Venerating Legislatures and Bashing Courts

May 11, 2015

Many people venerate legislatures, at the expense of courts. Most recently, Dr. Ben Carson, a candidate for the Republican nomination for President of the United States, said:

We have to understand how the Constitution works. The president is required to, you know, carry out the law of the land. The laws of the land come from the legislative branch. So if the legislative branch creates a law, or changes the law, the executive branch has responsibility to carry that out. It does not say they have a responsibility to carry out a judicial law. And that is something we need to talk about.

(If you think a doctor doesn’t know because, you know, blood and all that, read Huckabee A Strict Constitutionalist Until SCOTUS Disagrees With Him, Tells States To Ignore Court On Gay Marriage by Rick Ungar for Forbes on January 28, 2015. This man Huckabee was a governor.)

My real concern, silly politics aside, is poorly drafted legislation. Out of the box, I’m giving a pass to lengthy, complex statutes like the Patient Protection and Affordable Care Act. I’m not passing on criticism because I like the law, although I do; instead, I’m passing because mistakes happen.

I’m focused on methodologies which result in bad drafting. Take, for example, Cemex Construction Materials South v. Falcone Brothers & Associates, Inc., et al., decided by the Arizona Court of Appeals about two weeks ago. The case turns on notice, and whether first-class mail suffices when a statute refers to registered or certified mail. The issue may seem simple, but our statutes and rules are full of notice requirements which vary, one from the other, often for no evident reason. How notice is given matters not so very much, so long as instructions are clear, and can be followed easily.

There’s an easy fix for this problem. A notice statute can define how notice is provided, with individual statutes providing for differing periods, as appropriate.

Or, take limited liability companies. They have existed for about 25 years. Corporations were the primary business entity form in use prior to the development of the LLC concept, and many a statute was not changed when LLCs became the prevalent business form. Attorneys and others assumed a statute would be interpreted to cover LLCs, without any right to rely on that assumption.

(In a similar vein, many statutes do not use words uniformly, leaving doubt about the use of two different but similar words.)

Or take retroactivity. In Arizona we have a statute, A.R.S. § 1-244, which states: No statute is retroactive unless expressly declared therein. That said, constitutional issues arise when a law gets applied retroactive and affects substantive rights. (Article 1, §§ 9 and 10 prohibit ex post facto laws.)

Unfortunately, substantive and procedural rights may not be readily distinguishable. So, for example, the Arizona Court of Appeals had to decide, in Magana v. Industrial Commission, whether an amendment to the Arizona workers’ compensation laws gave everyone injured before a statutory amendment a $200 a month a minimum payment, or whether the legislation was written to establish a procedure “for the Industrial Commission to determine a minimum average monthly wage for each case as it comes to [the Commission].”

The solutions in these cases are often simple. That said, they require forethought and a commitment to thinking about how laws will be used and applied.

I started this piece with some observations about court-bashing and elevating legislatures. Neither branch is perfect. (The executive branch isn’t either, for that matter.) Regardless, the comments offered by Dr. Carson and Governor Huckabee are just plain silly!

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