], are what is prohibited; temperately informing those whom you are asking to give you their power is not!

So, if you are faced with statements by one of the groups of judges running around the county to protect their chums from being voted out of office [and implicitly to protect themselves from future electoral attacks], or by a candidate or sitting judge, that they are prohibited from commenting on constitutional issues in general terms, you should recoil from their elitist claims and you should use that "I can't tell you what I think" as a confession that they do not deserve your support and vote.

Because of that contra-constitutional judicial elitism, among so many other things, I am runningfor Seat Number 2, against Judge James Cox, and I need your support. And I am neither too cowardly nor too fog-brained to inform you exactly who and what I am. We get the government that the voters give us, and our judiciary has fallen from being among the best in the country to becoming one of the worst due to unwise electoral and gubernatorial choices over the past 30 years. Let us reverse that degenerating trend; support me and you will see the difference. www.kennedyforjudge.com

Police Should Support Me Too

Although it is generally understood that anyone who thinks about the matter with any depth at all would support me in my election against Judge James Cox [especially given that Cox's confederates are trying to con the electorate into forfeiting their vital franchise by suggesting, in an exercise of arrogant elitism, that voters should not vote against incumbents!], a question occasionally arises why, even though lovers of the Constitution obviously support me, would police support me?  Oh, that is clear.

Most police officers are lovers of the Constitution too.  They are sworn to uphold it as aggressively and sincerely as I am, and their friends and families have the same interest as anyone else in a neutral, unbiased, competent, courageous judiciary. To be sure, part of my professional function in the courts has been to counter the efforts of police when their conduct violates people's liberties. That was also part of the professional function of fellow constitutional defense attorney John Adams, the founder of the American conservative movement. That does not translate to a hostility between the properly functioning constitutional defense attorney and the police. Their job is to move fast and apprehend wrongdoers and to interdict wrongdoing; the role of the defense attorney is to make certain the fast movement comports with constitutional norms and is supported by sufficient proofs properly collected; and the role of the judge is to listen to the defense attorney's presentation about the lawfulness and sufficiency of that fast movement and to apply the law with neutrality, propriety, insight, scholarship, and courage.

That is, in a simplistic model for discussion purposes, the police enforces the statutory law; the defense attorney invokes constitutional law; the judge applies it all to serve the overarching meaning and substance of a rule of law.  Police know that without being slowed by the counterpoise of the defense attorney, we would have tyranny; the defense attorney knows that without the appropriate movement of the police in the community, we would have anarchy; and the judge knows that without properly regulating both ends of that dynamic, we would not have a rule of law but would instead have governmental lawlessness.  And no one is to be benefited by the latter, because the marvelous experiment in Philadelphia in 1787 could come loose at the seams if there were not the proper accommodation between power and license decreed by the Framers.

Police in many areas of my career have come to me for quiet, and sometimes less than quiet, assistance, because they know the risks to themselves and to their loved ones when the law that is intended to be enforced in their favor is not.  And they know that I will courageously and knowledgeably and discretely do so, and I have.

In one community, where I had developed certain, and unsurpassed, notoriety for my ability to enlist the assistance of the Constitution to benefit clients against overweening government, the issues of what we are all about came into stark relief.  Two police agencies were having spoiled brat feuds against each other.

The police of one arrested a member of the other for DUI.  Then the police of the other arrested a member of the first for DUI.  The officers victimized in both agencies by both agencies hired me.  I did my magic for both, employing my constitutional gifts to assist both, and I got both cases dismissed, and then I sat them both down and inquired if they now understood why I do what I do and what it is all about.

They did.

Until people get victimized by overbearing government, they cannot understand that (a) government can be childishly overbearing with non-Justice agendas, and (b) we need people with the guts and knowledge to right such wrongs.

That is what I am about as a constitutional defense attorney, and that is what I would be about as a judge.

