Still a Nation of Men

Q: What does it mean that we are a nation “of laws not men?”

A: This sound bite is taken from one of the earliest cases in American jurisprudence: Marbury v. Madison, a case held out as justifying the doctrine of judicial review. It was Chief Justice John Marshall who authored the now infamous phrase, saying: “The government of the United States has been emphatically termed a government of laws and not men.” Marshall’s infamous one-liner has resounded through the ages finding voice in Presidential addresses and protest marches alike.

To be a nation “of laws and not men,” removes the subjectivity of fool-hearted men and imposes the objective independence of the law. In an ideal sense, the phrase suggests that each citizen of this fair country – the poor, the rich, the farmer, the broker, the Senator, the dog catcher – is under the law. Stated another way, no one is above the law.

In a certain sense, this has remained true. We have seen presidencies toppled because the Chief Executive broke the very laws he was charged with executing. Judges, Senators, and Congressmen alike have all been brought from lofty positions of power to none at all by the sword of Lady Justice. Indeed, it is Lady Justice that embodies Marshall’s words: she wields her sword blindly, caring not for whom it strikes, but only for justice.

But is this the case today? Are we truly a nation “of laws not men?”

Some may point to the perceived illegalities of wars or covert activities of government. Some may suggest the actions of certain judges liken them more to subjective legislators, rather than dispassionate arbiters. Some may even suggest that laws can have no objective basis for what is right for one might be wrong for the next. In so doing, each is implicitly attempting to debunk the wisdom that was Marshall’s mantra.

Marshall appears not even to agree with himself. He went on in Marbury to say, “It is emphatically the province and duty of the judicial department to say what the law is.” In so stating, he seemingly elevated to a position above the law his brethren of the black robe.

But the seeming dichotomy is explained by understanding, as Marshall did, the three interconnected sources of law. There is a fundamental law. This is what is referred to in our Declaration of Independence as “the Law of Nature, and of Nature’s God.” It is a transcendent law, inescapable in its universal application. But there is also constitutional law, which establishes the order and form of our civil government.

Finally, there is the legislative law, as written by legislators. Interestingly, the word “legislator” means, literally, “to carry the law.” A legislator, then, is to carry the law that exists at the fundamental level and apply it to the constitutional framework. Apart from that, law lacks meaning and is contrary to the very fabric of nature. That duty of a legislator is what is meant by another famous phrase: “law is found, not made.”

The law of the legislator must agree with the “Law of Nature, and of Nature’s God” lest our rights be weakened at the fundamental level and we become a nation of men and not law.

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Copyright Jeremiah G. Dys 2007. May not be used absent express, written permission. Please contact the author for permission to reprint.

Judicial Numbers Tough to Predict

Q: Should the West Virginia Legislature give Monongalia County another judge?

A: As it stands right now, the West Viginia Legislature is considering adding another judge to the 17th Judicial Circuit of West Virginia, or Monongalia County. It is appropriate that Legislature consider doing this for a variety of reasons.

The first reason that pops to mind is that it is constitutionally mandated to align the circuits once every eight years. That is, it is the unique province of the Legislature – not the Supreme Court, not the Governor – to determine whether or not the circuit courts ought to be realigned or whether more (or less) judges should occupy such circuits. Thus, it falls to the Senate and House of Delegates to consider wisely what it will do.

There are, essentially, two options. The Legislature could suggest that the circuits be realigned. Presently, there are 31 circuits throughout the State. Obviously, there are more counties than circuits, so it stands to reason that some circuits cover more than one county. Realignment suggests that one county may not have as busy of a docket as another and, so, the counties are combined to make one circuit. This involves a lot of redistricting that, for historical and political reasons, is not a favored method management.

The other option, therefore, is to add or subtract judges within the presently existing circuits. To do this, our legislators consider the circuit’s population to judge ratio, the size of the docket within the circuit (what we call, “caseload”), and other intangibles. The goal is to have enough work to keep a judge good and busy, but not so much that justice is delayed.

That brings us to Senate Bill 400. Having already passed the West Virginia Senate and now pending in a House of Delegates committee, SB 400 provides for five new judges to be added to five judicial circuits: the 24th (Wayne), the 30th (Mingo), the 9th (Mercer), the 22nd (Hampshire/Hardy/Pendleton), and the 17th (Monongalia). The House of Delegates ought to affirm the bill as presented by the Senate. Although, that is a bit more difficult now since, as of Friday, the House Judiciary Committee added another judge to Kanawha County’s present roster of seven judges.

Monongalia County is among only a few counties whose general population is trending upwards, rather than downwards. That is, more people are moving and staying in Monongalia County than anywhere else in this state, with the possible exception of the eastern panhandle. With more people, comes increased litigation. Without adding another judge to the two that already sit on the bench here, justice will be often delayed. Justice delayed is justice denied.

The numbers agree with the bill. Looking at the population to judge ratio, Monongalia County has over 41,000 people per judge. That is currently the third highest ratio. If a judge is added, as proposed by SB 400, then Monongalia County becomes the first in population per judge with almost 28,000 people per judge. With population, caseloads, and crimes trending up, it is quite clear: Monongalia County ought to receive another judge.

But, there is perhaps one consideration that is often overlooked in the arguments about judicial realignment. The West Virginia Constitution mandates that this realignment process take place every eight years. In other words, should the Legislature fail to act this year, it might not be until 2015 that this question would even be considered again.

