From Kacik v. Kacik (Cal. Ct. App. Nov. 19, 2009), following a long analysis of a statute:
III. Memo to the LegislatureBecause of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly:
Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by “is in effect.” One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., § 473.)
Thanks to Prof. Shaun Martin (California Appellate Report) for the pointer.
drunkdriver says:
That’s pretty funny. I also liked the bit earlier in the opinion, “There are times when the definition of ‘is’ really makes a difference.” The judge seems like a capable and slightly whimsical writer. Which is fine in reasonable doses. As they say, it ain’t unconstitutional to be interesting.
December 22, 2009, 2:51 pmArthurKirkland says:
I like the judge’s message more than the punctuation, but the legislature should be able to (and apparently should) apprehend the meaning.
December 22, 2009, 2:56 pmMike B. says:
I wonder as an empirical matter if this sort of approach could actually make a difference. Having worked in a non-partisan state legislature legal research department, I have seen that representatives often do look at cases that come out interpreting the statutes that they have voted on to decide if they want to take action to attempt to clarify. I believe that most of the time they do so because of constituent complaints/inquiries. However, the work that I did in that office was not in direct contact with the representatives. Many of the cases that I ended up having to review involved courts being divided over the interpretation of a recent statute. So it seems like legislatures might be somewhat responsive to how courts are handling the laws they make.
December 22, 2009, 2:57 pmI guess the question is, is it appropriate for the courts to “address a legislature” directly in an opinion. Or should a judicial non-activist do exactly what the law dictates and not make any sort of indication that the law could or should be changed?
GV says:
I assume Orin would find this sort of thing unseemly? I wonder if he does and if others agree. I think something like this could be helpful and could save people a lot of heart ache (and wasted litigation costs) down the road.
December 22, 2009, 3:09 pmCrunchy Frog says:
The court does not seem to be stating an opinion as to what the law should or should not be, so much as asking for clarification.
Of course since this is the California legislature we’re talking about here, it will probably have zero effect. The CA Senate and Assemblycritters are notoriously impervious to anything resembling common sense suggestions.
December 22, 2009, 3:21 pmOrin Kerr says:
GV writes:
No, in the first instance because it’s a state court. The separation of powers that determines the proper roles of the branches of the federal government need not determine the proper roles of the branches of state governments. States just have to provide a republican form of government; once they have done that, they can divide power pretty much however they want.
I’m also not sure I would have a problem with a federal court doing this. The court is just asking the legislature to be clear so the court can follow whatever the legislature wants; it is not recommending that the legislature pass a particular rule based on the policy preferences of the judges. (Although a separate heading, “Memo to the Legislature,” is sort of weird.)
December 22, 2009, 3:37 pmAndrew says:
I’m okay with: “If you decide to renew it, please consider saying exactly what you mean by ‘is in effect.’”
I’m less okay with: “One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed.”
It’s one thing to flag a problem, and quite another to suggest a solution.
December 22, 2009, 3:50 pmSGD says:
Utah had a case recently where the court of appeals decided part of the alimony statute was hopelessly vague, and basically instructed trial courts to ignore it. It made me LOL.
“We will not substitute our judgment for that of the legislature. Accordingly, until the legislature clearly defines fault in the statute, it is inappropriate to attach any consequence to the consideration of fault when making an alimony award.”
http://www.utcourts.gov/opinions/appopin/mark121009.pdf
Funny how the legislature’s pronouncements that are at variance with the policy preferences of the courts often end up being too vague to enforce.
December 22, 2009, 3:57 pmShelbyC says:
I can’t hear you, you’re breaking up… :-)
December 22, 2009, 4:36 pmChris Travers says:
How so? In the case you are talking about, the issue was that the courts were basically told they could, if they wanted to, decide alimony based in part on fault, but left no further guidance to the courts. In Mark v. Mark, the court ruled that “fault” was already built into the system and that no real guidance was offered here for them to apply other than the subjective preferences of the judge. Do you disagree?
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December 22, 2009, 7:49 pmJosh Blackman says:
This reminds me of Chief Justice Truepenny’s opinion in the famous Case of the Speluncean Explorers by Lon L. Fuller. Truepenny found that he lacked the authority to reverse the conviction of the cannibalistic cave climbers, but petitioned the Chief Executive to grant clemency. When studying this article in class, I was always troubled by it.
But Courts send these kinds of messages, perhaps implicitly, all the time. Think of NAMUDO. CJ Roberts basically told Congress to fix the Voting Rights Act, or else the Court would strike it down next time.
http://joshblackman.com/blog/?p=3366
December 22, 2009, 9:42 pm