So, the community can fall for the constitutionally obscene position taken by Judge Cox's self-serving confederates that whoever exercises the community's judicial power [and the power does belong to the community, not to elitist judges!] is none of the electorate's business.  Or the community can realize and embrace the notion of popular sovereignty, and its periodic direct exercise called "election," and take the measure of the man or woman asking for the opportunity to serve the public's interests, and then choose to award that service, temporarily, to the person they desire. We fought a Revolution partly to make sure we could select our leaders at the ballot box, rather than being stuck with leaders who occupy their positions merely because..., well, they, and their families always have.

Properly functioning police would support me just as surely as would anyone else who believes in a rule of law and in the Constitution.

Don't forget to vote on June 5, and vote for Kennedy for Riverside County Superior Court Judge, Seat No. 2.  And I need your help, so please get involved.  www.kennedyforjudge.com

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 8^th Amendment to the U.S. Constitution for setting bail? If you think it is proper, do you think the 8^th Amendment does not apply to traffic infraction matters? Do you know of any authority that has said that the 8^th 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.

THE FOLLOWING I DID NOT TRY TO POST IN THE SUN BLOG, BECAUSE THEY WOULD HAVE USED THAT AS THE RATIONALIZATION FOR NOT PUBLISHING IT!!!!>>>>>>>>

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.

Are They Circling the Wagons Around my Opponent in the Judicial Election?

A concerned supporter asked me if the judges were circling the wagons around my incumbent opponent to protect him in the upcoming judicial race for Seat 2 of the Superior Court, and I happily reported that there was no such thing occurring.  After all, when it comes to the Constitution and a dedication to the Framers’ notion that the judiciary is the servant of the People, not its boss, I am the veritable wagon master in these parts, so how could anyone circle a wagon against me? 

The judiciary is not a closed fraternity; it is a branch of government charged with the duty to patrol the borderlines of the Constitution, to resolve disputes with neutrality and competency to inspire people not to take matters in their own hands in the streets, and to protect individuals from overweening government while respecting the notion that ordered liberty requires an attention to some measure of inspired order. 

My candidacy has been received with respect, admiration, and quiet support from surprising circles, because all who know me, regardless of what “side” they might be on in any dispute, know that I am fiercely dedicated to the Constitution and to what this Republic is, or is supposed to be, all about, and hence everyone’s interests would properly be served by having me on the trial bench.

Since some missed it, I will reiterate here my promises regarding my run for Seat Number 2 of the Superior Court for the County of Riverside.

These are my promises:

1.     Neutrality will be the goal and execution of my service.  No one will come into my courtroom with a leg-up on credibility or on merit.  It is obvious that all litigants and interested persons have a stake in the outcome of cases, from arresting officers, to prosecutors, to the accused, to the accused’s counsel.  Any Pollyanna suggestion otherwise is naïve or duplicitous.  Accordingly, I shall listen to and study the testimony and the arguments and the papers of all participants and shall arrive at decisions without regard to the identity or station of the people presenting them. Indeed, I look askance at any judge who is “endorsed by law enforcement” or by any force associated with any primary litigants before the courts, because there manifestly is a quid pro quo for such endorsements that does not spell “n-e-u-t-r-a-l.”  Then-soon-to-be Chief Justice John Roberts said it best at his confirmation hearing, and he defined what will be my standard:

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

2.     I shall not let “black-robe-itis” infect me, as we have seen happen to so many other judges who started out with promises of thoughtfulness and neutrality, but who soon sunk into the stock and growing pro-government statism they promised to avoid.  Read #1, supra.  Who and what I am and what I profess and promise shall not change after I don the robe.  My soul has to last a lot longer than any “job.”

3.     I shall not presume that I know everything about any subject or issue merely because I am the “one wearing the robe.”  A robe is not a talisman of power or omniscience, but rather and simply a covering of the person to enable and guarantee and give the appearance of neutrality, and to avoid distractions associated with the judge’s personal attire: all judges look alike so they will apply law according to neutral principles.

