By on October 17, 2009

(courtesy russianpoliticsfordummies.files.wordpress.com)

A California appellate court on Wednesday declined to publish a decision overturning a ticket issued by an unlawful red light camera operation (view ruling). California Superior Court, San Mateo County Appellate Judge Mark R. Forcum turned down attorney Frank Iwama’s request that he explain his reasoning more fully in a published decision. Unpublished cases cannot be cited as precedent in California, and motorists interested in challenging citations will have to repeat from scratch all arguments about the program’s illegality.

“I am deeply disturbed and saddened that, despite the judge’s courageous action in interpreting the law, the judge has not taken the next step of modifying and certifying his opinion for publication,” Iwama said in a statement. “The publication of the opinion in the Official Reports would have served as a badly needed and useful precedent for the people in seeking guidance in the interpretation and application of the cost-neutrality clause in red-light camera contracts.”

Other California courts have struck down red light camera programs on various legal grounds in cases such as: Franco, Murray, Graham, Williams and Bohl. The Fischetti case actually held published status for a time only later to become depublished by the state supreme court. In court filings, the League of California Cities suggested that allowing such rulings to stand with precedential value would force them to issue refunds or cancel their programs outright, costing millions.

“One of the first principles we all learn in school is the power of the Constitution and the independence and separation of powers between the three branches of government,” Iwama said. “During this difficult economic time, it seems that financial necessity overrules the highest principles between what is right and wrong regardless of potential economic consequence.”

Ken Schmier, Chairman of the Committee for the Rule of Law has been fighting the state’s use of non-publication rules. His cause has gained traction over time. In 2000, the US Court of Appeals for the Eight Circuit issued a scathing decision declaring non-citation rules unconstitutional.

“Some forms of the non-publication rule even forbid citation,” Judge Richard S. Arnold wrote in Anastasoff v. US. “Those courts are saying to the bar: ‘We may have decided this question the opposite way yesterday, but this does not bind us today, and, what’s more, you cannot even tell us what we did yesterday.’ As we have tried to explain in this opinion, such a statement exceeds the judicial power, which is based on reason, not fiat.”

This line of reasoning brought the US Judicial Conference in 2006 to adopt a rule that put an end to all non-citation rules in the federal court system. Schmier believes that California’s highest court refuses to follow suit because that would mean relinquishing the power that comes from deciding which cases become the law of the land.

“The idea is that a small group of people (actually the chief justice and a few of his political supporters) will control California’s operative precedent,” Schmier told TheNewspaper. “The red light cases are but one example where one defendant will be treated differently from the rest because he had an attorney appeal the case. But we ask: What kind of police cites people, what kind of prosecutor prosecutes people, and what kind of judge convicts people, all the while knowing that its own appellate court has decided that the people are not to be charged?”

[courtesy thenewspaper.com]

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16 Comments on “California Appellate Court Refuses to Publish Anti-Camera Decision...”


  • avatar
    GS650G

    These people are under the mistaken impression they live in a free society similar to other parts of the nation. If you live in CA contact moving companies and get a quote before relocation is outlawed and payment of taxes and fees before emigrating.

    I bet they publish cases where the state wins a case resulting in more oppression.

  • avatar
    Daanii2

    If you look at Judge Forcum’s ruling, you can see that no one from the district attorney’s attorneys office even bothered to show up to argue its case. “Respondent: None Present”

    I think that was the reason for the one-word ruling of “Reversed.” Not the arguments of Frank Iwama.

    But I think Frank Iwama’s arguments are good, and I plan to use them. My wife got a $436 red light ticket in San Mateo County. She was found guilty in a trial before Commissioner Susan Greenberg. She’s the one Judge Forcum reversed in the case cited here.

    My wife’s guilty decision is on appeal. Next up may be Judge Mark Forcum. We’ll see what he does the next time around.

  • avatar
    spyspeed

    I wonder if teaching Kafka in California public schools has cost-neutrality.

