Wednesday, September 6, 2000

Assembly Member Wally Knox
State Capitol Room 6025
Sacramento, CA 95814

RE: CJC, Bail and Penalty Schedule, Authority

Dear Assembly Member Knox,

I have been thinking about the CJC's contention to you that they are granted authority to make the Bail and Penalty Schedule per Penal Code 1269b. §(d) and therefore can change a correctable equipment traffic infraction to a non-correctable one.

Penal Code 1269b. §(d) states:

The municipal court judges in each county, at a meeting called by the presiding judge of the municipal court at each county seat, or the superior court judges in each county in which there is no municipal court, at a meeting called by the presiding judge of the superior court, shall prepare, adopt, and annually revise, by a majority vote, a uniform, countywide schedule of bail for all misdemeanor and infraction offenses except Vehicle Code infractions. The penalty schedule for infraction violations of the Vehicle Code shall be established by the Judicial Council in accordance with Section 40310 of the Vehicle Code.

Vehicle Code 40310. states:

The Judicial Council shall annually adopt a uniform traffic penalty schedule which shall be applicable to all nonparking infractions specified in this code, unless in a particular case before the court the judge or authorized hearing officer specifies a different penalty. No penalty shall be established for any infraction in an amount, exclusive of any additional penalty levied pursuant to Section 1464 of the Penal Code, in excess of the amount of the maximum fine pursuant to Section 42001 or 42001.5, and penalties shall be set without regard to residence. In case a traffic penalty is not paid within 20 days following mailing of a notice that the penalty has been assessed, a late charge shall be due in the amount of 50 percent of total initial penalty.

In establishing a uniform traffic penalty schedule, the Judicial Council shall classify the offenses into four or fewer penalty categories, according to the severity of offenses, so as to permit convenient notice and payment of the scheduled penalty.

PC-1269b §(d) combined with VC-40310 - does give the CJC the authority to adopt a uniform traffic penalty schedule. However, there are clear limitations. The CJC cannot exceed the authority set forth in California Constitution Article VI, § 6. Therefore, the CJC can adopt a traffic penalty schedule pursuant to PC 1269b. §(d) and VC 40310 but, in a manner "not inconsistent with statute" per Article VI, § 6 of the California Constitution.

California Constitution, Article VI, § 6 - Judicial Council:

To improve the administration of justice the council shall survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform other functions prescribed by statute.

Although the CJC is authorized, by the Legislature, to adopt a Bail and Penalty Schedule pursuant to PC-1269b(d), even if PC-1269b(d) purported to authorize them to do so in a manner inconsistent with the statutes, the CJC could not. Not even the Legislature can authorize the CJC to make a determination inconsistent with the statutes, except and unless they somehow amend the California Constitution.

As the CJC itself pointed out in California Court Reporters Association vs. California Judicial Council (39 Cal.App.4th 15 - 1994), both derive their authority from the Constitution. No one, or no thing, can act in excess of the authority that created them.

Both VC-27803 (helmet Law ) and VC-27151 (exhaust law) are, in fact, equipment statutes within Division 12 of the Vehicle Code and are correctable per Vehicle Code 40610.

Changing a correctable statute to a non-correctable statute is its polar opposite, and therefore completely "inconsistent with the statutes" and in direct conflict with the California Constitution and the Legislature.

In order for PC-1269b(d) to act as the CJC is claiming, it would have to read, "Notwithstanding the provisions of Article VI, Section 6, of the California Constitution, etc.", which would be absurd. Based on the Constitution and supporting case law (CCRA v. CJC), it is clear that the CJC has exceeded its authority and cannot change VC-27803, VC-27151 or any correctable law to non-correctable. Only the Legislature can do this.

I think it's fair to suggest, if not assert, that the CJC appears to be attempting to insult someone's intelligence here by making the argument that they are authorized by the Penal Code in the first place. It appears to me that they are not only challenging the authority of the Legislature, but talking down to them (vis-à-vis you and Assemblyman Knox) about how and why.

My Court date is September 19 which is on 13 days from now. Please let me know the status on this as I would obviously like to advise the Court that the infraction is correctable.

Thank you again for your help and concern,

Steven Shmerler

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