It’s not easy being green

I am as “green” as the next person but . . . Should being “green” substitute for being “informed?” The recent green initiative at the CalBar Annual meeting resulted in little or no documentation or resources to back up the “talking head” MCLE presentations. This caused a decidedly negative impact on the learning process.

 I think that when the California court system goes paperless, the bar should follow suit. Until then, let’s use paper to facilitate the learning implicit in the MCLE program.

John Fowler
Chula Vista

Tyranny, not leadership

After more than 30 years in practice I never cease to marvel at the way attorneys and judges redefine their roles and the law.

Doesn’t Clark Kelso (September) see a great danger when judges decide they can rewrite the Constitution to fit their perception of what it should say? Especially when more than 2.5 million voters in California have already spoken on the issue?

You can justify what the court did in In re Marriage Cases all you want, it still boils down to judicial tyranny. It took the court 121 pages to argue their way into the preconceived decision they wanted to reach. Their refusal to stay their decision until the people could vote on the matter in November clearly shows their intent. They wanted to create confusion and create irreversible harm to individuals so that it will be very difficult to “unring the bell” should California’s voters pass Proposition 8.

I fully agree with Kelso’s assertion that, “the Court’s ultimate conclusion is contrary to the great weight of authority from other jurisdictions” and “a steep climb uphill.” He makes a tremendous understatement when he asserts that, “There is no doubt that the majority decision pushed the ball down the field a little further than the California Constitution necessarily required.” He adds, “But that, after all, is what leadership is all about.” I define what they did as tyranny, not leadership.

I was taught in law school that judicial honesty requires upholding the constitution and the law even when a judge does not agree with it.  It is the responsibility of the people and the legislature to legislate. It is the court’s responsibility to interpret. And we wonder why the people continue to lose respect for our profession.

Philip W. Kell
Fresno

A great court?

J. Clark Kelso characterizes the Supreme Court as “supremely confident”, “independent” and “unafraid” in reaching its decision in In re Marriage Cases.  

Most will agree that the court pushed the ball down the field “a little further than the California Constitution necessarily required.” But what is amazing is Kelso’s conclusion that this is what “a great court” does.

No one can deny that the court’s decision offers monumental governmental sanction to social, moral, religious and political positions promoted by the gay agenda. In this case a court, not a ballot box, has been the deciding force. Most people believe that parents, not courts, should have the right to decide fundamental moral, educational and religious issues for their families. 

The George court decision failed to respect the will of the people and the democratic process. It also failed to weigh seriously the negative consequences its decision likely will have on civil and religious liberties.  At the center of concern are tolerance and personal freedoms. We need to ask how the George decision will impact tolerance and personal freedoms.

Kelso defines a great court as, “a court that is a full participant with the other branches of government and with the people in developing more mature understandings and interpretations of constitutional provisions . . .” But how does Kelso’s opinion square with the opinion of dissenting Justice Baxter who wrote, “In reaching this decision, I believe, the majority violates the separation of powers, and thereby commits profound error.” 

The first victim of judicial activism in this situation well may be the court’s own impartiality. If nothing in the constitution really compelled the court’s decision, as the George court claimed, then something else drove that decision. Many on main street California are not confident in the court’s impartiality and agree with Justice Baxter that the George court’s decision violated the separation of powers and overstepped judicial authority.  

Judicial activism is not “leadership;” it is risky and destructive behavior which violates the democratic process and inherently places everyone at risk by compromising the integrity and impartiality of the judicial system. 

Great courts do not violate the separation of powers. Great courts do not legislate; they rule based on what is required by the constitution, nothing more and nothing less.

Tulane M. Peterson
Arcadia