Today is Constitution Day. The day marking the signing of the Constitution by the delegates. After ratification by the states the Constitution became the supreme law of the land. We became a people governed by principles of law and not the whims of men. We became a nation born of an idea not born of conquest. The idea that all are born with rights; that we are endowed with these rights by our Creator. The Constitution did not give us rights or create new rights. It protected rights. It formed a government that was dedicated to the idea that people could be free and that government existed for the purpose of protecting the rights of citizens. There are many today who think that the Constitution is an old document that has no bearing on the present and can be discarded when new situations arise justifying a new way. This notion is dangerous and foolish. The Constitution is the foundation of our nation. The entire structure of our country is built upon it. It cannot be ignored or neglected without dire consequences. The Constitution must not be removed. It is the guarantee, the promise of freedom. To remove the Constitution is to remove that promise. Those who want to remove it want to remove freedom. They do not want to ignore it or remove it to benefit your liberty. The only cause for its removal is to remove the promise of freedom. It has also been said that the Constitution is a "living document". This theory is also dangerous. Those who state that the document is living only bring it to live so that they may kill it. They want to say that the document is living so that they can say that it, like all living things, is changing. The meanings of its words are said to change with the times. But the Constitution is not a living document. It is a solid granite foundation. It is firm and resistant to the wind of change. It is a protection for truths, liberty and rights. 

If the Constitution requires maintenance we can amend it. However, those who find fault with the document refuse the amendment process. They ignore it. They draft new laws knowing that their new laws are unconstitutional. They issue verdicts, judgments and rulings knowing that they have violated our fundamental laws and principles. 

We are a free people. To remain so we have to protect what protects our freedom. We have to protect the Constitution. We are all free to think as we like. We are all free to have our own ideas. But not all ideas are equal. Not all ideas are American. We can disagree on questions of policy and procedure. We can disagree on a great many things. But we cannot disagree on the validity and authority of the Constitution. Ideas that undermine the authority of the Constitution are not merely bad ideas; they are un-American. This day comes each year and it is marked in my calendar. It serves as a reminder of my duty to uphold and defend the Constitution. I have taken an oath to do so and I am unaware of any expiration on that oath. The promise to protect the Constitution remains binding on me until my death. I believe that the same is true for everyone that takes that oath, whether a member of the military, a judge, a lawyer or a politician. If you have not take the oath for any of these reasons I would encourage you to take this oath now. You don't need to join the military or get elected to office to make this promise and write it upon the fleshy tablets of your heart. I earnestly pray for your success in keeping this oath and that God may Bless America.

Marbury v. Madison is the most famous case in American legal history. We all know that it is the case where Chief Justice Marshall introduced and adopted the concept of judicial review. The idea that the Supreme Court has the authority to interpret the constitution and strike down laws that are not constitutional. Whether this concept is right or wrong there are a few other principles set forth in that opinion that have been completely ignored that are due equal reverence with judicial review. 

​1. The constitution must be strictly construed.
Marbury was appointed to a federal judgeship in the closing hours of the Adams' administration. His appointment was signed by the president and sealed by the secretary of state. However, the appointment was never delivered. The new administration (President Thomas Jefferson and secretary of state James Madison) refused to deliver the appointment. Marbury then filed suit in the form of a petition for writ of mandamus to the Supreme Court requesting an order directing that the appointment be delivered and Marbury be allowed to take his post. Marbury filed his petition pursuant to a legislative act that granted the Supreme Court original jurisdiction over cases such as his. 

Chief Justice Marshall held that Marbury had a right to his appointment as a judge but that the Supreme Court had no authority to compel the delivery of his appointment. Marshall stated that the reason he and the Court could not force the appointment was that the act of congress that gave the Supreme Court original jurisdiction was unconstitutional. He stated: "an act of the legislature repugnant to the constitution is void." Because the Constitution lists the specific cases where the Supreme Court has original jurisdiction the legislature does not have the authority to add to or change that list. Marshall interpreted the constitution in a very strict way. He interpreted the document as a closed document that limited the authority of the government. The list of cases that the Court had original jurisdiction over was limited and could not be added to without going through the amendment process. 

The very case that many rely on for the proposition that the Supreme Court is the ultimate arbiter of the Constitution demands that any interpretation of the Constitution be strictly construed. The Marbury case, in fact, stands for the principle that the Supreme Court cannot add to or change the constitution through "interpretation".

