The Straight Dope

Go Back   Straight Dope Message Board > Main > General Questions

Reply
 
Thread Tools Display Modes
  #1  
Old 07-19-2004, 04:47 PM
Liberal Liberal is offline
Guest
 
Join Date: Nov 1999
Can a judge ignore the law because, in her opinion, it just isn't common sense?

Can a judge set aside a law that she believes to be in conflict with common sense? Suppose, for example, there is a jurisdictional statute that caps liability for a car accident at $500 if the car is uninsured. Suppose that a judge, issuing her ruling, states that the statute as written might have made sense in the horse and buggy days but does not make sense today when cars can cost as much as a house cost when the law was enacted. Suppose she awards the plaintiff $5,000 to cover the cost of repairs. Suppose that both the plaintiff and defendent had signed an agreement that the judge's ruling would be final and that there would be no recourse for appeal. Suppose finally that the judge is an independent arbiter and not in fact acting as an agent of the state? Would it matter whether she had agreed to abide by the laws of the state? Can she elect to ignore the law? Can she make the award as stated, and is the defendant prohibited from appeal even though she ignored the law?
Reply With Quote
Advertisements  
  #2  
Old 07-19-2004, 05:00 PM
SandyHook SandyHook is offline
Guest
 
Join Date: Nov 2002
In my opinion, which has absolutly no knowledge of law, yes.

The word judge is misleading. In the situation you have described she would be an independent arbitor (sp?). The conflicting parties have agreed to enter into binding arbitration.

Now, can the loser invoke the well known legal phrase, "Fuck you Jack, I'm getting a lawer and sueing," in spite of the agreement? Probably. A trial is essentially binding arbitration, with extra-added bullshit. Lots of them get appealed.
Reply With Quote
  #3  
Old 07-19-2004, 05:08 PM
Polycarp Polycarp is offline
Guest
 
Join Date: Aug 1999
Location: A better place to be
Posts: 26,718
A judge acting in his or her judicial capacity is obliged to rule in accordance with the law[/b]. But notice those two little underscored phrases -- they're catches.

First, your established case is using the judge, not as a judge in a court of law, but as an arbitrator engaged by the parties. As such, her limitations are those imposed by the arbitration agreement, not whatever statutory provisions might prevail in a lawsuit.

Second, "in accordance with the law" does not necessarily mean "in accordance with the statute" in question. The law calls for justice to be done, and to follow the Constitution. This is the reason for judicial review -- because the language of the statute contravenes "the law" -- meaning the corporate, hierarchical body of law where the Constitution is the "supreme law of the land" in its own words.

Though I'd presume nobody wants to get into a Constitutional issue on this, the language of the 14th Amendment, and in many cases, including N.C., of the State Constitution, would suggest to me that where strict application of the statute would work an injustice in the nature of a "taking" on one party to an agreement, it's contravened by the need to arrive at a just settlement. (This smells to me strongly like the older reading of substantive due process, so I'd have a hunch Dewey will swiftly correct my view here.)

You'd need to look into the laws governing arbitration in the jurisdiction in question, to get a final answer on this -- but I suspect strongly that my first point is the crux of the matter -- the law governs lawsuits, not agreements to arbitrate on the merits.

As for the question of appeals, nobody nohow has the right to require that one party sign away his or her right to seek correction of a perceived injustice in a court of law -- that was established in a couple of contract cases with "no lawsuit" language buried in the fine print. But a clear arbitration agreement where both parties formally elect to have the arbitration as final and not subject to protracted litigation would place a serious onus on the party seeking appeal to make the case that the arbitration was invalid as not just and equitable.

That's an educated layman's opinion, and not intended as anything definitive as regards the law. Dopers-at-Law, please confirm, correct, and emend it as you see proper.
Reply With Quote
  #4  
Old 07-19-2004, 07:32 PM
Diogenes the Cynic Diogenes the Cynic is offline
BANNED
 
Join Date: Oct 2002
Location: St. Paul, MN
Posts: 58,797
Many years ago, I remember reading about a case in which a man had been charged with raping his wife. He used an atiquated statute in his defense which stated that a man could not be found guilty of a rape upon his legal wife. The judge in the case (a woman, IIRC) disallowed the defense even though the statute was still on the books.

