A court ruling is expected within weeks on whether certain documents should be considered in a lawsuit against California’s High-Speed Rail Authority.

The state has argued for limiting the evidence to documents, such as business plans and environmental reviews, from formal Authority proceedings. Project opponents are arguing for broadening the scope of evidence to documents related to decisions that they say were made outside the public’s eye.

Attempts to Halt Project

Opponents are attempting to halt the $68 billion dollar project by showing that the Authority cannot achieve the trip times promised in the taxpayer bond funding the project, that the voters did not approve the planned system of sharing tracks with commuter and freight rail, and that the financial viability of the project just doesn’t add up.

Superior Court Judge Michael Kenny is weighing whether to consider as part of the case two documents in particular: a travel time analysis prepared by opponents, and declarations submitted by the opponents in 2013. A hearing in Tos, Fukuda and Kings County v. California High-Speed Rail Authority was held late last month in Sacramento.

The Attorney General’s office argued against considering the expert declarations. The declarations, which include a statement from the former head of the high-speed rail project, question the viability of the rail’s promised travel times as well as the overall finances of the project. They also question the legality of the blended system of sharing tracks.

The AG’s office says the declarations should have been presented as commentary for the Authority’s 2014 business plan in order to be allowed in the administrative record.

Opponents said the declarations were presented to the Authority’s attorneys in 2013 and that should suffice as delivery to the Authority.

Transparency in Question

Opponents also argue that the Authority has made decisions outside the public view, through informal, or closed-door decisions, and that the public was not allowed to challenge the Authority’s thinking before key decisions were made.

Example: The Authority’s attorneys submitted a declaration from one of its chief program managers, engineer Frank Vacca. In that declaration Vacca says the authority can make the time required in Prop. 1.  This declaration was never debated and discussed at any board meeting.

The AG’s office says that the declaration was not an official decision by the Authority; it only offered proof that the Authority could achieve the two-hour, 40-minute time requirement.

Opponents have requested but not received the computer model inputs that inform the rail authority’s time analysis. They say because they have not been able to analyze those numbers, the public did not have a chance to debate or challenge the thinking behind the analysis.

Opponents gave another example of an informal decision reached without public discussion: to limit train speed to 125 mph in urban areas. The opponents said the authority decided on the speed limit, then presented the decision as a done deal to the public. Opponents submitted records of those presentations, to 40 cities, and the attorney general’s office did not oppose allowing those records to supplement the Administrative record.

Appellate Court Postpones Ruling

On Aug. 13, 2013, project opponents received a favorable ruling for the first part of their case, which challenged the adequacy of the Authority’s funding plan. That ruling was overturned on appeal July 31, 2014, when the court said it was too early to decide the funding issues.

The appellate court determined that opponents would have to wait to challenge the funding plan when construction was imminent and money was about to be spent. To date, the Authority has used only federal funds to prepare to construct early phases of the project in the Central Valley.

A hearing on the merits of the case is set for Feb. 11.

This week we saw a perfect example dealing with a San Francisco law so extreme it seems, well, un-American. Here are the key details from the Pacific Legal Foundation’s website:

Today U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.

The ordinance ‘fails on its face’

This is from Breyer’s decision:

In July 2014, the City and County of San Francisco enacted an Ordinance that requires property owners wishing to withdraw their rent-controlled property from the rental market to pay a lump sum to displaced tenants. The 2014 Ordinance requires that property owners pay the greater of a relocation payment due under a 2005 Ordinance or the new, “enhanced” amount: twenty-four times the difference between the units’ current monthly rate and an amount that purports to be the fair market value of a comparable unit in San Francisco, as calculated by a schedule developed by the Controller’s Office. Plaintiffs, who are property owners now obligated to pay amounts that range to hundreds of thousands of dollars per unit, allege that the Ordinance on its face is an unconstitutional taking in violation of the Fifth Amendment. …

… fundamentally, the Ordinance fails on its face because it requires a monetary exaction that is not roughly proportional to – indeed, does not even share an essential nexus with – the impact of the property owner’s proposed change in use. That is to say, it seeks to force the property owner to pay for a broad public problem not of the owner’s making. A property owner did not cause the high market rent to which a tenant who chooses to stay in San Francisco might be exposed, nor cause the lower rent-controlled rate the tenant previously enjoyed. The Ordinance’s constitutional infirmity being one inherent in the nature of what the monetary exaction is intended to recompense – a dislocation that necessarily arises in all of the Ordinance’s applications – it fails on its face to survive Fifth Amendment scrutiny.

Breyer, like his brother, Supreme Court Justice Stephen Breyer, is a moderate on business and regulatory issues. He didn’t see this as even close to a close call. Oral arguments were held Oct. 6. His decision came out all of 15 days later.

In the federal court system, that’s hardly common.

The takeaway: Property rights live.

By Dave Roberts

“A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people. And three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law — in the larger sense — cannot fulfill its primary function to protect them and their families in their homes, at their work and on the public streets.”

— Former Supreme Court Chief Justice Warren E. Burger

California’s “fabric of ordered liberty” is being torn to shreds by the state’s latest round of budget cuts to the judiciary. In the past four years the judicial branch has suffered $653 million in cuts — a nearly 32 percent reduction in general fund support —  $606 million of it taken from the trial courts alone. The current state budget siphons an additional $544 million from the judiciary.

The cuts “have a serious impact on the ability of the courts to provide timely due process in California,” said California Chief Justice Tani Cantil-Sakauye at a Judicial Council meeting in San Francisco on Friday.

Cantil-Sakauye invited William Robinson, president of the American Bar Association, to discuss the budgetary impacts.

“When I read the headlines from Sacramento, San Francisco and other communities around the state, like so many other Americans, I am stunned,” said Robinson. “There is really no time to fret about the truly devastating effects of a billion dollars in cuts to our courts. Who could ever have envisioned that in our lifetime the courts would be experiencing this?”

California is not alone in its judicial devastation; 42 states cut funding to their judiciaries last year, according to Robinson. His home state of Kentucky has cut judicial funding by 45 percent since 2009.