2. There is a remedy for every violation of rights.
If you can establish that you have a right, and that your right has been violated, then you are entitled to a remedy. This is true even when the government or a government employee is the one who violated your right. Marshal wrote: "The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right." By the use of such direct and strong language Marshall made it clear that a refusal to allow remedies for injuries to rights is an affront to our entire system of government. No one is so special that they are above the law in this country. The law is supreme and the Constitution is supreme among our laws. However, the concept of absolute judicial immunity persists in this country placing judges above the law even when they violate rights with malice. It is impossible to maintain absolute judicial immunity and remain a nation of laws.

I did not grow up in a legal background. I am not a second, third, or fourth generation lawyer. I grew up in a normal working class home. I was never indoctrinated with the virtues of lawyering. I was raised in an average American home that valued liberty, justice and fairness. Common sense guided by upbringing, not legal philosophies. This common sense upbringing has affected the way that I see the law, lawyers, judges and courts. I suppose that my lack of upbringing in the law has helped me to see opportunities for change in the court system. Franz Kafka in his book The Trial wrote: "it never occurred to the Advocates that they should suggest or insist on any improvements in the system, while - and this was very characteristic - almost every accused man, even quite ordinary people among them, discovered from the earliest stages a passion for suggesting reforms...". From the perspective of litigants lawyers and courts are seen as talking too much while understanding too little. Too frequently the forest is never considered for the over analysis of a single leaf in court. When we talk too much we obscure truth. Sometimes this is by design, others by sheer habit. I have provided on this blog 7 modest suggestions that could improve the courts. By "improve" I mean, better arrive at a just outcome. I admittedly am not focused on efficiency. I am only concerned with a better product. And to the citizen (consumer) the better product is justice and fairness. 

I begin with a suggestion that judges should be limited to two terms. There is an ample pool of lawyers to draw from so there is no likelihood of running out of qualified candidates. Judges in a courtroom receive considerable attention and respect. When they enter or leave the courtroom all rise to show respect for the office and for justice. This and other signs of respect such as addressing the judge as "your honor" have sometimes confused judges into believing that it is they that are important and respected. One of the beautiful things that I have learned from volunteer service at my church is that everyone is important. I have had the opportunity to be in charge of people and activities and to later be lead by those who I once lead. Changing responsibilities and roles increased my appreciation for those who I lead and those who lead me. When a leader know they will shortly become one of the group they have a tendency to treat all with respect, knowing that those they deal with may one day have charge over them. This situation would benefit our courts as well. If all judges knew that their time to serve was limited they may be less inclined to succumb to the temptation to think themselves more important than those who appear or practice before them. The risk of abuse that comes with pride or complacency would be diminished and justice promoted.

Mediation is a form of conflict resolution that empowers parties to resolve disputes on terms that all agree are workable. Years ago, when I first started to handle family law cases I asked a fellow attorney why we were not in mediation on a particular case. I told him that I felt like we could resolve the case in just a few months rather than years if we agreed to mediate. He responded, "then how will we make any money?" I was taken back by this response. Sadly, the case that could have benefited from mediation that we were discussing remained pending for years. Still worse than the time and resources lost to this case was the loss to the family members who spent years as adversaries in the court system. The task of reconciling these parties to one another was compounded again and again by years of fighting in court. After family court the parties are still family. It became apparent to me that family court would be benefited by an early focus on reconciliation of family relationships in most cases. Grandparents, parents and children should not be enemies. The adversarial process of our court system is ill equipped to offer solutions that promote and maintain healthy family relationships. Frequently the players in the system lament the fact that "parents just refuse to get along." However, the entire blame for this cannot be set on the parents. We force them into an adversarial process and they become more adversarial. It is like a movie scene where normal people are placed in a gladiator's arena and forced to fight to the death. Whether the combatants were violent before or not the situation demands that the parties attack one another just to ensure survival. 

The courts that handle family law issues would be benefited greatly by early attempts at non-adversarial conflict resolution. Mediation at the earliest stages would benefit families seeking long term solution to conflict. In fact, most such cases would benefit from mediation before courts and attorneys are even involved.

