United States of America,
a union of Free states
Sheriffhenry
A Californian's View

- Kusar - Analysis
An Example Of Judicial Corruption
With the Effects of Treason



California Republic Flag Animation
California,
republic
and
union state

Declaration of Independence U.S. Constitution Bill of Rights Amendments

Contact
Henry

What's New?
 


Letter to Gould and Analysis

(Ernest Gould was the Lead Attorney in Kusar)


21 April, 2002

City of San Buenaventura, California

(edited and mailed 28 May, 2002)


Mr. Ernest S. Gould

c/o POB 27851

Los Angeles, California (90027)

tel: 323-660-3400


re: County of Los Angeles v. Superior Court (Kusar) 18 Cal. App. 4th 588, 22 Cal.Rptr.2nd 409

(Alteration by the court of juxtaposition of the words used by the Legislature in a Statute, thereby modifying their plain meaning, serves to misrepresent and subvert the intent of the Legislature.)


Dear Mr. Gould,

The court's ruling in your Kusar case purports that the Legislative intent expressed in the California Public Records Act is that the records noted in California Government Code Section 6254, Subdivisions (f)(1) and (f)(2) must be "contemporaneous".

The court altered the literal language of the statute by reversing two key clauses in Subdivision (f)(1). In addition, the court altered the context for reading Section 6254, Subdivisions (f)(1) and (f)(2) by omitting critical elements of Subdivision (f)(1) and by improperly associating Subdivision (f)(1) with impressions of restrictive general language.

The Kusar decision is commonly the primary authority utilized by California law enforcement to establish policies which deny public access to records the Act requires to be disclosed. If I am correct in my analysis of the Kusar record, the court's logic for this decision could not fly if challenged.

This was your case. Would you or your associates share opinion and comment, or assist in preparing and prosecuting corrective action intended to correct the basis for this error?

Thank you for your time to read this far. I have attached a summary of my observations.


Best regards,


Henry Nicolle
c/o POB 5633
Ventura, California (93005)
Pager - 805-939-7676


encls: Kusar critique summary

County of Los Angeles v. Superior Court (Kusar) 18 Cal. App. 4th 588, 22 Cal.Rptr.2nd 409

Copies of correspondence



Critique and Summary
of
County of Los Angeles v. Superior Court (Kusar) 18 Cal. App. 4th 588, 22 Cal.Rptr.2nd 409


Background:

The California Public Records Act expresses the inherent right of access by the Citizens of California to information collected and possessed by our representatives and public servants in the course of their duties. This access is a necessary prerequisite in the Citizens' continuing duty to monitor and oversee activities performed under their delegated powers.

California public officers, especially those tasked with creating and administering policies for the safekeeping of public information, utilize Kusar as the primary authority upon which to restrict the disclosures mandated by the Act to the time contemporaneous with the creation of the records.

In practice, this interpretation has improperly removed public records from public access. The error appears to have been deliberate and unchallenged.

Analysis:

(From the text of the OPINION by CROSKEY, J. in part)

Discussion:

1. Standard of Review and General Rules of Statutory Construction

[1] omitted

[2] The fundamental rule of statutory construction is that the court ascertain the intent of the Legislature from an examination of the statute as a whole. ... ...This process requires that we first look to the plain meaning of the words used and their juxtaposition by the Legislature and the ordinary import of the words. ... ...We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history. ... ...

2. Properly Construed, the Scope of Section 6254, Subdivision (f)(1) and (f)(2), Is Limited to Disclosure of Contemporaneous Records of Current Police Activities.

***end of quote from court record***

Exploration:

The Issue:

"This case primarily presents a question of statutory construction. We must determine, in light of the statutory language, the legislative history, other relevant statutory provisions and applicable public policies, whether section 6254, subdivision (f), requires the disclosure of the information sought by Kusar."