“In times of financial crisis our courts actually face more demand, more pressure for delivering justice,” he said. “And yet the money shrinks and shrinks and shrinks. But our judiciary is a co-equal branch of government and deserves to be funded as such. The courts are the linchpin of our constitutional democracy. No one would seriously consider for budgetary reasons closing a firehouse or a police station or a hospital emergency room one day a week — it’s unthinkable. But our courts are the emergency room of democracy. That’s where the triage for constitutional rights is administered and decided upon case after case after case.”

But instead of performing triage for constitutional rights, the courts are performing triage on themselves as they deal with the fiscal hemorrhaging.

Hemorrhaging

• Los Angeles County has mandated unpaid days off, known as furloughs, and has laid off 329 employees and 574 positions are vacant.
• San Francisco has instituted furloughs, laid off 78 and has a 29 percent vacancy rate. The lines and wait times for service are longer and backlogs are growing.
• Alameda County, where Oakland has one of the highest crime rates in the country, has instituted furloughs, laid off 97, eliminated services at two courts and reduced hours at another court.
• Contra Costa County has permanently shut down a criminal courtroom, closes the family and civil courtroom when the judge is on vacation or out of town and may shut it down altogether. In addition to furloughs, 120 positions have been eliminated, there is a 27 percent vacancy rate and self-help legal services may be cut in half.
• Kern County has instituted furloughs, has a 9.6 vacancy rate and the Bakersfield family law court is so busy that by 10 a.m. the appointments are filled up for the rest of the day.
• Mendocino County has imposed furloughs, laid off 21 percent of staff and permanently closed its Willits court, forcing residents to travel to the Ukiah courthouse.
• Mono County has a 33 percent vacancy rate, resulting in delays in processing filings and citations, has reduced customer service and is experiencing low morale from the overworked staff.

Furloughs

One of the hardest hit is San Joaquin County, home of bankrupt Stockton with a crime rate not far behind Oakland’s. It has instituted furloughs, laid off 45 and has 91 vacant positions, representing 26 percent of its staff. Mandatory psychiatric evaluations have been cut in half for most criminal cases, a significant number of small claims hearings have been eliminated due to insufficient staff, court reporters have been eliminated unless required by statute, and they still use typewriters to process juvenile delinquency cases.

Jennifer McMahan, a research attorney in San Joaquin County Superior Court, described in a letter to the Judicial Council just how sorry a state the courthouse is in, noting that she started work there in an area known as “the dump” because it was literally filled with mounds of trash.

“Every corner you turn in our courthouse has something wrong: duct tape holding the carpet together, roaches taking over the bathrooms and hallways, mini blinds falling on judges in their chambers,” wrote McMahan. “My supervisor, a woman who has been a professional for over 20 years and worked for the court for well over 10 years, currently works out of a storage closet at the end of a public hallway.”

Also victimized by the budget cuts are non-English speakers. One interpreter told the Judicial Council about Grace Ho, a blind Cantonese woman living in a San Jose apartment infested with bedbugs, resulting in her throwing away much of her belongings. When she took the landlord to court for restitution, the court did not provide an interpreter. Her friend stepped in to help, but much of the legal proceeding was lost in translation. Teresa Molina said in Spanish (translated by an interpreter) that when she was in court, her 13-year-old daughter had to translate for her because the court did not provide one.

Although judicial fingers of blame for the budget crisis have been pointed at Gov. Jerry Brown and the Legislature, the judiciary’s own bureaucratic incompetence has resulted in a significant waste of taxpayer dollars. Last year a state audit revealed that the effort to computerize the judicial branch was seven years behind schedule and had a seven-fold cost overrun to $1.9 billion from the originally estimated $260 million. In March the Judicial Council finally pulled the plug on the boondoggle.

Court waste

The Administrative Office of the Courts, which was responsible for that boondoggle, was blasted in a report in May by a judicial committee. “Many of the AOC’s management functions — including the manner in which it carries out its decisions, plans projects, and exercises fiscal options — are flawed, lack transparency, and require a major revision,” the report states.

The AOC’s staff metastasized from fewer than 300 in 1992 to more than 1,100 in 2010. In the process, it became top-heavy, unwieldy and developed a culture of control rather than of service. According to the report, “Widespread concerns exist that budget information has not been effectively or accurately communicated, and that obtaining budget information is difficult. It is difficult to understand what is funded or how it is funded. Whether justified or not, there is currently a lack of faith in the fiscal information released by the AOC. It does not appear that management has made accurate and timely financial information a priority.”

The Judicial Council has also been blasted by the Alliance of California Judges. Last year it wrote that the council’s refusal “to authorize additional trial court relief of at least $82 million while preferring a large central bureaucracy, a questionable computer system, and also refusing to briefly delay site acquisition and preliminary work for costly court construction that is nowhere close to breaking ground, demonstrates that the problem at its heart is an issue of governance.”

The accusation that the problem is an issue of governance could be leveled at the executive and legislative branches as well. While California’s Neros fiddle, the state’s residents continue to get burned.

By Michael Warnken

Upon recent news of the state’s $16 billion dollar budget deficit, the legislature began making deep cuts in numerous programs. One of the most devastating cuts of $544 million was to the state judiciary. On June 13, there was a large rally in front of the Capital building made up mostly by Trial Judges, the Chief Public Defender and the District Attorney of Sacramento County as well as the current president of the state bar. All of them were protesting these cuts, the effects of which will absolutely cripple California’s third branch of government.

Since judicial salaries are protected against pay cuts by the Constitution, most cuts are directed at court support staff. These staff cuts directly affect the judiciary’s ability to handle its already burgeoning caseload.  Right now, California cases which already take a long time to resolve, will now take even longer to resolve and disputes may linger for years.  This is a problem that will affect all of us and a solution to this problem needs to be found and implemented.

AN OVERVIEW OF THE JUDICIARY

California’s judicial system as a whole is expensive and inefficient. Our judiciary boasts over 2,000 members, but when compared to other states, it has fewer judges per capita and needs more judicial officials to handle its caseload. California also has the highest paid judges in the nation. Trial judges earn $178,000 per year; which is almost as much as Federal Judges. This figure does not include the cost of their hefty retirements. To put this in perspective, the chief Justice of New Hampshire’s Supreme Court makes $145,000 per year.