The Family Court and the Domestic Relations Court are courts of equity. In plain terms the idea of "equity" is doing what is right, whereas "law" is doing what is legal, or what the law dictates. Equity usually functions in those areas where there is no law to tell the court specifically what to do. Equity is also meant to function in those areas where perhaps hard and fast rules are not practical. In custody cases situations are different for every family. School, work, church and other schedules present different challenges in each case. A standardized visitation schedule does not fit every case. This simple fact has led many to believe that the court should have unlimited discretion to craft any custody/visitation schedule it desires. Unfortunately, discretion without guidelines has let to judicial decisions that accommodate the convenience of one party over another. Other considerations have crept in as well that have been elevated above the best interests of children. A tradition that stability is best achieved by geographical considerations as opposed to family relationships has become common. This tradition, despite having been debunked, continues to guide many judges. Additionally, placing emphasis on sibling relationships to the detriment of parent child relationships has caused suffering. Without legal guidelines judges have looked to other sources for guidance. Legal standards are needed in child custody matters to function much like sentencing guidelines do in criminal matters. Guidelines and standards are needed to ensure that fit parents are treated like fit parents and unfit parents are treated like unfit parents. Guidelines and standards will better ensure just and consistent outcomes. Clear legal guidelines should guide equity.

Shared custody is trending throughout the United States. The trend is a result of the consensus that children are better off with both of their fit parents. The science has shown that kids have healthier, happier and more successful lives when they have two loving parents. Below is a list of some the legislation pending around the country. I remain hopeful that we wont come in last on this trend.

Arizona 25-403.02(b)
“Consistent with the child's best interests in section 25-403 and sections 25-403.03, 25-403.04 and 25-403.05, the court shall adopt a parenting plan that provides for both parents to share legal decision-making regarding their child and that maximizes their respective parenting time. The court shall not prefer a parent's proposed plan because of the parent's or child's gender.”
Minnesota 518.17(a)
 “.. the court must consider and evaluate all relevant factors, including: …..(10) the benefit to the child in maximizing parenting time with both parents and the detriment to the child in limiting parenting time with either parent…”
Alaska Sec. 25.20.060.
“(c) The court may award shared custody to both parents if shared custody is determined by the court to be in the best interests of the child. An award of shared custody shall assure that the child has frequent and continuing contact with each parent to the maximum extent possible.”
2016 Missouri 452.375(5)
 “Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows:
(1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes”
Mississippi  93-5- 24 (1)
“(1) Custody shall be awarded as follows according to the best interests of the child:
(a) Physical and legal custody to both parents jointly pursuant to subsections (2) through (7).”
Nebraska 42-364(3)
“Custody of a minor child may be placed with both parents on a joint legal custody or joint physical custody basis, or both.”
South Dakota  25-5- 7.1
 “If the court awards joint legal custody, it may also order joint physical custody in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.”
Utah 30-3- 10.2. 
“(1) The court may order joint legal custody or joint physical custody or both if one or both parents have filed a parenting plan in accordance with Section 30-3-10.8 and it determines that joint legal custody or joint physical custody or both is in the best interest of the child.


Idaho 32-717B.
"Joint custody" means an order awarding custody of the minor child or children to both parents and providing that physical custody shall be shared by the parents in such a way as to assure the child or children of frequent and continuing contact with both parents. The court may award either joint physical custody or joint legal custody or both as between the parents or parties as the court determines is for the best interests of the minor child or children. If the court declines to enter an order awarding joint custody, the court shall state in its decision the reasons for denial of an award of joint custody.”
Iowa 598.41
“The court may provide for joint custody of the child by the parties.  The court, insofar as is reasonable and in the best  interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the  child the opportunity for the maximum continuing physical and  emotional contact with both parents after the parents have separated  or dissolved the marriage”
Louisiana LA Civ Code 132
 “If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly”
Minnesota 518.175 subd. 5
 “A modification of parenting time which increases a parent's percentage of parenting time to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of the other parent's parenting time.”
Washington 26.16.125
"Henceforth the rights and responsibilities of the parents in the absence of misconduct shall be equal, and one parent shall be as fully entitled to the custody, control and earnings of the children as the other parent, and in case of one parent's death, the other parent shall come into full and complete control of the children and their estate."

