Word of the Month of July 2017: Separation of Powers

Years back when I attended Junior High School, I remember taking a Civics class.  Looking back, it was probably the best class I could have taken as it gave me an understanding of how government is supposed to work.  I say "supposed" to because these days it seems that each branch of government is trying to do the work of the other - which can make for no small amount of confusion.

This all brings us to our word of the month: SEPARATION OF POWERS.  According to Black's Law Dictionary, SEPARATION OF POWERS is:

The division of governmental authority into three branches of government - legislative, executive, and judicial - each with specific duties on which neither of the other branches can encroach.  The doctrine that such a division of governmental authority is the most desirable form of government because it establishes checks and balances designed to protect the people against tyranny.

Wait, tyranny?  How might that happen?!?  Well, in today's news, there is a story that covers this exact scenario.  Seems a while back Judge Marc Kelly sentenced a 19-year old man to eight years in prison for sodomy with a child 10 years old or younger instead of the mandatory 25 years to life reasoning that he (Judge Kelly) "found the minimum sentence was cruel and unusual punishment."

See, here's where the SEPARATION OF POWERS thing kicks in.  Judges can't make law.  I mean, they make decisions based on the law but they can't go change the law all willy nilly.  Making law is the job of the legislature.  The job of the courts (i.e. judges) is to interpret the law/code.  

In this case, Judge Kelly found that, yes, 19-year old man had committed the crime but instead of following the law and imposing the MINIMUM established sentence, that he chose to make/change law and reduce the sentence of his own accord.  The key word here is "MINIMUM" (meaning judges are not permitted to go lower than).  You would think that someone who wears a black dress to work every day could understand what "MINIMUM" means?!

Good thing that there are Courts of Appeal (like the 4th Appellate Court) who found in People v. Rojano-Nieto, D070919 that "this is not one of the exquisitely rare cases in which the California Constitution requires a reduction in punishment."  While it is great that the court did what it was supposed to do, what is disturbing is that, by it's own admission, even the 4th Appellate Court would ignore the SEPARATION OF POWERS thing and make law in "exquisitely rare cases."  Dang but why bother having a Constitution at all if the Black Dress crowd ignores it at will?

What is interesting to note is Judge Kelly's comment (during a recall effort) where he noted that, "I took an oath to uphold the Constitution..."  and also said he acted "withing his judicial independence." While the "independence" stuff may be true (sucks that bad judges can hide behind a shield of ineptitude) but if you are really about upholding the Constitution, then why all the drama?  Follow the law, don't make it.

Anyway, anyone looking to read up on judicial conduct can take a gander at:

• California Judicial Conduct Handbook (TR)
• Judicial Profiles (Daily Journal)

and you all have a great rest of the day.