Monday, April 25, 2011

Judge Rosenberg claims my column was “full of misstatements and misconceptions.”



In the April 26 edition of The Davis Enterprise, an op-ed penned by Yolo County Judge David Rosenberg will be published. Judge Rosenberg’s piece, which is now available in the online edition of the newspaper, is an attack on my April 13 column which questioned whether now is the right time to be spending $5 billion on 41 courthouse projects, one of which will be built in Woodland.

New Yolo courthouse will benefit residents
By David Rosenberg

Under the headline “Courthouse plans straining budget,” your columnist Rich Rifkin (April 13) challenged the new Yolo courthouse project. His column is so full of misstatements and misconceptions that I felt compelled to respond.

As a public service, I will count up every misstatement and every misconception I made.

In fact, a new courthouse project was approved (years ago) for Yolo County, costing about $173 million. The land already has been identified and acquired, the design phase is now under way, leading to the start of construction, hopefully, at some point next year.

So far, Judge Rosenberg has failed to point out a single misstatement or misconception of mine.

However, even the headline of Rifkin’s column is inaccurate.

The judge should know that I have nothing to do with the headlines. Those are written by the editors. That qualifies as the first misconception in this exchange.

Rosenberg 1-0 in misconceptions.

This project is not straining any budget — state, county or local.

I never stated in any way that this project is straining any budget. That counts as a second misconception for the man who worked so hard to get a public skate park built in Davis.

Rosenberg 2-0.

Not one penny of taxpayer money is used for the courthouse project.

I never said the 41 courthouse projects would be funded by a tax. I explained carefully in my piece how a new fee would be attached to all parking tickets, moving violations and other criminal convictions in which the convicted is not sent to prison.

I won’t charge Judge Rosenberg for a third misconception, here. Rather, I will charge him with a blatant deception. His effort is to mislead his readers, making them think I wrote incorrectly how the funds for his courthouse will be generated.

Rosenberg 2-0 in misconceptions plus one deception.

No state general fund money is used for the project.

Again, I never stated that any general fund money would be used. That counts as deception number two for Dave.

Rosenberg 2-0 in misconceptions plus two deceptions.

The project is completely funded by a statewide surcharge assessed against everyone convicted of a violation of the criminal law.

I think this statement qualifies as deception number three and misstatement number one for Yolo County’s presiding judge. He misleads his readers with “a violation of the criminal law,” because almost all of the money will come from traffic offenders and parking violations. And because, when a person is sent to prison (see EDIT 1) he normally does not pay the fee but works it off, Judge Rosenberg knows that it is not “everyone convicted” who will pay this surcharge.

Misconceptions: 2-0; Deceptions: 2-0. Misstatements: 1-0.

Rifkin’s column asserts that the money for the new courthouse could better be used elsewhere.

It could be better used elsewhere at this time. What I wrote was that until we are out of the economic and budget crisis, we should put off funding luxurious courthouses like the one planned for Woodland.

He says “with that much largesse, Yolo County could pay off almost all of its $175.5 million unfunded pension liability to the miscellaneous employees.” Interesting theory.

Thanks for your interest in my theory, Dave.

But Rifkin ignores several facts.

Let’s hear your facts, your honor.

First, to do so would violate state law, which requires that the money collected from people who violate the law should be used for court facilities.

I did not ignore that “fact,” Davey! I suggested that the Legislature change the law. I noted, “…there is no reason SB 1407 could not be temporarily changed.”

Misconceptions: 2-0; Deceptions: 2-0. Misstatements: 2-0.

Second, to do so would ignore the constitution, which would mandate some sort of nexus between the fee and the expenditure — using the funds from those convicted of crime to pay off a county’s debt has no nexus; using the funds to pay for court facilities certainly does.

I never said these fees should be used to pay off the county's debt. I merely noted that the amount that Yolo County's pension funding for its miscellaneous employees is short is nearly identical to the amount the new courthouse would cost. In other words, if Yolo County had this money, it could pay off this debt.

It’s hard for me, a layman, to argue the state constitution with a superior court judge. However, I believe the judge knows he is being duplicitous, here. He admitted as much some paragraphs down when he wrote this:

“Rifkin fails to mention that the state Legislature last year borrowed a substantial portion of this fund for ‘other purposes’ and is poised to divert a substantial amount of this fund again this year.”

So which is it, judge? You state that the money cannot be used for other purposes, and then you state that the money is being used for other purposes. Is your left brain not communicating well with your right brain? Or are you just trying to deceive your readers?

Misconceptions: 2-0; Deceptions: 3-0. Misstatements: 2-0.

Finally, pursuing Rifkin’s “logic” to the ultimate conclusion, government should not pay for capital projects but should divert its money to pay for debt service or operations.