4.     Related to #s 1 and 3, I shall listen to, and shall assess, and, where necessary research, all presentations of law and fact given to me by all litigants and shall not presume any side is right or wrong because of the identity of the side which has made the presentation.  I know a lot, but I do not know it all, nor will I act as though I do, and I literally learn something I did not know about this craft every day, and I shall continue to be open to being taught by others.  I will always be open to approach by counsel by either side [provided the other side is in attendance on pending matters] about any issue of law or fact.  My devotion to learnedness means I want to learn, not to command.

5.     I hate bullies, be they of the street, of the schools, of the constabulary, of others in government, of the bench, or of any setting in which people of greater power pick on those of lesser power, and I have never been one and will not be one on the bench.  There are too many bullies on the bench, especially with pro pers, and I shall never sink to that flip-side of cowardice.

6.     Related to number 5, I shall not bark at nor berate any person in the courtroom, be they counsel, litigant, public [who has a right to attend most court proceedings without explanation or harassment], nor especially court personnel [who are exceedingly vital, and often thanklessly so, to the operation of the whole].  If I cannot get my point across without being blustery and rude, I have no business being in the position of service allowing me to make judgments against others’ lives, liberty, or property.

7.     If any participant exclaims that “the cases hold” thus and so, I will expect them to identify specifically what cases hold what.  I have learned from 30 years of observation that when counsel of either side trumpets “the cases hold,” without any citation, there are no cases so holding, and that is a misrepresentation of law to the Court.

8.     I will also be open to anyone quietly approaching me and suggesting that these promises or other standards of being a judge in this Republic are being violated by me.  The isolation somewhat necessary to neutrality can sometimes result in the judges who do want to operate under proper principles to lose touch with certain things, and I will appreciate suggestions that these promises of a devotion to neutral, properly-principled service have transmogrified into less than the ideal.  My greatest fear, my greatest nightmare, would be that I would start to become like the judges I have properly reviled over the decades, because then I would be a failure as a lawyer, as a public servant, as a steward of the Constitution and of the Republic, and as a man, and I will welcome input about that.

That is who and what I am; those are my promises.  Do not be lulled into the belief that incumbency is a virtue when it comes to public service, because it is not; it is more often a product of inertia and lack of understanding by the electorate than of merit in the office-holder.  Everybody whom the public empowers to serve them needs to prove that they deserve the public’s entrustment at election time.  I do.  My opponent does not.

WHY WOULD I RUN FOR JUDGE?

I have been asked why I would want to be a judge; why am I running for Seat #2, now held by Judge Cox?  Tellingly, two judges mentioned aloud about me “he would not get retirement for 20 years now.”  The answer is easy: if I am going to criticize, I should be willing to assist with the solution.  And unlike too many who seek or occupy judgeships these days, retirement is not my focus; service is.  This, as with all I have ever done in this craft, would be a mission to me, not a mere job.

For years, I have been vocally distressed at many things I regularly witness in the local judiciary, and as I have suggested to those who loudly condemn what they see in the courts, and in criminal prosecution, and in criminal defense, and in the community, it is counter-productive, or at least non-productive, to coffee-klatch and murmur behind the scenes about those things: put your actions where your mouths are.  And I am.

There seems to be confusion in the minds of many who hold judgeships now about what their proper role in this Republic is.  I was struck by one especially pompous and substanceless judge who, just two weeks ago, to my polite observation that what the prosecutor was asking his police witness on the stand “is your job, Your Honor, not his,” snottily remonstrated “I know what my job is, Mr. Kennedy.”  I stared at him in amusement and disgust about the manifest disconnect between his utterance and the fact he had just disproved with it.  I mused silently “Uh…, no, you clearly don’t.”  And many judges don’t.  He blinked first in the ensuing stare-down.

Judges are, in this Republic, first and foremost, public servants, not masters.  The people coming before them in the courts are not their subjects, but instead are their sovereigns.  Sovereignty resides in the people, not in the government nor in its agents.  Although there often is much haughtiness and arrogance on the bench, there properly is no majesty in a judge: we evicted majesty from these shores in 1776.

