Statement on Welchen v. Harris

If the Equal Justice Lawyers learned something in Oakland last Tuesday when United States District Judge Yvonne Gonzalez Rogers told them that “pontificating at the mike” doesn’t equate to legal analysis and that their legal theory was “unformed,” that surely was not on display on Friday when, in a stunning and ill-advised move, they decided to file a lawsuit (attached) not against the State of California like in Buffin but directly and personally against Kamala Harris, California’s Attorney General, in her capacity as Chief Law Enforcement Officer in the State of California. They also name the County of Sacramento as a defendant in what is another of their cookie-cutter lawsuits based on sympathy for poor people.

They argue that since General Harris is the Chief Law Enforcement officer in the State of California and is “charged with enforcing the laws” that “she requires the County of Sacramento to have a bail schedule” thereby violating Plaintiffs’ rights to equal protection. And that, folks, is it. There are no factual allegations that Attorney General Kamala Harris has absolutely anything to do with any bail schedule set by any State Judges in any jurisdiction in California.

Not to mention the little problem that they forgot about on Tuesday that Judge Yvonne Gonzalez Rogers made abundantly clear, which was that State Judges set the bail schedule and you have not named them as Defendants, nor probably can you. In this case they say there are suing based on the County Sheriff’s “policy and practice” of detaining the poor, but the problem is that State Judges set the schedule that the Sheriffs follow and State Judges are similarly not named in this new lawsuit.

At the end of the day, we know California’s respected Attorney General Kamala Harris is not requiring Sacramento County to violate the U.S. Constitution, and that it is somehow then appropriate to have a United States District Judge tell Attorney General Harris to immediately let people out of jail with no bail conditions en masse like their named Plaintiff Gary Welchen–a previously convicted and long-time imprisoned armed robber who just happened to have switched over to burglary this time around. We think the Attorney General might have a different viewpoint on this, and would say that decisions as to bail belong in the hands of the People of the State of California not in the hands of a U.S. District Judge.

If what happened last Tuesday in the Buffin case is any forecast of what it is to come in the Welchen v. Harris et al. case, we believe United States District Judge Troy L. Nunley, a former prosecutor, deputy attorney general, and superior court judge, will be the next United States District Court Judge to make the conclusion that the theory articulated in these lawsuits truly is nothing more than simply “pontificating at the mike.”

View the class action complaint against Kamala Harris.

image credit: www.reuters.com Reuters/Courtesy Kamala Harris for Attorney General 2010/Handout

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