  • avatar
    GS650G

    The man from the country seems to be the ultimate fool

  • avatar

    Ah yes, St Basil’s Cathedral…in (do they still call it) Red Square? Hulking in the shadows on the right is Lenin’s Mausoleum, where you can still see his corpse in a glass-topped coffin.
    St. Basil’s was commissioned by Ivan the Terrible, who on seeing it completed exclaimed that it was the most beautiful thing he’d ever seen and then had the architect’s eye gouged out so he’d never make anything more beautiful.
    We have a way to go before reaching the depths of Russia’s authoritarian and Byzantine governance…but we’re working on it. All power to the people. Or something.

  • avatar
    alex_rashev

    Steward Dean,

    Eye gouging is a legend, the guy worked on quite a few other things after that cathedral :)

    As for CA, it is a fascist state, united in the interests of government and corporations. Mussolini would be proud.

  • avatar
    grifonik

    I can’t even say “unbelievable” any more because it is completely believable. I fully believe cali government will eventually tax cars so heavily it will create a dire poverty situation where the state will “have” to help the poor pay for transit with subsidies so they can get to work.

    At this point, a giant sucking sound will be heard only by the people of reasonable intelligence and their heads will explode. The world will remain in a weird similarity to the movie “Idiocracy”.

    Cali bans big screen TVs Hey, what’s that sound? *pop*

  • avatar
    golden2husky

    Cali bans big screen TVs Hey, what’s that sound? *pop*…

    If you read that story about the TVs, they really are not banning big screens. Rather, they are pushing a higher energy standard, a standard that not all current sets can meet. Sometimes industry needs a push to produce the better stuff. Look at what happened with residential central air…the old standard was 10 SEER vs the new standard of 13 SEER. The 13s were always more costly because the 10s were the volume seller. Hence, they didn’t sell very well to the average consumer. Once the new standard became the law, prices for 13s (now the volume seller by default) tumbled to barely more than that of the average 10. Another good example of where the marketplace, left to it’s own devices, does not always result in the best outcome.

  • avatar
    FreedMike

    Daanii2 :
    October 17th, 2009 at 12:35 pm

    If you look at Judge Forcum’s ruling, you can see that no one from the district attorney’s attorneys office even bothered to show up to argue its case. “Respondent: None Present”

    I think that was the reason for the one-word ruling of “Reversed.” Not the arguments of Frank Iwama.

    But I think Frank Iwama’s arguments are good, and I plan to use them. My wife got a $436 red light ticket in San Mateo County. She was found guilty in a trial before Commissioner Susan Greenberg. She’s the one Judge Forcum reversed in the case cited here.

    That makes sense. I once got a speeding ticket that I took to court. The officer didn’t show up for the court date. Case dismissed.

    Unfortunately, I have a feeling that the county won’t make the same mistake twice in your case.

    And WTF is up with a $436 red light ticket, anyway? Are you kidding?

  • avatar
    Daanii2

    And WTF is up with a $436 red light ticket, anyway? Are you kidding?

    The fine in California for not coming to a complete stop before making a right turn on a red light is $100. The California legislature, in its wisdom, has added $336 in surcharges to each ticket, funding a variety of programs.

    Including, believe it or not, the court system. The judge’s employer gets a cut of every ticket she upholds, and loses out on every ticket she dismisses.

    It’s a racket, pure and simple. Unfortunately, municipal governments are not liable under the RICO statute (Racketeering and Corrupt Organizations). But I’ll pursue this as far as I need to. I’m a lawyer, so I can represent my wife. We’ll see where this ends up.

  • avatar
    danman75

    I am a California appellate attorney and I believe I can provide some insight on this topic. If I understand the San Mateo County Superior Court’s order correctly, it appears the matter was transferred to the “Appellate
    Department” of the Superior Court. The Appellant
    Department, in an unpublished decision, apparently reversed (or overturned) a traffic ticket issued by a red light camera operation.

    The Appellate Department of a Superior Court is definitely not the same as the California Court of Appeal, which is one step above the Superior Court in the California court heirarchy. This distinction is crucial because, unlike a published decision by the Court of Appeal, a published decision by the Superior Court carries relatively little precedential value. This is because under our system of stare decisis, a published decision by a court only binds lower courts. There are few (if any) courts lower than the Superior Court.

