I have an example I’m thinking of, but would rather not get bogged down in the details, so I’m going to try to go without it for now. The question is as follows:
Suppose you have a legal question, e.g. “how does the law look at X?”, which has ramifications in completely different and unrelated laws. So the issue comes up separately in these unrelated and the different judges rule opposite ways as to the underlying legal principle. Is there any recourse for anyone involved? The litigants in one case are not the same as the litigants in the other case.
Can they appeal on the basis of “a different judge in a completely unrelated case and regarding an unrelated law ruled otherwise as to the core principle” and have an appeals court rule on the underlying principle as applied to both cases?
Assuming they cannot, then I suppose the simplest approach would be for someone else to appeal the other case at the same time, assuming they could work it. But what I’m wondering about is suppose it’s not 100% certain that the same underlying principle is at stake in both cases, and someone might argue that you could distinguish the cases. Can you get the appeals court to even rule on that issue altogether?
Again, apologies if this is too vague and ill-defined. If necessary I’ll try the example I have in mind, but would rather try the general principle first, if it can be done that way.
The question is, what do appellate courts do? From the US Courts site,
Judges don’t make up rulings; they base them on precedent and underlying legal principles. Assuming that both trials were “fair” and there were no procedural issues, whether or not the judge applied the law properly based on the evidence presented at the trial is exactly what an appellate court decides. So if they decide that one judge misapplied the law, they would overturn his or her decision.
And if two appellate courts differ in their interpretations - which happens frequently, then the case goes to the Supreme Court for a final determination that is binding on all.
The question is whether anyone can force the judiciary system as a whole to confront and resolve an apparent inconsistency as to the same underlying principle if it manifests itself in completely different cases which won’t ever come up together.
Yes, if you are a litigant in a case, and the inconsistency in the court rulings is directly relevant to your case. You can argue that the court should follow the precedent that is favourable to your position, and not follow the precedent that does not favour your position.
The judge(s) at trial in appeals get to decide the scope of their decision. You can’t force them. You see this recently where the Supreme Court has notoriously dodged a lot of important decisions on principles by limiting the scope of what they decide to narrow confines, avoiding the big picture. (Or sometimes, deciding the plaintiff does not have standing)
You can try to use the principle decided in A to claim that B should be decided a certain way - but whether than principle applies is up to the judge.
Example - some police decide to track someone by putting a GPS tracker on their car. In one such case, the result decided by a court hinged on the fact that the tracker was installed on the car in the defendant’s driveway, so the judge tossed the result saying the police needed a warrant to trespass; thus avoiding the key question which is - just because the state at great expense could put humans on the job to watch someone 24-7 without a warrant, should automated round-the-clock data collection be equally exempt from warrant requirements? (Other courts have ruled either way on this issue)
OK, I’m going to go to the example to illustrate the scenario I’m thinking of. But the important point is that it’s just an illustration and the finer points of that case are irrelevant.
What got me to thinking about the issue is that I know there have been various judges who have ruled that it’s unconstitutional (or illegal, at least) for laws on indecent exposure to distinguish between male and female breasts, and have struck down laws prohibiting public female toplessness on that basis. However, I also know that laws on sexual assault frequently define sexual assault as touching sexually-oriented areas of the body, and frequently declare female breasts - but not male breasts - to be included. So the law in that case is acknowledging that female breasts can be legally distinguished from male breasts and treated differently on that basis. Which seems at first glance inconsistent with the rulings on public exposure.
So let’s say someone is involved in a case of one type or the other. Either someone who is up on charges of sexual assault and is looking to strike down the law singling out female breasts as a sexual zone, or a public official defending the local ban on female but not male toplessness. So this guy wants to make the case that “hey, the law in the other case does/doesn’t recognize a difference between male and female”. But these cases are completely unrelated other than for this argument. My assumption is that a judge ruling on the one case could simply say they don’t agree with the law/ruling in the other case but it’s not before them so who cares. Now you’re appealing. Can you force the court to at least address the underlying issue? Or can an appeals court say “we think public exposure and sexual assault have nothing to do with each other and we’re dealing with one and not the other so buzz off”, and leave an apparent inconsistency out there?
[Again, what I’m about here is the structure of the case and using this as an illustration. If for whatever reason you think there’s no true inconsistency here, then imagine to yourself another comparable case - with completely different and unrelated laws are in play but there’s an underlying issue which may - or may not - be shared.]
