A true Landmark California Case

[lawrocket 3]

I had no idea that this case was as big as it is when my wife used it's precedent two days after it was decided. (pride moment - my wife may have been the first attorney to successfully utilize this case). Then on the way home from work, I was scanning the radio, and Tom Leykis was discussing it.

In the Navarro case, it established that DNA evidence can be used to terminate an order for child support, when the child support order was made via default judgment. Until June 30, a man in California lost his chance if he defaulted. (Our client was never received his summons for it - for six years they were takign money from him).

This opinion is SO incredible because it says, "By strict application of the law, appellant should be denied relief." In the past, if you've got a judgment against you, too bad. The state and county would not correct it.

The case is here - http://caselaw.lp.findlaw.com/data2/californiastatecases/b155166.pdf

This case, though judicial activism at its finest, is an example of courts doing the right thing despite what the law says.

Compare it with the Cal Supreme Court case reversing the gay marriages. Two different ways of looking at things....

My thoughts? This Navarro case is dead on in its reasoning, and a step up for men's rights. The Gay Marriage case is dead on its reasoning, and a step back for gay rights.

My wife is hotter than your wife.

[TheAnvil 0]

Is this that BS case from Hell-A where even if you weren't the father you ended up paying?

Vinny the Anvil
Post Traumatic Didn't Make The Lakers Syndrome is REAL
JACKASS POWER!!!!!!

[lawrocket 3]

Yep. This case, if approved, overturns that whole thing. Guys can now fight it...

My wife is hotter than your wife.

[peacefuljeffrey 0]

Don't know anything about this case and haven't gone to the link, but I do have to say that I despise judicial activism, probably even if it "rights a wrong," because judges are NOT supposed to have the power to MAKE LAW.

To say, "This case, though judicial activism at its finest, is an example of courts doing the right thing despite what the law says," is to defend a judicial finding that does not have its basis in the law! That is just plain WRONG.

How would you feel if you went to court and LOST, because the judge went outside the actual text of the law to side with your opponent? What if you could actually explicate the text of the law to demonstrate that it actually DOES uphold your legal claim, but the judge simply says he's finding for your opponent because he feels it is "more right."

That's a legal abomination no matter how you slice it.

If the law is so wrong that a court will make a finding outside that law, then that law must be CHANGED to reflect what is right.

That's the way it should be.

-

-Jeffrey
"With tha thoughts of a militant mind... Hard line, hard line after hard line!"

[PhillyKev 0]

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Don't know anything about this case and haven't gone to the link

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That's a legal abomination no matter how you slice it.

Well at least it's an informed opinion.

[AndyMan 7]

Paraphrse:

"I have no idea what I'm talking about, but I'll tell you what I think anyways".

Too funny!

_Am

__

You put the fun in "funnel" - craichead.

[mr2mk1g 10]

You're too funny.

Judges don't "make" law; they interpret it. And don't think I'm playing word games with you because I'm not. There really is a big distinction between the two.

[miked10270 0]

Ahh Jeffrey,

My days of not taking you seriously are certainly coming to a middle. Unquote

.

Taking the piss out of the FrenchAmericans since before it was fashionable.

Prenait la pisse hors du FrançaisCanadiens méridionaux puisqu'avant lui à la mode.

[lawrocket 3]

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Judges don't "make" law; they interpret it. And don't think I'm playing word games with you because I'm not. There really is a big distinction between the two.

Ha! A dispute with another lawyer. I know, things are different across the pond.

While rare, judges still make law. The tort of bad faith denial of insurance benefits is an example. It isn't codified, but the tort was a judicial doctrine.

And I don't mind Jeffrey not reading it. Hopefully, I explained it enough to him. But the court really was informed of what it did, and cleared up an abomination...

My wife is hotter than your wife.

[mr2mk1g 10]

Do they express it over there as if it's a discovery? Here it's usually expressed as though the law has always been that way, it's just we no one ever realised it. The court will then point to authority for why they say it has always been so.

Or they simply interpret the legislation and state that is how parliament intended it to be read...

Openly making law though... they're a little more jumpy about that.

Unless you look at the incremental approach taken in true common law cases but then there’s no real statutory background there, so at least it's not flying in the face of the legislature.

We've just had a bit of a constitutional hoo-har over the judiciary's ability to over-rule parliament following the creation of the Human Rights act. Courts are supposed to refuse to apply subsequent legislation that does not comply with the requirements of the Act. Difficult really when Parliament is supreme.

To get round the fact that this would in effect require courts create law superior to an act of Parliament. To prevent Parliament's toes getting stepped on we've hit on the odd solution of having the court issue a declaration of incompatibility while everything stops until Parliament can rush through an amendment to the act.

Silly really, but it's all so the courts don't create law.

[AndyMan 7]

Wouldn't it be the case that this wasn't really a court making law, as much as it would be an example of one striking part of a law, justifying their decision by saying "that's just dumb."

The semantics between "making new law" and "striking existing laws" may be legally irrelevant and socially trivial, but I think its a key point to those objecting to so-called "activist judges".

_Am

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You put the fun in "funnel" - craichead.

[lawrocket 3]

Here in California, there are a couple of approaches. The one that I prefer is seen quite often, where the Court, in it's opinion, will plead with the legislature to fix the law.

There is also the approach where the law itself is so inconsitent with the rest of state policy that the courts will strike it down, as seen in Navarro.

The other way is the creation of new common law doctrines. I point to the failry recent (35 years ago) creation of the tort of bad faith insurance denial. The court decided that normal contract damages are inappropriate for a contract for "peace of mind." The insurance companies routinely denied insurance, since the worst that could happen is that they pay what they owed, anyway, while the insured 's life was ruined.