    The second point I would like to make is in regard to something a commentator said about the “Respondent: None Present” portion of the Superior Court’s decision. The commentator concludes this indicates no one from the
    District Attorney’s Office appeared to argue the case. That might be true, but not necessarily. Oftentimes, a judge will not issue his ruling immediately after oral arguments and in the presence of counsel. Rather, the judge might listen to oral arguments, think about it overnight, and then issue the decision outside the presence of counsel.

    Finally, there are countless reasons why a Superior Court judge might not want to publish a decision. Many judges have extremely heavy caseloads, and simply don’t have the time to write up a detailed opinion that can withstand
    appellate review. Or perhaps he didn’t find either of counsel’s arguments all that compelling. Or maybe he was lazy. Who knows.

  • avatar
    FreedMike

    Daanii2 :
    October 18th, 2009 at 2:03 am

    And WTF is up with a $436 red light ticket, anyway? Are you kidding?

    The fine in California for not coming to a complete stop before making a right turn on a red light is $100. The California legislature, in its wisdom, has added $336 in surcharges to each ticket, funding a variety of programs.

    Including, believe it or not, the court system. The judge’s employer gets a cut of every ticket she upholds, and loses out on every ticket she dismisses.

    It’s a racket, pure and simple. Unfortunately, municipal governments are not liable under the RICO statute (Racketeering and Corrupt Organizations). But I’ll pursue this as far as I need to. I’m a lawyer, so I can represent my wife. We’ll see where this ends up.

    Has anyone ever thought of challenging these fines under the Eighth Amendment? I mean, come on – $436 for not stopping fully at a red light before a turn sounds excessive to me. That’s just plain insanity.

  • avatar
    ZoomZoom

    About a week ago I read that California has so messed itself up that people are leaving in droves.

    I wonder if they are the same people who messed it up by way of their election choices, and I wonder if they’re coming to my state?

  • avatar
    Daanii2

    Has anyone ever thought of challenging these fines under the Eighth Amendment? I mean, come on – $436 for not stopping fully at a red light before a turn sounds excessive to me. That’s just plain insanity.

    It is insane. Your Eighth Amendment challenge sounds like a good idea. I’ve thought of challenges under the Fifth, Sixth and Tenth Amendments, but not the Eighth.

    My plan is to take my wife’s case as far up the state court system as appeals can go. Then turn to the federal court system.

    Luckily, I’m registered to practice before the Northern District of California federal district court. We’ll see what they think.

  • avatar
    FreedMike

    Daanii2 :
    October 18th, 2009 at 4:09 pm

    It is insane. Your Eighth Amendment challenge sounds like a good idea. I’ve thought of challenges under the Fifth, Sixth and Tenth Amendments, but not the Eighth.

    My plan is to take my wife’s case as far up the state court system as appeals can go. Then turn to the federal court system.

    Luckily, I’m registered to practice before the Northern District of California federal district court. We’ll see what they think.

    I’m no attorney, but I don’t think you’ll be able to make much of an argument using the fifth or sixth amendments. The system isn’t self-incriminating, and there are hundreds of precedents the state can cite in which video evidence is admissible in court.

    I also don’t see a Tenth Amendment argument here either – it’s the state doing this, not the Feds.

    I think you should formulate this as a violation of the Eighth Amendment. It may not get the ticket thrown out, but if the fine can be reduced, you reduce the private contractor’s profit margin. Make it unprofitable, and they won’t stay in business. Problem solved.

    Just some thoughts…

    The other pressure that can be brought to bear is political, at the grass roots level. You would have to think that ANYONE who gets tagged with a $436 ticket for something as minor as failing to stop completely at a red light while turning would be beside himself with anger. I would. Maybe the system holds within itself the seeds of its own downfall.

    Anyway, good luck.

  • avatar
    windswords

    St Basil’s? I thought for a moment there that was a pic of the California state capital building!

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