Separation of powers vs. checks and balances

Posted on November 5, 2010

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Charles-Louis de Secondat, baron de La Brède et de Montesquieu’s various writings and commentary on political structure were utilized by James Madison as an integral part of the framing of a document that we know as the U.S. Constitution. It was Montenesquieu’s belief that a separation of powers should exist between the legislative, executive and judicial branches of government to ensure that no one branch developed too much power over the other two branches.

It was also Montenesquieu that lofted the theory of checks and balances between the three branches to ensure that the balance of power was held in check. Here in California’s judicial branch, we tend to embrace the separation of powers and set aside checks and balances as an invasion of that separation, stoking the coals as a threat to the independence of the judiciary. 

So when the Joint Legislative Audit Committee (JLAC) a combined audit committee comprised of both state senators and assemblypersons votes to audit what appears to be impropriety, an almost natural course of business takes place wherein the judicial branch steps up and says “We police our own due to separation of powers.”

Obviously, the Judicial Council is not doing a very good job on that policing part.  Some would go as far as saying they actually protect criminal activity within the branch, which brings us full circle to Marin County’s trial courts and the Joint Legislative Audit Committee’s audit of family court operations.

The JLAC audit was ordered in mid 2009 in response to numerous complaints to legislators on the incestuous relationships between judges on the bench and they law firms they hold a stake in that work the family court business. Allegations of the person with the deeper pockets winning custody over a less wealthy opponent are commonplace throught california in general, even when the person with deeper pockets has a rap sheet as long as your arm that might include them being classified as a sex offender.

While the AOC makes no effort to investigate such allegations. The judicial council makes little to no effort to enforce the California rules of the court. As a result, there is a loophole that exists that assumes that the judicial body in any given locale actually follows the rules.

If they’re not following the rules there is a marked lack of an accountability mechanism to hold them accountable.  Where is one supposed to turn when everybody who sits in front of the bar has judicial immunity or quasi-judicial immunity and no one is following either the rules or a minimal ethical standards? What mechanisms exist to prevent kickbacks? What laws need to be changed to ensure the integrity of the system and eliminate conflicting interests?

What does it take to ensure every california judge or assigned judge files a form 700?

While the Marin JLAC audit would be delayed for nearly a year by court executive and judicial council member Kim Turner pushing off the auditors under some flimsy “privacy of the parties involved” concerns, Kim Turner was simultaneously destroying mediators notes associated with those files, claiming they were not a part of the court records.

Of course, these notes would likely have played an important part in the JLAC’s understanding of what’s going on in Marin. But the separation of powers argument made its way into the matter with report written by Mr. John Judnick that concluded that these notes were not a part of the official court record. Even if they were the basis for the court’s decisions. Last Friday,  October 29 this matter was foisted in front of the Judicial Council and they worked out a methodology of accepting reports from John Judnick’s IAD group and distinguishing acceptance from approval of his report.  They outlined no mechanism for approval or endorsing the report.

John Judnick is hardly independent and comes to the conclusions that he is instructed to come to. The speed under which he came to and drafted his report to protect Kim Turner’s behavior calls into question why has he not similarly reported or released his findings on the unlicensed contractor debacle, which is a year older than the Turner destruction debacle. I would surmise it has to do with him being directly involved in ensuring the unlicensed contractors became licensed.   He was too busy cleaning up the mess and covering it up to objectively write a report explaining how this not only comes about but how it continues unabated to this day. It’s pretty clear that Mr. Judnick’s sole objective is to protect the AOC and Judicial Council members. This is why his department exists as a group within the finance department and not an entirely independent group. This structure allows all the kinks in such reporting to be sanitized and worked out long before the Judicial Council accepts them. It’s also pretty clear that the Judicial Council, by accepting the report of John Judnick, that they are relying on him to be the sole determinant, the producer of conclusions and the investigator that will legitimize improper activity. It matters not that he has no law degree, he has no accounting degree and he is not a certified auditor. As illustrated by both the unlicensed contractor debacle and the Stephen Doyne debacle, credentials do not matter.