So I guess there must be some leeway as to archaic laws and statutes.
Reply With Quote
  #5  
Old 07-19-2004, 07:42 PM
Ringo Ringo is offline
Charter Member
 
Join Date: Apr 1999
Location: Houston, TX, USA
Posts: 11,261
Did that judge's ruling hold up, Diogenes? With what you've told us, I'm almost certain there was an appeal.
Reply With Quote
  #6  
Old 07-19-2004, 07:56 PM
Diogenes the Cynic Diogenes the Cynic is offline
BANNED
 
Join Date: Oct 2002
Location: St. Paul, MN
Posts: 58,797
Quote:
Originally Posted by Ringo
Did that judge's ruling hold up, Diogenes? With what you've told us, I'm almost certain there was an appeal.
To be honest, I don't remember. This was more than twenty years ago. It stuck in my head because I was surprised that a judge could just ignore a standing statute, even an archaic one. I know the guy was convicted (he didn't really dispute the facts of the case, he was just trying to argue that it couldn't be defined as rape) but I have no idea if he appealed it.

I wish I could remember more about it but it was a long time ago.
Reply With Quote
  #7  
Old 07-19-2004, 08:24 PM
Tuckerfan Tuckerfan is offline
Guest
 
Join Date: Jan 2001
Quote:
Originally Posted by Diogenes the Cynic
Many years ago, I remember reading about a case in which a man had been charged with raping his wife. He used an atiquated statute in his defense which stated that a man could not be found guilty of a rape upon his legal wife. The judge in the case (a woman, IIRC) disallowed the defense even though the statute was still on the books.

So I guess there must be some leeway as to archaic laws and statutes.
There was a similar case here in TN, only the judge ruled in favor of the husband. Naturally, this caused a lot of unwanted publicity, and the law got repealed quickly. No idea if the judge was just a jerk, or if he was doing it to point out the stupidity of the law.
__________________
***Don't ask me, I don't post here any more, and I'm probably not even reading this now.***
Reply With Quote
  #8  
Old 07-19-2004, 08:40 PM
Diogenes the Cynic Diogenes the Cynic is offline
BANNED
 
Join Date: Oct 2002
Location: St. Paul, MN
Posts: 58,797
Quote:
Originally Posted by Tuckerfan
There was a similar case here in TN, only the judge ruled in favor of the husband. Naturally, this caused a lot of unwanted publicity, and the law got repealed quickly. No idea if the judge was just a jerk, or if he was doing it to point out the stupidity of the law.
My case was in Louisiana. I wonder if those kinds of laws took longer to repeal in the south.
Reply With Quote
  #9  
Old 07-19-2004, 09:00 PM
Valgard Valgard is offline
Member
 
Join Date: Jan 2001
Location: SF Bay Area
Posts: 4,305
I think that your example of the man trying to get away with raping his wife based on an old (but still on the books) law might be different. If a judge determines that subsequent law has effectively rendered the old law unenforceable or illegal or whathaveyou then he may say "It doesn't matter what Blue Law X says, the PDQ decision of 1993 trumps it."

There are undoubtedly plenty of blue laws still on the books that make it a crime for an unescorted woman to walk down the street after dark by herself in Bumbershoot, CA (or similar silliness) but they're unenforceable. The local legislature just hasn't taken the time to rewrite that chunk of the law. My parents bought their house despite the fact that the deed clearly states that the property was not to be sold to Jews - it's unenforceable but would take too much trouble to edit out.
Reply With Quote
  #10  
Old 07-19-2004, 09:02 PM
Ravenman Ravenman is offline
Charter Member
 
Join Date: Jan 2003
Location: Washington, DC
Posts: 14,358
Quote:
Originally Posted by Tuckerfan
No idea if the judge was just a jerk, or if he was doing it to point out the stupidity of the law.
Heh - I just happened to be looking through Bartlett's this morning and saw this quote, which stuck in my head, and seems appropriate:

"I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution." Ulysses S. Grant (1822–1885), U.S. general, president. Inaugural address, March 4, 1869.
Reply With Quote
  #11  
Old 07-19-2004, 09:16 PM
Diceman Diceman is offline
Guest
 
Join Date: Mar 1999
Here in Michigan, a few years ago, there was The Case Of The Cussing Canoeist. Apparently, some jerkwater town had an old law that made it illegal to use profanity in front of a woman or child. Illegal, mind you. As in, a criminal offense.