Then too, a judge, technically, is not a dispenser of Justice, although the ultimate result of his efforts must always be just.  Once, when Judge Learned Hand bid Justice Holmes good night with “Do Justice, Sir, do Justice,” Justice Holmes brought his carriage to a halt and responded “That is not my job; my job is to apply the law.”  Of course, a faithful and knowledgeable and courageous application of the law, case by case, is presumed to result in Justice, and if or when it does not so result, we have not a rule of law under the Constitution but rather a despotism of a government of men and women, the first step toward tyranny.

But to apply the law, one must understand the hierarchy of the law, and then know both the substance and the essence of the law, the letter and the Spirit, and that is what is too sorely and glaringly lacking on the bench these days.  All judges in the Republic are sworn to uphold the United States Constitution, which is the Supreme Law of the Land.  And given that the law is what the United States Supreme Court says it is, and hence the Constitution, being the fundamental law, is what the Supreme Court says it is, all judges, from some parish justice of the peace in the Deep South, to the California Supreme Court, must heed that fundamental law and what the U.S. Supreme Court has said about it.

For a California judge, then, he must next understand and heed the California Constitution, and what higher courts have said about it, except to the extent that such is inconsistent with the U.S. Constitution or what the U.S. Supreme Court has held about it.  Then he must understand and heed state statutes, and what higher courts have said about them, except to the extent such is inconsistent with the U.S. Constitution or what the U.S. Supreme Court has held about it, or inconsistent with the California Constitution.  And he must, accordingly, understand that a state statute does not outrank a U.S. constitutional pronouncement, something the first year law student knows but which some politically appointed and beholden judges apparently do not. 

Those, in that order, are the law, and he or she must apply the law, agree with it or not.  A judge cannot veer off of established legal routes simply “because I am the one wearing the robe,” as one judge intemperately and loudly barked in Court just the other day.  Actually, that attitude reveals that he should not be wearing a robe at all!  And that brings up an essential point about judges, temperament.

There is no post of public service where temperament is more important than the bench.  The haughty arrogance by some judges once enrobed who did not know the difference between legal briefs and Fruit of the Loom briefs the day before enrobement is comical to those of us who know of their intellectual equipment, or its absence.  But arrogance born of position not of substance can ultimately spawn great injustice, because it produces great legal error.  And arrogance of any genesis and sort calls into fundamental question whether the judge comprehends his role being one of service, not one as master.

The judge who is arrogant because of station will not listen either to the muted pleas of the pro per or to the intellectual broadsides of the enlightened scholar, because he believes that all-knowingness accompanies the position he has been allowed to fill.

But the thing about an arrogant judge who cuts people off and barks and sneers out of ignorance, and to salve his insecurity, is that he is, thereby, a bully, the flipside of the coward coin: he is using a position of power to beat a person down by virtue of that superior power, because he knows that he cannot otherwise compete with him head-on on the substance.  Those who push around or exploit people who are not in the position to fight back, due to physical or status limitations, whether the brute be a street thug, a constabularial ruffian, or a judge, are to be reviled – they are punks – they need to be routed.

Then too, the legal profession touts itself as a learned profession, and yet learnedness is sometimes the last thing apparent or appreciated in its operation.  I recall in law school, when one mentioned “judge,” we would all think or utter an admiring “Oooh,” and “Aaaah,” presuming he or she was the oracle of Truth, Justice, The American Way, and the Framers’ Intents.  Then I started law practice, first as a federal judicial law clerk [reviewing what state judges incredibly and thoughtlessly had done and said in federal civil rights suits and habeas liberty infringement matters], and then in various roles in criminal/constitutional law, and far too often, when I witnessed what judges said/say and did/do, I muse “You gotta be kidding me.”  I then and now inquire silently “Have you read the latest case on that point; when did you last read [the Constitution, the 1^st Amendment, the 4^th Amendment, the 5^th Amendment, the 6^th Amendment, the 8^th Amendment, the 14^th Amendment and cases construing them, the relevant statute]?”