Once again, this public servant is trying to deceive his readers. Either that, or he just did not read my column carefully.

I never mentioned anything about not paying for capital projects. I never even said the judge’s shiny new courthouse project should be abandoned. I simply suggested that while we are in a severe budget crisis, it is questionable in my mind whether now is the best time to be spending this $5 billion it will cost to build 41 courthouse projects, 35 of which are brand new buildings.

Misconceptions: 2-0; Deceptions: 4-0. Misstatements: 2-0.

I suppose the city of Davis should not have built or repaired roads, or parks or pools, or the Veterans’ Memorial Center or the Senior Center — per Rifkin, the money would have been better spent in operations.

The judge seems to have no factual points to make. So instead he just makes up shinola like this. The fact is that I don’t object to roads or public buildings. I simply argued in my column that while the state is drowning in red ink, it would be a good idea to put off this $5 billion expenditure.

Misconceptions: 2-0; Deceptions: 4-0. Misstatements: 3-0.

The reality is that it is never easy to accommodate long-range projects such as roads, bridges, canals or buildings.

Actually, the judge is wrong here. It’s not that hard. Our state has passed scores of bond measures to fund these sorts of projects. Since 1996, we have approved more than $21 billion in general obligation bonds. For details, see what the Legislative Analyst’s office reports.

Misconceptions: 2-0; Deceptions: 4-0. Misstatements: 4-0.

The immediate demands for operations are always great. Kudos to the governor, the Legislature and the judicial branch for recognizing this and for creating a logical funding source for new courthouses in California: a fee charged only to persons convicted of crimes. Who better to pay for court facilities?

Repeating himself, as the judge is wont to do, Rosenberg states that these courthouse buildings will be paid for by convicted criminals. He conveniently fails to mention that almost all of the money will be generated by a large surcharge on traffic tickets and a smaller charge tacked on parking tickets.

Do you wonder why the judge didn’t explain that in his tirade?

Misconceptions: 2-0; Deceptions: 5-0. Misstatements: 4-0.

Rifkin goes on to say that Davis City Councilwoman Sue Greenwald mentioned to him that the price of the new Yolo courthouse is almost three times the price of the “luxurious” Mondavi Center. But surely Greenwald and Rifkin understand that a courthouse is not a theater.

A courthouse is not a theater? Thanks for letting me in on that, your honor.

A courthouse is a complex structure, unlike any other building. The current Yolo courthouse facilities see more than 300,000 separate trips of users and visitors each year.

That’s another way of saying about 1,000 people each day go into our courthouse. I wonder how that compares with the foot traffic in a typical big box store?

A courthouse has special security needs, the requirement for three separate pathways (for the public, for in-custody defendants, and for judicial officers and staff), unique courtrooms, public-serving counters, jury assembly space, holding cells, interview rooms and numerous other requirements.

Further, the new Yolo courthouse will be a LEED-certified (Leadership in Energy and Environmental Design) building, using the latest energy-saving technologies.

I wonder how many times in this column Judge Rosenberg will tell us that the new courthouse building will be LEED certified? I think LEED certification can be a nice thing. The new Target is LEED certified.

As an aside, there are a lot of environmentalists who are critical of LEED certifications. The famed architect Frank Gehry, who designed the purposefully weird Guggenheim Museum in Bilbao, has, for example, said that LEED certification is often given for “bogus stuff.” I never charged that Rosenberg’s building will be given LEED points for bogus stuff.

Certainly, $173 million is a great deal of money — but it is what it costs to build a courthouse. The new courthouse planned for Sacramento County is pegged at about $510 million.

The judge likely read that in my column, where I noted that the “new 35-courtroom Sacramento Criminal Courthouse is slated to cost $509 million.” Maybe he wants you to think the $172.9 million project in Woodland is cheap by comparison?

The main thrust of Rifkin’s column is that in these difficult times, the money for courthouse construction could be better spent by being diverted for other purposes.

That was my main point, judge. I am glad to see you understood what I said.

Whether true or not, Rifkin fails to mention that the state Legislature last year borrowed a substantial portion of this fund for “other purposes” and is poised to divert a substantial amount of this fund again this year.

Recall that a few paragraphs up, Judge Rosenberg, who is an expert on the constitution, said this could not be done. Have you decided, Dave, which way is it?

So, clearly, the Legislature — which thrashes around for available pots of money in difficult times — has, in fact, diverted courthouse construction funds for “other purposes” already.

Good. I thought you told me that was unconstitutional. I guess you were thinking of some other state constitution when you wrote that.

Misconceptions: 2-0; Deceptions: 6-0. Misstatements: 4-0.

