Marin judges, meet a citizen who again cries ‘foul’

Editor’s note: These are remarks the writer intends to give before Human Rights Commission of Marin County when it meets Tuesday at 7:30 p.m. in Room 401 of the Civic Center.

By Kenneth J. Schmier

At the very conclusion of Meet Your Judges Night on Oct. 28 at the Marin Veterans Memorial Auditorium, I attempted to ask one legitimate question of the judges, as I was invited to do by the general advertisement of the event.

I was prohibited from asking the question by officers of the Sheriff’s Department acting in direct response to the order of Judge Stephen Graham. They physically took me from my position, standing at my seat approximately 20 rows back of the stage, and in the hall outside the auditorium placed me under arrest.

I was handcuffed, placed in the rear of a patrol car, and after 25 minutes or so, I was taken to the County Jail, where I was booked. No charges were ever filed against me.

As recognized by the editorial titled "Your Honor, that was a forum, not a court" (IJ Nov. 8), my conduct was not criminal. Nor do I believe it was rude or even out of place. Nevertheless, despite the presence of Supreme Court Justice Kathryn M. Werdeger, Appellate Justice Paul R. Hearle, seven judges of the Marin Superior Court, four commissioners and one retired judge, not one of these judges interfered with the process of my arrest during the 25 minutes I sat outside the hall while they exited the auditorium.

I have learned that this conduct can result in civil causes of action against the county and judge and the members of the Sheriff;s Department for assault, battery and false arrest. The conduct may also give rise to criminal prosecution of those involved for the same, as well as for violation of federal civil rights laws.

I seek the advice and counsel of the human rights commission in what course to pursue. I do not desire a large monetary judgment from the county since such a judgment would only impose a monetary burden upon my friends and neighbors, and our government has better things to do with its money.

Nor do I wish a personal judgment against Judge Graham. Such a judgment would be paid by his homeowners insurance policy and would therefore only tax the public through its insurance premiums. Nor do I feel criminal penalties are appropriate. The love of the benefit of law is a far more effective deterrent than the threat of punishment can ever be because it remains effective even without enforcement.

I want the human rights commission to publicly investigate this incident so that all of us may be reminded of the magnificence of the American system of rights, that we not lose sight of its importance, and at the end, ask the offending judges to reaffirm their oaths to protect and defend those rights, with the addendum "and I really mean it!"

In this regard, it is important to know the question I would have had answered by our judges. It is this: "I want to know how it is possible, in a country that values free speech and the right to petition government , that it can possibly be illegal to bring a court’s attention that which an appellate court decided in a similar case that has never been overruled."

The judicial system continues to refuse to answer this question in any meaningful, or even truthful, way – at all of its levels.

The question referred to the little-known fact that 93 percent of all decisions of California’s courts of appeal are ordered not to be published by the very judges who write those decisions, knowing that California Court Rule 977 mandates that "an opinion that is nor ordered published shall not be cited or relied on by court or party"….(except in very limited circumstances)….in any other case.

Without any authority whatsoever to do so, our Supreme Court made this Court Rule. In doing so, it surreptitiously ended the system of stare decisis, and our appellate courts no longer feel bound to follow their own rules in future cases.

Despite the obvious infringement of freedom of speech, they have made it illegal to bring to their own attention the vast majority of their previous, never-overruled decisions.

On the general issue, Chief Justice Ronald George has said, "Unpublished opinions are a necessary evil to chill the development of the law, It would be folly to abandon the non-publication rule and force the legal system to reconcile cases that are essentially insignificant. You’d have a hard time separating the chaff if you published [all appellate court opinions]." (Los Angeles Daily Journal, March 9,1998)

The "Rule" having been made outside of a "case or controversy," the Supreme Court seems to feel that by simply refusing to hear any case challenging the rule, it ethically maintains it. That is why the justices must be asked to repeat their oaths with the addendum as suggested above.

I will ask the human rights commission to join me and so many others in asking our courts how we can possibly have the equal protection of law if the courts have no institutional memory of the manner in which the law is applied in similar cases; to ask how we citizens can be presumed to know the law when our courts won’t tell us what the law is; how we can be certain that our judges correctly and honestly state the law, if their decisions are not put out to the people for criticism; how we can ask our legislators to correct the law if we cannot know how the law is actually being applied by our courts; and perhaps most importantly, to what effect is our right to equal protection of the law if law can be applied to one person without immediately causing others that would otherwise be affected to complain on that person’s behalf when the rule used is illegal, unconstitutional, or unjust.

Finally, I will ask the human rights commission to request that our Legislature investigate effects of this obvious invitation to corruption and tyranny that may have already taken root.