I should have put "Post 2" in the 9-24-04 post
in a separate post in that it dealt with the Nov. 2 referendum.
In that post about Judge Russell's ruling that the state’s interests were already thoroughly represented in the lawsuit by Attorney General Thurbert Baker, I shared my thinking about why I had thought the AG might not oppose the GOP legislators becoming parties because of the perception factor.
This factor was that with the legislators' defense team being present, no one could say that the case for the proposed constitutional amendment being legally OK would not be thoroughly defended.
Boy am I a day late and a dollar short again. I am discussing the case being thoroughly defended, and we learn today in the 9-25-04 ajc
that it might be over before it even gets started good.
Before discussing the case, let me remind us of what I also said yesterday in "Post 2" of my post:
"But one thing is for sure. I have a lot of confidence in Judge Russell. She knows her business and will call 'em as she sees 'em, regardless of who the parties are." Page two.
Apparently the Judge looked at some isssues that neither party had considered. I confess I had not considered what the Judge brought up, but it seems to present the correct rule and I think what she brought up will end the case, subject to appeal.
The parties came to the hearing Friday prepared to discuss the law on whether the wording on the ballot would sufficiently inform us voters of what we were voting on.
For the what it's worth department, I agree with those challenging the ballot language (with the caveat that I have done and don't intend to research the matter; this is just my opinion as an attorney without having studied the matter).
Why? Because I am a Democrat? Because I know this is a social issue that is none of my business? Because I consider it gay-bashing?
From a layman's perspective, all of the foregoing.
From an attorney's perspective, we are not informed that we are voting on two things. It appears we are only voting on same-sex marriage, but there is an important second part also.
But for the moment, and I want to emphasize only for the moment (the moment in this case being several months), this is irrelevant if Judge Russell rules the way I think she will.
Why? Because the Judge indicated that there seems to be determinative Georgia legal precedent that until a constitutional amendment has been voted on by the electorate, it is the equivalent of a bill that has not yet passed the General Assembly. "The judicial power will not be exerted . . . to stay the course of legislation while it is in process of enactment," the Georgia Supreme Court wrote in a 1920 case.
Let me help us here a bit, and I am at my house after my long Saturday morning run, and have not read the 1920 case which I might or might not when I go to the office shortly. Thus I do not know what I am going to share with you is what the 1920 case says.
But as a general proposition, courts do not issue what are known as advisory opinions. Thus you can't you file a lawsuit asking a court to rule that if such and such was done, would it be OK, that sort of thing (there is something called a declaratory judgment, but we don't need to get into that for this discussion).
By the same logic, a court is not going to come in ahead of time and tell a legislature that it cannot pass a bill because it is legally defective, such as being unconstitutional or deficient in some other respect.
The legislature passes the law, and if someone wants to challenge it to do, fine. At this time the court considers the issue justiciable. It is not just playing a "what if" game. After being passed, the proposed law became a law, and at this time it is proper to determine whether it is OK or not OK.
Laymen may regard the foregoing as inefficient. We attorneys regard it as being judicious. Why waste the court's time on something you may decide not to do (on the advisory opinion matter), or something that may be introduced in the legislature yet not become law because it does not get enough votes. In either of the foregoing situations we wasted the court's time on a what if.
And you can see where this is going with the Nov. 2 referendum. If the voters turn it down (let's be objective here, it is theoretically possible), then it was a waste of the court's time to consider whether it is constitutional. It never got "ripe" for adjudication (the justiciable word I used early).
And if it passes, and no one wants to challenge it, OK, it's law until it is successfully challenged.
But what will happen, of course, and this is why I threw in my two bits about the wording on the ballot possibly being legally defective, is that if it does pass, we all know it will be immediately challenged.
And it is at this point that the court system will say, now I will hear your arguments. This is about something that did happen, not might or might not have happened.
Inefficient you think? Well, it depends on one's perspective I assume. You've got the legislative and judicial and executive branches.
I have not studied the bill to see if the language that was to be put on the ballot was included therein. If it was, the culprit is the legislative branch (if it ultimately is found deficient).
If it was not included, then maybe the culprit was the executive branch, or Legislative Counsel, which in the latter case would be the legislative branch.
But one thing for sure: the judicial branch had no role in deciding the language to appear on the ballot.
The practical: who says the devil is not in the details. He is always in the details, and sometimes it benefits one side, and sometimes the other.
But this was a defect that was so easy to correct, and I understand could have been corrected when there was time (but I am not at all sure about anything in this paragraph). Page three.
In my post yesterday and quote above I noted that Judge Russell "knows her business and will call 'em as she sees 'em, regardless of who the parties are."
One thing you can take to the bank that I was not
saying by this compliment is that she is not an activist judge (pardon the multiple negatives Mr. Shipp and authors of constitutional amendments).
The following is taken from my website
JUDICIAL ACTIVISM -- My friend Bill Shipp recently wrote that "[http://senatorsidcottingham.com/
by Gov. Sonny Perdue that the governor could not legally assume duties of the attorney general. She also once ruled in favor of a lesbian in a domestic relations case, and she voted with the majority of the court in striking down the state's sodomy law. Such activities obviously cast her as a judicial activist, according to Gov. Perdue and his allies in the anti-gay Christian Coalition."
And what does all of this have to do with the price of groceries you ask.
Well, state Sen. Mike Crotts (R-Conyers) is the person who introduced Senate Resolution 595, which authorized the gay marriage referendum, during the 2004 session of the General Assembly. As you recall, after months of debate, the resolution passed with the necessary two-thirds majority in both the House and Senate to earn a place on the Election Day ballot.
According to the ajc article linked above, Sen. Crotts was at the hearing before Judge Russell yesterday, and he left the courtroom encouraged by Judge Russell's comments.
"Here's a judge being fair, not trying to be an activist judge who is trying to circumvent the voice of the people," Crotts said.
Spare us Senator, spare us. You need to wash out your mouth with soap.
Had Judge Russell not brought up the 1920 Supreme Court case, and ultimately ruled against SR 595, not only would you have called her an "activist judge," but this would have been the nicest thing you and Jim Wooten and other gay bashers would have had to say about her.
I'm with Bill Shipp on this one. "As nearly as we can tell, a 'judicially activist' jurist is one who rules against your wishes."
And for measure, here's to hoping that if the good Judge rules that the Nov. 2 referendum can go forward, and after it is approved and thereafter challenged, if the case gets assigned to the good Judge, that she will then quality for your description of her.