Thursday, December 01, 2005

Separation of Powers – Part 6

Those who expect to reap the blessings of freedom, must, like men, undergo the fatigues of supporting it. --Thomas Paine
------------------------

Legal Arguments:

3. Judiciary Cannot Implement the Improperly Delegated Authority
The Florida Judiciary itself admits it does not know how to implement the improper delegation of unbridled authority given to it by the legislature in the alimony statute.

The Report of the Florida Supreme Court Gender Bias Study Commission (1990), which resulted from the Florida Supreme Court’s appointed commission on gender bias in the Court system, contains the follows observations and conclusions.
“Most of Florida's circuit court judges dislike dealing with family law matters. This attitude can affect the outcome of cases.” (page 6)

“As a result of their almost unlimited discretion, trial courts distribute marital assets either as property or alimony with a lack of certainty and consistency. This may lead to inappropriate property settlements between the parties.” (page 7) [Emphasis added]
The follow up Gender Bias—Then and Now, Continuing Challenges in the Legal System, The Report of the Gender Bias Study Implementation Commission (1996) states,
“…alimony decisions, backed by competent substantial evidence to support the trial court rulings, are now required by statute, as was originally recommended…. However, it is not clear, based on appellate decisions, whether a trial judge must consider all the statutory factors and give equal weight to all, or just the relevant ones….” (page 7) (Emphasis added)

“The original Commission recommended that the laws dealing with the amount of spousal support require the trial judges to set consistent amounts, in all cases, and amounts which comport with the supported spouse’s marital standard of living, analogous to child support guidelines. This has not been done. Section 61.08 requires the trial judge to make a laundry list of fact-findings when alimony is asked for and either awarded or denied. It is not clear whether all the statutory factors must be considered, or only relevant ones, and whether or not there is any factor or factors which should be given more weight than others.” (page 7) (Emphasis added)
The authoritative body appointed by the Florida Supreme Court offers the above opinion on the unbridled discretion and the demonstrated inability of the judiciary to implement it.

Department of Insurance v. Southwest Volusia Hospital Dist,. 438 So. 2d 815 (Fla. 1983), cites Askew as the source of the test for determining whether a statute violates the nondelegation standard and repeats:
“[T]he crucial test in determining whether a statute amounts to an unlawful delegation of legislative power is whether the statute contains sufficient standards or guidelines to enable the agency and the courts to determine whether the agency is carrying out the legislature’s intent.”
The above commission reports prove the alimony provisions fail this test.

A measure of legislative intent is contained in the specific provision of the Dissolution of Marriage Statute Purposes. The alimony provisions in no way fulfill the purpose succinctly expressed in the statute.
61.001 Purpose of chapter.--
(1) This chapter shall be liberally construed and applied.
(2) Its purposes are:
(a) To preserve the integrity of marriage and to safeguard meaningful family relationships;
(b) To promote the amicable settlement of disputes that arise between parties to a marriage; and
(c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.
History.--s. 1, ch. 71-241; s. 111, ch. 86-220.

Richardson 866 So. 2d “courts should refrain from reading elements into a statute that plainly lacks such additional elements. See Schmitt, 590 So. 2d at 414.” That is precisely what the judiciary has been doing when it constantly invents purposes of the statute that do not exist in F.S. § 61.001.

The judiciary has used the unbridled discretion improperly delegated to it to “legislate” a myriad of “purposes” for the alimony statute none of which exist in the § 61.001 Fla. Stat. This judicial legislation is further evidence the undelegated authority improperly granted the judiciary has run the gamut of indiscretion. The judiciary legislates and makes new law because of the unbridled discretion of § 61.08 Fla. Stat. Neither the legislature nor the judiciary has noticed this and invitiated or attempted to reinstate the separation of powers necessary in the statute.

INTERESTING READING:
* Imprisonment for debt in Maryland. Explanations and case law on whether or not support (alimony) is a debt.

LEGAL INFORMATION AND RESEARCH CORNER:
* Statutory Exemptions and Garnishments

EXAMPLES OF A JUDICIAL SYSTEM AND JUDGES GONE AWRY:
* Judge's Claim Of Intimidation Deemed Misconduct
* Judicial and quasijudicial absolute immunity is the primary source of the injustice plaguing our judicial system.

HOW THINGS ARE HANDLED IN OTHER COUNTRIES:
* Iran: Iranian slapped with 10,000-year alimony order

CASUALTIES OF STATE SPONSORED VIOLENCE
* Distraught Father's Courthouse Suicide Highlights America's Male Suicide Epidemic

RELATED WEBSITES OF INTEREST:
* Tyranny Response Team

NON-RELATED WEBSITES - JUST FOR FUN AND GIGGLES:
* Christmas Light Display. An impressive use of lights and sound. Extremely entertaining.

Links to this post:

Create a Link

<< Home

>