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The Constitution: A Judicial Toolbelt

Posted By Administration, Wednesday, August 1, 2018

Guest Message By

Hon. Julia Alloggiament
Superior Court of California,
County of Santa Clara

 

Some years ago, after speaking at a community event, I headed out to my car to load up my materials with the assistance of a SJPD officer who had also attended the event.  When I opened my trunk, she laughed out loud.  There in my trunk was a poster sized version of the United States Constitution including the preamble and a summary of the first three Articles.  On the back side was a blown up version of the Bill of Rights.  “Seriously?!,” she asked me, “You carry a giant version of the Constitution with you everywhere you go?”  I answered, “You have your tools, we have ours.”

 

Most people in the community do not necessarily realize that in the legal profession we use that tool, the Constitution - a document created over 230 years ago - every day.  We rely on it to uphold the principles our country was founded on, to protect the rights of our citizens, and to embrace the separation of powers.

 

As a judge, I took an oath swearing that I “will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic.  That I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California.  That I take this obligation freely, without any mental reservation or purpose of evasion.  And that I will well and faithful discharges [these] duties…”

 

I know that my colleagues and I take that oath and our obligations seriously and are committed to upholding and applying the basic foundations of the Constitution.  Daily we are asked to rule on many matters whose outcomes are driven by the Constitution, including (to name just a few) issues related to search and seizure, the right to a trial, the right to counsel, and the right to confront witnesses.  Fundamentally, a judge’s role is to ensure, for everyone who walks through the courtroom doors, that they are guaranteed equal protection and due process of law. 

 

The day designated to recognize and celebrate this historic document is quickly approaching:  September 17 is designated as “Constitution Day,” commemorating the signing of the United States Constitution.  Federal law mandates that all publicly funded educational institutions provide educational programming on September 17th about the history of the American Constitution.  Who better to do this than the judges who use this tool in their job every day? So, every year, over 30 judicial officers from the Santa Clara County Superior Court reach out to more than 3,200 students from approximately 40 schools to honor and celebrate Constitution Day.  Judges, donning their black robes, go into the schools and teach a grade-level appropriate lesson complete with a fun quiz game followed by an open Q & A with the judge.  

 

This is only one of the many programs organized by the Court Community Outreach Committee to help educate students and the community as a whole about the justice system.  The Court Community Outreach Committee is comprised of judges along with numerous law and education partners with whom we collaborate - including the Santa Clara County Bar Association, the Santa Clara County Office of Education, San Jose Unified School District, the Offices of the District Attorney and Public Defender, Probation, LACY, the Self-Help Center, and more. 

 

As the court strengthens its connections with the schools, we hope to increase participation in these types of programs, especially with an eye to expanding outreach efforts into some of the more underrepresented areas of our county.  As the number of judges countywide is limited, our ability to reach more students will rest on the participation of our partners, including lawyers in the community.  That is why we are thrilled to see the SCCBA training lawyers through the American Constitutional Society’s (ACS) “Constitution in the Classroom Program” as well as the SCCBA’s general call for lawyers to get involved. (See SCCBA President’s Messages from 3/2/18 and 4/2/18). 

 

In addition to Constitution Day, the Court Community Outreach Committee organizes numerous other programs: Educators Day (educating our educators about issues intersecting the legal and education systems), Clergy Day (giving clergy insight and understanding of legal issues as well as court services), Korematsu Day of Civil Liberties (with a community event and a court event for the legal community), Read Across America, Law Day (designated to celebrate the Rule of Law which includes Poster Contests, Law Day Essay and Poetry Contests, Panel Presentations, Speaking Engagements, and the infamous rivalry between the bar and the court on who can get the most attendees at the Law Day Mixer), Speakers Bureau, Court Tours, Mock Trials, and more.  We are also happy to join forces with our partners in their programs, such as presiding over the trials in the annual Mock Trial Competition run by the SCCBA and the Santa Clara County Office of Education.  Anyone can request a court tour, mock trial at the courthouse, or a judicial officer for a speaking engagement on the Superior Court website:

http://www.scscourt.org/general_info/community/community.shtml

 

As Ben Franklin himself said, “An investment in knowledge pays the best interest.”  By connecting with our young students today, we are educating our future jurors, lawyers, judges, legislators, and leaders on the importance of the rule of law.  Moreover, our outreach programs have the added benefit of demonstrating to children and adults alike that the judges in our county encompass a diverse group, representing many different backgrounds, genders, ages, races, and ethnicities but all of whom share a common goal of supporting and defending the Constitution and guaranteeing equal rights and due process for all.  As we approach our celebration of the Constitution on September 17, I encourage all members of the legal community to participate, get involved, and educate.  If you are interested in getting involved in law-related education efforts, please contact Melanie Griswold, the SCCBA’s Law Related Education Chair, at mgriswold@DAO.SCCGOV.ORG.  I guarantee you will find the experience to be enlightening and rewarding 

