4 posts tagged “legal system”

Finally, I have read the judgement from California about gay marriage. It may be prudent to post a comment from an earlier post, in response to a commenter, Madonna. I should note that I am not part of a conspiracy behind an ‘anti-gay industry’ or ‘“ex-gay” head cases’. I’ll also refrain from saying ‘You’re not bright,’ as you did to another Voxer, but I will begin with your own words, ‘Let me educate you.’ One proviso: I have read fewer Californian cases than, obviously, someone trained in an American law school. I have written based on what I have observed with Californian and American cases.
   It may also be instructive to read the below in conjunction with the previous post, also a response by me to a commenter who was considerably more civilized, in where I deal with Perez v. Lippold in more depth.

After having read the majority opinion, I remain unconvinced. While I agree the article is biased, I have to come to the same conclusion as Justice Baxter, principally for many of the reasons I outlined above.
   This may be time, now, to address Madonna’s points.
   First, Madonna, your attack on another commenter is unwarranted, and it’s a shame you would deny her her opinion from the outset without putting your reasoning first. It would not be unfair to dismiss anything that came afterward from you.
   I can equally attack you with your words:

No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.

Precedents do not govern, they persuade. And if you do look back at Californian decisions, regardless of whether the issues are as controversial or not, they show a gradual, progressive moving forward of the law, catching up to public opinion in many cases. I believe you are ignorant of this basic fact of how the law has worked in California and, indeed, your own country, based on this very general, sweeping proposition. Indeed, Perez itself shows this, and I find the lead judgement in particular to be very, very clever.
   These precedents which I have at least enquired into do show some persuasiveness but none of them get around the problem California has with the Governor’s vetoes. The fact that the ‘a man and a woman’ definition has been placed in really do not help supporters of gay marriage. So we are essentially stuck with the position that I stated in my comment to the Gay Curmudgeon.
   Effectively I believe that the law has been circumvented, and not very cleverly, the majority judges trying to bury the core issue with legalese.
   Your bill argument is unconvincing. If the Governor’s position is so dead wrong, then vote the man out. I come back to the basic idea: the judge’s role is to interpret the law. And a bill is not law.
   As are your arguments, from a legal standpoint, about polls (not really a consideration generally for courts, though they are slightly persuasive), while another state’s court ruling is based on the legislation of that state.
It is also irrelevant which party appointed the judges.
   The position I had in the above post, then, is the one I must take. Perez shows how a clever court gets around restrictive legislation. You obviously believe that the law is restrictive and unfair here and perhaps even offends public policy. I respect your view. Common law precedents are littered with cases where the court has got around such law. The court in this latest case has not done its job and I would say that if the majority had an agenda to accept marriage for same-sex couples, then it has done it in a clumsy way that opens the case for future attacks.
   Even if I were on your side totally—and I am not saying I am totally against you, either—I would advise you both to continue campaigning for your cause, because this judgement is weak when compared with others that have, let’s say, pushed the law in a certain direction.
   Your battle is far from over though given current trends in the California, you may yet win. However, I will guarantee you now that it won’t be on this decision.

The following is a comment in response to the exchange from my earlier blog post on gay marriage in California. I believe it is important (for my own ego!) to address charges that I am prejudiced against gays or am a bigot. It is a pity that while I am open to seeing the other side of the argument in favour of gay marriage in California, as a heterosexual man I am already labelled (prejudged) as being incapable of that.
   I am going to Lawcrawler to see if I can find this controversial judgement and will give my thoughts on it later.

T. G. C., I am reading your extract short of seeing the full judgement, and I find it somewhat unconvincing.
   Let me address one point: the article I posted is an article I posted. Simple. I do find it somewhat offensive that you and Madonna would attribute its position to me when even I have not done so. Yes, you may feel it has a personal endorsement by its mere appearance here. In that case your opinion of me is forgiveable. I can understand that the article inflames certain passions. However, it is my opinion that if the article were fair, then the judges in this case do not understand their jobs.
   A bit about my history, so at least we can get on the same page here. I have a fairly good grasp of the law as I am qualified with an LL B. I live in a country that was an early pioneer in homosexual law reform and has a proud tradition of embracing lifestyles that traditionalists would be appalled at. I could probably even find you two gay couples who would attest to my views on the subject that I would say most gays (here) would believe are reasonable and fair.
   My posting an article is for promoting understanding, certainly my own, and certainly, too, to contrast the way your country handles legal positions against the way my one does.
   Let me take one of your highlighted points:

we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question

   Obviously without reading the statute I am less informed, but this is fairly true: in general, in most common law jurisprudence, courts to interpret laws in line with (state or federal) constitutions.
   Then, however, we have a conflict if the definition of marriage is codified, and this is perhaps the stem of the conflict more than anything.
   Traditionally, even when legislation is interpreted in the spirit of a constitutional document—a familiar argument here given the Treaty of Waitangi—it is not done by completely violating the wording of that legislation.
   To you and Madonna, it may be an issue of what the public wants, but if you have a Governor who keeps vetoing such bills, then I find it unconvincing that we rely on those bills in legal interpretation. In fact, this fact alone illustrates the law’s insufficiency at this present stage for those supporting gay marriage.
   The judicial task when faced with wanting to respect the will of the people and equal-rights doctrines in a constitution is to find third ways, clever exceptions that provide citizens with what they want without violating the legislation before them. This is a given in common law.
   While this means that gay marriage will take far longer to be recognized if this is the prevailing trend, law is something that takes decades to remould, but it should not be short-circuited.
   The law of negligence is a classic example in tort: probably most law students will recall this took decades before the landmark Donahue v. Stevenson case in 1928 and Lord Atkin’s classic judgement.
   Laws are slow, they are often reactive, but it is the system we are laboured with. An ideal world would be one without laws and with self-regulation between people acting with their complete free wills. I hold this to be an ideal and it matters, at the end of the day, little what definitions state about this word or that—but it does matter to me that while we have our current system, it is conducted fairly until the people decide on another system again.
   You bring up Perez v. Lippold. You are right that this is actually highly convincing and I thank you for reminding me of it. I do know a little about this case but there are some distinctions based on religion, the Fourteenth Amendment and constitutional interpretation, and these really helped the couple there. The respondent also presented some heavily biased opinion that the court saw through.
   There was indeed a law written in statute that barred the marriage of the couple in that case, one that was, admittedly, steadily eroded by the courts as it expanded the definition of marriage to increasingly more races.
   The court held (inter alia) that the sections in that legislation were too vague especially when it came to racial classifications—which was how ultimately it got around the interracial ban.
   You see, there was no legislating from the bench: the judge in Perez showed how lacking the legislation was, how it offended the basic tenets of the requirements of American law, and it was effectively a challenge to the legislature that: if you want to block us, revisit the law and redraft it if you dare. This I accept as this fight goes on all the time in a democracy.
   This is why I asked you and Madonna to find me the judgement, though since I haven’t heard back, I’ll have a trawl through Lawcrawler myself in a sec.
   Without clever methods of finding a way around fairly strictly worded statutes, I do believe from what little I know (yes, maybe I shall accept the ignorance charge) the judges crossed the line here.
   Contrary to your and Madonna’s biased views of me, I retain an open mind.

I love it. Dr Jay Parkinson of Brooklyn, NY, has gone online with his practice:

http://www.inter-actions.biz/blog/2007/10/is_there_a_doctor_in_the_house.html

That means you can reach him via electronic means and he will do diagnoses accordingly, even after hours for emergencies.
   Now, I would love to see lawyers do this. Even an e-court. Parties or their attorneys feed in their evidence to a site with limited fields and a judge decides. No emotion, no BS. The decision comes swiftly. Any mitigating factors can be fed in, but lawyers would be encouraged to write everything briefly. They would be unable to hide extra charges. And if they think anything’s been missed, then the process could go to appeal before a live court.
   It would lower the price of getting justice because the system would no longer need to support a live District Court, and appeals would be at the current price of the original claim. It would also make things faster.
   Best of all, the legal profession, branded as shysters even in Shakespeare’s day, would appear more transparent. It would start going up the ladder in people’s minds.
   I would love to see a country like Singapore, or even New Zealand, give this sort of thing a shot. Singapore prides itself on e-governmental processes and this would be an ultimate test. New Zealand’s system is far too entrenched but I’d love to see a party adopt this idea.
   It’s far too radical for Labour, and certainly would be gobbledegook for National.
   Greens? United Future? The Alliance?

Got this in the feedback form from my main site last night, from the law firm representing a Mom-and-Pop dry-cleaning outfit. If you recall, a Korean family was being sued for $65 million by an American judge because they lost his favourite pants. It looks like they are about to have their day in court, with an amended claim from the judge after outcries. Still, he wants $54 million—that’s some amendment.
   I’ll post more if Manning & Sossamon inform me of developments. My best wishes go to Jin Nam Chung and Ki Chung. No prizes for guessing what I want to happen, especially to Judge Pearson. I think I share most people’s feelings, especially those Americans who feel Judge Pearson is giving their entire nation a bad name.

Update: $67 Million Dry Cleaning Case

On May 31, 2007, D.C. Administrative Law Judge, Roy L. Pearson, filed a Pre-Trial Brief in the Pearson v. Chung dry cleaner case. In the brief, Pearson shifts the focus of his claims from his allegedly lost pants to claims related to signage in the Chungs’ store. One sign reads “Satisfaction Guaranteed” and another reads “Same Day Service.” Pearson claims the signs are somehow misleading and apparently continues to seek over $54,000,000 in damages from the Chungs. Pearson had previously sought $67,000,000 in compensation from the Chungs.
   Christopher Manning, of the law firm Manning & Sossamon in Washington D.C., represents the Chungs and made the following statement in response to Pearson's recent actions:

"Although it is always encouraging to see claims withdrawn, it is simply baffling that Mr. Pearson continues to assert that he is entitled to tens of millions of dollars as a result of two completely harmless, completely straight-forward signs. Mr. Pearson's claims are not founded in common sense and are extraordinarily abusive towards the Chungs. As a result, the Chungs' terrible ordeal continues. The Chungs' decision to move to and build a business in America began with the classic American dream. Mr. Pearson has turned that dream into an American nightmare."

Mr. Pearson's lawsuit has cost the Chungs tens of thousands of dollars in defense costs. Donations to a defense fund set up by the Chungs may be made at www.customcleanersdefensefund.com.
   This case will be tried in courtroom 415 of the District of Columbia Superior Courthouse on June 11th and 12th beginning at 9:30am each day.
   All questions regarding the matter should be directed to the office of Manning & Sossamon at:

Manning & Sossamon PLLC
1532 Sixteenth Street, NW
Washington, DC 20036
(202) 387-2228 (voice)
(202) 387-2229 (fax)
chungdefense@manning-sossamon.com