Trial judges are supported by a smaller number of Court Commissioners. The number of Commissioners varies by county and they are paid slightly less than Judges at about $160,000 per year to hear cases. Commissioners handle many lesser judicial responsibilities including minor traffic matters, criminal misdemeanors/infractions as well as some civil and family law cases. However, Commissioners do not save the system much in the end.

The Administration of the Courts (The AOC), another branch of the judiciary located in San Francisco, handles the executive functions of the court system. This includes updating Court facilities and handling non-judicial functions. It was recently audited by order of the Chief Justice. The finding of that audit was that 1 in 3 employees in the AOC made in excess of $100,000 per year. This is quite an expense to the taxpayers for non-judicial duties.

JUSTICIAL TRANSITION

In the early days of the State, the entire government was small. According to the census, in 1850, 92,000 people lived in the entire state, which was divided into just 10 counties at the time. There were also just 12 State Judges to manage the major court matters of California. They were apportioned into 9 judicial districts each with one Superior Court Judge. The Supreme Court, the only court of appeal in the state, had just 3 members.

The majority of the judicial work done in California was by a small multitude of Justices of the Peace (JOP’s) scattered across the state. No number seems to exist in print, but their apportionment as per statute was that there would be two for every inhabited township (an area six miles by six miles square). They only handled misdemeanors and minor civil disputes, often amounting to a few dollars. If an issue brought before them was greater than their jurisdictional limits, the JOP’s had the power to order the issue held over to a Superior Court Judge.

JOP’s were paid per duty performed and were not salaried. They generally received a very minor remuneration and were not a financial burden to their locality. JOP’s were easy to get to, well known to their small communities and were generally within walking distance for everyone. They amounted to quick, fair justice. Citizens in the community would observe the proceeding and, in this process, they learned about the law. If a community felt a Justice of the Peace was unfair, they would vote him out of office!

Though it is not clear why, JOP’s were done away with in California around 1960 after being in place for over 100 years; they were replaced with municipal judges. The professionalization of the California judiciary began.

With this change, the cost of the Courts went up, but the caseload capacity of the judges did not. The existing JOP’s were promoted and received pay raises for their new positions. Taxes had to go up to pay for these new supposedly higher ranking judges. Legal training for the municipal judges became a prerequisite as higher standards for becoming a judge were implemented.

In 1997, a similar event occurred. Municipal judges were done away with and all judges became full rank Superior Court Judges, again with higher salaries. Many decent sized cities no longer had local judges and many people had to travel some distance to have their casees heard. People who were arrested no longer received prompt, probable-cause hearings, as they should, before they are locked up. And other hearings requiring prompt attention became more difficult to obtain.

THE CURRENT REALITY

Most states in America still have Justices of the Peace. They are employed in big states like Texas and New York as well as small states such as Vermont and Louisiana. Different states grant them different powers. Salaries for such an office vary widely as well, but for the most part, it’s very little and often amounts to pay for each duty performed rather than fixed salaries. Such duties include taking oaths, notarizing paperwork and presiding over weddings as well as hearing minor civil and criminal matters.

Since having Commissioners doesn’t save us much, they should be promoted and consolidated into full Judges.

Then, the office of Justices of the Peace should be reintroduced. The salaries for JOP’s should be set low and not raised as it was in the past. In California, there are many retired persons with legal training who could hold such offices. City council chambers in almost every community that tend to be used only one day a week could facilitate hearings.

Citizens should not be forced to travel far off distances to deal with minor infractions as they are today and no traffic ticket should be decided by anyone costing the taxpayers $160,000 or more per year — the silly reality of how our judiciary works today.

Establishing a training program for JOP’s would be simple, as California could implement any one of many programs used in the states that still have them. We could even tailor a program to California from more than one state. JOP’s could relieve the Courts of all small claim and other minor trial matters. It is possible that they could even be allowed to hold jury trials as well. The Justices could soon chip away at the current case overload.

California is in dire fiscal straights and cuts have to be made. The Judiciary and every other department facing cuts can march in front of the capitol and protest as much as they want, but the reality is, the state is in belt tightening mode. Dispute resolution is an absolute essential aspect of a functioning democracy; it is not something we can or should give up. This practical, workable solution should be considered by the legislature and acted on. The citizens’ access to their courts should not suffer due to the fiscal ineptness of our government.

Gov. Jerry Brown’s Tuesday appointment of Goodwin Liu to the California Supreme Court will continue the state’s lurch to the Left. Liu clearly believes in a highly activist judiciary for which the U.S. Constitution and the California Constitution are as malleable as Silly Putty. He think our traditional rights, especially property rights and the right to be left alone, are expendable on the road to  Utopia.

Yesterday, my colleague Steven Greenhut quoted a passage from Liu’s free online book, “Keeping Faith With the Constitution.” It’s worth analyzing the passage at length to see precisely why Liu, and his judicial philosophy, will so damage Californians’ life, liberty and property. Here’s the passage:

“Today, Americans do not think twice about the authority of government to respond to economic needs. Social Security, Medicare, collective bargaining and minimum wage laws, disaster assistance, regulation of the financial markets, and robust initiatives to stabilize the economy comprise large parts of the work we expect our federal and state governments to do. Reasonable people may disagree about the specific policies needed to deal with various economic conditions, with regulation of the marketplace, and with the economy as a whole. But there is no question that developing, enacting, and implementing such policies are an important and legitimate part of what government does.”

Parsing Liu

Let’s look at the clauses:

* “Today, Americans do not think twice about the authority of government to respond to economic needs.” Yes they do. That’s why the Tea Party racked up such large victories last November, expelling Liu’s fellow Left-Democrats from scores of seats in Congress and state legislatures, and likely will continue to do so next year.

Certainly, the Republicans caused much of the economic damage when they ran the show in the early 2000s under President Bush and the Republican-run Congress, as well as under Republican Gov. Arnold Schwarzenegger in California. But Democrats, under President Obama and when they controlled both houses of Congress, made matters even worse. And Democrats in California are continuing Schwarzenegger’s policies of destruction.