Fortunately, the Yolo courthouse project is so high on the list of critical projects that it will (sic) unaffected by this diversion.

It looks like no one edited Rosenberg’s writing. Not only does it have grammatical errors (“will unaffected”), but no one pointed out to the judge that he repeats his points again and again.

Rifkin’s column then goes on to denigrate courthouse projects as “Taj Mahals.” That is inaccurate and unfair.

How is that a denigration? The Taj Mahal is fabulous. Wikipedia says, “It is widely considered as one of the most beautiful buildings in the world and stands as a symbol of eternal love.”

Misconceptions: 2-0; Deceptions: 6-0. Misstatements: 5-0.

Courthouses are important public buildings that last many generations. The current historic courthouse in Yolo County has lasted almost a century. The new Yolo courthouse will be a courthouse for the next hundred years.

I have not seen any architectural renderings for the new Rosenberg courthouse. However, my guess is that it will feature a lot of high end décor. If it doesn’t, I will gladly buy Dave a coffee in downtown Woodland.

It will not be an insubstantial building — it will house 14 courtrooms, a jury assembly area to accommodate more than 300 prospective jurors, clerks’ offices and counters for the public, holding cells for in-custody defendants, security stations and many other features unique to courthouses.

Did you say it will house 14 courtrooms?

In addition, the new courthouse will be a LEED building, built to the best standards of environmental efficiency that we can muster.

Wait a minute, Dave. Didn’t you already brag that it will be a LEED building? Is it not against the law in Woodland to repeat yourself in your same column?

The Yolo court facilities are among the busiest — perhaps the busiest — public buildings in the county.

Maybe that’s because our district attorney has a tendency to bring every possible case to trial, rather than reach plea agreements with defendants? I don’t know if that is true. However, I have read that argument in a widely read Davis blog.

Rifkin’s criticism even goes so far as to challenge the five-story projection for the new courthouse.

Goes so far as to challenge? I stated its height as a matter of fact: “The five-story project will house 14 new courtrooms, each twice the size of the courtrooms in the historic edifice on Court Street.”

Misconceptions: 3-0; Deceptions: 6-0. Misstatements: 5-0.

Five stories, while clearly substantial, will not be out of place on Main Street in downtown Woodland.

I never said it would be out of place.

The historic Hotel Woodland — just down the street from the proposed courthouse — has four stories and roof facades.

As it happens, the Hotel Woodland is more than five blocks from where the Rosenberg Courthouse will be erected. Most of the existing structures adjacent to the block between Lincoln and Main and Fifth and Sixth streets, where the courthouse will be, are one story tall.

Misconceptions: 3-0; Deceptions: 7-0. Misstatements: 5-0.

The current historic courthouse on Court Street has four stories. There is a processing plant on Main Street just four blocks east of the proposed courthouse that is more than five stories in height.

The point is that the new courthouse must hold 14 courtrooms and attendant court uses.

You say it will house 14 courtrooms?

While the courthouse could be four stories, or even three stories, that would be poor planning. A shorter courthouse would have a larger footprint, taking much more of the land and thus restricting future expansion in 10 or 20 years.

The judge claimed above he is building this structure to last 100 years. Now he says in 10 or 20 years he wants it built even larger? Which is it, Dave?

Misconceptions: 4-0; Deceptions: 7-0. Misstatements: 5-0.

One problem with state buildings is that the state builds only for today’s needs, not for tomorrow’s requirements. The current needs for Yolo County are 14 courtrooms.

You say it will house 14 courtrooms?

In 10 years we will need more. By using less of the land, the court has the ability to expand on site.

Maybe instead of spending a lot more money in 10 years, we can make use of the historic courthouse on Main Street a decade from now?

Rifkin then criticizes the 14 courtrooms planned in the new courthouse by asserting that each will be twice the size of the current courtrooms.

I never criticized that. I merely pointed it out: “The five-story project will house 14 new courtrooms, each twice the size of the courtrooms in the historic edifice on Court Street.”

It is apparent that the judge has poor judgment when deciphering between a criticism and a statement of fact.

Misconceptions: 3-0; Deceptions: 6-0. Misstatements: 6-0.

It is certainly correct that the new courtrooms will be twice the size of current courtrooms.

He even agrees with me! Wait! I thought he said my column was full of misstatements. Maybe that was just the judge exercising poor judgment?

But what Rifkin fails to say is that current courtrooms are less than half the size of a standard California courtroom per state minimum standards.

This is circular logic, your honor. You and your fellow judges arbitrarily decide what the standard is, and then you declare our courtrooms fail to meet that standard. What I wonder is, what percentage of cases tried in our current Yolo County Courthouse must be moved to other facilities because the current courtrooms are too small? If it is greater than 1 percent, I will buy Judge Rosenberg a second cup of coffee in downtown Woodland.