Well, some guy was out in his canoe, and he swore, and someone got offended and called the cops on him! And, thru some tragic-comic series of events, this all turned into a long and bitter series of court battles, with the prosecutor determined to throw the book at this guy, and the other 99.999% of Michigan's population just looking at this like

Eventually, the law was struck down.
Reply With Quote
  #12  
Old 07-19-2004, 09:22 PM
David Simmons David Simmons is offline
Charter Member
 
Join Date: Nov 2001
Posts: 12,684
Quote:
Originally Posted by Ravenman
Heh - I just happened to be looking through Bartlett's this morning and saw this quote, which stuck in my head, and seems appropriate:

"I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution." Ulysses S. Grant (1822–1885), U.S. general, president. Inaugural address, March 4, 1869.
Years and years and years ago it was illegal in California to haul "cargo" in a station wagon if the vehicle had passenger car rather than truck license plates. The CHP started enforcing the law which was quickly repealed. The legislature, which was part time then, did it in only a matter of a couple of weeks after the protests started coming in.
Reply With Quote
  #13  
Old 07-20-2004, 12:35 AM
Garfield226 Garfield226 is offline
Guest
 
Join Date: Jun 1999
Liberal watches Judge Judy. Cool.

(Incidentally, I had the same reaction: "But, but, but....it's the LAW...." and "Can she DO that?" I've seen her throw cases for less though.)

Interesting info folks.
__________________
"·BraheS· I object to your classifying tuna as fake meat. They're the cows of the sea, except for "sea cows," but manatees are illegal here. | ·GMRyujin· Sorry, fish isn't real meat. Real meat has legs. | ·BraheS· Hell, *I* have legs. Why isn't anyone eating me? | ·GMRyujin· Cause you eat tuna, dude"
Reply With Quote
  #14  
Old 07-20-2004, 02:37 AM
cmason32 cmason32 is offline
Guest
 
Join Date: Oct 2003
Quote:
Originally Posted by Liberal
Can a judge set aside a law that she believes to be in conflict with common sense? Suppose, for example, there is a jurisdictional statute that caps liability for a car accident at $500 if the car is uninsured. Suppose that a judge, issuing her ruling, states that the statute as written might have made sense in the horse and buggy days but does not make sense today when cars can cost as much as a house cost when the law was enacted. Suppose she awards the plaintiff $5,000 to cover the cost of repairs. Suppose that both the plaintiff and defendent had signed an agreement that the judge's ruling would be final and that there would be no recourse for appeal. Suppose finally that the judge is an independent arbiter and not in fact acting as an agent of the state? Would it matter whether she had agreed to abide by the laws of the state? Can she elect to ignore the law? Can she make the award as stated, and is the defendant prohibited from appeal even though she ignored the law?
A judge cannot award more than what is statutorily specified by a legislature (with a caveat, of course). A judge may rule that an cap is unconstitutional, but may not rule that a law "doesn't make sense." Such determinations are the purview of legislature; a court is not supposed to second-guess them.

Arbitration is not so simple: Arbitration is almost always final; non-final discussions are considered mediation. In some states, it is illegal for insurance companies to enforce an arbitration clause in their contracts. Otherwise, the Federal Arbitration Act is pretty straightforward in that awards by arbitors are binding and irrevocable (unless you can prove fraud or corruption). Most contracts will include a choice of law provision specifying what jurisdictional laws the abritor must follow. In those circumstances, the arbitor is bound to follow said laws.
Reply With Quote
  #15  
Old 07-20-2004, 05:00 AM
Otto Otto is offline
BANNED
 
