To all of you who are asking what can be done when the orders of our courts are not obeyed:
In 1962, legal scholar Alexander Bickel authored an analysis of our federal courts and their place in our system. He titled the book The Least Dangerous Branch, a description coined by Alexander Hamilton who, although he trusted that the courts would be independent and judicious, also recognized that the Framers gave them neither an army, nor the power of the purse. Bickel, in his book, imagines them playing an ameliorating role in national arguments between the two other branches. As such, he did not see them as entirely passive but, rather, hoped they would serve as a sagacious, fair, careful and trusted leader of public opinion, without bombast.
“Ha!” you might say. Well, that skepticism is likely the reason that Bickel is receiving a renewed flare of interest. Most of our interest, to this point, has been in the US Supreme Court. However, even as we opine that the highest court in the land seems troublingly political, for the most part, the other thousands of federal and state courts toil on, attempting to interpret and apply the law as they have been trained to do.
In these unprecedented times, when the executive branch shows no concern for the dictates of the Constitution and the Congress has yet to find a way to curb him, the Courts have emerged as our great hope for reining in the Kingly desires of the President. But how?
It is one thing to issue whole sets of orders declaring hundreds of acts ordered by the president and carried out by his minions to be unconstitutional. It is another, entirely, to find a way to enforce obedience to those orders. I spoke the other day to my friend and law school classmate, Erwin Chemerinsky, the Dean of the UC Berkeley School of Law, about possible methods of enforcement.
He reminded me that the usual remedy for failure to follow court orders is for that same court to find a litigant in contempt of court. This can be brought either as a charge of criminal contempt or a charge of civil contempt. It seems improbable, given the new ground that would have to be broken, that contempt of court proceedings would be brought against a sitting president.
Every minion beneath his foot, however, is fair game. The safest path to follow would be to bring a civil, and not a criminal, charge.
Once a person has been found guilty of civil contempt of court, he can be fined any amount set by the judge, and required to pay it as often as daily. The fines must be paid directly to the court.
Erwin reminded me, however, that these punishments are usually enforced by federal Marshals, who are a branch of the Department of Justice, and, with Trump sycophant Pam Bondi having been approved as Attorney General, this enforcement would, undoubtedly be slow-walked, if not downright thwarted.
Sadly, the protective and constitutional roles historically undertaken by Justice, Defense, Health and every other Cabinet Department has now fallen victim to a serious outbreak of Alice in Wonderland Topsy Turvyness. Who knows what the Marshals would do with an order to enforce civil penalties if their boss told them not to do it? Still, it is incumbent on us to use and use and use every single tool in our toolboxes. Time will tell….
Now…about those State Courts…
This next piece is not about our federal morass, but about other difficulties inherent in holding executives accountable for their crimes.
Sorting out jurisdictional issues between executive and legislative branches is not limited to the federal court system. In the United States, every one of the fifty states has its own state court system, as well as its own constitution, laws and procedures. In California, we have fifty-eight counties, each having a different number of Superior Courts (an interesting appellation for the lowest level of state court). These courts, together, constitute one State Court system.
Within each local governmental entity, County, City, etc., there are, as well, numbers of different divisions, departments, commissions, blue ribbon committees and everything else you can think up.
In the County of Los Angeles, for instance, in 2016, while I was still serving on the Board of Supervisors, we voted to create a new entity, the Sheriff Civilian Oversight Commission. This body was tasked with holding regular public meetings to question and hold the Sheriff and his Department accountable for acts and omissions committed by everyone from the Sheriff on down to the deputies. Over the past almost ten years, the Commission has done an outstanding job of raising questions on use of force, deputy “gangs”, sexual assault, holding prisoners beyond their sentenced time to deliver them to ICE, and a host of issues of interest to the public and to the Board.
Throughout these same years, the Commission has experienced great difficulty in gaining information, especially about the misdeeds of individual deputies, and has been told that many of the files they hoped to access were protected by various laws protecting employee privacy.
So it was with great interest that the Commission followed the case of the woman, now working in the LA DA’s office, who had served as a Constitutional Policing Advisor to former Sheriff Villanueva. As such, she had accessed files on deputies who had committed the kinds of acts that might make them vulnerable to having any testimony they give in court challenged and thrown out. As required by the Brady case, she reported these names to the DA’s office to inform them that they likely have impeachable witnesses in cases they may be bringing.
Upon leaving the Sheriff’s Department, she went to work as an Assistant DA. In April of last year, the California Attorney General suddenly filed a criminal case against her for unauthorized use of data from “legally protected” peace officer files and the case is now in a California court.
The court, ever the arbiter among these different government entities, is required to wade through competing theories regarding whether the data was actually public, as the Asst. DA says, and, therefore, not protected, or whether there was some kind of breach of statute. The court chose to postpone setting a trial date and, instead, is requiring the AG to show cause why his accusations are strong enough to remain or whether the evidence is insufficient to bring the charges and the case should be dropped.
To make matters more complicated, the members of the Civilian Oversight Commission have become ever more frustrated with toiling (as volunteers) to bring the various transgressions of the LA County Sheriff’s Department to light, only to have access to necessary data refused.
They recently decided, as a unit, to file a Friend of the Court Brief in favor of dropping the charge against the woman who had accessed files in her previous job. From their point of view, this was deeply related to their work, as the information this woman had brought to the DA’s office was a necessary piece of their oversight. In addition, the current LA County Sheriff had become even more reluctant to share data, worried that he, too, would be charged by the AG with a criminal act.
When the members of the Commission moved to file their brief, with one of their number acting as their attorney, the LA County Counsel told the court that only County Counsel could represent an entity of the County, refused permission for the brief to be filed, and, for good measure, threatened to file charges with the State Bar against the Commission member who had, with the full agreement of all Commission members, drawn up the Amicus Brief.
Whereupon that Commissioner, who had been a member since the inception of the Commission and a former Chair, tired of being threatened, hobbled, and denied necessary information, and fed up with spending a decade of volunteer work dedicated to nothing more than trying to keep the people of Los Angeles County safe from law enforcement transgressions, bullying, and malfeasance, all in addition to his full-time law professor job, resigned.
My take: it’s difficult enough to bring transgressions by law enforcement to light. The Board established this independent Oversight Commission in order to do that. For the past almost ten years, they have worked, tirelessly and mightily, doing their best to shine a light.
On the issue of privacy vs knowing what you need to know to hold someone’s feet to the fire: the California Court will wade through the question of whether the Asst. DA violated any statutes by bringing the information on the deputies to the DA’s office, or whether the information was readily available, and its use violated no statutes.
Left open is the larger question of the ongoing efficacy of the Commission, hamstrung as it is, not for lack of trying, but for lack of information and the clear authority they need to do their oversight. It raises the question of what it means to be truly independent of your appointing authority.
This is a larger problem, given the appointment of “independent” commissions by the County and, indeed, by virtually every government entity. Even the US Supreme Court is set to hear a case soon regarding the ability of the President to fire Independent Counsel.
In LA County, the current Sheriff seems willing to help weed out the bad actors. Let us hope the Commission will get that same kind of cooperation from every quarter.
Sheila
