The first commandment: You must obey...really
By Thomas Van Flein, Editor
Two events have occurred recently that, at first glance are amusing, but are rather pernicious upon closer examination. There seems to be a trend in which those who ought to know better (one state supreme court judge, one state attorney general and some local police) are snubbing the rule of law. It is a trend that should end now.
I like the Ten Commandments (the book, not the movie). I can remember most of them, and I appreciate seeing them chiseled into granite to refresh my recollection. It is my opinion not enough things are carved in stone anymore. With delete keys, backspace keys and cut and paste options, nothing seems real permanent today. How often has some crafty lawyer said to a client, when asked if he or she can break a lease or some other contract, "Well, it's not carved in stone..."
Maybe it should be. That step alone would stop a few cases. Plus, the parties would be very selective in choosing exhibits for trial. Instead of saying "We plan on offering 64 exhibits, your honor" parties would say, "We have 72 pounds of exhibits. We can carry no more." Heck, a standard employment policy manual could weigh over 100 pounds. Choosing the most important exhibit would become a physical necessity.
I don't personally mind a 5,200-pound granite monument at any courthouse. It could have the Ten Commandments, or just a pithy comment from George Burns. Anything that reminds litigants that they will burn in hell for eternity has my vote. Alabama Supreme Court Justice Roy Moore seems to agree, in part (the Ten Commandments part). He personally oversaw the (apparently surreptitious) installation of such a monument in the Alabama courthouse in Montgomery.
There can be little doubt that the monument served a religious purpose. Judge Moore's own comments, and the comments of hundreds of worshipers who pledged to defend the monument when it was ordered removed, were based on clear expressions of religious devotion. If I were a judge reviewing this, I might conclude that the constitutional infringement was de minimus and, when combined with the secular adoption of some of the Old Testament laws (at least two Commandments), the monument may be acceptable in an historical context under our Constitution. Other judges, including a federal district court judge and an appeals panel, disagree. Maybe most judges disagree with me (and Judge Moore) on that.
But this is where Judge Moore and I part company. Rather than accept a valid court order to remove the monument, he chose to ignore it and defy it, citing a "higher law." When a judge ignores a lawful order from a higher court and asserts a nullification defense, that judge has admitted that he or she is no longer fit to serve as a judge. If any person should understand the rule of law, it should be a judge. Thus, while some of us may agree with his cause, and others strongly disagree (one of my partners explained at least six very good reasons why such a monument is inappropriate in a courthouse), it used to go without saying that the loser in any dispute will respect the outcome once a court has ruled. This principle alone has done much to advance our society, economy and culture. To me, Judge Moore's conduct in placing a religious monument in the courthouse was a minor constitutional concern. Defying a court order was a major constitutional concern and an irremediable lapse in judgment.
Sadly, it is not just one judge in Alabama who appears confused on the rule of law concept. In Alaska, the Court of Appeals recently applied the rule of law by following a higher court's holding. In State v. Noy, the court of appeals (not surprisingly) held that the Alaska Supreme Court's decision in Ravin v. State was good law and that it was bound to follow it. Standard legal thinking, really; nothing on the cutting edge. Under Ravin, the consensus seems to be that possession of up to four ounces of marijuana in one's home for personal use is protected under the Alaska Constitution. It is fair to debate whether that decision was correct when decided, or whether it should be reconsidered today. But it is the law and it is not appropriate to disregard it.
After the Court of Appeals ruling, which did not even change the law but merely applied the law, statements were made by some police representatives that the decision would be ignored and that "pot busts" would continue. Then, the state attorney general, to his credit, issued a memo to the State Troopers and state prosecutors, that state law enforcement should not arrest or issue citations to Alaskans who possess small amounts of marijuana for personal use at home. Not to his credit, however, Attorney General Renkes then directed the troopers and prosecutors to "investigate" these situations anyway and seize the marijuana as evidence to be turned over to the federal prosecutors.
It is obvious that the state disagrees with both the Ravin decision and the Court of Appeals decision following Ravin. It has said so. There are appellate avenues to be pursued and, quite frankly, legislative avenues in the form of a constitutional amendment, that can lawfully change the decision if that is what everybody wants. But instructing state prosecutors and state troopers to essentially violate state law is not consistent with upholding the spirit and letter of the state constitution. All of these government employees took an oath to uphold the law?all laws, not just the ones they like.
The instructions given by the Attorney General arguably intrude upon the rule of law and weaken respect and efficacy for the courts because it thwarts the spirit of the law as found by the Court of Appeals, and it ascribes a stringent interpretation to a constitutional provision that is typically broadly construed. Although the Attorney General stated that "[w]e have to respect the language of the appeals court decision" the actions demonstrate that the "language" is being minimized to fit within the state's goals. While this is not as blatant has Judge Moore's reliance on a "higher law" to disregard a court order, it is in the same category and poses a threat to the rule of law to some degree.
In Alaska, the high court has decided about getting high and it's high time people clear the air and recognize this and weed out any misunderstandings and nip this whole thing in the bud. (There are more where these came from, but I don't want this column to go to pot).
Like it or not, jurors have to follow the law in jury instructions. Parties have to follow the law established by the trial court. Trial courts have to follow the law established by appellate courts. And appellate courts have to follow the law established by the constitution and the legislature. The rule of law is not a Chinese menu. We cannot pick and choose what laws we like and what we don't like. You have to obey--or deal with the consequences. That is the First Commandment, and you can carve that in stone.