The judiciary seems to be devolving into another government bureaucracy, but with greater pretensions than other agencies.  In the criminal law realm, the judiciary is serving more and more as a revenue agency, helping local and state government fill depleting coffers with extravagant fees, assessments, fines, the imposition of which sometimes seems to be the sole or primary incentive for what some of the judges do case-by-case. 

Indeed, that revenue motivation has been taken to an illegal extreme by some judges in Riverside County [but in no other county, by my unscientific poll of practicing lawyers across the state], and especially by my opponent, who require people who represent themselves in traffic court to pay hundreds of dollars in “bail” if they plead not guilty and request a trial, which is their constitutional and statutory right.  It is illegal extortion to demand that people pay money to obtain a trial, especially when that money is labeled “bail,” which can constitutionally only be imposed on people who have been found to be flight risks.

It is my clear memory of the current occupant of Seat #2 extracting that illegal tribute from unknowing pro pers when he was on the traffic court bench in Banning years ago [clear, because he tried to do that to me!] that lit a long-smoldering fire of outrage that has now been fanned into my bonfire of determination to do my little part to improve the judiciary.

My promises!/?  It is often said that judges or candidates for judicial office cannot make promises for supporting him or her, unlike seekers of “political offices,” which is, of course, poppy-cock, on at least two levels.  On one level, it is absurd to suggest the judiciary is not a political branch: there is as much political intrigue, pressure, posturing, and result-orientedness on the bench, especially the California bench, as there is in any legislative or executive office.  There of course is not supposed to be, but there clearly is: only the idealistic civics books judiciary is not a “political branch.”  And secondly, one can properly make promises about how he will approach his constitutionally-ordained duties, just not about how he would rule on any actual or hypothetical cases coming before him.

These are my promises:

1.     Neutrality will be the goal and execution of my service.  No one will come into my courtroom with a leg-up on credibility or merit.  It is obvious that all litigants and interested persons have a stake in the outcome of cases, from arresting officers, to prosecutors, to the accused, to the accused’s counsel.  Any Pollyanna suggestion otherwise is naïve or duplicitous.  Accordingly, I shall listen to and study the testimony and the arguments and the papers of all participants and shall arrive at decisions without regard to the identity or station of the people presenting them.  Indeed, I look askance at any judge who is “endorsed by law enforcement” or by any force associated with any primary litigants before the courts, because there manifestly is a quid pro quo for such endorsements that does not spell “n-e-u-t-r-a-l.”  Then-soon-to-be Chief Justice John Roberts said it best at his confirmation hearing, and he defined what will be my standard:

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

2.     I shall not let “black-robe-itis” infect me, as we have seen happen to so many other judges who started out with promises of thoughtfulness and neutrality, but who soon sunk into the stock and growing pro-government statism they promised to avoid.  Read #1, supra.  Who and what I am and what I profess and promise shall not change after I don the robe.

3.     I shall not presume that I know everything about any subject or issue merely because I am the “one wearing the robe.”  A robe is not a talisman of power or omniscience, but rather and simply a covering of the person to enable and guarantee and give the appearance of neutrality, and to avoid distractions associated with the judge’s personal attire: all judges look alike so they will apply law according to neutral principles.

4.     Related to #s 1 and 3, I shall listen to, and shall assess, and, where necessary research, all presentations of law and fact given to me by all litigants and shall not presume any side is right or wrong because of the identity of the side which has made the presentation.  I know a lot, but I do not know it all, nor will I act as though I do, and I literally learn something I did not know about this craft every day, and I shall continue to be open to being taught by others.  I will always be open to approach by counsel by either side [provided the other side is in attendance on pending matters] about any issue of law or fact.  My devotion to learnedness means I want to learn, not to command.

5.     I shall not bark at nor berate any person in the courtroom, be they counsel, litigant, public [who has a right to attend most court proceedings without explanation or harassment], nor especially court personnel [who are exceedingly vital, and often thanklessly so, to the operation of the whole].  If I cannot get my point across without being blustery and rude, I have no business being in the position of service allowing me to make judgments against others’ lives, liberty, or property.


