CommentsTHE VIEW FROM HERE - The most activist judges over the past thirty years have been conservative judges with deceased Supreme Court Justice Antonin Scalia (1986-2016) being perhaps the most activist justice in the court’s history.
His doctrine of originalism was judicial bunk. It rejected one of the core principles of the Founding Fathers, i.e. the need to meld a variety of viewpoints in order to have a centrist government. They selected a republic rather than a democracy for this reason. It allowed power to balance power, rather than subjecting the nation to mobocracy. Rather than becoming the tyranny of the majority, Scalia’s originalism was the tyranny of one, Scalia himself. Originalism was based on the myth-lie that there was one proper interpretation of the Constitution, and lo and behold, it always coincided with whatever Scalia wanted.
It is disgraceful the other justices kowtowed to Scalia’s bullying, which was not all that different from GOP’s surrender to Trump’s bullying. There was no individual right to bear arms in the Constitution which is why it is not in the first amendment. It was sui generis, i.e. a unique provision designed to protect the state governments from a power-hungry central government. Thus, the federal government could not regulate guns because the states had to have individual militias. If the central government could outlaw all guns, then it could deprive the state’s of their militias. Thus, “gun control,” to use the modern term, was reserved to the individual states.
While the absurd doctrine of originalism was evolving, the Court’s Left Wing was chipping away at the inalienable individual rights on which the nation was founded. Rather, the liberals favored group rights, especially equality of outcomes among different groups. Their icon was the group rights case of Brown v. Board of Education, 347 U.S. 483 (1954)
The limited lesson to draw from this slice of American jurisprudence is: Do not trust the judges. Far too often, they are pushing personal ideologies disguised as law. The Los Angeles Homeless case, LA Alliance for Human Rights, et alia, vs City of Los Angeles, et alia, Case # 2:20-CV-02291-DOC-KES, is an example.
Woker, Pro-Developer Judge David O. Carter Strikes Again
On April Fools Day, April 1, 2022, US district Court Judge David O. Carter (Judge Woker) issued the “Notice of Preliminary Settlement Agreement and Stipulation to Stay Litigation as to Defendant City of Los Angeles Only.” A seemingly innocuous provision is a dagger at Los Angeles homeowners. Paragraph 10 Affordable Housing states: “The parties agree to cooperate to identify and reduce barriers to building more affordable housing.”
In reading this notice, let’s bear certain facts in mind. Judge Woker believes that white racism is the cause for Black homelessness, and thus, he favors construction of low income multi-unit housing in single family neighborhoods. After Judge Woker issued his April 10, 2021 injunction, which lay the ground work to impose his views on single family areas, his decision was appealed to the Ninth Circuit. The appellate court described the basis of the judge’s order.
“The district court’s order was premised on its finding that structural racism—in the form of discriminatory lending, real estate covenants, redlining, freeway construction, eminent domain, exclusionary zoning, and unequal access to shelter and affordable housing—was the driving force behind Los Angeles’s homelessness crisis and its disproportionate impact on the Black community.” Ninth Cir. Sept 23, 2021 Slip Opinion p. 5
The Ninth Circuit then explained that Judge Woker had greatly exceeded his authority by accepting unpled and unproven social theories.
“Moreover, because plaintiffs did not bring most of the claims upon which relief was granted, they failed to put forth evidence to establish standing. To fill the gap, the district court impermissibly resorted to independent research and extra-record evidence. Ninth Cir. Sept 23, 2021 Slip Opinion p. 6
Translation from legalese into every day language. The judge ignored the actual case before him and instead he invented the claims upon he wished to rule. (Evidence free decisions are well established in California state courts, but few federal courts, except Judge Philip Gutierrez, follow California’s lead.)
The April Fools Day Proposed Settlement Evades The Ninth Circuit Order
Because Judge Woker had previously explained the basis of this decision, this time Judge Woker was silent about the basis of the proposed order. By characterizing it as “settlement,” The City, the Plaintiffs and Judge Woker are attempting to by pass judicial review. One can rest assured that nothing has changed one iota. The Ninth Circuit had ordered:
“The district court undoubtedly has broad equitable power to remedy legal violations that have contributed to the complex problem of homelessness in Los Angeles. But that power must be exercised consistent with its discretionary authority and Article III.” Ninth Cir. Sept, 21, 2021 Slip Opinion p 28
The April Fool’s proposed settlement will be enforceable once Judge Woker adopts it as his court order. Since no one knows what claims are being settled or legal basis for such settlement, no one has any way to know whether the court’s power will be “exercised consistent with its discretional authority.”
The Lethal Impact of Provision 10:
LA’s developer-oligarchs have been salivating over busting into Los Angeles single family areas. Having idiotically constructed into a glut of high end housing by demolishing rent controlled units, developers find that the high crime rate in the areas, where RSO units are located, have made the units undesirable. This fact reduces these projects’ investment potential which disappoints those nice narco-drug traffickers and genteel oligarchs seeking to launder their ill-gotten loot. It turns out that buying a few single family homes to construct a project is cheaper than buying an entire rent controlled apartment house. Plus, R-1 areas are not high crime. The problem is zoning. Although the State is trying to abolish all zoning law, those statutes will be litigated and that will hold up for years developers’ invading R-1 areas. An existing court order, on the other hand, is already passed the litigation stage.
One can expect LA developer-oligarchs, citing Judge Woker’s Paragraph 10, claim that their ten story project in a R-1 area “has identified and reduced barriers to building more affordable housing.” Of course, they resort to trickle down economics that constructing high end complexes will cause more housing at the low end of the housing market. That same reasoning says that manufacturing more Mercedes EQS Sedans ($102,310 base price) makes more 2000 Toyota Camry’s available for the poor.
To whom can LA homeowners complain? To Judge Woker who thinks it is great to destroy single-family neighborhoods as that will help the homeless minorities? (BTW, there are additional nightmares hidden in April Fool’s settlement.)
(Richard Lee Abrams has been an attorney, a Realtor and community relations consultant as well as a CityWatch contributor. You may email him at [email protected])
