I’ve been a lawyer for 56 years, but I haven’t actively practiced for the last 33 years because I was in the newspaper business, and I didn’t want to spread myself too thin. But to own a newspaper in Malibu means covering litigation, which is often a major factor in some of the stories we cover. Over the years, I’ve ended up watching the court system and reading opinions. What I’ve witnessed over the last three decades is that things have changed, and to my mind, not for the better. It appears to me that many times the court’s decisions have become more and more remote, as if the judges live in some rarified world with little touch or understanding of the reality on the ground and their decisions appear almost fanciful, and this goes from the trial courts, through the appellate courts up to the Supreme Court of the United States. Let me give you a few examples.
Recently, a California Court of Appeals decision held that some Malibu beachfront homeowners that had been fined $4.2 million (although they call it an administrative fine) or so by the California Coastal Commission for blocking a public beach access was a legitimate exercise of the Coastal Commission power and the decision would stand. In the very first year of law school you learn that in a trial—whether in front of a judge or a jury or an administrative tribunal—you have a right to know what you are accused of, a right to know what the possible consequences are if found guilty (or perhaps in violation) and a basic right to trial in front of an objective forum. You have a right to present witness, to cross examine witnesses and to subpoena documentary evidence, all with time enough to present your case. Altogether, it adds up to what we call due process, which essentially means a right to a fair trial—win, lose or draw. It is absolutely fundamental to our democracy. It’s not particularly quick, sometimes it’s cumbersome, often it’s abused by judges or trial lawyers, but it’s the bedrock of our system that you have a right to a fair trial. In this particular case, the tribunal (the judges) was the same 12-member Coastal Commission who had to decide if their own coastal staff, who are the prosecutors and who felt there had been a violation of coastal access, were correct. The staff had recommended an administrative fine in the neighborhood of $1 million or so, which the homeowners thought was excessive and wanted to go to trial—in retrospect, a big mistake. They thought they were getting a fair trial; the reality was they had invited themselves to a fair hanging. They had their day in court before the California Coastal Commission, which lasted roughly about 30 minutes or so, and afterward the commission deliberated in public and decided on a reasonable fine of $4.2 million or so. Some commissioners wanted the full possible fine of $8 million, but reasonable minds prevailed and they split the difference. It was the legislature, not the commission, that decided that a fine of a $11,200 per day was reasonable, provided it’s for a reasonable period, and they decided no more than five years was reasonable. Do the arithmetic. They could administratively fine you $20 million if they found against you. I don’tknow about you, but it sounds a bit excessive to me. What does it mean? It means that unless you’re filthy rich and stark raving mad, you better accept what the coastal staff wants you to do or you’re going to end up missing parts of your anatomy.
Now let’s go all the way to the other side of the spectrum, from the Coastal Commission, a state agency in California, to the United States Supreme Court (SCOTUS). Some years ago the court knocked out part of the Voting Rights Act that blocked certain states which historically had kept Black and other minority voters away from the polls by using things like poll taxes and so-called literacy tests to keep minorities from voting. The Voting Rights Act was very successful and minorities did vote and minorities were elected to public office. So, the SCOTUS said, it’s been a success and it’s no longer necessary because those old barriers are ancient history—or words to that effect written by Chief Justice John Roberts. We all know what’s happening now. Legislatures in many states are passing new laws to make voting harder. Many are transferring power over elections to the state legislatures, which are partisan, and away from secretary of state offices that were previously in charge of elections. We all saw what happened in Georgia where Trump tried to lean on the conservative Republican Secretary of State Brad Raffensperger to essentially change the results. Looking back, the SCOTUS was wrong in their voting rights decision and we’re now moving back to the bad old days in many states. If the court doesn’t step in and protect the vote, which is probably the most important thing we do as citizens, there are going to be all sorts of scary consequences. They don’t have to overrule their old decision, they just have to accept a few cases and make some rules that assure that elections are fair. It’s particularly critical now when the Democrats are convinced that the Republicans are trying to disenfranchise the Democratic voters and about 60 percent or more of the Republican voters think Trump won and the victory was stolen from him. Democracies do die and I hesitate to sound overly pessimistic, but I think we are standing on a precipice if people totally lose faith in the electoral process. Congress is not going to do it because both sides have a vested interest in keeping parts of the system that favor their party. It’s going to be either the court or the streets.