6.     I hate bullies, be they of the street, of the schools, of the constabulary, of others in government, of the bench, or of any setting in which people of greater power pick on those of lesser power, and I have never been one and will not be one on the bench.  There are too many bullies on the bench, especially with pro pers, and I shall never sink to that flip-side of cowardice.

7.     If any participant exclaims that “the cases hold” thus and so, I will expect them to identify specifically what cases hold what.  I have learned from 30 years of observation that when counsel of either side trumpets “the cases hold,” without any citation, there are no cases so holding, and that is a misrepresentation of law to the Court.

8.     I will also be open to anyone quietly approaching me and suggesting that these promises or other standards of being a judge in this Republic are being violated by me.  The isolation somewhat necessary to neutrality can sometimes result in the judges who do want to operate under proper principles to lose touch with certain things, and I will appreciate suggestions that these promises of a devotion to neutral, properly-principled service have transmogrified into less than the ideal.  My greatest fear, my greatest nightmare, would be that I would start to become like the judges I have properly reviled over the decades, because then I would be a failure as a lawyer, as a public servant, as a steward of the Constitution and of the Republic, and as a man, and I will welcome input about that.

It has been posed to me that I might offend all judges by running against one.  But I do not believe that the judiciary is a wolf pack, all ready to pounce on the perceived offender who has the temerity to take one out.  The majority of judges, in my experience, are conscientious, thoughtful, and responsible public servants, and they do not practice reprisal against someone who seeks to join their service.  Their overall loyalties are to their constitutional duty and to the Republic, not to each other individually.  If the majority of good judges circled a wagon of protection around the few bad ones, then they would be no better than the worst, and that is not my perception of our judiciary.

I am offering my well-schooled service to the community, and it is up to them what quality government they want working for them.

Michael J. Kennedy

Candidate for Seat #2, Superior Court for Riverside County

"Promises" When Running for Judge

DIFFERENCE BETWEEN RUNNING FOR ELECTION

FOR JUDGESHIPS AND FOR OTHER POLITICAL POSITIONS

Contrary to the elitist rhetoric one often hears on this subject, judges are politicians, and their elections are political contests: the judiciary is a political branch, despite the contrary hype.  But those running for, or serving as, judge cannot make the same sort of broad-brushing “promises” that other politicians regularly make, and just as regularly break.

That is, judges act case by case, judging the merits of things properly coming before them, instead of dealing with things in a broad, programmatic way.  They are bound, first, by the United States and California Constitutions, and then by other laws, which include statutory law, case law, and customary law, case-by-case.

So, even though I am motivated to run for judge because of what I have been distressed about in the Courts, from lack of neutrality to lack of dedication to the Constitution to the lack of scholarship to a lack of courage to a lack of understanding of the role of the judiciary in the Republic, my “promises” could only focus on how I would attend to those matters in the cases coming before me; I could not promise to overhaul, correct, remedy the judiciary as a whole.

That is, those running for the legislature can, and frequently do, make board-brushing promises about correcting the improving the whole [which they then never do], my promises can only be about how I would conduct myself in the context of cases and people before me, and I shall do as I promise: my soul has to last longer than any job, which has been my mantra and performance my whole career, and my whole life.

So, for instance, I can promise that I would never take advantage of people appearing as their own counsel [“pro pers”], and I would especially never illegally and unconstitutionally require those appearing in traffic court and pleading not guilty to pay a “bail” [read “anticipatory fine”] to obtain a court trial, as my opponent James Cox regularly and outrageously did, but I cannot properly promise “therefore, I’ll clean up the judiciary’s illegal practice of doing that throughout our County.”  The latter would not be part of my role; the former is part of my mission and promises on which I am utterly unwavering.

As some of you know, I am running for election to Seat Number 2 of the Superior Court, a county-wide election for a judicial post generally assigned to the Indio/Palm Springs area.