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Families Belong Together

Posted By Administration, Tuesday, July 3, 2018

By Kevin Hammon
2018 SCCBA President

Where does the time go? It is the middle of summer, but many of us are already calendaring hearings, meetings, depositions, and other events deep into the fall months.  Santa Clara County Bar Association staff are hard at work planning a variety of fall programs, including the annual Judges’ Night event on October 10, 2018. For parents, just as we finish planning or enjoying the summer family vacation, our attention must turn to the first day of school. We ask the small questions: do we have enough school supplies? what time do the bells ring? and, which teacher(s) will we get?  We ask the big questions: will my child fit in? is my child smart enough? and, is my child emotionally equipped to handle a totally new educational experience?

 

 

Although the first day of school can be frightening, it is often accompanied by careful planning and consideration. Some parents send their young children to school with an important toy, blanket, or book to provide comfort during the adjustment period. We try to keep siblings together. We tour the school many times before the actual start date.  We meet the teachers. Fortunately, most school environments are deliberately child-focused.  Despite a predictably terrifying first day of school, our children often adjust well to their new surroundings thanks to an abundance of love, support, coping strategies, and safety factors. 


Children crave structure and stability.  A disruption in routine can have catastrophic consequences for even an emotionally healthy child. Like many Americans, I have spent the past two months transfixed by the heart-wrenching images and stories of migrant children detained and displaced at the southern border. There are no words and not enough words to describe the unabashed cruelty of systematically separating children from their parents and imprisoning asylum-seekers in detention camps.  It is difficult to articulate an insightful perspective on an issue this fundamental, an issue without nuance. Nevertheless, there is value in speaking out against atrocity, and amplifying the multitude of voices for humanity. On June 21, 2018, the SCCBA issued this statement:


The SCCBA strongly opposes any government policy or congressional action that violates the due process rights of migrants seeking entry to the United States, including indefinite detentions, forcibly separating children from their parents, and forcing children, including toddlers, to appear in court on their own with no right to appointed counsel. These practices not only violate due process, but they are in opposition to the humanitarian values which represent founding principles of our democracy.  

 

 

Additionally, the SCCBA endorsed a letter authored by the American Bar Association’s President Hilarie Bass.  The ABA encourages immigration reform that is comprehensive and just, and insists that everyone involved with the process be treated with dignity and respect. For more information, I encourage you to visit the SCCBA’s recent statement and links to other resources, available at this webpage.


Of course, the first day of school is a far cry from the horrific traumas suffered by migrant children at the border.  Nevertheless, the first day is a reminder of how sensitive children are to change.  Even with the best of child-focused intentions, a new experience can be utterly frightening.  I can only imagine how the federal government’s immigration policies have affected children’s emotional and psychological development.  The President of the American Academy of Pediatrics, Colleen Kraft, concluded that forced family separation affects the child’s brain chemistry in a way that amounts to child abuse.  

 

 

I am proud to be part of a community that champions empathy, and the president of an association that sees value in shedding light on inhumane policies and practices.  If you have any additional ideas for how the SCCBA can address this important issue, please do not hesitate to contact me.   

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Recall Discourages Rehabilitation

Posted By Administration, Friday, June 1, 2018

By Kevin Hammon
2018 SCCBA President

By the time you read this message, the fate of Judge Aaron Persky’s career may have been decided by Santa Clara County’s voters.  I have never appeared before Judge Persky, but I know him to be kind and thoughtful through his work with the county’s high school mock trial program.  Over the past two years, I have spoken with a wide array of lawyers, paralegals, and court personnel who have appeared before or observed Judge Persky in the courtroom.  Their feedback is universally positive.  Some praise his calm demeanor, patience and humility.  Others praise his intellect, compassion, and good humor.  If this recall is successful, it appears Santa Clara County will have lost an outstanding jurist.   

 

I think about Judge Persky often when I reflect upon my years representing the Department of Family and Children’s Services in Santa Clara County’s Dependency Wellness Court.  In this setting, parents describe their victories and challenges with overcoming addiction, navigating bureaucracies, coping with intimate partner violence, finding affordable housing, securing employment, and obtaining mental health services.  Many of these parents have experienced multiple traumas over the course of their lives, finding temporary solace in illicit drugs or alcohol. In DWC, parents receive support from a team of professionals including social workers, domestic violence and substance abuse counselors, attorneys, and judges.  Team members facilitate and bear witness to the capacity for human beings to change.  Breaking the cycle of domestic violence, accepting responsibility, embracing recovery are not just abstract concepts- but tangible accomplishments.  Successful parents will often have their children returned to their care and ultimately their children’s dependency cases dismissed.

