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He Called Them a What Court?

This is way off topic for a wage and hour blog, but we got a big chuckle out of a partially published appellate decision that got dropped in our in box last week. In People v. Zackery, case number: C051431, the Court of Appeal was reviewing a sentence and revocation of driver's license based on a no contest plea to assault with deadly weapon on a police officer and evading a pursuing police officer, plus admission to two prior strikes. The decision was reverse because the clerk included in the minutes and the abstract of judgment certain provisions that were not in the pronouncement of sentence. The court also erroneously sentenced the defendant on a count for which he was not convicted. That's not very interesting to us.

What was interesting to us was the Court of Appeal taking offense to a flippant remark by the judge during the plea bargaining proceeding. Judge K. Peter Saiers commented to the prosecutor about following some procedural requirement to make sure the defendant's guilty plea was not reversed by the Court of Appeal.

"Oh, that’s right. You can’t offend the kangaroos up there in kangaroo court."

Naturally, the case got appealed. And how happy were the purported kangaroos about the remark? If you guessed that they were not all that happy about it, you guessed right. We mentioned that the case was partially published. You might have also guessed that the discussion of the "kangaroo court" remarks were included in the unpublished portion of the opinion. That guess would be wrong. Check out section VI of the opinion:

Trial Court’s Kangaroo Court Remarks

During the change of plea hearing, after the court explained the “offer” that the court would dismiss one strike and impose the low term of three years, doubled, for assault with a deadly weapon on a peace officer, defendant’s counsel indicated defendant was prepared to withdraw his not guilty pleas and enter no contest pleas as to all counts.

The trial court, Judge K. Peter Saiers presiding, then asked the prosecutor, “You’re going to dismiss Count Two, aren’t you?”  The prosecutor responded, “No, it’s a strike case.”  To this, Judge Saiers replied, “Oh, that’s right.  You can’t offend the kangaroos up there in kangaroo court.”

This was a perjorative remark.  Thus, Webster’s dictionary defines “kangaroo court” as follows:  “kangaroo court n (1853) 1: a mock court in which the principles of law and justice are disregarded or perverted  2: a court characterized by irresponsible, unauthorized, or irregular status or procedures  3: judgment or punishment given outside of legal procedure.”  (Webster’s 11th Collegiate Dict. (2006) p. 681.)

But the first question is:  To what court was Judge Saiers referring?

The kangaroos are described as being “up there.”  This implies a higher court than the trial court--higher in the sense that the “higher” court reviews the work of the trial court.  As a practical matter, that leaves the Court of Appeal for the Third Appellate District and the California Supreme Court.  We will give Judge Saiers the benefit of the doubt and assume he was referring to this court, not the Supreme Court.

In making his “kangaroo court” remark, on the record in open court, Judge Saiers violated Canon 1 of the Code of Judicial Ethics, which provides as pertinent:  “A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY.  [¶]  An independent and honorable judiciary is indispensable to justice in our society.  A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary will be preserved.  The provisions of this Code are to be construed and applied to further that objective.”  (Cal. Code Jud. Ethics, canon 1.)

But it is appropriate to study the context of the “kangaroo court” remark more closely.

It appears that Judge Saiers was chafing at the possibility that this court would find legal error if the prosecutor dismissed a count to reach a plea bargain.

The prosecutor apparently had in mind that dismissal of a count would violate section 1192.7, subdivision (a), which provides:

Plea bargaining in any case in which the indictment or information charges any serious felony, . . . or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people’s case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence.”  (§ 1192.7, subd. (a); italics added.)

In this case, we have not been asked to determine, and we do not determine, whether dismissal of count 2 would have resulted in an unlawful plea bargain under subdivision (a) of section 1192.7.  It is sufficient to note that the prosecutor apparently thought the bargain would be unlawful, and Judge Saiers apparently thought this court might declare the bargain unlawful.

Reading a little between the lines, it appears that Judge Saiers’s “kangaroo court” remark was provoked by his frustration at not being able to dispose of a pending case in a way he thought sensible.  It would appear that, in his eyes, this court was a naive, ivory-tower, obstructionist, oblivious to the real-world problems of trial courts faced with staggering caseloads.

This view is not accurate.

As former trial judges, we have all experienced the stressful crush of pending cases.  We are also aware of the desperate plight of the San Joaquin County Superior Court, which, until recently, had not been allocated a new judicial position in two decades, despite significant population increases and rising caseloads.  (Meath, New Judges for San Joaquin County? XXI Across the Bar (Sept. 2006) p. 9.)

But trial judges must understand this overarching fact about the Court of Appeal:  despite our awareness of and sympathy for your plight, we have no warrant to disregard the law.  Rather, we have all taken an oath to enforce it.

And so, if a trial judge violates the law, even in the name of short-term efficiency, matters are simply made worse.  Things have to be done again.  More lawyers must be hired, more judges involved, more transportation of prisoners, etc.  All at taxpayer expense.  It is more expensive to do things twice than to do them once correctly.  The truth of the matter is that Judge K. Peter Saiers has wasted taxpayers’ dollars.

How's that for a campaign slogan for your challenge to Judge Saiers on the 2008 ballot? The moral of the story for wage and hour practitioners is pretty generic. Never utter the word "kangaroo" in open court unless you are representing  a zookeeper who was misclassified as exempt. If you care about the criminal law stuff, you can read the rest of the opinion here in pdf or word format.


Steve Kane

Yes, Judge Saiers' comment regarding kangaroo courts was somewhat "over the top," but I find the spanking which the Court of Appeal administered to him to be quite pompous. The byzantine procedural rules in criminal cases which have been imposed by decisional law on trial judges would frustrate a saint. The judges worry constantly that they will miss some small part of the "mantra," causing release of a dangerous felon and a headline that "Rapist Was Released By Judge On Technicality." All of the procedural steps and rules may be designed to protect the rights of the accused, but the "technicalities" were created by the appellate courts, not by the trial judges who take the heat if the system fails.

Touchy, aren't we?

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