So let me reiterate the promises I previously published, with people understanding that I am a strict constructionist, originalist conservative, the true conservatism which characterized our Founding fathers, not the police power right wing extremist version which has co-opted the label while profaning the substance.

These are my promises:

1.     Neutrality will be the goal and execution of my service.  No one will come into my courtroom with a leg-up on credibility or on merit.  It is obvious that all litigants and interested persons have a stake in the outcome of cases, from arresting officers, to prosecutors, to the accused, to the accused’s counsel.  Any Pollyanna suggestion otherwise is naïve or duplicitous.  Accordingly, I shall listen to and study the testimony and the arguments and the papers of all participants and shall arrive at decisions without regard to the identity or station of the people presenting them. Indeed, I look askance at any judge who is “endorsed by law enforcement” or by any force associated with any primary litigants before the courts, because there manifestly is a quid pro quo for such endorsements that does not spell “n-e-u-t-r-a-l.”  Then-soon-to-be Chief Justice John Roberts said it best at his confirmation hearing, and he defined what will be my standard:

“Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

2.     I shall not let “black-robe-itis” infect me, as we have seen happen to so many other judges who started out with promises of thoughtfulness and neutrality, but who soon sunk into the stock and growing pro-government statism they promised to avoid.  Read #1, supra.  Who and what I am and what I profess and promise shall not change after I don the robe.  My soul has to last a lot longer than any “job.”

3.     I shall not presume that I know everything about any subject or issue merely because I am the “one wearing the robe.”  A robe is not a talisman of power or omniscience, but rather and simply a covering of the person to enable and guarantee and give the appearance of neutrality, and to avoid distractions associated with the judge’s personal attire: all judges look alike so they will apply law according to neutral principles.

4.     Related to #s 1 and 3, I shall listen to, and shall assess, and, where necessary research, all presentations of law and fact given to me by all litigants and shall not presume any side is right or wrong because of the identity of the side which has made the presentation.  I know a lot, but I do not know it all, nor will I act as though I do, and I literally learn something I did not know about this craft every day, and I shall continue to be open to being taught by others.  I will always be open to approach by counsel by either side [provided the other side is in attendance on pending matters] about any issue of law or fact.  My devotion to learnedness means I want to learn, not to command.

5.     I hate bullies, be they of the street, of the schools, of the constabulary, of others in government, of the bench, or of any setting in which people of greater power pick on those of lesser power, and I have never been one and will not be one on the bench.  There are too many bullies on the bench, especially with pro pers, and I shall never sink to that flip-side of cowardice.

6.     Related to number 5, I shall not bark at nor berate any person in the courtroom, be they counsel, litigant, public [who has a right to attend most court proceedings without explanation or harassment], nor especially court personnel [who are exceedingly vital, and often thanklessly so, to the operation of the whole].  If I cannot get my point across without being blustery and rude, I have no business being in the position of service allowing me to make judgments against others’ lives, liberty, or property.

7.     If any participant exclaims that “the cases hold” thus and so, I will expect them to identify specifically what cases hold what.  I have learned from 30 years of observation that when counsel of either side trumpets “the cases hold,” without any citation, there are no cases so holding, and that is a misrepresentation of law to the Court.

8.     I will also be open to anyone quietly approaching me and suggesting that these promises or other standards of being a judge in this Republic are being violated by me.  The isolation somewhat necessary to neutrality can sometimes result in the judges who do want to operate under proper principles to lose touch with certain things, and I will appreciate suggestions that these promises of a devotion to neutral, properly-principled service have transmogrified into less than the ideal.  My greatest fear, my greatest nightmare, would be that I would start to become like the judges I have properly reviled over the decades, because then I would be a failure as a lawyer, as a public servant, as a steward of the Constitution and of the Republic, and as a man, and I will welcome input about that.

That is who and what I am; those are my promises.  Do not be lulled into the belief that incumbency is a virtue when it comes to public service, because it is not.  Everybody whom the public empowers to serve them needs to prove that they deserve the public’s entrustment at election time.  I do.  My opponent does not.