Currently there is no mechanism in the law to undo a termination of parental rights other than appeal. The window for filing an appeal or moving to set aside a termination of parental rights is extremely small at only 14 days. If the appeal or motion is not filed within that time then the chance to set aside an order terminating parental rights may be lost forever. Sadly there have been some cases where parental rights are terminated and children languish in foster care without being adopted. If the parents later reform and become fit they have no means of petitioning for their custody to be restored. Some states allow the parents of children in foster care to petition for custody to be restored. In Alabama, no such law exists. There should be a law to remedy these situations. To prevent children from bouncing around in the foster system until the age of majority and give parents the opportunity to reform and thereafter care for their children.

Child custody cases are treated like no other kind of case that I can think of in that trial court judges are left with little by way of instruction in resolving these cases coupled with nearly limitless discretion. Add to that the lack of any jury and you get unpredictable outcomes. I have seen cases where parents who were not even accused of any wrong doing, abuse, abandonment or unfitness be relegated to infrequent contact with their child while unfit parents, including a 60+ year old man who took advantage of a 19 year old, get custody or shared custody. Judges in custody cases have seemingly boundless discretion. We don't trust this level of discretion in other cases. In criminal cases we have sentencing guidelines. No one believes that a judge should be empowered to order a life sentence for speeding; and no one believes a $50.00 file is acceptable for murder. However, judges are free to treat fit parents as unfit, and unfit parents as fit parents. Guidelines are needed to bring child custody rulings into conformity with the nature of each case. There is no legitimate basis for objecting to guidelines in custody cases. Where the parents are fit the range of outcomes should be consistent with the parents' capacities to care for their children. Likewise, unfit parents should not be custodians of children. If a rebuttable presumption in favor of shared parenting were adopted for cases involving two fit parents then consistency in rulings would result. Additionally, children and parents would have greater due process protection of their rights and children would have healthier, better lives according to available scientific data.

If a party believes that the judge assigned to their case is some how biased the party can raise the issue in a motion to recuse. However, the the motion to recuse will be reviewed by the judge who is thought to have exhibited bias. As a result, very few motions to recuse are granted and many more are never filed for fear of retaliation. The standard of review for a Motion to Recuse is an objective one. A party need not show that the judge was actually biased. They must only show from the totality of the circumstances that a reasonable person, knowing those circumstances, would believe that the judge may have been biased. The standard is whether there was an appearance of impropriety or bias, not actual bias. 

It is not fair to the litigant or the judge to rely on the questioned judge to make the decision of whether he can proceed without bias. It seems more efficient and more reliable to ask a third party to review the facts and objectively determine whether an appearance of impropriety exists. Review by a third party judge would better serve all of the parties and most importantly justice. A simple solution that puts justice first and makes sure we get it right.

One of the most fundamental ideals of our system of laws is that we use a jury of peers to determine the facts of a case. This principle is found in the US and our state Constitution. Generally, we know that regular people can be trusted to weigh the evidence and come to a reasonable resolution. We also believe that a jury is a way to keep power from being consolidated too much in the hands of just one person. Judges are people and they are as susceptible to a swollen head as anyone else. Judges also may have a tendency to be "too legal minded." By that I mean they may bee so accustomed to dealing with the technicalities of the law that they lose vision of the big picture. This point is illustrated when we look at the family court where there is no jury. When the issue of dependency arose there was a question of whether a jury should be impaneled. The court decided that no jury should be used because the constitution only guarantees a jury in those cases where a jury was use used at the time of the drafting of the constitution, and since an action for dependency did not exist at that time the court was free to go on without a jury. This reasoning has a logic to it but fundamentally ignores the purposes of a jury discussed above.

In any event, we have no right to a jury when the state makes a claim that our children are dependent or worse when the state files an action to terminate parental rights. This means that a judge will here our case and make a judgment of the facts operating under the handicaps listed above. Then when he issues an opinion the appeals court will overwhelmingly uphold that opinion based on the ore tenus rule because they themselves were not present to judge the credibility of witnesses. This is a source of major frustration for family court litigants who feel that the judge got it wrong on the the most important issues in their lives. 

A simple remedy for this frustration would be to mandate that all family court cases are recorded by video. Video equipment is not terribly expensive and is already installed in many courtrooms. Further, the cost of installing video equipment could be offset by eliminating the need for a court reporter to be present at these trials as a video could be used in place of a transcript. The video could then be transmitted to the appeals court and they would have the advantage of being able to review it and make an opinion of the facts by viewing what the trial judge viewed. In football we use instant replay because we want to get it right. We should do the same in court.