* “Social Security.” It’s going broke. Starting in 2010, reported the New York Times, the system began paying out more than it takes in. Due to the ongoing Greatest Recession, that happened seven years before previously expected. Things will get worse as 70 million Baby Boomers continue retiring. Sharp cuts in benefits are inevitable.

* “Medicare.” It’ll be broke in 2024, just 13 years from now, its Trustees reported in May. That’s also five years earlier than expected due to the sinking economy.

* “collective bargaining.” Private-sector union membership has declined sharply from around 35 percent in World War II, 66 years ago, to just 6.9 percent today. According to economist Robert Samuelson, “By and large, union concessions were too little, too late. Corporate managers, their business models besieged, were also slow. Both executives and union leaders underestimated the vulnerability of once impregnable market positions. The downfall of the ‘Big Three’ automakers epitomized this disastrous cycle. Nonunion firms gained market share; union membership fell. Unions also had a harder time organizing other companies, because both managers and workers feared job loss.”

The decline of private-sector unions has been accompanied by the rise of pubilic-sector unions. But these unions are different. As one union boss said during last November’s election, “This is our opportunity to elect our own bosses.” For government unions, Liu’s beloved “collective bargaining” means electing compliant politicians, so the unions sit on both sides of the bargaining table. Citizens also have a role: paying the massive taxes that are needed to fund lavish government-worker pay, perks and pensions.

But even that is falling apart. As Ed Ring just wrote in City Journal California (party quoting Greenhut), even now, “Public-employee unions underestimate the magnitude of California’s unfunded retirement liability.” You can only squeeze so much juice from an orange — or money from a taxpayer.

* “minimum wage laws.” In the 1970s, economist Walter Williams’ path-breaking research documented how minimum wage laws were enacted mainly to keep lower-cost black workers from taking jobs from whites.

Here’s a two-minute YouTube by Williams explaining how the minimum wage is a “racist tool”:

* “disaster assistance.” Remember President Bush’s comment to FEMA boss Michael Brown during the Hurricane Katrina disaster? “Heck of a job, Brownie,” Bush said — even as the federal government was interfering with private and local efforts to help people and recovery from the disaster. The bigger disaster was the Federal Emergency Management Agency itself. Even President Obama mocked President Bush’s incompetence during Katrina.

The Feds also interfered with last year’s Gulf Oil spill cleanup, making matters worse.

* “regulation of the financial markets.” The ongoing Greatest Recession is proof that government itself is the major cause of our financial problems. The Feds not only were too incompetent to catch Ponzi-meister Bernie Madoff. The federal government was the major cause of the financial instability, as I noted in an article on Tuesday on how the Greatest Recession began, not just four years ago, but 10 years ago. That’s when President Bush and Federal Reserve Board Chairman Alan Greenspan panicked after the 9/11 attacks. They debased the dollar, kept interest rates artificially low and went on wild spending binges — policies continued by their successors, Obama and Ben Bernanke.

* “and robust initiatives to stabilize the economy.” Beginning with the two Bush bailouts of 2008, especially the TARP, and continuing with Obama’s bailouts and Bernake’s inflationary Quantitative Easing schemes, the government’s actions have further destabilized the economy. Now, the economy is declining again. And the only real solution is to do the opposite of what Liu wants. That is, government must be cut back sharply, at all levels, including the “robust” — and gargantuan, grotesque, Brobdignagian — government of California that Liu now will judge from the bench.

Recall Brown and Liu?

Things are so bad in America now, and especially in California, that people finally are realizing that the Brown-Liu philosophy of über-big government is the cause of our problems. That the Brown-Liu philosophy means rule by a tiny elite of the wealthy and powerful, headed Brown and Lui, with everyone else their groveling peons, and the middle-class virtually eliminated.

It wouldn’t surprise me if recall efforts began against both Brown and Liu.

By STEVEN GREENHUT

Last year, one of my reporters and her adult son were walking in downtown Sacramento when a couple of young toughs tried grabbing her purse. She pulled back her purse, and the robbers lunged at the two of them, leaving the son’s face covered in blood. Despite a frantic call to 911, the Sacramento police never showed up, nor did they respond to her repeated attempts to file a police report. Mom and son were OK, but a violent attack midday in downtown Sacramento apparently is not a serious-enough crime to warrant any police response.

Apparently, this incident is not unusual. “Armstrong & Getty,” a talk-radio show in Northern California, recently featured a morning drive-time discussion during which listeners shared similar stories of police indifference.

Police officials are blaming budget cuts for their cutbacks in service, but it’s hard to accept this explanation. The other day I saw an officer giving tickets to three teen-agers who were caught riding their bicycles without helmets. One downtown Sacramento officer rides around on a horse and gallops after people who jaywalk. There’s clearly the manpower to hand out tickets (but not to clean up the piles of manure the horses leave behind). It’s a question of priorities.

A recent Modesto Bee report points to this trend: “The California Highway Patrol is handing out more traffic citations than it did a few years ago, and that has generated tens of millions of dollars in revenue for state and local governments.” Another relevant statistic:

The average CHP officer who has retired in the past couple of years is bringing home a guaranteed pension of $98,000 a year (after 25 years of work), with automatic cost-of-living increases.

More Tickets

Police departments aren’t available to provide the services that the public depends upon, but they do have the manpower to increase their revenue-generating ticket operations. They are spending incredible amounts on salaries and benefits. And public safety budgets are consuming the lion’s share of city budgets.

In crime-plagued Stockton, where, because of budget cuts, police will respond only to violent crimes or crimes in progress, 80 percent of the city’s entire budget goes to “public safety,” according to the city manager. If cities spend more on police and fire services, that will leave less than a pittance for everything else.

Police officials acknowledge they are cutting back on services. For instance, in 2010, in the face of budget cuts in the notoriously crime-ridden city of Oakland, the police chief “listed exactly 44 situations that his officers will no longer respond to, and they include grand theft, burglary, car wrecks, identity theft and vandalism,” according to an NBC report. According to a USA Today report last year, “Budget cuts are forcing police around the country to stop responding to fraud, burglary and theft calls.” As budgets have tightened up, the problem is only getting worse.