Our current courtrooms were built in prior generations — our historic courthouse was built to house two courtrooms and we currently have eight courtrooms shoehorned into the building. We have two courtrooms in trailers, and others in rented buildings and in converted holding areas.

That’s a fine argument that at some point we need a new courthouse facility. I have not challenged that. I have simply questioned why, when the state is more than $15 billion in the red, we can’t put off this $5 billion, 41 courthouse program for a few years?

When the new courthouse is built, Yolo County will finally have standard-size courtrooms like other counties in the state.

Is that really what is bothering you? That other counties have bigger and better courtrooms than you have? Shouldn’t you be explaining how many trials had to be moved out of our county because our courtrooms are too small?

The need for a new Yolo County Courthouse is manifest. Our current facilities are scattered throughout the city of Woodland. The historic courthouse is ancient, and seismically unsafe.

You say it is seismically unsafe? Really?

Maybe you meant to say that it does not meet current seismic safety standards in California. But that certainly does not mean it is not structurally sound enough to survive the tremors that hit Woodland.(Note: there are no worrisome fault lines in or around Woodland. The closest faults are in the Capay Valley)

Misconceptions: 3-0; Deceptions: 6-0. Misstatements: 7-0.

Every single one of the existing courtrooms is substandard.

Yet they do not seem to be obstructing justice in Yolo County at the moment. As such, waiting a few more years until our economy recovers and the state’s fiscal crisis is resolved would not hurt anyone (other than a few judges who want nicer digs right away).

We have inadequate space for jurors, who often have to sit on stairways. We have no space for children. The wiring, plumbing and electrical systems are ancient. Hallways are shared by in-custody defendants, witnesses, victims, jurors, members of the public, judges and staff. It is truly medieval.

Truly medieval? Medieval times ended in the mid-1400s, before Christopher Columbus sailed to the Americas. You must have meant to say the historic courthouse is truly Wilsonian. It was erected in 1917.

Misconceptions: 3-0; Deceptions: 6-0. Misstatements: 8-0.

That’s why Yolo wound up at the very top of the food chain in terms of critical needs for a new state-of-the-art courthouse. The citizens of Yolo County deserve no less.

You don’t mean to say, the court employees and judges deserve no less?

At the beginning of his piece, Judge Rosenberg claimed my column was “full of misstatements and misconceptions.” He never once pointed out a single misstatement or misconception of mine. Yet his op-ed was riddled with errors, each of which I noted above. It is sad that a public servant like Judge Rosenberg feels compelled to attack my work with so little regard for honest argument. He restated many of his points, simply because he had so little of worth to state. He had no direct refutation of anything I wrote. I feel embarrassed for the judge for having submitted this piece of drivel. It makes him look small.
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EDIT 1: David Greenwald of the Davis Vanguard explained to me that the fee is not waived when a person is sent to prison. Rather, he said, the criminal must work off his fee in that case.

However, some court fees may be waived by a judge due to financial hardship. See Court Rule 3.50 to 3.58:

The rules in this division govern applications in the trial court for an initial waiver of court fees and costs because of the applicant’s financial condition. As provided in Government Code sections 68631 and following, any waiver may later be ended, modified, or retroactively withdrawn if the court determines that the applicant is not eligible for the waiver.

EDIT 2: Here are the six new fees imposed by SB 1407:

1. Proof of correction fee, $25 -- This fee is now collected per citation. Effective January 1, 2009, the fee will be collected per correction. $15 on the first correction and $25 on any additional corrections on the citation are remitted to SCFCF - ICNA.
2. Traffic violator school fee, $49 -- 51% of fee collected remitted to SCFCF - ICNA.
3. Criminal conviction assessment, $35 -- $35 remitted to SCFCF - ICNA.
4. Criminal conviction assessment, $30 -- $30 remitted to SCFCF - ICNA.
5. State court construction penalty, $5 -- Increase remitted to SCFCF - ICNA.
6. State court construction parking penalty, $4.50 -- $3 remitted to SCFCF - ICNA.

1 comment:

E Roberts Musser said...

The one thing that strikes me that is horribly wrong w Judge Rosenberg's rebuttal is that traffic tickets paid are not necessarily from "convicted" defendants. Citizens frequently pay the traffic ticket whether guilty of the crime they are accused of or not, bc it is cheaper than taking the day off from work/hiring an attorney to represent them. In law I believe, a traffic ticket cannot be used as evidence against the person accused bc of its unreliability as evidence of guilt. Also, paying for a courthouse w traffic tickets sets up an incentive for law enforcement to institute speed traps and the like as revenue enhancers to get that big shiny new courthouse built. Very worrisome...