Better forecasting than the weather channel is absolutely imperative. By 2015, which is more likely to have more people: Monongalia County or a southern West Virginia county? By 2015, whose caseload is more likely to be spiked by an increase of business disputes and criminal complaints that an increasing population brings: Monongalia County or one of some fifty counties shown to be generally declining in population? The question, therefore, becomes how good is the Legislature at forecasting?

Can Monongalia County get along without another judge? Perhaps for now it can, but now is not the timeframe to be judged. Tomorrow is. With that timeframe in mind the answer to the question is an emphatic, “yes!"

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Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

A Truly Precedential Column

Q: What is “precedent” and what affect does it have?

A: Any dictionary will tell you that a “precedent” is a legal decision that has an authoritative impact on cases of a similar nature. But, if you want to really be fancy and impress the neighbors, you should call it stare decisis, pronounced “STAHR-ee di-SIGH-sis,” literally meaning, “to stand by things decided.”

A decision becomes “precedent” when the highest court in the given jurisdiction gives final interpretation to the law. Recall from high school civics that, as our first Chief Justice of the Supreme Court of the United States said, “It is emphatically the province and duty of the judicial department [the courts] to say what the law is.” What Chief Justice Marshall wrote simply echoed Alexander Hamilton’s words in The Federalist Papers, No. 78, “The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Ultimately, this notion became known as “judicial review.”

What we have then, are two basic sources for our laws, each based upon a fundamental, legal building block. One source is legislative. The Legislative body determines the “will of the people,” writes laws to provide for our collective goodwill, and ask that they be implemented by the Executive. But, the Judiciary acts to ensure that the rights of the people are not trampled by the acts of government. As Hamilton put it No. 78, “the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

That is, we as a society have consented to be governed and put that governing trust in the hands of a government. That consent has taken the form of our Constitution, the foundation for our laws. If that government acts contrary to what we have consented in the Constitution, then the government (our agents) must give way to the constitution (our intent).

That brings us to the second source for our laws: common law. Common law is a fancy way of saying judicial decisions. The significance of why it is called, “common law” we will leave for later. Suffice for the present to say that common law has equal effect as legislative law. Judicial decisions “say what the law is,” so to speak. Where it crosses our consent by actions of our agents, it is unconstitutional.

But, once written, the judicial opinion becomes authoritative even over the piece of legislation is has then ruled upon. The Legislative branch would, therefore, have to write a law that would not conflict with that decision. If it legislates afoul of that judicial opinion, it will be invalidated by that governmental watchdog: the Judiciary.

Not only must subsequent legislation conform to that decision of the court, subsequent courts must also “stand by things decided.” In other words, the decision has “set a precedent.”

Setting precedent is a very serious matter. In order to overcome it, a court must essentially admit that it was wrong and change its mind – an act seldom undertaken. And, because our consent – in the form of the Constitution – is so fundamental to the foundation of our government, the importance of wisely reviewing our laws cannot be understated. Nor can the importance of placing the wisest and most prudent jurists on the bench.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Immunity is Catching

Q: I saw a judge on Law & Order threaten to through out an immunity agreement. Can judges really do that?

A: My colleagues are going to poke fun of me, but I really do enjoy a good episode of Law & Order. I wish real court life was that succinct. They go from crime, to investigation, to indictment, to trial and conviction in one, neat hour. And, for the most part, the legal wrangling is pretty spot on, though not entirely complete.

To answer this question fully, you need to understand the idea of immunity. Of course, most of us know about the idea of being “immune” from a disease, meaning the disease has no affect on the person with immunity. Well, it is not unlike that in the law.

There is the classic, “sovereign immunity.” Quite simply, to say that the “sovereign” is “immune” is to say that the state is not liable for certain aspects of their governance. The term “sovereign” is derived from the English common law and was a reference to the King who was absolute in his power, beneficently ruling with the authority of a little god in his country. Thus, since he was instilled in the monarchy by the authority of God himself, the king could do no wrong. Hence, he could not be liable in court either. Patriots put that notion down; but the idea that the government – made of, by, and for the people – was limited in its liability remained. Today, the government is immune from most legal actions alleged against it, though exceptions do, indeed, exist to provide adequate redress for wrong action.

Judicial or civil immunity attaches to judges and civil servants acting in their official capacity. Thus, a judge cannot be sued for a certain ruling from the bench and a police officer cannot be prosecuted for arresting you. However, even that has a down side: if either wield their judicial or civil power to intentionally harm someone, thus taking them outside of their proscribed role, they could face legal action.

Spouses also carry immunity, as do clergy, lawyers, and doctors. This type of immunity is called “testimonial” immunity and serves as a tool to promote confidentiality. Thus, a wife may refuse to provide testimony against her husband, a priest need not tattle on his parishioner, a lawyer cannot reveal the confidences of his client, and the doctor retains a privilege over his patient’s revelations. Yet even those testimonial privileges can be pierced in rare circumstances and the testimony that was once immune can be compelled.

Then there is the type of immunity that prompts this question: immunity agreements. We are all aware of the perp that agrees to “turn state’s evidence” in exchange for not being prosecuted for a crime, or receiving a lesser punishment. That is an immunity agreement. Essentially, it is a contract. The lawbreaker agrees to rat on his pal and, in return, the prosecutor he is helping agrees not to nail him on the crime that his testimony naturally implicates him.

Can such an agreement be overturned by a judge? Let me give you the classic law school professor answer: it depends. On the one hand, no it is a contract and, under the law of contract, once the rat sings, the state has to stand silent. But, on the other hand, if the scofflaw welshes on the deal, the state is not obligated to honor its end of the bargain and the judge can overturn the immunity agreement.

The easy answer? Yes. (But aren’t you glad you read this whole article to get that?!)

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.