Houston WE have a problem, Judges legislating from the bench.

As litigants we expect the concept of justice and the application of law. The substantive and procedural due process that is bandied about is based on a simple concept, called equal protection. Everyone is entitled to the same safeguards that define certain statutes. It is a lovely concept enshrined in the 14th amendment.

Unfortunately our court cases, especially in family law, do not abide by that simple concept and neither does the relevant appellate court. If a trial court makes an error we expect the appellate court to abide by the law and reverse, based upon the facts of the case. Usually; however, the focus is more vested in protecting their judicial trial court brothers and sisters and meaningless procedural huffing and puffing than applying the law.

As litigants we are expected to follow certain procedures to file documents, opening briefs, motions to augment, color co-ordinate our briefs to certain procedural requirements codified in title eight rules which govern all appeals. All courts are governed by certain rules and procedures defined in CA rules of court. The title eight rules of court are the ones that the Court of Appeal uses in a one way capricious street.

As an example, an order is made by a justice and it is expected that we jump ten feet high, and snap our heels in a wizard of oz moment to accommodate the meaningless request of a justice, that is not defined in any title eight rule. The same courtesy is not returned to litigants. The court itself, especially our fourth district division two court, does not abide by their own title eight rules.

This court has gone one step further, and differentiated a distinct class of parents labelled as parasites into a vexatious pool. They insist on parents filing an application for an appeal demonstrating the merit of an appeal before the record of an appeal has been filed. To no surprise the term application for appeal is nowhere listed in title eight rules, and it is not referenced in the VLS statute which in CA is defined by CCP 391, where notice of appeal is not listed and neither is the term application, as no litigant has to file a written application demonstrating the merit of litigation either at the trial court or appellate level based on the written law of CCP 391. The court insists that the civil case information statement (CCIS) accompanies said application. Again no title eight rule of court provides that an application with a CCIS is filed demonstrating the merit of an appeal.

The same requirement of demonstrating the merit of an appeal is not applied to criminal cases where attorneys are routinely appointed to represent clients, and take up enormous time and court resources to continue with an appeal which in 95% of cases is decided against them. People vs. Wende briefs (In People v. Wende (1979) 25 Cal.3d 436) are routinely filed which merely request the court to review the record without identifying any issues on appeal. To no surprise these appeals are routinely denied, but they of course also have an invisible preferential placement on the court of appeal calender, instead of family law cases which are dragged out for years creating enormous suffering for parents and their children alike; as parents and children in the mind set of the judiciary are not deserving of the same standard of an expeditious appeal.

As another example, this court of appeal, prohibits supplemental briefing in their notice that accompanies oral argument. Yet title eight rules of court allow supplemental briefing before oral argument, suggesting that the equal protection standard as defined by our title eight rules of court is meaningless; as capricious orders not defined in title eight rules of court have more relevance than the 14th amendment.

A judge and justice cannot legislate from the bench. They cannot invent rules and procedures not defined in title eight rules or CA rules of Court and they certainly cannot invent law that has not been written. Strangely enough that issue was already addressed by our CA Supreme court in the following manner:

The California Supreme Court repeatedly has explained as a “fundamental principle of constitutional adjudication’” in California, that “[u]nlike the federal constitution which is a grant of power to congress, the California Constitution is a limitation or restriction on the powers of the legislature, “which otherwise would be plenary. (Pacific Legal Foundation v. Brown (1981) 29 Cal. 3D 685, 691).

From this fundamental principal flow “two important considerations’”. First, “the entire law-making authority of the state, except the people’s right of initiative and referendum, is vested in the Legislature, and that body may exercise any and all legislative powers which are not expressly, or by necessary implication denied to it by the Constitution.” Second, ‘”all intendments favor the exercise of the Legislature’s plenary authority.” (Ibid).

The California Supreme Court has elaborated as follows: “If there is any doubt as to the Legislature’s power to act in any given case, the doubt should be resolved in favor of the Legislature’s action, “. As a consequence, “restrictions and limitations” that the California Constitution imposes “are to be construed strictly and are not be extended to include matters not covered by the language used’” (Ibid).
This “strong presumption” is a a “cardinal rule “ and “elementary”, and the Court has over the decades reiterated it in numerous cases in addition to Pacific Legal Foundation and Methodist Hospital (See, eg. Cal. Housing Finance Agency v. Patitucci (1978) 22 Cal. 3D 171, 175 (reiterating nature of state constitution and explaining that “[a]ny constitutional limitations are to be narrowly construed, and a strong presumption of the constitutionality, supports the Legislature’s acts; Pacific Indemnity Co. v. Accident Com (1932) 1215 Cal. 461, 463-464 (it is a “cardinal rule” that “[t]he presumption in favor of constitutionality and the contravention of the constitution must be clear and unquestionable:), City and County of San Francisco v. Industrial Accident Com. (1920) 183 Cal. 273, 279 (“[T]he courts should not and must not annul [a legislative act], as contrary to the constitution … unless it can be said of the statute that it positively and certainly is opposed to the constitution. This is elementary).”.

Various Panels of the Court of Appeal, followed the Supreme Court, have done the same, (See, eg. Strong v. State Bd. Of Equalization (2007) 155 Cal. App. 4Th 1182, 1193 (relying on the “fundamental principles of constitutional adjudication” discussed in Pacific Legal Foundation, including “presumption of constitutionality” (we start with the premise of validity, resolving all doubts in favor of the Legislature’s action”); Armstrong v. County of San Mateo (1983) 146 Cal. App. 3D 597, 624 . [“[All] intendments favor the exercise of the Legislature’s plenary authority: If there is any doubt as to the Legislature’s power to act in given case, the doubt should be resolved in favor of the Legislature’s action …..’”) (quoting Methodist Hospital supra, 5 Cal. 3D at p. 691).


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