There was no statute that covered that, but the court's recognized it. So the court created the remedy. (interestingly, bad faith denial does not apply to bonds, only insurance.)

Common law can always be developed for new situations.

My wife is hotter than your wife.

[turtlespeed 226]

So let me see if I get this.

Was: Guy paid - didn't really need proof, alot of unjust payment going on, even after proven, he was already paying and now has to continue.

Now: Guy that was paying, proves it's not his kid - no more pay.

Question - Can he get his money back? It was the court that found the wrong conclusion.

I'm not usually into the whole 3-way thing, but you got me a little excited with that. - Skymama
BTR #1 / OTB^5 Official #2 / Hellfish #408 / VSCR #108/Tortuga/Orfun

[lawrocket 3]

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Question - Can he get his money back? It was the court that found the wrong conclusion

Answer? Yes. Mind you, turtle, this is only in Cali. In know that my client got a check from the county just yesterday. So, yes, you can get your money back, so long as the attorney asks for it (if the attorney does't ask for it, the clinet won't get it - it's amazing how many actually can forget to ask for it).

My wife is hotter than your wife.

[Kennedy 0]

OK, well I'll play sematics with you.

Judges aren't supposed to make the law, they are only supposed to interpret it.

Judges make law all the time out of nothing. It's not right, and there's not much you can do other than find a higher judge who disagrees, but it does happen.

The most known examples here are Weinstein in NY and the Ninth Circus, I mean Circuit, court of appeals in CA.

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
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[lawrocket 3]

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Judges aren't supposed to make the law, they are only supposed to interpret it.

Kennedy, I like you a lot and agree with you on most things, but I believe you may be wrong on this one. Ys, this is a semantic point, but also highly pragmatic.

Judges "intepret" law. This is true. But doing so "makes" law.

Let me give you an example. The Federal Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, was enacted to ensure that individuals, regardless of their ability to pay, receive adequate emergency medical care. Congress was concerned that hospitals were “dumping” patients who were unable to pay, by either refusing to provide emergency treatment or transferring patients before their conditions were stabilized.

Okay, that's nice. Now, what if a patient is not stabilized, but is admitted? In 2002, the 9th circuit held that "that EMTALA’s stabilization requirement ends when an individual is admitted for inpatient care." Bryant v. Adventist Health Systems/West (9th Cir. 2002) 289 F.3d 1162, 1168.

What is the effect? By law, a hospital complies with EMTALA when it admits a patient.

That's not in the code. That is an "nterpretation." But it is also controlling law. The court basically added to a law to cover a situation that the code did not address.

This is a proper function of the court, and this law is just as valid as the code section written by Congress.

I can interpret law all I want. I cannot make it law.

Judges interpret law as a profession. When a judge interprets the law, the interpretation becomes law.

My wife is hotter than your wife.

[Kennedy 0]

All good points, but I was more thinking of when judges make law out of thin air.

Roe v. Wade comes to mind.

Judges deciding that a criminal act by an intermediary party no longer severs the chain of responsibility comes to mind.

Judges deciding that sentencing requirements no longer apply to them comes to mind.

etc, etc, etc, etc

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
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[AndyMan 7]

You don't have to agree with the decisions, but you should at least admit that there was a basis for the decision. If you don't understand the basis for those decisions, then you should look it up before you criticize.

It's a disservice to say any of those are pulled from thin air. Clearly they're not.

I'm surprised to didn't include the Right to Vote as something judges have pulled from thin air. Women, the elderly, and visible minorities have been guaranteed the right to vote through the 15th, 19th, and 26th amendments.

The right for young white men to vote is not explicitly defined in the consitution. As such, its only because of "activist judges" who "make law" that this specific right is guaranteed to young white males.

Voting is then refered to as a "inplicit" right because it is not "explicitly" mentioned. Lucky for you that "activist judges" are so willing to protect your rights!

_Am

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You put the fun in "funnel" - craichead.

[lawrocket 3]

Good points that you make, too. Stuff I don't like most of the time, but like some of the time, and understand most of the time.

I find Roe v. Wade to be ridiculous reasoning, but the court can do it.

Intervening criminal or negligent acts have long been held not to sever responsibility. The courts are extending this doctrine to other things, which they've always done. I just think they are takign it too far.

Maybe I'm just jaded...

My wife is hotter than your wife.

[Kennedy 0]

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I find Roe v. Wade to be ridiculous reasoning, but the court can do it.

Obviously they can, and still do - McCain Feingold election blackouts. I don't know how I left that off the first list.

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[mr2mk1g 10]

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There is also the approach where the law itself is so inconsitent with the rest of state policy that the courts will strike it down, as seen in Navarro.

See it don't work like that over here.

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The other way is the creation of new common law doctrines.

That happens, but it's always been phrased so that all the court is actually doing is simply naming something that's always been there. Perhaps people haven't been using the principal or the principal has never been correctly applied... but it had always been there (apparently). And as I said, they're always careful to point to instances of the principal previously being applied.

Perhaps this stems from our constitutional Supremacy of Parliament whereas in the US it's fairly accepted that courts can rule legislation invalid on constitutional grounds.

[kallend 2,174]

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All good points, but I was more thinking of when judges make law out of thin air.

Roe v. Wade comes to mind.

etc

Would you have been happier if the court said the "right to privacy" was an implicit right covered under the Xth amendment?

...

The only sure way to survive a canopy collision is not to have one.

[Kennedy 0]

No. I would've been happy if they said the Xth Amendment means the federal government doesn't have the power to decide.

(when did the bill of rights go roman?)

witty subliminal message
Guard your honor, let your reputation fall where it will, and outlast the bastards.
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