 

But make no mistake. These parents have often done terrible things.  They may have histories of domestic violence, substance abuse, drug sales, property crimes, gang activities, and repeated incarcerations. Their children are victims of abuse or neglect.  If dependency proceedings were not confidential, I imagine an understandable public outrage when children are returned to the care of parents described as felons, drug addicts, domestic violence perpetrators, and gang members.  Although they may be accurate, these descriptions miss the point.  If we perpetually define people by their worst decisions, we ignore and discourage rehabilitation. The reduced headlines overlook litigants’ profound life changes readily observable to social workers, probation officers, attorneys, judges, and others charged with closely investigating or assessing a panoply of facts.  There is a special danger in recalling so-called “lenient” judges and enacting legislation that limits judicial discretion in an effort to be “tough on crime.”  While well intended, these efforts exacerbate over-incarceration and preclude a thoughtful consideration of individualized circumstances.  

 

To be clear, I have profound sympathy for all victims of violent crime.  Far too often, we tend to view the criminal’s conviction or sentence as a validation of the victim’s experience.  This is wrong. For victims, there is no amount of jail or prison time that will “make it right.”  Proponents and opponents of the recall agree that Brock Turner’s victim suffered a horrific experience, and that her public statement should be widely disseminated.  Simply put, her words must be heard.  It is a mistake to view Brock Turner’s sentence in any way as a discredit to her, her message, or her experience.   

 

On June 5th, I will vote against the recall of Judge Persky not simply because I believe he is an exemplary jurist or because I believe in judicial independence.  I will vote against the recall because I value rehabilitation.  I have seen the transformative power of targeted interventions.  At face value, the recall effort conveys to judges that their jobs are in jeopardy if their orders do not sufficiently punish the litigants who appear before them.  I fear that the recall may ultimately suggest to litigants that: their progress, change, and accomplishments are irrelevant; and that their wrongdoings will forever define them.  When we focus only on the misconduct, it is easy to confuse thoughtfulness and compassion for leniency.  Please join me in opposing the recall of Judge Persky.    

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Good news, bad news …. and more good news

Posted By Administration, Wednesday, May 2, 2018
  Guest Message By
Hon. Patricia Lucas
Presiding Judge
Superior Court of California,
County of Santa Clara

 

When it comes to court underfunding and backlogs, I am very much a fan of Winston Churchill who famously said: “I am an optimist.  There doesn’t seem to be much use being anything else.”

The current good news—and this is very good news indeed—is that for the first time in about ten years, there is substantial new money in the Governor’s budget proposal for the judicial branch.  Although celebration would be premature until this proposal makes it through the May revise and of course the June legislative vote, it appears to have deep support among legislators as state revenues remain strong.  The new-money proposal would be a reversal of a decade-long trend which left many courts with no option but to cut services, to reduce staffing and hours, and in some instances to close courtrooms or courthouses.  Although we are proud to be the only Bay Area court that successfully avoided layoffs, we unfortunately had to attrit one-third of our staff positions, with consequent reduction in services countywide and elimination of certain case types in North County and South County.  New trial court funding, if it is approved, could be the beginning of a new era in the ability of the statewide trial courts to serve the public.

Now, the bad news: while the statewide perspective is positive, even if the new funding is approved it is not likely to have a significant effect on our local court.  It is not yet clear how any new funding will be allocated among the 58 Superior Courts.  Moreover, even if some of the new funding reaches our local coffers, the uptick will likely be more than offset by the continuing decline in revenue generated by court fines and fees, which regrettably has come to constitute a significant portion of the funding on which trial courts have had to rely.  Certainly, any increase in state funding to our local court will not be sufficient to allow any appreciable increase in staffing.  In a people-intensive business like court operations, staffing adjustment is the main way of dealing with budget shortfalls.  It is likely that some backlogs, particularly in the civil and appellate divisions, will persist in the near term, because of the constitutional and statutory imperatives that drive timelines in other case types.  In her State of the Judiciary speech this year, the Chief Justice recognized that civil justice is the first impaired and the last to recover when court funding is cut. 

Given the importance of primacy and recency which I learned as an advocate, I will end where I started: with good news.  Although I cannot guarantee that we have seen the last backlog, our outstanding court administration advises that we will be able to manage existing backlogs so that they will not grow in number or size.  For a time, it seemed like a game of whack-a-mole, to use Judge Julie Emede’s terminology: when we triaged to reduce backlogs in one area, we fell further behind in other areas.  But thanks to the diligence of the division supervising judges and administrative leadership, and some miracles performed by our hard-working court employees, we have eliminated many delays and reduced others.  With the remaining case types coming onto our Odyssey case management system in the summer and fall, we anticipate steady progress toward eliminating all backlogs.  There is further good news in the Court’s strong relationship with our local county government, which consists of astute leaders attentive to the areas in which the courts and county government work together and depend on each other.  As one of many examples, we are delighted to have a close working relationship with our county justice partners in the final run-up to the Odyssey launch in traffic and criminal.

