Law and Justice

Posts Tagged ‘Discretion’

Courts make determinations in law and in equity. By ‘in law’ is meant following a specific law – constitutional law, state law, etc. By ‘in equity’ is meant determining what is ‘fair’ to do where now law specifically rules. An example is determining how to distribute the assets in a divorce among the husband and wife.

Common law refers to the myriad of decisions made by judges and appeals courts. Maxims of Common Law are ‘guiding truths’. Adhering to them helps judges make fairer decisions. They’re ignored in family court determinations since fairness is a wholly secondary issue. This article overviews what these maxims are.

Maxims are absolutely essential to the preservation of rights and fair treatment to all litigants. Maxims:

* represent ‘self-evident’ truth – as mentioned in our Declaration of Independence when it referred to ‘all men’ as being created equal.

* serve to guide judicial determinations in the same way that ‘axioms’ guide the analysis of mathematical determinations

* promotes fair dealing and unbiased justice – a clearly essential issue in the purpose of courts

Courts, primarily established to enforce the principles of common law, are bound by common law rules of equity that should be grounded in the never-changing maxims. This grounding serves to restrain the court’s wanton discretion in equity law determinations.

Examples of Maxims:

Let’s take a look at some examples to see the nature of maxims -as self-evidently fair. Here’s an important one:

*The certainty of a thing arises only from making a thing certain.

This implies that the court should seek clear proof of allegations made against someone and not rule on just the allegations or weakly supported ones. Family court ignores these maxims all the time.

*The safety of the people cannot be judged but by the safety of every individual.

Laws which supposedly protect the safety of some people at the expense of other people’s rights violate this maxim. A clear example of such a violation is present day domestic restraining order laws which are rampantly and unjustly imposed upon so many fathers.

*Law is unjust where it is uncertain or vague in its meaning.

Laws should be clear so that one knows precisely when he’s breaking such a law. Remember the violation of laws brings consequences on those who violate them. Vague laws are considered unconstitutional. An example of vague standard of law is the ‘best interest of the child’ standard – used to unjustly deny fit fathers custody of their children.

*The Burden of Proof lies on him who asserts the fact -not on him who denies it.

This is based on the fact that you can’t prove a negative. Courts that force people to prove a negative are examples of kangaroo courts. Family courts jail fathers when they can’t prove that they don’t have money to pay!

*No one should be believed except upon his oath.

This simply means that anyone who will give testimony must be sworn in. That way he can be charged with perjury – which is a felony (a serious crime) – if he can be found to be intentionally lying. No ‘swearing in’ means no perjury and no penalty for lying.

*Perjured witnesses should be punished for perjury and for the crimes they falsely accuse against him.

This is the bottom line of enforcing honesty in court testimony. Unfortunately perjury is almost never punished -allowing the degradation of court integrity – so obvious in family court.

*Every home is a castle; though the winds of heaven blow through it, officers of the state cannot enter.

This is from English common law which made a man’s home sacrosanct. It should still be true. It requires officers to have warrants to enter a home. A warrant is permission from a judge based on good cause to enter a home.

*No man should profit by his own wrong or, He who does not have clean hands, cannot benefit from the law

This is self-evident. An extreme case is the child that pleads mercy because he’s an orphan – but only because he murdered his parents.

*He who uses his legal rights harms no one.

But, fathers are routinely punished by seeking their rights in family court.

*No one is punished unless for some wrong act or fault.

But forced into the noncustodial status for doing no wrong would be considered punishment by any reasonable person.

*It’s natural that he who bears the charge of a thing, should receive the profits.

If you have all the obligations for something but none of the benefits, then you are a slave.

Fathers who go to family court observe clear violations of these maxims all the time. Such violations mean that there is a tyranny taking place.

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Whether you’re a CEO of a company or a guy who sweeps floors for a living, the Ohio Supreme Court has put its stamp of approval on a law that could have devastating consequences for you if you’re seriously injured in an accident.

In a major opinion issued last month, the court showed contempt for its past decisions, disrespect for the Ohio Constitution, and disdain for the men and women who serve on juries.

The court, in a case called Arbino vs. Johnson & Johnson, said for the first time in Ohio history that it’s constitutional to disregard the findings of a jury if the jury decides to award more than $250,000 to someone injured in an accident to compensate for the person’s pain – even if that pain may last a lifetime.

The court reached this landmark decision despite clear precedent that such a law is unconstitutional. Essentially what the court says this time around is that the Ohio General Assembly really, really, really, really wants to limit damages for insurance companies, so who are we to stand in their way?

Look at what the Ohio Constitution says, then you decide whether what the court has done makes any sense. The relevant part of Article I, Section 5 states, “The right of trial by jury shall be inviolate …”

In Ohio, the constitutional right to trial by jury has always been interpreted to mean that judges and the government won’t be able to invade the jury’s fact-finding function.