I previously wrote about Alameda city firefighters who refused to save a suicidal man drowning in San Francisco Bay, then blamed the inaction on budget cuts that deprived firefighters of training for cold-water conditions. This sparked widespread outrage in Northern California, especially after the fire chief told a TV news show that he would not even save a drowning child because of the budget-caused restrictions.

Also, don’t expect better service if you have a civil lawsuit pending before any of the state’s court systems. “San Francisco Superior Court Judge Katherine Feinstein announced drastic cuts … to the city’s civil court system in response to funding slashes in the current state budget,” according to the Pleasanton Weekly. “‘We will prioritize criminal, juvenile and other matters that must, by law, be adjudicated within time limits.

“‘Beyond that, justice will be neither swift nor accessible,’ said Feinstein.”

This is a hissy fit. First, officials look everywhere they can to drum up new revenue. Notice all the new “fees” added to traffic tickets.

Sacramento charged drivers or their insurance companies fees of $495 to $2,275 when drivers were involved in a collision that requires a firefighter response, then repealed it in the face of public outrage.

Shutting Down

When officials can’t find enough pennies under the sofa cushions, they engage in what is known as “Washington Monument Syndrome.” When the multitrillion-dollar federal government “closes,” the first thing the officials do is close down the low-cost attractions in the hopes that tourists run home, clamoring for higher taxes. When we see tough times in local budgets, angry officials try to inflict as much pain as possible on the public by denying us services. At every step, they try to scare us into giving them more money. But they also work to assure that we cannot take care of ourselves.

We’re supposed to wait patiently for a police response that might never come. A 1982 state Supreme Court decision (Davidson v. City of Westminster) reminds us the police do not have to help us.

But don’t take matters into your own hands! California’s Draconian gun laws, for instance, put severe limits on our ability to protect ourselves. The public-sector unions also have assured that cities cannot contract out police and fire services to private bidders, where competitive pressures might improve customer service and efficiency.

Governments could improve the bang for the taxpayer’s buck if they reformed pensions, cut back on work rules, brought salaries in line with the marketplace and reduced the special protections that make it nearly impossible to discipline or remove ill-performing employees. Don’t hold your breath.

In the private sector, companies would minimize the pain on customers, who can take their business elsewhere. In the public sector, agencies spend money like crazy, and when they run out, they withhold services.

This is why government is supposed to be limited to the few tasks that cannot be provided in the marketplace.

We need to reject the scare tactics and insist on real, competitive reform. Otherwise, we might be the ones left waiting for the squad car that never comes.

Another California plague is invading the world: our absurd divorce laws. You probably know comedian John Cleese from Monty Python’s Flying Circus and numerous movies. Here’s a report on his plight:

Ms [Alyce Faye] Eichelberger received more than £12 million from the divorce in 2009, which was settled under Californian law. The couple were married for 16 years but have no children together.

Cleese spoke of his disappointment at the settlement, and his fear that Californian-style marital law is increasingly reflected in high-profile divorces in Britain.

He said: “This is how absurd it is: I have paid her $16 million, I am left with about $8.5 million, out of which I have to pay her another $5 million.

“So she’ll get something like $21 million, and I am left with $3.5 million, and we never had children.

“People say “why didn’t you have a pre-nup?” The answer is I did have a prenup but it had no legal force in the UK and to my astonishment, I found that it didn’t have legal force in the United States either.

“It…only had ‘advisory’ influence. What worries me is that the insanity of Californian marital law is beginning to creep into the UK. That’s alarming.”

This is why government should have nothing to with marriage and family law. It should be between the couple, and their family and religion (or ethical group, if they’re not religious). Doing so would also end the controversy over same-sex “marriage.”

Government-certified marriages fail at a 50 percent rate. Would anybody fly an airline whose planes crashed 50 percent of the time? Of course not. It’s time to get government out of marriage and family life.

But marriage, divorce and “family law” are immense cash cows both for the government and the lawyers, child-protective services functionaries, psychologists and others involved.

One positive development is that Cleese’s absurd government divorce has forced him back on the road with a comedy show, originally called “The Alimony Tour.” Some jokes:

I’m here, my friends, because frankly I need the money. I’ve fallen on hard times. I’m having to pay $20 million to a woman who I believe is the special love child of Bernie Madoff and Heather Mills.

I’m being forced to hit the road again to rack up a few grand here and a few hundred there. To comfort me my lawyer told me to imagine how much I would have had to pay if Alyce had contributed anything to the relationship — such as children, or a conversation.

I also have a suspicion that California’s government “family” courts had it in for him because he created one of the funniest mockeries of government ever, the Python sketch, “Ministry of Silly Walks.” Here’s a YouTube of it:
.

April 25, 2011

.

California’s state and city budgets are broke. Its prisons and jails are jammed to overcrowding. But Los Angeles County Superior Court Judge Stephanie Sautner just sentenced actress Lindsay Lohan to 120 days in jail for violating her drunk-driving probation.

That’s because courts nowadays consider themselves dictators. And if you don’t obey their absurd system to the letter, they throw you in jail.

She’s also accused stealing an $850 necklace from a jewelry store, which could land her in the klink for another year.

How many tens of thousands of dollars is L.A. County spending of the taxpayers’ dollars to prosecute Lindsay and imprison her? Couldn’t some way have been found for Lindsay to pay restitution to the jewelry store — say, $20,000?

Instead, the jewelry store, and all taxpayers of L.A. County, will be forced to fork over tax money to pay for this whole mess. So they will be robbed a second time, this time by their own “justice” system.

Here’s what the judge told Lohan, as reported by CNN:

Sautner suggested Lohan might behave better after seeing “how truly needy women and women who have fallen on real hard times have to live.”

It’s the judge who needs to behave better. In jail, Lindsay actually will see some hardened criminals, but also a lot of women who have been imprisoned for such non-crimes drug possession or trafficking. She’ll see why police-state America has the world’s highest incarceration rate — even higher than communist Cuba and China.

Lindsay seems to be non-political. But after going through the “justice” system meatgrinder, she might become an activist for reform.

Moreover, in civilized societies, pretty girls are given a lot of slack. Why? If you have to ask, no answer will suffice.