Finally, one enduring piece of good news is the excellent teamwork between the SCCBA and our local bench.  The regular exchange of information between the bar and the court benefits all.  We appreciate that SCCBA members continue to be patient and courteous with court employees who are dedicated to processing your cases as expeditiously as possible.  Working together, we hope to show that optimism is warranted, and that despite limited funding, Santa Clara can continue to be known for leadership and innovation.

 

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The SCCBA and You . . . !

Posted By Administration, Monday, April 2, 2018

Guest Message by
Gabriel Gregg
2018 SCCBA President Elect

 

The SCCBA needs you, and vice-versa!


I’m Gabriel Gregg, the 2018 President-Elect of the SCCBA.  At the invitation of our President, Kevin Hammon, I’m guest-writing the President’s Message this month to focus on member participation – specifically, to make sure you are aware of all the ways you can participate in our bar association, and all the ways our bar association can benefit you.


One of my roles as President-Elect is to chair the Outreach Committee, which is a new committee launched last year focused on outreach to members and non-members, including inspiring and recruiting members to pursue roles within the SCCBA.  In that capacity, I am writing to invite and encourage you to take two specific actions.


First
, if you know any attorneys that practice in Santa Clara County that are not members of the SCCBA, urge them to join.  There are important and unique benefits to being a member of the SCCBA, including the ones discussed below.  Now, more than ever, membership has its many privileges!


Second
, you should sincerely consider getting more involved in the SCCBA.  There are many ways to expand your participation, including the following: 

  • Join one or more of our 6 practice-area sections (Family Law, High Technology, Insurance Law, Labor & Employment, Real Property and Women Lawyers) and consider joining the section’s executive committee.  Information on SCCBA sections can be found here
  • Join one or more of our 14 committees, which include Civil Practice, Diversity and Professionalism, to name just a few.  Information on SCCBA committees can be found here.
  • Consider applying to be a Trustee on the SCCBA Board of Trustees (BOT).  Following recent changes to the SCCBA By-Laws, our 17-person BOT is now composed of (i) 4 SCCBA officers; (ii) 3 SCCBA committee chairs (Barristers, Diversity and Women Lawyers); (iii) the immediate past-President (non-voting); (iv) the Presidents or designees of Santa Clara County minority bar associations, including Asian Pacific Bar, Black Lawyers and La Raza Lawyers; and (v) 6 At-Large Trustees elected for staggered 2-year terms.  Three of the At-Large Trustee positions will be coming vacant for 2019.  If you are interested in applying and running for one of these Trustee positions, look for the applications online from July 15, 2018 to August 15, 2018.
  • If qualified, consider running to be a SCCBA Officer (Secretary, Treasurer, or President-Elect); qualifications for officer positions can be found in the SCCBA By-Laws, Article IV, Section 8.


Without new, enthusiastic, participating members, the SCCBA simply becomes less effective and less relevant to our membership.

So that’s why the SCCBA needs you.  Why do you need the SCCBA?

Quite simply, the SCCBA is your best local source for almost all your professional needs as a Silicon Valley attorney – camaraderie, education, advocacy and even work referrals. 

  • Through our social events (mixers, meet-ups, etc.), and through deeper involvement in the SCCBA, you can meet new professional peers, enhance your bond with old colleagues, and even interact socially with area judges.
  • Through our many MCLE seminars, brown-bags, and other events (viewed live, by video, or online), you can stay abreast of important legal developments and earn MCLE credit.
  • The SCCBA Center for Ethics & Professionalism is a key source for ethical attorney guidelines and developments.
  • The SCCBA Judiciary Committee, comprised of SCCBA members, evaluates candidates the Governor is considering for appointment to the Superior or Appellate courts.
  • Our Fee Arbitration program provides a trusted forum for fee disputes.
  • Our Lawyer Referral Service provides referrals on cases and matters to local vetted attorneys (which could include you!).
  • Our website provides informed referrals to ADR practitioners and judicial profiles.
  • We provide member representatives to the ABA and California State Bar to advocate on behalf of our membership.
  • We review and comment on significant new California State Bar rules and opinions.
  • And we advocate for you in many other ways including taking public positions on important issues impacting our membership.


In 2017, the SCCBA celebrated its 100-year anniversary, and there are very good reasons why we have stood the test of time.  I urge you, again, to explore all that we can do for you, and vice-versa!

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