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The Chief Justice Wants Us to Help the Judges; Why Should We?

California Chief Justice Tani Gorre Cantil-Sakauye has spoken at many attorney gatherings imploring members of our profession to work and to speak to build up the reputation and credibility of the judiciary. She has not explained, however, why we should do so.  What reputation?  What credibility?

The Framers envisioned the judiciary to be the one branch that could be counted on to protect the rights of individuals from majoritarian excesses, but it has increasingly sided with power against the individual.  As Dean Irwin Chemerinsky recently noted, echoing many of my letters to the editor and radio presentations over the years, “when the passions of the moment have led to laws that compromise basic rights, the [U.S. Supreme] Court has failed to enforce the Constitution.” E. Chemerinsky, The Case Against the Supreme Court 10 [Viking, 2014].   And then lesser courts learn their lesson from the Supreme Court; they learn that liberty is no longer [and hasn't been for decades] the ascendant value in this Republic.

A regular citizen cannot walk into any state courthouse or courtroom and sense that the functions there are to protect him or her from government excesses.  From the very beginning of the experience, where the regular folk [who own the courthouse and are the sovereigns!] have to subject themselves to demeaning searches and probings and snoopings just to get into the building while their presumptive oppressors, the cops, walk in and out without limitations or scrutiny, to the point of entering the courtroom [where cops have been permitted to sit, and sometimes be cheerfully greeted by the judge, while the polity stands outside, and are sometimes sneered at by the judges], to the point of arraignment [where some judges seem impatient and disgusted if the accused doesn't want to plead guilty, and some even illegally demand pre-payment of fines to obtain a constitutional right to court trial!], to the trial [where things are grossly stacked against the accused], to sentencing [where the system finger-waggingly tisk-tisks at people who have done little different or worse than government agents do all the time], there is no atmosphere of protection, understanding, concern for the hapless individual.  Judges never want to say anything harsh to their cop pals.

I have won over 1000 Constitution-violating based motions in my many decades, and many times the judge apologizes to the cop for having to rule the way he did; but not once has a judge apologized to a defendant for the fact that his constitutional rights were violated!  Not once!  My clients have, of course, occasionally been scolded by the judge and been reminded that the Constitution saved them. The cop has never been scolded for the violation!

We often hear the “Victim's Bill of Rights” bandied about as proof that the system cares about the individual, but unless you are a victim who wants the cops and prosecution aggressively to press forward [about which they are eager, because there are grant moneys in the offing], you are disregarded.  If you tell a cop or DA that you do not want the person prosecuted, the one whose actions made you a victim, they will sneer and castigate and warn you that if you don't show up to press forward, they will have you arrested and jailed!  And they will and do.  And the judges allow and enable it.

Judges allow cops to lie to do their work, but Heaven Forbid if you or your attorney does.

Judges concoct all sorts of exceptions to the warrant clause to excuse their cop-friends for their violations of the Constitution. Judges are constricting 4th and 5th Amendment rights on a daily basis, to the point that those protections are a mere shadow of their former and intended selves.

One interesting and government leaning device that infects the system and eviscerates liberty is the waiver/forfeiture doctrine, which is enforced only one direction.  If a defendant fails to bring up a point, he is deemed to have waived or forfeited it.  If a prosecutor fails to bring up a point and you demand that he be deemed to have waived and forfeited it, the judge will patronizingly lecture you that this is not a gotcha game but an enterprise in which the Court is to do look at the legal issues and decide the matter based on that, whether the other sife brought it up or not!  Huh?  Why does that only run one way?  The other day, a DA failed to oppose my position, so I said they waived it and the ruling needed to be in my direction.  “Now, Mr. Kennedy; we have to look at the legal issues and not get hobbled by such procedural devices.”  Oh.  I just had an appeals ruling where the DA agreed with me that the motion ruling denial needed to be reversed and that I needed to win, and so the outcome is clear, right?  The parties are the dipolar advocates, and the Court is to come down somewhere in between, right?  Uh…, not so fast.  Despite the DA conceding the point, the Court [neutral court?] would not decide the law of the matter, but instead decided we have not raised the point quite enough, so despite the government's concession, we lose – as does Liberty, as does the Constitution.

Meanwhile, the same appellate court, on an interlocutory appeal I brought against a suppression motion denial wherein we had clearly and repeatedly pled the warrantlessness nature of the drunk driving blood draw as the liberty invasion about which we were complaining [to which the People responded regarding the warrantlessness issue], the DA said in the appeal that they didn't understand that the issue was warrantlessness [Huh?], so the appeals court reversed the denial with a ruling so opaque that the trial judge asked for clarification [which they refused to supply], but with a gist that since the People didn't understand the issue, we are to resume the motion hearing where we left off!  Are you kidding me???/!