That’s why jurors are there, right? To hear the facts of each individual case and decide what they think is fair. Now, though, jurors can spend days or weeks hearing the facts of a case, reach a difficult decision that the injured person should be awarded a sum to compensate for the pain an accident has caused, only to have that decision gutted by a judge if the sum exceeds $250,000.

How does the right to a trial by jury remain inviolate if a law requires judges to violate the decisions a jury reaches? We should probably now read the constitution to say: The right to a jury shall be inviolate, provided it doesn’t cost an insurance company too much money.

The right to have a jury determine the facts of a case has been the backbone of our legal system for hundreds of years. It serves as a check against a judge who might be corrupt or for some reason influenced by one side or the other. It’s a concept as old as our country and traces its roots to the Magna Carta. As the court’s majority notes, Thomas Jefferson viewed jury trials as “the only anchor, ever yet imagined by man, by which a government can be held to the principles of its constitution.”

If the court really believes those words, shouldn’t there be a much more compelling reason to upend the jury system than the desire to save insurance companies money? In the interest of full disclosure, I am a personal injury attorney and I work hard to help people who have been injured in accidents get a fair shake from insurance companies. And, yes, this decision has the potential to hurt my wallet in certain cases. The real impact on my practice likely will be minimal because most people aren’t hurt so seriously that the cap will apply. Regardless of my personal stake, this is simply a matter of right and wrong, and I don’t think people realize the impact of what’s actually taken place.

Everyone has heard about the infamous McDonald’s scalding hot coffee case. It’s a complete oddity, but insurance company lobbyists always trot it out as if it’s the norm. The caps enacted in Ohio are far more likely to affect the average man or woman unfortunate enough to get into an auto accident.

Here’s the nightmare situation that could happen to you or a family member. You’re driving to work when a guy driving a delivery truck takes his mind off the road while talking on a cell phone and plows into your car. Your head hits the window, your ankle is crushed when your car’s frame crumples, and your body is snapped back and forth like a rag doll, and your life has been altered forever.

The head trauma leaves you plagued by headaches. Your ankle injury means that every step causes pain to shoot through your leg. Your back hurts so much that getting a real night’s sleep is impossible. You can’t play ball with your kids anymore or even mow the yard. And the pain doesn’t go away after a week, or a month, or even a year. In fact, by the time you get to trial years have gone by and the docs are telling you you’ll never run again and your pain will always be with you.

A jury hears your case and awards you the cost of your medical bills that may have to be repaid, and lost wages, and decides – after hearing your testimony, your doctor’s testimony, your spouse’s testimony, the defense doctor’s testimony, and the defense attorney’s arguments – that your lifelong pain is worth $500,000. Or $1 million. Or $2 million. Whatever it is, it’s not enough to compensate you for what this accident has done to your life and no one – no one – in that courtroom would change positions with you for any amount of money.

That’s the point where the judge steps in and reduces the jury’s pain and suffering award to $250,000 because that’s what the law requires. The jurors heard the facts and struggled to come to a fair decision, only to have their legs cut out from them by a General Assembly that knew nothing about the facts of your case or the impact the accident has had on your life.

And our Supreme Court just blessed this system.

It blessed a system where a jury can hear the specifics of an individual case only to have the decision wiped out by an arbitrary cap the state Legislature’s Republican majority came up with to satisfy their chamber of commerce and insurance company campaign contributors.

The court justifies its decision on the thinnest of rationales. See if you can follow its logic: When judges reduce jury awards for pain and suffering, they aren’t interfering with a jury’s fact-finding function, they’re simply applying the law.

What?

Spin that around your head for a while. It never gets any clearer. So, the jurors can do their cute little dance, and we’ll pretend to care about what they have to say. But the second they award any money to someone that could actually make an insurance company pay fair compensation, well something simply must be done. Apparently, the right to trial by jury is inviolate, but only up to a point.

And there is nothing in the Supreme Court’s opinion that would stop the legislature from capping pain and suffering damages at $1 or $5. The amount of the cap isn’t the point. Caps are wrong at $1 million and wrong at $1. Jurors are in the best position to determine what someone deserves for the pain caused by an accident.

The caps can be lifted in extreme cases such as when someone loses a limb or can no longer independently care for himself and perform life-sustaining activities. But the caps apply to more common cases like I described above, even if the person will experience a lifetime of pain.

To their credit, Justices Terrence O’Donnell and Paul Pfeifer dissented from this badly reasoned and disheartening opinion.

I understand that the General Assembly desperately wanted to do the bidding of the business interests that have pumped millions of dollars into GOP campaign coffers. (Incidentally, those same interests also have contributed millions to Republican candidates on the all-Republican Supreme Court.)

Legislators, whether Republicans or Democrats, can get into all sorts of mischief when big money is thrown their way.

That’s why we have a right to expect that the Ohio Supreme Court will do more than justify its decisions by paying fawning deference to the legislature.

We have a right to expect someone in Columbus to stand up for the people of this state. And most importantly, we have a right to expect the court to apply Ohio’s Constitution and legal precedent, especially when we’re talking about something as cherished and revered as the jury system.