Per Curiam Affirmed: An Appeal’s Death Sentence
“It is said that there is nothing so dangerous to the status quo as an idea whose time has come. More dangerous yet is the continuance of an idea whose time has past. -- Unknown
As an example of how the judiciary can avoid facing difficult decisions or bypass those they know will adversely affect the legal industry is by the use of the Per Curiam Affirmed (PCA) technique that, in effect, dooms all potential appeals to the Florida Supreme Court.
Here’s a recent example of what happened in the filing of a case that challenged the alimony statute 61.08 in Florida as being in violation of Florida’s State Constitution, a violation of a Floridian’s the right to privacy and a violation of the separation of governmental powers (legislative and judiciary) doctrine. A Declaratory Judgment lawsuit was filed seeking the court’s recognition of these violations. You can follow the progress by clicking here.
It is a familiar canon of appellate review that appellate courts are loath to rule upon issues not directly ruled upon by the trial court. Courts prefer that the constitutionality of a statute be considered first by a trial court, which has the jurisdiction and power to render an opinion in this matter. The circuit court just dismissed the case without a reasoned opinion.
Upon appealing the case to the Second District Court of Appeals in Florida (2DCA), their ruling was “PCA” without any reasoned opinion. In effect, both courts avoided their duty to render a declaratory judgment as to whether or not the alimony statute violated any constitutional rights or separation of powers.
What effect does this PCA have on further appeals to a higher state court? It stops it dead in the water. The Florida Supreme Court’s Internal Operating Procedures requires that the clerk of the court administratively dismiss them. Click here and read on page 4 starting at Section II.
For a comprehensive report by the Florida Judicial Management Council’s Final Report and Recommendations Committee on Per Curiam Affirmed Decisions, click here.
One has to speculate as to their reasoning for doing so in this matter. A citizen is entitled to file a lawsuit and to be advised if a statute violates a constitutional right especially when a case can clearly be made and supported by relevant case law. Read the arguments here.
Should a statute be found to be violative of any constitutional rights, then that statute is void ab initio (back to the beginning) when it was enacted. One could then ask the question of how the abolition of alimony statute 61.08 would financially impact the legal system and lawyers that depend upon the cases that involve adversarial relations between the parties.
It would be a rare divorce case that involves the granting of alimony that is not in someway adversarial between the parties. Cases of this kind run up the legal fees that result in a multi-billion dollar legal system industry in the U.S. not to mention all the related services that are thrust on the parties such as mediators, psychiatrists, accountants, etc.
Could it be that the judiciary (being lawyers themselves) are protecting their turf and those of their legal brotherhood at the expense of a citizen’s constitutional rights (and their pocket books)? No exact number can be determined, but one could hypothesize that with the abolition of the alimony statute in Florida (not to mention in other states) the financial loss to the legal system could easily be in excess of 75% of what they are now gleaning from the parties. Just think of what the parties could do if they had that money in their pockets instead of having it “extorted” from them by the legal system.
Ask yourself these questions: 1) What is the justification whereby once you are involved with a family law case, that the court retains lifetime jurisdiction over the parties? 2) What is the justification for supporting an able-bodied adult for a lifetime after divorce? 3) Why is there reluctance for our legislature to bring the alimony statutes up to date in line with the realities of today’s society instead of retaining outmoded laws of the 60’s and earlier?
There’s a popular maxim that says “Follow the Money.” It wouldn’t be hard to rationalize this maxim as applied to the family law judicial “injustice” system’s reason for protecting their cash cow now would it?
On of the best views on the justification for replacing the alimony statutes with a more equitable system is presented by Idaho Supreme Court Justice Shepard in his dissent in the case of Olsen v. Olsen, 98 Idaho 10 (1976) (starting on page 3).
If reading articles like this do not make your blood boil at the injustice that now prevails in the family law system, then you have not been ensnared into its clutches yet. Only those who have been swept up by the system know the realities and by then…it is too late, there is no escape. Only hope you have enough money to buy your way out when the time comes for you.
Divorce is another name for the financial suicide encountered for the spouse that ends up paying alimony. The tragedy of it all is when you seek relief from the judicial system that is supposed to protect your constitutional rights, they PCA you and shirk from their oath of office.
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posted by D. Quixote at 7:29 AM