Join Date: Jan 2000
Location: Madison WI
Posts: 22,506
Quote:
Originally Posted by cmason32
A judge cannot award more than what is statutorily specified by a legislature (with a caveat, of course). A judge may rule that an cap is unconstitutional, but may not rule that a law "doesn't make sense." Such determinations are the purview of legislature; a court is not supposed to second-guess them.
The judge can rule the law invalid on public policy grounds, I believe, which is IMHO functionally the equivalent of "the law doesn't make sense."
Reply With Quote
  #16  
Old 07-20-2004, 06:46 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 44,722
If this in fact a Judge Judy question, then I'll add that I've seen at least one Judge Judy episode - a dog bite case - in which the defense cited a particular leash law in his jurisdiction and the judge responded that on her show, she dealt in general principles of the law and did not apply the laws of a particular jurisdiction.

If she draws her litigants from all over the country, there's probably some wisdom in this: she cannot be expected to know the specific law in each jurisdiction. On the other hand, it's unlikely that she draws many cases that turn on such fine points of law in the first place.

In any event, the comments about are generally correct concerning arbitration: as long as there is no fraud or coercion, the general proposition is that the arbiter's decision is final, and that's what you agree to before entering arbitration.

Note that the arbiter cannot exceed his authority. For example, a divorced couple may approach an arbiter to decide who has the right to keep the pet parakeet, assuming their divorce decree is silent on the issue; they may NOT rely on an arbiter to grant custody to a child. That is a function of the Family Court system, and an arbiter's decision means nothing.

- Rick
Reply With Quote
  #17  
Old 07-20-2004, 07:25 AM
Annie-Xmas Annie-Xmas is offline
Charter Member
 
Join Date: Apr 2000
Location: New Jersey
Posts: 32,114
A recent NYC case of a judge acting "above the law"
Reply With Quote
  #18  
Old 07-20-2004, 07:42 AM
Liberal Liberal is offline
Guest
 
Join Date: Nov 1999
Yes, it was Judge Judy. For what it's worth, the minor defendant (who is now 18 but was 17 when the plaintiff's car was damaged during a test drive with his girlfriend, who was 19 at the time, in icy conditions) was the exemplary Judge Judy litigant. He never interrupted, spoke only when spoken to, addressed her politely with "your honor", answered succinctly, and stood still with his hands folded on the table top. Those are things she demands of young people who show up in her courtroom, and he was a meticulous speciman of her perfect example. She had already exhonerated him because he had been a minor and could not be held to a contract, but he sought to defend his girlfriend whom Judge Judy clearly, by this time, was going to hold responsible. Until now, he had said almost nothing except to answer her yes/no questions. Here is what transpired:

Minor Defendant: [...raises his hand...]

Judge Judy: [...curtly...] What!

MD: Your honor, the state of Michigan is a no fault state. I'm not sure if you're aware of no fault, but in this particular case, Mr. Johnson's car was not insured, did not have collision or comprehensive insurance. It had what they call personal liability and property damage.

JJ: Yes?

MD: And in Michigan, we have the mini-tort liability law, which enables somebody to sue for up to only $500 only to cover a deductable in which insurance would pay for.

JJ: Mmm-hmmm...

MD: So, Mr Johnson should only be able to get zero dollars because he was uninsured, your honor.

JJ: Let me ask you this question, Andrew. Let's talk about common sense. The law is supposed to have a certain common sense to it, is that right?

MD: Yes, your honor.

JJ: And if the law does not have a common sense to it, then its... wrong. Is that right?

MD: No, your honor.

JJ: Yes. Certain laws were enacted at the time of horse and buggies. That's no longer applicable. When's the last time you saw a horse and buggy on the 10 freeway?

[...laughter from gallery, cut to commercial, return...]

JJ: At the end of a trial, what's suppose to happen is the just and fair thing. You and your girlfriend deprived Mr. Johnson of the ability to sell his car for $3,800 because you were not honest with Mr. Johnson about the fact that you did not have a driver's license. Now, when you went back, according to your girlfriend, you felt a little guilty because you had conned him, because, according to your girlfriend, you knew you shouldn't be driving, you knew you didn't have a license, which is the reason why you asked her to drive the car. She also did the wrong thing because you're right around the corner. All you had to do was pull the car over, park it, go back and say, "The roads look bad, I don't have a license, I left the car there, I'm sorry." [...her voice rising in both pitch and volume...] You chose not to do that. You chose to let Jennifer drive the car.