Lindsay here is the victim of a gross miscarriage of justice.

Free Lindsay Lohan!

April 22, 2011

By TORI RICHARDS

A recent appellate court decision could have far-reaching impact on whether citizens can successfully fight government agencies for documents under the California Public Records Act.

Attorneys battling for public records only have one big hammer — attorneys’ fees upon winning in court. Now this important element has been curtailed in a recent court opinion. This will make government agencies less likely to produce records in a timely manner and not fear lawsuits that would normally come out of their budgets.

Said Paul Boylan, an attorney who specializes in CPRA lawsuits:

This case in particular shows that the citizen will not be awarded fees and costs unless the citizen can affirmatively and definitively prove that the governmental agency delayed or withheld information in bad faith — an evidentiary burden that a citizen is unlikely to be able to meet.

In the face of such a daunting burden of proof, no attorney will agree to represent a citizen in such a case unless they receive payment up front, and very few common people can afford what it would cost. And that means that governmental agencies can violate the CPRA without fear of being ordered to pay a petitioner’s fees and costs if they make it look like they were acting in good faith — which is easy to do and hard to disprove.

The California Public Records Act clearly spells out the legal right to obtaining government records. In reality, it often takes a lawsuit to enforce this.

“Ordinary citizens and most media outlets don’t have the legal expertise and resources to fight these types of cases,” said Chris Farrell, a director at Judicial Watch, which fights government waste. “The government routinely stalls record releases for months and years, and engages in procedural gamesmanship as techniques to jack up legal fees and discourage requesters.

No doubt about it, attaining public records is a rich man’s endeavor. Government agencies often drag cases out for years, leaving requesters with no other option than suing. Delays equal money as the two parties spend endless hours in court arguing over what is public and what is not. This racks up attorney fees unaffordable to most citizens and many media outlets.

“There is an incredible range of response time with [California] government agencies,” said attorney Roger Myers, a partner with Holm Roberts & Owen and legal counsel for the First Amendment Coalition, a watchdog group. “Some are very responsive, others are not and you don’t get anything unless you pester, holler, and scream.”

Crews v. City of Willows

In the decision Crews v. City of Willows, filed Nov. 23, 2010, the California 3rd District Court of Appeal carved out an exception that isn’t specifically detailed in the language of the CPRA. But the opinion is not published, meaning it is non-binding statewide.

However, any judge deciding whether to award fees could be swayed by this opinion, especially if their court is within the 3rd Appellate District.

The exception allows for government agencies to produce documents after the 10-day deadline if they put forth a “good faith effort” to comply with the request during the original deadline. Agencies which have shown such an effort aren’t liable for attorneys’ fees if the requester decides to sue to enforce their demand.

The law mandates attorneys’ fees for a winning party and often the threat of having to pay such an award is the only hammer requesters have in getting compliance. But in this appellate opinion, the requester didn’t “prevail” because the government in question was planning on releasing the documents anyway.

The lawsuit stems from a 2009 request that publisher Tim Crews of the Sacramento Valley Mirror newspaper made for job applications to a government post in the rural city of Willows. The documents weren’t produced until after the paper sued. Glenn County Superior Court Judge Peter Twede refused to grant attorneys’ fees and the matter was appealed.

“In the city of Willows case, Judge Twede behaved no differently than many other judges by stretching the law to find a reason — any reason — to prevent a prevailing party from recouping their fees and costs,” said Boylan, the attorney representing the Mirror.

Boylan said Twede went out of his way to side with Willows — even making arguments on behalf of the city that its own attorney didn’t make. In the end, the judge ended up applying a California doctrine pertaining to attorneys in general cases, when he should have been looking at the language of the California Public Records Act, Boylan said.

“This is an example of a widespread and growing hostility toward those seeking to enforce the CPRA,” Boylan said.

In the underlying case, Mirror publisher Tim Crews requested applications to a Planning Commission vacancy. The city clerk provided redacted copies the following day. The clerk testified that the city attorney was not available to review the request, so out of caution she redacted the applicants’ personal information.

When the 10-day deadline passed without the release of the unredacted versions, the paper sued. The documents were released a month after the lawsuit was filed. The city told the court that the Mirror never requested unredacted versions, so they thought they had complied with the request.

The appellate court sided with Twede in a 34-page opinion, which said:

Under the unique circumstances of this case, where the undisputed evidence shows the City reasonably believed the redacted documents satisfied the request and did not know of any pending request for unredacted documents at the time the lawsuit was filed, appellant cannot claim a litigation success.

The standard test for determining whether someone has prevailed under the CPRA for purposes of recovering attorney fees is whether or not the litigation caused a previously withheld document to be released.

An Expensive Endeavor

In the end, it’s the taxpayers who lose on several fronts. If the request takes the form of a lawsuit, it’s often years before the records are relinquished, if at all. By then, the information could be of little value to the requester, especially if it involves a news story where the issue is no longer prevalent.

In normal cases, government agencies on the hook for paying the winners’ fees and also rack up expenses on their own end — all funded by taxpayers.

It’s too soon to see the impact of the Crews v. City of Willows case. Previously, the various agencies appeared to be more cautious in their appeals because they didn’t want the embarrassment of losing in an era of budget cutbacks and scrutiny, critics say.

Added Jim Ewert, legal counsel for the California Newspapers Publishers Association, added:

They are playing with Monopoly money because it’s not their money. Now that the resources are more limited, it is starting to enter their economic analysis.

The California Attorney General’s Office issued a statement saying it promptly informs requesters if a decision is made to extend the 10-day rule for compliance with the CPRA. They receive an average of 35 requests a month.

“At DOJ, we make every effort to comply with every PRA request within the statutorily prescribed time frames, regardless of requestor,” spokeswoman Debbie Mesloh said.

Half a million dollars in fees

So if the courts intervene, how much would it cost in attorneys’ fees?

“You’d be lucky to get away with only spending $10,000, and it can go up to half a million,” said Myers of the First Amendment Coalition. “To go through the first level and get a ruling from the trial court can cost $25,000 to $50,000 or more. Most are not appealed because of the risk that it could increase the fees.”