The hypocritical double standard on that sort of stuff exposes the truth against any pretense that we are a nation of laws.

Another outrageous position the courts here advance [in contrast with more "liberal" courts in Texas, Arizona, South Dakota, etc., that understand the absurdity of such a claim!] is that the judges are pretending that if an armed cop says you are “required” to submit to a chemical test when he arrests you for drunk driving, then if you don't tell him to pound sand and go to hell and take a swing at him, you will have been deemed to have “consented” to the blood or urine test by your non-resistance.  Only in California does the polite accession to a cop saying “you are required” translate to “consent,” translate to volitionality, translate to an exception to the warrant clause.  [I can imaging the robe-flapping hue and cry that would utter from the Third Branch if a new rule of court came out saying that from here-on-out judges had to take a urine test before they ascended to the bench every day!]

Judges claim to be apolitical, but in reality there is no branch of government more political than the judiciary, somewhat because their self-ordained aloofness invites them to rationalize not responding to criticism or not explaining their actions [except, of course, in chambers to their cop and DA pals]; they simply proclaim they are apolitical, and the lemmings of the legal world salute and intone “Yes, Your Honor.”  You really think that Bush v. Gore, or Korematsu, or Dred Scott or Plessy were not driven by politics, both of the times and of the people writing the opinions?  If you do, I have a suspension bridge for sale in Joshua Tree, real cheap – suspension of disbelief!

Although organized regional Bars are always holding “judges appreciation nights,” where attorneys invite judges for free food and drink and then gushingly praise them for the quality of their service, those same attorneys will quietly bitch and moan about how they or their clients got victimized by what they label as “ignorant” and “out-of-control” judges.  I never understood that inconsistent hypocrisy.  I don't attend judges' nights, because I cannot gush to those about whom I am disgusted, and when I was on the board of a regional Bar, I blocked holding it.

We have some out and out punks on the bench, little different from street thugs, and they are allowed to grow into that because they have protected themselves from civil liability by court ruling and other responsibilities by custom.

The court ruling that granted that counter-productive and odious and dangerous immunity, Stump v. Sparkman, was in response to a lawsuit against a judge for ordering the illegal sterilization of the female plaintiff; he had no power whatsoever to order that non-noticed, ugly event.  The accordingly childless victim sued the judge for that patent and cruel violation of her rights, and the Supreme Court came to the judge's rescue, agreeing that he had acted illegally, but proclaiming that he could not be sued, because…, well, he's one of us, the anointed black robers!  They manufactured that immunity right then and there.

Of course, the Framers, while discussing governmental immunity, did not award it to judges, nor to the president, nor to CPS workers, nor qualifiedly to cops, but only to members of congress in a narrow setting.  That being the case, they are presumed not to have intended others in government to be immune.  And they didn't.  And they should not be.  And that was the lesson of The Declaration: all were to be equally accountable to the law!

Indeed, the claim in Sparkman that judicial immunity had always existed, citing British Crown cases, is a fraud.  American judges in colonial times were always held civilly and criminally responsible for their injurious missteps.  The Crown cases involved the issue of the absolute immunity of the King himself, whose personal representatives the judges were.  His representatives were immune because he was, not because they were judges. It had nothing to do with the “everyone is responsible” regime established here by the Founders.

The default position in this Republic was to be of Liberty, and against power, and the judiciary was assigned the role to protect those values.  And it increasingly does not; “endorsed by law enforcement” is still the most cherished campaign boast a judge can make.  And they will do anything to be able to make that boast, at the next election, for which they are constantly campaigning.

Does all of this mean there are no decent, good, honorable, bright, balanced, properly motivated judges out there?  No.  Indeed, I am blessed to work with some in Indio, one in Banning, a couple in Joshua Tree, a couple in San Bernardino, one or two in Riverside, a couple in Rancho Cucamonga, and maybe one or two in Murrieta.  It means that the judiciary, as an institution in this state [and across the Fruited Plain], does not generally heed its intended calling of protecting the little guy from the big guy [whether he be big government or big business] as intended by the Framers, and there is no mechanism in place to enlighten them to their role, nor would most of the sorts who seek judgeships want to embrace it anyway.

Far, far too many judges are DAs or cops in black robes [even the ones from the public defenders' offices], which too often results in juristic terrorism.

So, Chief Justice, why should we be eagerly talking up the quality and greatness of the judiciary, when there is little in evidence?  Please explain.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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