MD: Jeffrey Johnson [please, no Jeff Johnson jokes!] chose to threaten my family, to kill us if we didn't pay. [It was a threat made on the Internet.]

JJ: [...long pause...] I want you to practice these words when you're in bed at night, when you have a quiet moment. I want you to try practicing these words because I don't think that you've said them often enough in your life at the appropriate time: "I'm sorry, I did the wrong thing." [...covering her eyes with both hands...] "I'm sorry, I did the wrong thing." [...lowering her hands...] "I'm sorry, I did the wrong thing. It was my fault. I'll take responsibility." I want you to practice that. You'll be a much happier adult when you do. Judgment for the plaintiff in the amount of $3,800 — against you, Jennifer. That's all.
Reply With Quote
  #19  
Old 07-20-2004, 08:20 AM
Diogenes the Cynic Diogenes the Cynic is offline
BANNED
 
Join Date: Oct 2002
Location: St. Paul, MN
Posts: 58,797
Ahh... if it's Judge Judy then there's something you need to bear in mind. Thise Judge shows are not actually real civil trials with any official sanction in any real jurisdiction. The litigants agree to drop the official proceedings and have their dispute settled in the studio. The studio is not a real courtroom and the judge is not acting in any real jurisdiction. It's basically just a game show. The litigants argue and the judge "judges" but it's done for entertainment only. It's not a real trial. The litigants agree to abide by the judge's decision and the judges on these shows will generally follow the laws of their given jurisdiction (usually California) but they don't have to follow the law because it's not really a legal proceeding. As a matter of fact, the shows usually pay any judgements themselves and even the losers get some compensation for being on the show.

There's always a disclaimer in the credits at the end but you have to be pretty quick to catch it.
Reply With Quote
  #20  
Old 07-20-2004, 08:26 AM
Liberal Liberal is offline
Guest
 
Join Date: Nov 1999
Yeah, I knew that. That's why I asked in the OP whether it mattered if she'd agreed to uphold the laws of particular jurisdictions. But if the transcript I gave had indeed been in an actual courtroom, would it have held up to appelate scrutiny?
Reply With Quote
  #21  
Old 07-20-2004, 08:31 AM
Bricker Bricker is offline
And Full Contact Origami
SDSAB
 
Join Date: Dec 1999
Location: Northern Virginia
Posts: 44,722
Quote:
Originally Posted by Liberal
Yeah, I knew that. That's why I asked in the OP whether it mattered if she'd agreed to uphold the laws of particular jurisdictions. But if the transcript I gave had indeed been in an actual courtroom, would it have held up to appelate scrutiny?
No. In a real courtroom, the judge must give a reason for her decision to ignore a law that goes well beyond "common sense."

She could find, for example, that the mini-tort liability law was agaist public policy, that it infringed upon the due process rights of a litigant, or some other constitutional underpinning... even then, her conclusion of law is reviewed de novo - fresh and anew - by the appellate court, and is entitled to no particular deference... unlike her findings of fact, which the reviewing court are bound to accept on appeal unless they are plainly without support in the record.

- Rick
Reply With Quote
  #22  
Old 07-20-2004, 08:48 AM
Liberal Liberal is offline
Guest
 
Join Date: Nov 1999
Thanks. I believe that answers all my questions.
Reply With Quote
Reply



Bookmarks

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 03:01 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.

Send questions for Cecil Adams to: cecil@chicagoreader.com

Send comments about this website to: webmaster@straightdope.com

Terms of Use / Privacy Policy

Advertise on the Straight Dope!
(Your direct line to thousands of the smartest, hippest people on the planet, plus a few total dipsticks.)

Publishers - interested in subscribing to the Straight Dope?
Write to: sdsubscriptions@chicagoreader.com.

Copyright © 2013 Sun-Times Media, LLC.