Is your question whether a lawyer could do this, and argue to the court that since the law recognizes X is different from Y in context A, it is wrong to declare that considering X and Y to be different in context B is unconstitutional? If that’s your question, then yes – a lawyer could do that. I think in this particular case their argument would fail, but I could imagine other ones where it would succeed.
Short answer: yes, courts can, and in fact that’s how the law is changed at times.
You cannot “force” the court to do so, however. The lawyers argue the case and the court decides whether to agree with one argument and how to apply it.
Generally, nobody (except maybe a higher court) can force an appellate court to take an appeal, or rule on any particular point of it. So you can appeal, but the appellate court can always tell you to buzz off (that is, decline to take the case).
Also, your example fails because it’s not unconstitutional to point to differences between men and women when they are relevant, such as when determining whether a sexual assault or not; rather, it is unconstitutional to put a limit on members of a protected class and not on everyone else – IE a law that says women can’t go topless, but men are fine.
Any discrimination inherent in a law can survive Constitutional scrutiny as long as it meets the burden of the relevant test- rational basis, intermediate scrutiny, or strict scrutiny. As far as courts striking down laws barring women from going topless in public some of those decisions are based on state constitutional provisions. Courts striking down such laws based on the US Constitution are in the minority and have explicitly acknowledged that fact in some decisions.
Can the legislature legislate how a judge “shall” or “will” construe a law? [del]Fuck around and find out.[/del] I’m not sure the law on that is entirely settled, and I can only imagine the judiciary would be less-than-enthused about another branch of the government treading on its domain. This hasn’t overturned Roe v Wade thus far, but maybe some killer wants to get a charge taken off their conviction and can take this all the way to the Supreme Court, saying that if abortion is legal, fetuses obviously can’t be human beings which can be murdered, because a legal medical procedure can’t result in premeditated homicide.
As others have stated you ultimately can’t really force a court to address your particular arguments or even to take your case in the case of appellate courts without going over their head and having a higher court order them to do so or hear it themselves. But there are several factors that can still weigh in your favor in such situations: 1) Judges don’t want to look bad for poor legal reasoning or for dodging an issue in front of their peers, their superiors, or the electorate in the case of elected judges 2) courts of appeal are generally regarded as being more competent and reliable and due to that reputation and increased visibility, subject to more scrutiny for their actions from those groups mentioned previously 3) if you can make a cognizable claim under the US Constitution then you may have the option of Federal Court as well, and with that generally comes the same advantages outlined in 1 and 2 but to an even greater degree (absent the elected part of course).
With regards to your example, courts generally like logic and consistency and that potential inconsistency could indicate a greater likelihood that a court would feel compelled to address it at least in some way. On the other hand it’s certainly possible that a logical and legal distinction could be drawn that would justify the apparent inconsistency.
The judge will render a decision. He/She will decide whether the female breast, for example, is sexual during a touching episode or not (since the court case will be about touching, not about parading which is not illegal). What will happen, is they will explain their decision, making the points, so to speak, either superficially or in mind-numbing detail, and that (if they are appeal level) becomes the precedent by which future decisions are determined. Not enough detail, and it becomes the task of the next case to help clarify the limits.
My wild-ass guess, they will say that the female breast per se is not sexual, but if handled in the (in)appropriate manner by a third party (partier?) becomes sexual - especially if uninvited. You might say the same about the fully clothed male crotch. Wearing pants is not sexual, but a man lewdly (subjective decision) fondling his clothed crotch in full view of others, particularly minors, most likely will earn himself a charge and conviction on indecency.
IIRC, that was the gist of the decision about public nudity in Canada - it’s not by itself illegal, but if it was for the purpose of lewd behaviour (presumably, that determination is in the eyes of the court) then it is public indecency. Play it straight, no matter how ironically, and you’re fine.
I should add, let’s presume this is a touching offense - the judge will render their decision. They would typically address the contradictory court decisions; if nobody mentions a contradiction, the court will apply the law relevant to the charge. If the issue of a contradictory ruling is mentioned by the defense, the ruling may or may not explain why it does not apply in this situation. If it is not explained or taken into consideration, it will probably be addressed by a higher court on appeal. (“We appeal because the judge failed to consider Regina v. Doe”). If the explanation does not seem legally logical - ditto, appeal. (If the appeal court declines to hear the case, presumably they are endorsing the trial judge’s logic) If the judge chooses to ignore an obvious law or declare it unconstitutional, and exonerate the defendant for something obviously in violation of the law, the crown will most likely appeal. And so on, until someone runs out of legal funds or a coherent decision is reached.