Monday, April 3, 2017

#93 / A Little Email Discourse On Politics And Law

I was contacted, recently, by a couple of community activists who are working on climate change issues in our local community. The activists wanted me to comment on whether I thought that a lawsuit along the lines of the "Children's Trust" lawsuit filed in Oregon could help bring about changes at the local community level. 

If you are not aware of this litigation, you can click on this link to find out more about the legal details. It is immensely encouraging that a federal court has now held that young people have a right to sue the federal government, to seek to force the federal government to address global warming, since the failure of our government to act is putting their future lives in peril.

While I truly LOVE that "Children's Trust" lawsuit, I didn't advise the local activists to head in that direction. The email I have reproduced below (just slightly modified) gives some alternative advice, and I think it is pretty good advice for activists working on any issue at a local level. 

Incidentally, I mention one of my former blog postings in the email below. I continue to think that it is one of my best efforts, and I encourage anyone who wants better to understand how politics relates to law to consider how judicial "discretion" enters into the mix

Dear Climate Activists:

I completely agree with your evaluation of the state of our local politics. I am not, actually, very familiar with the details of the City’s Climate Action Plan, except to say that I don’t think of the City’s Plan as having any significant conduct-changing content.

Generally speaking, I recommend “politics,” as opposed to “litigation,” to deal with community issues, since our political/legal system is based on the idea that when we elect our representatives, and give them our power, THEY should make the key policy decisions. The courts consistently DEFER to elected officials, and this is not just a statement of past practice, that might be changed in an appropriate case (for which the “children’s trust” approach could certainly qualify). The courts MUST defer to elected officials, who are granted “plenary” authority to make “police power” decisions.

The following blog posting is my attempt to make clear this principle of law:

Obviously, a lawsuit can factor into a political effort, but I think that lawsuits, generally, are not very worthwhile. Politics, on the other hand, is VERY worthwhile.

Threatening a lawsuit that the City Attorney would advise the Council is highly unlikely to be successful would not, in my opinion, be a very good political tactic. However, packing the Council Chambers with well-educated and appealing young people, asking for the Council to save the world so they can continue to live in it, could be pretty powerful, and if that kind of a demand for change could be mobilized, that would likely change the politics of the community. I always describe my legal practice as being focused on the “intersection of law and politics.” As you can see, it is my belief that law is in second place. Politics comes first, if you want to make actual changes.

I am not aware of how your local effort is organized, or what its strategy is, but I always advise focusing on getting the three or four votes you need to have something meaningful done, by the elected bodies to which we have transferred our political power, in our system of representative government. Sustained political efforts require the involvement of large numbers of people, who then get interested in politics, and some of these people, later, become elected officials themselves. In this way, issue battles may ultimately change the entire political character of the community. In short, this is my personal experience, going from helping in the effort to Save Lighthouse Field to being elected to and then serving twenty years on the Santa Cruz County Board of Supervisors.

Considering the issue you are working on, and considering this community, you should be able to make significant changes with a properly thought-through political/legal strategy.

But I wouldn’t lead with this lawsuit.

Gary A. Patton, Attorney at Law
P.O. Box 1038
Santa Cruz, CA 95061
Telephone: 831-332-8546

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