The Discussion:

"[2] The fundamental rule of statutory construction is that the court ascertain the intent of the Legislature from an examination of the statute as a whole. We do this in order to be certain that our construction and application of the statute will effectuate the purpose of the law. This process requires that we first look to the plain meaning of the words used and their juxtaposition by the Legislature; and we are bound to give effect to a statute according to the usual and ordinary import of those words. We may not add to or alter those words in order to accomplish a purpose that does not appear on the face of the statute or from its legislative history. However, if more than one reasonable construction of the statutory language is possible, then we should look at the legislative history and other extrinsic aids to determine the legislative purpose and adopt the construction which most closely serves it."

The Conclusion:

"2. Properly Construed, the Scope of Section 6254, Subdivision (f)(1) and (f)(2), Is Limited to Disclosure of Contemporaneous Records of Current Police Activities."

In paragraph [3a] Judge Croskey misrepresents the language and composition of CGC 6254.

In the first instance, Judge Croskey suggests that the definition of disclosure and the intent of the Legislature by the Public Records Act Section 6254, Subsection (f)(1) and (f)(2) are prejudiced by a general exemption in the Act from disclosure of "records" and "files compiled".

Judge Croskey then concludes that if records and files are generally exempt from disclosure under the Public Records Act, then it followed that Section 6254, Subsection (f)(1) and (f)(2) should not conflict with the general exemptions.

The court then also concludes that disclosure (mandated by Section 6254, Subsection (f)(1) and (f)(2)) must reasonably be vitiated by the arrestee's initial arrest and limited to the actual period of initial physical custody. ("Concurrency Doctrine")

Judge Croskey's opinion transparently indicates that the court chose to alter the actual words and juxtaposition of the words of the Act in order to reach their conclusion that these particular disclosures mandated by the People's Public Records Act are strictly limited to contemporaneous access.

Judge Croskey's OPINION states that the Act provides that information must be disclosed that,

" ...must include ... (3) the location where the arrestee is then currently being held or, if not in custody, the time and manner of release, (4) the amount of bail set... ..."

A reading of the juxtaposition of the phrases (1) currently held, then, (2) or if not in custody can certainly be read to imply contemporaneous access, because if the person is no longer in custody, there may be no reason to view the pertinent records. (The court exercises this argument circumferentially to explain that contemporaneous access to Booking and arrest records prevent "secret arrests" and is in the public interest.)

However, this portion of the Act states to the contrary,

"... (11) the time and manner of release or the location where the individual is currently being held, ..."

In a fair reading of the Section correctly quoted, and using the same qualification as in the court's version, there is little question that these records are to be made accessible at all times, not merely contemporaneous with the arrestee's initial custodial status.

By this re-arrangement of the clauses of Section 6254, (f)(1), the court has altered the juxtaposition of the words of the Act in order to "accomplish a purpose". That purpose has the effect of judicial nullification of Section 6254, Subdivision (f)(1) of the Public Records Act and perhaps Subdivision (f)(2) as well.

Evaluation and conclusion:

The people's mandate for non-contemporaneous public access to arrest and investigation records as described in the pertinent sections of the Act is intended to provide political as well as practical access, "... the Legislature, mindful of the right of individuals to privacy, finds and declares that access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." (CaGovCode Section 6250)

In the case of Kusar, the court unlawfully restricts access to public records and so interferes with the people's ability to monitor and regulate their representatives and laws.


****************


This summary was prepared by:
 
Henry Nicolle
c/o POB 5633
Ventura, California (93005)

- Kusar -
Opinion


- Kusar -
Sheriffhenry Commentary


- Kusar -
Robertson Letter
19 Nov 2001


- Kusar -
Robertson Letter
21 Apr 2002
 
Back to
Guide Page

Webmaster - Henry Nicolle
Last Revision 26 March, 2011
Information/Contact:
Henry Nicolle 
c/o POB 5633 - Ventura, California (93005) 
Internet: http://www.sheriffhenry.com/
Phone: 805-758-4446
Please also visit: http://www.henrynicolle.org/

Liberty is never Easy, Safe or totally Free!