But those that are appealed have racked up some mind-boggling expenses.  The First Amendment Coalition litigated a case that is believed to be California’s largest award for attorneys’ fees: $500,000. It involved a lawsuit against Santa Clara County over access to a database. The Coalition filed the case in 2006 and won on the trial level, then the county appealed and lost three years later.

Attorney Boylan had represented citizens and media organizations in public records cases on a contingency basis. He has had a wide range of awards, mostly under $100,000.

One example on the lower end of the scale is the small Northern California city of Fortuna. City officials wanted to put in a new water system and one citizen thought it wasn’t warranted and a waste of money. She requested a schematic of the city’s water system.

“They said no, on behalf of national security grounds, because terrorists would use it to bomb the water system,” Boylan said. He was awarded $21,000 in fees.

But the king of all cases is believed to be Judicial Watch’s “Chinagate” Freedom of Information Act lawsuit against the U.S. Commerce Department during the Clinton era. The organization was asking for records of illegal 1996 campaign donations that were made in exchange for disclosing military secrets to China.

Four different lawsuits ensued, spanning a decade, in which the Commerce Department was found to have destroyed evidence and falsified testimony. The defendants lost on appeal and a judge ruled in favor of Judicial Watch, ordering the Commerce Department to pay $900,000 in attorneys’ fees.

According to the watchdog groups, government agencies have figured out which requesters have a track record of suing, and that enters into the agencies’ analysis of whether or not to comply.

“If an agency knows they are dealing with a requester with a capacity to file a lawsuit and a record of doing so, they are going to be much more compliant with the law,” said Peter Scheer, director of the First Amendment Coalition.

Farrell of Judicial Watch agreed. “These agencies know who they are and they know who will sue them. They would rather not go in front of a judge and explain why they are not obeying the law,” he said. “The average citizen gets jerked around much more; they know they can grind the citizen down.”

By STAN BRIN

California’s Small Claims Courts are in trouble. Every year, fewer people take their cases before the local Judge Judy. But no one seems to know why this is happening, or even that the problem exists — or even if it is a problem at all.

In 20 years, annual Small Claims case loads have fallen by a third, from approximately 330,000 to 232,000 while the state’s population has increased by a fifth, from 29.7 million to 36.9 million

There is no evidence that fewer tree branches fall on neighbors’ cars now than 20 years ago, or that fewer tenants skip out on rent, or that landlords no longer fail to return security deposits.

And there is no evidence that Californians have become less litigious. In fact, the official 2010 report of the Judicial Council of California indicates that the number of so-called “limited cases” filed in Superior Courts have exploded over the same period, from under 500,000 to nearly 800,000. Limited cases are smaller civil suits, involving sums under $25,000, that are tried under rules that streamline both the trial and pre-trial preparation.

As in many social changes, it is possible that a number of factors contributed to the decline in the Small Claims caseload. But there is little, if any, research on the subject. Law journals rarely publish articles on Small Claims cases or procedural issues. Few lawyers want to read about them because there isn’t enough money involved — Small Claims cases can now have a maximum value of $7,500, but most involve far less.

It is possible that on the high end, many cases are siphoned off, to become limited cases. It is also possible that changes in public attitudes have reduced demand for Small Claims services. No one seems to know.

But one possible reason for the decline is that a single very good law — intended to foil violent stalkers — has had an unintended but damaging effect on the ability of plaintiffs to seek justice.

Why Small Claims Courts Matter

First of all, it should be understood that Small Claims Courts are a good thing. They resolve minor disputes that the traditional, and very expensive, legal system is not designed to handle.

According to Whittier Law School professor Radha Pathak, who specializes in civil litigation, “Small Claims Courts allow for recovery in cases where getting a lawyer is prohibitive.”

Just as important, they tell ordinary good people that the system is working for them on a very personal level, and ordinary bad people that they can’t get away with cheating others.

Let’s say that you lent a friend a thousand bucks, but he won’t pay you back. Or you bought an English antique that turned out to have been made last year in North Korea.

As Pathak says, it wouldn’t be practical to hire a lawyer in such cases. After a few consultations, legal bills would eat up everything you might recover, never mind the cost of a court appearance.

In Small Claims Court, lawyers aren’t allowed in the room. Filing fees are low. Procedures are informal, and rules of evidence are relaxed. Judges ask most of the questions.

All you, as the plaintiff, have to prove is that your neighbor broke the potted plant he borrowed, or that a carpenter didn’t do the work that he was paid to do, and what it would cost to set everything right. Unless the defendant confesses, receipts, pictures and estimates are usually necessary.

Like the fabled Judge Judy, Small Claims judges — usually “commissioners,” experienced lawyers hired to perform as judges — know what they’re doing and are quick to get to the bottom of cases. They’ve heard all of the excuses, and don’t suffer fools gladly. Unless the judge feels that the case touches an unusual point of law, judgment is very quick. Decisions are often rendered before the plaintiffs finish presenting their cases. And there’s no jury to be confused.

“But I have more evidence…” a surprised plaintiff once told a Small Claims judge.

“Don’t complain,” the judge told him. “You’ve already won. Sit down.”

Sadly, for many people, the Small Claims Court system doesn’t work well, and hasn’t worked for two decades. A major reason for the decline of Small Claims Courts, perhaps the single major reason, appears to be fallout from an infamous 1989 stalking murder.

The Rebecca Schaeffer Law

On July 18, 1989, a stalker went to the front door of my former neighbor on Sweetzer Ave. in West Hollywood, and shot her to death. My neighbor was a popular young television actress by the name of Rebecca Schaeffer, who was recently featured in the CBS comedy series “My Sister Sam,” starring Pam Dawber, of “Mork and Mindy” fame. I had moved from Sweetzer Ave. roughly 18 months before.

The killer, an unemployed drifter from Arizona by the name of Robert John Bardo, found Schaeffer’s address by looking her up at the Department of Motor Vehicles. (Bardo was subsequently prosecuted by Los Angeles Deputy District Attorney Marcia Clark, who later made something of a name for herself in the O.J. Simpson murder case.)

