TOOL OF THE DAY: Can the Majority Vote to Have Your Constitutional Rights Ignored?
CATEGORY: Family Law caselaw
“Legislators may speak for the majority but even the majority is not at liberty to ignore the Constitution.” ~Michael Bent (alumna of Fix Family Courts training)
“One’ s right to life, liberty, and property, to free speech, … and other fundamental rights may not be submitted to vote …” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638, 63 S. Ct. 1178, 1185, 87 L.Ed. 1628 (1943)”
More and more students/parents of our courses are making their mark and paving the way for constitutional protections in the family courts. The most recent student to make their mark is Michael Bent of Vancouver, Washington.
Michael took the course “Creating Your BluePrint” almost a year ago. In less than a year, he has written his own appeal and has developed strong arguments to challenge the status quo in his state of Washington.
Michael is refusing to give in to the status quo of violating his and his children’s rights. And even though he had an attorney who feared presenting most of the constitutional protections would offend the Trial Judge, he hasn’t let that stop him.
While it is customary for appellate courts to rule that if the constitutional question was not raised at trial it cannot be raised on appeal, Michael is basing his argument on the “chilling effect” that the court process and practices have had on this requirement.
Michael also learned in our course and from our book, “NOT in the Child’s Best Interest” that constitutional rights cannot be violated by statute and that it is not necessary to raise an objection to that purpose when that is beyond the authority of the state in the first place. He uses “In re Sanders” case from the Supreme Court of the State of Michigan to support that he can ask for relief from an unconstitutional practice even if the unconstitutionality of the statute was not raised at the trial court level.
Michael never gave a knowing and intelligent waiver of his rights. So as long as the record shows that he did not accept the authority of the statutes (and protested to any forced compliance), that he did not try to use the statutes to his benefit, and is not purely using this as an opportunity to re-litigate to gain an advantage that he failed to get at trial, Michael’s argument will be much stronger. (This still does not mean that he does not have a constitutional argument but appellate courts in the past have refused to hear these arguments if not raised at trial.)
Michael’s complaint, and we concur, that most courts operate on the premise that legislators have crafted constitutionally valid statutes (statutes presumed constitutional). Trial courts act oblivious to any rights in divorce or as a single parent in disagreement with the other parent, so they continue to ignore constitutional arguments.
Michael is hoping to overcome these challenges. Especially since his appeal is being heard in one of the more progressive appellate courts in Washington who have been known to allow claims of ‘manifest error affecting a constitutional right’ to be made for the first time on appeal. Michael awaits to see what the appellate court will decide on this
Michael filed his appeal less than one year after enrolling and completing one course with Fix Family Courts on his family rights. His appeal was scheduled to be previewed yesterday, March 30, 2015.
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*We are not attorneys. We urge you to have your attorney integrate this material into your case and to seek legal advice regarding your rights.
Divorce Solutions and Child Custody Solutions
Co-author “Not in the Child’s Best Interest” (Book on parental rights and children’s rights)
Co-author “Protecting Parent-Child Bonds: 28th Amendment” (Book includes guide for legislators)
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
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Beginner's Guide to Family Law
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