The Rule of Law Rolled Back | California’s Crisis

Most people will agree that the law must be accessible, intelligible, clear and predictable. We expect this as a society.

And, when not met we share an unsettling concern about the present and the future. This is surely a time of unsettling concern.

My law firm litigates estate, trust and elder financial abuse cases. We, like most of society, rely upon the rule of law. Rules protect elders and their families from wrongdoing. When violated, rules are applied to effectuate justice and recovery of losses.

This is not vigilante justice. This is not self-help. It is a judicial process hundreds of years in the making. The pandemic and its offshoots, some predictable, some not, have created chaos.

One example among many: The California Judicial Council rescinded its April 2020 $0 emergency bail schedule order in early June. The order set bail at $0 for most people accused – but not tried – of misdemeanors and lower-level felonies. The order had been widely criticized by law-enforcement agencies that argued the order was preventing the police from keeping repeat offenders off the street.

While the Judicial Council rescinded the $0 bail order, it allowed individual county Superior Courts to institute their own local orders to preserve the policy. At least 29 counties have kept the order in place.

California Governor Gavin Newsom has ordered the release of 8,000 prison inmates to reduce prison crowding and virus spread. Of the 3,500 prisoners released to date over 150 were still infected with the coronavirus. Some district attorneys and police chiefs are quite critical.

They say that their departments are re-arresting habitual criminals over and over. San Francisco reports that its burglaries have increased about 70% since the state releases began compared to the same period in 2019.

Law firms like Hackard Law that prosecute civil cases face strong headwinds in getting their cases to trial. It’s understandable – but debilitating to the law’s accessibility and predictability. There is near universal limited public access to court buildings. Courts formally or informally have let practicing lawyers know that the courts anticipate a large volume of criminal trials which will have statutory priority over civil trials.

Some courts have effectively vacated all civil trials on their 2020 calendar. The California Legislature has been in and out of session since March and its next return is scheduled for July 27^th.

In the meantime, the Governor has issued dozens of executive orders and authorized billions of dollars in public spending with little or no oversight from the Legislature. The state is effectively operating without a legislative branch. And, seemingly directed by just one man out of 40,000,000 Californians.

Businesses are opened. Businesses are closed. Schools can reopen and then they can’t. Parents can plan for reopening and their own return to work. Then they must reverse course and go to further and prolonged shelter in place.

Churches are ordered closed. Statues of Fr. Junipero Serra have been destroyed in Los Angeles, San Francisco, and Sacramento. No arrests of the vandals that caused the destruction have been reported.

So, whatever else can be said about the rule of law in the COVID-19 pandemic, few would say that the law is now accessible, intelligible, clear and predictable. It’s hard to hide what’s so obvious.

Some will say “it’s the science, stupid.” The science tells us that COVID-19 is going to be a part of our world for the foreseeable future.

And, it doesn’t take much of a scientific mind to see we’re going to have to figure out how to adapt to this new world. Closing our schools, our businesses, and creating mass unemployment strike at the heart of freedom.

We’ll see how long Americans will accept the simple explanation that “it’s the science.”