In response to this senseless crime, Rep. Ed Royce, then a state senator, introduced pioneering legislation that prevented stalkers, and anyone else, from gaining access to DMV records. Gov. George Deukmejian signed the bill into law in 1990 and it became effective the following year. Soon, all other states adopted similar provisions.

As an unintended consequence, in California, at least, scoundrels and miscreants can hide in plain sight. If an unlicensed contractor provides a phony address on his invoice, you can’t ask the DMV where he actually lives. The records are sealed to everyone except the police while investigating crimes, lawyers, and private investigators.

This means that you can’t sue someone if you don’t know where he lives because you can’t serve him with a subpoena. And if you manage to subpoena him, but he subsequently moves, you can’t collect. Online phone directories can help, but their information is incomplete and not always up to date. Private investigators can easily find the information online, but they can charge more money for a few Internet clicks than many injured parties could expect to recover from a lawsuit.

The result is a system that is limited to people who know each other, and well-established brick-and-mortar businesses. In California, you can sue an ex-friend, or Fred’s Computer Store, but not the guy who sold you a broken laptop on Ebay or Craigslist.

This doesn’t happen everywhere in the United States. Congress adopted the Driver’s Privacy Protection Act in 1994, establishing a national standard for such laws. The federal statute, now codified in Section 123 of Title 18 of the United States Code, does not prohibit the use of DMV records in legal matters. According to the act, records may be released:

For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

In this case, the federal law appears to be more flexible than California’s. Anyone “carrying out the functions” of a court of law would be able to make use of DMV records. This would include a marshal or deputy sheriff tasked to deliver a subpoena. Legal language matching the Driver’s Privacy Protection Act would allow marshals or deputies to serve subpoenas based on addresses already in their possession.

A Bad Experience

The problem of subpoena service in Small Claims Court came home to me a few years ago after my car broke down. I needed another one immediately, so I bought a used car through Craigslist. The seller brought over a Nissan, and we made a deal. But I soon discovered that the car was held together with chewing gum, leaked oil and needed more repairs than it was worth.

I filed a case with Small Claims, but the local sheriff’s department — some counties use deputies, others use marshals — wouldn’t deliver the subpoena. “The address is wrong,” the deputy said. “He’s moved.”

As it turned out, the deputies knew precisely where the deadbeat had moved, but wouldn’t deliver the subpoena to the new address because I didn’t know what it was.

“It’s the law,” a sheriff’s sergeant said, in a not very friendly way, and that was that.

I called Craigslist, but they have a non-disclosure policy as well. They would release the information if subpoenaed, but the local sheriff’s department wouldn’t drive north to San Francisco to deliver one.

Nevertheless, I found the business address of the cheat’s associate and had him served at work. I presented my evidence, my receipts and photos. The judge was smart, and brooked no nonsense from the defendant. He awarded me everything I asked for, including punitive damages.

So I had my day in Small Claims, not that it did any good. I couldn’t collect a dime because I ran up against the same black hole: The defendant closed his car repair shop, and the DMV wouldn’t release his home address, for precisely the same reason.

I was stuck with a worthless judgment and had wasted my time, the court’s time, and my court fees — all because my neighbor was murdered back in 1989. (Ironically, I managed to cost the villain more than he would have had to pay me for the car. I called the state agency that regulates car dealers. Since he was, in effect, operating a dealership without a license, they called him into the office and bluntly told him to stop selling cars or face prison. But even they wouldn’t tell me where he lived.)

How much does the decline in the use of Small Claims Courts reflect the problem of defendants hiding in plain sight? No one seems to know.

According to Philip Carrizosa, spokesman for the San Francisco-based Judicial Council of California, which oversees the court system, “We don’t collect any statistics showing the success or failure of collections from Small Claims.”

The only statistics that the courts keep on Small Claims cases are the total number that they adjudicate. No one at the Judicial Council seems to be aware that this number is on a steady, downward trajectory, much less why.

While it may be reasonable to conclude that those who run up against the system’s seeming inability to subpoena defendants are much less likely to use Small Claims’ services again, it is also true that no one seems to know how often this happens or if the problem is a factor in the decline in Small Claims.

Privacy vs. Accountability

Any reform of the Rebecca Schaeffer law must find a new balance between the right of privacy and the right of redress through the courts.

But those who engage in commerce already sacrifice a measure of privacy.

In California, owners of corporations are required to register with the state, and those operating a DBA (doing business as) must register with local authorities.

“A balancing of policies is required,” Pathak says. “The law was created to allow people privacy, but there is a public interest in giving people access to Small Claims Court.”

However, Pathak doesn’t believe that the Rebecca Schaeffer law should be modified. “I am not convinced that this law is having [this] bad effect, so I don’t think that it is yet necessary to reconsider the wisdom of that law,” she says.

Pathak suggests that a major reason for the decline in small claims may be seen in the increase of limited case filings. “In my opinion, it is very possible that some of the cases that would previously have gone to small claims are now ending up as limited filings, perhaps because the size of disputes has risen. There might be other explanations as well.”

She may be right. But a 2002 study for the Judicial Council, conducted by Policy Studies Inc., quoted a survey by the city of Fresno which found that 75 percent of Small Claims cases involved sums of $2,500 or less — amounts too small to be tried in Superior Court, even under limited case rules.

That survey may be obsolete. On the other hand, Pathak’s colleague Ken Agran believes that the problem may not be found in the law but in the policies of local marshals and sheriffs. “I haven’t read this law, but it seems reasonable this is within the scope of the exception [for lawyers], because in Small Claims court you’re acting as your own lawyer. And if you hire an official agency to actually deliver the paperwork, that would seem consistent as well.”

Agran suggests that “there are all kinds of reasons” why Small Claims caseloads might have declined, and that “it would be useful to find out through surveys.”

So far, it doesn’t appear that anyone has conducted such surveys, at least none that are both rigorous and widely circulated. Nor has anyone examined the operations of similar courts in other states to see if they are suffering a similar decline, and if not, why not.

Meanwhile, Small Claims cases dwindle, and plaintiffs are either forced into more expensive litigation with attorneys, or to abandon the pursuit of justice entirely.

And a 1989 law intended to frustrate violent stalkers is still enforced against Small Claims plaintiffs in the age of Craigslist.