stare decisis | TALKING BACK to restraining orders

“Americans need to wake up to the sobering fact they are living in an ongoing Constitutional crisis in the U.S.A. Their Constitutional rights are being deep-sixed by the courts in bulk. And once they’re gone, they’re gone forever, [with] ‘precedent’ and ‘stare decisis’ standing in their place.”

—Former attorney Larry Smith, author of BuncyBlawg.com

Imagine if there were a process of law that allowed citizens’ constitutional rights to be circumvented. Imagine if someone—anyone, possibly a complete stranger—were authorized to take an accusation (any accusation) straight to a judge and receive a ruling on that accusation within hours or minutes. Imagine further if judicial tendencies in the formulation of a ruling in this process had been socially conditioned and monetarily influenced. Then imagine that the accused could be incriminated, absent any investigation, entered into multiple police registries, and deprived of property and livelihood…without ever being heard from at all.

Now imagine that such a process existed in the United States of America and a plurality of other countries, and was conducted millions of times a year, right out in the open and not only under the noses of journalists and other social critics but largely with their earnest approval.

You’ve seen the rhetorical ploy the introduction uses and won’t be surprised to be told such a process doesn’t need to be imagined; it exists and has for a long time.

The writer could enumerate the various civil rights violations licensed by the restraining order process (and has, as have many others), but is it really necessary? Read the first paragraph again.

Viewed in stark simplicity, minus propaganda and graphics and “social science” figures, the process is horrifying. Criticism of it is framed as a political debate, which is merely a distraction. Is a process like that limned in the first paragraph constitutionally, socially, or ethically conscionable? Plainly, it isn’t.

The argument against it is really that basic. Yet the process has not only persisted unchecked but magnified in its scope and severity since its advent nearly 40 years ago.

The epigraph, a quotation from a former trial lawyer with a personal investment in exposing the injustice of this process, highlights what the decades of social tolerance of it imply.

Rights may be called “inalienable” all day long, but if a judge can find a precedent—some snatch of text from a previously published ruling—s/he can lawfully deny those rights. That’s on top of the violations already allowed by statutory law.

The law accretes according to “stare decisis.” The phrase is Latin and means “to stand by decided matters.” A judgment that denied one person his or her constitutional rights (any time, even in the distant past) can be used to deny everyone else theirs.

This is how “inalienable rights” can be judicially obliterated. Citizens have those rights only until they actually depend on them for self-defense. Then they’re not there. The citation of a prior judgment or judgments in a related case or cases nullifies them.

In other words, those rights aren’t real; they’re just pretty words.

A principle of law that everyone ensnarled in any sort of legal shenanigan should be aware of is stare decisis. This Latin phrase means “to abide by, or adhere to, decided things” (Black’s Law Dictionary). Law proceeds and “evolves” in accordance with stare decisis.

Anybody who’s read a Grisham novel or seen its screen adaptation knows that precedents are evoked to establish the merits of legal arguments. Precedents are cases whose judicial opinions imposed some novel tweak, limit, or elaboration on previous opinions. Law “advances” by means of this sort of accretion and seldom backpedals. Lawyers inform judges of precedents to persuade them that such-and-such was agreed upon by another judge, so you guys need to form your rulings correspondently.

The orientation of the courts is toward accepting that what’s previously been found to be the case must remain the case (or “the truth”).

Victims of restraining order fraud express amazement at the courts’ unwillingness to acknowledge obvious lies by designing plaintiffs (applicants). The fact is that once a restraining order has been successfully petitioned, and this is simply a matter of a plaintiff plaintively persuading a judge of his or her need in a 10-minute interview, it becomes a (presumptively) decided matter. Court rhetoric would have it believed that no final conclusion is made until the defendant can be heard in opposition, but all things judicial lean toward the notion exemplified by stare decisis, that is, what’s decided is decided.

Translation: “It’s true, because we said it was.” This is called a tautology (the assertion that a fact is its own reason) and would get a practitioner tossed out of Critical Thinking 101.

Defendants who opt to contest false allegations on restraining orders only to have judges belittle their efforts in the brief, half-hour hearings afforded them often report being horrified by judicial bias, laziness, or indifference, and leave courtrooms feeling like the outcomes were preordained.

That’s because in a very real sense they were.

Ex parte rulings may well be done deals, because judges, consciously or not, follow the precept that they should adhere to precedents and not unsettle things previously established (“stare decisis et non quieta movere”). And all restraining orders are approved ex parte, that is, without judges even knowing who defendants are, so what has previously been established has been established unilaterally (that is, prejudicially or one-sidedly) and in the absence of due process of law.

Restraining order appeals, which may climb successive rungs of the court ladder if defendants possess the financial means and moral fortitude to keep resisting, face this prejudice all the way up. So too do lawsuits seeking damages for restraining order abuse (especially if litigants are self-represented).

If you ever receive an apology from a judge, frame it.

Truth may literally be irrelevant. Procedural rules trump it and incline and authorize judges not merely to discount contradictory evidence provided by defendants but to ignore it entirely. Some disturbed person’s incriminatory fantasy, therefore, can drain the quality of years of a restraining order defendant’s life. This is the grotesque reality of the restraining order process and underscores its inherent corruption.

Government studies have concluded that a majority of restraining orders (80% by at least one reckoning) are issued unnecessarily or on false grounds.

It’s clear then that unless due process is retrofitted into the system, and defendants are granted the opportunity to be heard prior to restraining orders’ being issued so that they’re not forced to enter the process having to clear the hurdle of an unfair prejudgment (on top of feeling betrayed and menaced by the state), restraining orders will necessarily continue to do more harm than they arrest.

It would also be nice if the statutory consequence of prison time for those who lie to the courts were once and while enforced.

TALKING BACK to restraining orders

THEY’RE NOT JUST ABUSED BUT ABUSIVE

Tag stare decisis

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What HE Said: On Why Once a Restraining Order Fraud Has Been Put Over on the Courts, It Sticks like Pigeon Scat on a Car Hood