Judge Lehan Speaks

by Bruce McEwen, November 11, 2009

Note: Before I left my assignment at the Ten Mile Court in Fort Bragg I asked Judge Jonathan Lehan for an interview. The judge agreed to answer written questions in writing. Here's how it turned out.

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How much does the court generate in abalone fines and fees? State Fish and Game Department? The County?

I don't track the amount of fines levied each week. The monies collected don't go directly to the court, but are distributed by a complex statewide formula the State and the County. The base fines are pretty low, but the legislative assessments considerably increase the amount of the total fine imposed. A $100 base fine calculates to the imposition of a total fine of $553. The “standard” abalone infraction level fine, imposed in situations of failure to properly tag, or fill out the reporting card, based on the statewide bail schedule, is $558. The standard misdemeanor level fine without additional assessment for the number of abalone involved is $1,272. Per the bail schedule, a defendant is assessed the additional amount of $108 for each illegal abalone involved in the particular matter. Fine distributions go to the Fish and Game Department's secret witness fund, County emergency medical services fund, county fingerprinting fund, the state automation fund, state court facilities fund, jail construction funds, DNA testing fund. It's all set out in the bail distribution tables.

Where does forfeited gear go?

I understand that the forfeited gear goes from Fish and Game to local law enforcement and is then sold to raise funds for local activities like the Police Athletic League programs for kids.

What's the estimated expense in legal fees? For the public defender? For private lawyers?

Good question. I don't know the going rate for private attorney retainers on Fish and Game cases, but I would bet it's not cheap. I would not be surprised if retainers are from $2500-$5000, but that's just a feeling, not a definite. The number of cases where the Public Defender and Alternate Defender are appointed would have to be factored into their fixed salaries and contract amount respectively. I don't know those numbers, but the greater the number of cases would mean an obvious impact on the case/salary ratio.

How many abalone prosecutions end in acquittal? How many in convictions? Average number of convictions per year? 10 years?

Most of the abalone cases resolve by guilty plea at the defendant's first appearance. The most recent jury trial (which was several months ago) resulted in a conviction. I don't count the number of abalone cases on the calendar, although I do sometimes count the total numbers of cases heard on the busiest court days. It would be interesting to actually compare the numbers. Most defendants are Asian, but not all, so just looking at the names on the calendar would not be entirely accurate. I would estimate that in the busiest court months of the abalone split season — and it generally takes about two or three weeks for citations to get to the court from the wardens and park rangers — we see about 40-60 abalone cases a month. The citations generally start impacting the calendar about three weeks after the season opens in April. The calendars seem to lighten up a little bit in mid-to late July, then pick up again in mid- to late August after the reopening of the season. I'm sorry that I just can't recite the actual number of abalone related convictions per year.

How much does the recent cutbacks in court days affect a judge’s pay?

Legislation is pending that would give judges the option of voluntarily giving up the day's pay for the monthly closure days for donating that portion of salary back to the court.

Would the annual fines and fees for abalone convictions be enough to pay the county’s eight judge's salaries?

Although the financial penalties for commercial abalone poaching are severe, when you take into account the breakdown and mandatory distribution of fines, I don't believe that the fine amounts would offset eight judges’ salaries. Most importantly, I don't believe that judicial salaries should in any way be tied to fine assessments or collections. The independence of the judiciary would be called into question if salaries were dependent on the amount of fines assessed or collected in criminal cases, Fish and Game or otherwise.

The grumbling and probable boycotting by tourists, smarting from the heavy fines? Any consolation?

I think that the vast majority of abalone divers support the strict enforcement of the regulations. I think most divers feel that those who either don't know or who ignore the regulations should be penalized so that the resource is preserved for the benefit of their own future enjoyment and that of future generations. I've heard and read comments from both sides of the fence. The fines are either too steep or the fines should be stiffer with jail time in each and every over-limit case. I hope that the present enforcement policy protects both the resource and the continuation of viable sport abalone diving.

The abalone laws are numerous and detailed as biologists for the Fish and Game Department deem necessary to preserve the fishery. Any changes pending?

I'm not aware of any present pending changes to the regulations.

What percent of the fines and fees actually get paid?

I don't know the exact percentage but the court clerks advise me that a large amount of the fines are paid in cash directly after the court proceedings.

What's the court's policy on leniency for the poor?

There is no specific “policy” in cases regarding indigent defendants. I listen to each individual matter and try to take personal financial situations into account whenever possible and reasonable. I encourage community service as an alternative to the fine payments when feasible.

Why did the court choose Wednesday to close? Won't this slowdown many marijuana cultivation prosecutions? Are things changing? Is there some chance that these cases will be affected by the current debate for reform of marijuana laws?

As I understand it one Wednesday a month was chosen for statewide closure as it was believed to be the day least likely to affect a defendant's right to a timely arraignment. All prosecutions including marijuana cases will likely be impacted by the loss of a court day. I think the current debate as well as budget constraints caused by the present economic climate could impact marijuana laws and possibly the enforcement policies of the Sheriff and District Attorney. There are many cultivation cases now pending in the courts. The justice system is waiting for the decision in the *Kelly* case to establish whether compassionate use cases will be determined by medical opinion or by numbers of plants and quantities established by legislation.

What is His Honor's position on legalization?

It's interesting that the present debate over legalization of marijuana seems to be focusing more on economics and taxation and less on substance abuse and morality. The legislatures make the laws, the executive branch is charged with law enforcement and the duty of the courts is to interpret the law. As a member of the judicial branch of government my job is to apply the law both fairly and impartially in the cases before me.

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