DOCTRINE OF STARE DECISIS BY LUIS EWING: Note: Write your own Motion packed with all the case law that is in your favor and ADD the following to the end of your brief and argue to the judge that the “doctrine of stare decisis” is mandatory and binding upon this court . . . AND YOU SHOULD WIN YOUR CASES! * * * snip D. THIS COURT IS BOUND BY THE DOCTRINE OF STARE DECISIS, CrRLJ 1.1 DECISIONAL LAWS OF THIS STATE, ARLJ NO. 7 AND THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. The quotes from Justice Cardozo indicate just this – that the process of making judicial decisions involves a complex mix of subjective and objective factors. “The fullest exposition of Justice Cardozo’s view on this subject is found in The Nature of the Judicial Process, Yale University Press (1921), see especially pages 12-13 and 19-21. Jerome Frank’s Law and the Modern Mind is perhaps the most potent American statement on the humanness of judges. There is no more famous statement than this than the opening lines by Justice Holmes in The Common Law: “The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudice which judges share with their fellow men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.” And; As Justice Oliver Wendall Holmes said: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” The Path of Law, 10 Harvard Law Review 457 (1897). As one commentator, illuminating the nature of precedent, said, “[w]here stops the reason, there stops the rule.” Karl Llewellyn, THE BRAMBLE BUSH 158 (7th printing 1981). Precedent attaches a specific legal consequence to a detailed set of facts in a particular case, which then furnished a rule for deciding a subsequent case involving identical or similar facts. Aldisert, Precedent: What it is and What It Isn’t; When Do We Kiss It and When Do We Kill It? 17 Pepperdine L. Rev. 605, 606-07 (1990); see also E. Wambaugh, THE STUDY OF CASES (2d Ed. 1894, at 8. It is this result that binds this court. R. Pound, What of Stare Decisis? 10 FORDHAM L.REV. 1, 8 (1941) (“It is the result that passes into the law.”). Nowhere is this principle more true than with respect to statutory interpretation, because the court’s paramount duty in statutory matters is to fulfill the intent of the Legislature, a duty that derives from the separation of powers doctrine. See S. Burton, An INTRODUCTION TO LAW AND LEGAL REASONING 41-42 (1985); R. Posner, LAW AND LITERATURE: A MISUNDERSTOOD RELATIONSHIP 240, 252-253 (1988) (in statutory matters, judiciary is subordinate to legislature). In particular, where the legislative intent is revealed to be contrary to prior judicial interpretations, the legislative intent binds the court under the doctrine of legislative supremacy. California v. Sierra Club, 451 U.S. 287, 297-298, 1011 S.Ct. 1775, 68 L.Ed.2d 101 (1981). Only on the grounds of unconstitutionality, may the judiciary openly ignore the legislative judgment. Redish, Abstention, Separation of Powers, and the Limits of the Judicial Function, 94 YALE L. J. 71, 76 (1984). Thus, even in the face of prior judicial interpretations, the court’s prime duty [remains] to ascertain the intent of the Legislature.” Ellis v. Dept of Labor & Industries, 88 Wn.2d 844, 848, 567 P.2d 224 (1977). This court is still bound by the “doctrine of stare decisis” pursuant to CrR 1.1, ARLJ No. 7 and the following decisional case law of Washington and the decisions of the United States Supreme Court and unless the Washington State Supreme Court decides to overrule itself, all trial court’s of this State and the Court of Appeals are bound by the decisions of the United States Supreme Court which are controlling over conflicting case law and statutory law of this state and further, once the Washington State Supreme Court has decided an issue of state law, that interpretation is binding on all lower courts until it is overruled by this court. State v. Counts, 99 Wn.2d 54, 659 P.2d 1087 [Nos. 47687-0, 48239-0, 47932-1. En Banc. February 24, 1983.]; Duffy v. Blake, 94 Wash. 319, 322 [No. 13201. En. Banc. January 20, 1917.]; Guarantee Trust Co. v. Scoon, 144 Wash. 33, 36 (May 17, 1927); Godefroy v. Reilly, 146 Wash. 257, 259 (January 3, 1928); State v. Chrisman, 100 Wn.2d 814, 816, 676 P.2d 419 [No. 46750-1. En Banc. January 26, 1984.]; Great Northern Railway v. State, 147 Wash. 630, 637 [Nos. 21092, 21093. En Banc. May 8, 1928.]; State v. Laviollett, 118 Wn.2d 670, 826 P.2d 684 [No. 58076-6. En Banc. March 19, 1992.]; State v. Hairston, 133 Wn.2d 534, 539, 946 P.2d 397 (1997) (citing State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227, 39 A.L.R. 4th 975 (1984)); Hamilton v. Labor & Industries, 111 Wn. 2d 569, 761 P.2d 618 [No. 54621-5. En Banc. September 22, 1988.]; State v. Williams, 93 Wn. App. 340, 969 P.2d 106 (December 4, 1998.); State v. Frazier, 82 Wn.App. 576, 918 P.2d 964 (Div. 2 1996); State v. Burkins, 94 Wn.App. 677, rev. den. 138 Wn.2d 1014, 989 P.2d 1142 (Div.1, 1999); Murray v. Roberts, 103 F.2d 889, 894 cert. dismissed 311 U.S. 720 (CA2 1939); Farmers Loan and Trust Co. v. United States, 9 F.2d 688, (S.D.N.Y. 1925); 21 C.J.S. 388-391, Courts sec. 214; Oklahoma City vs. Orthwein, 258 F. 190, 192 (CA8 1919); Ex parte Green, 116 Tex. 515, 295 S.W. 910 911; Red Hawk v. Joines, 129 Ore. 620, 278 Pac. 572, 578 (1929); Smith vs. Turner, 13 S.W. 2nd 152, 156 (Tex. 1928) (reversed on other grounds 61 S.W. 2nd 792); In re Meyer, 131 N.Y.S. 27, 32 (1911). The Supreme Court’s reading of Anders in Theobald is correct. Anders requires the appellate court make a thorough and independent review of the record. When basic constitutional rights are involved, this Court has the duty to carefully review the record and determine whether the bounds of due process have been exceeded. State v. Hoffman, 64 Wn.2d 445, 392 P.2d 237 (1964); Haynes v. Washington, 373 U.S. 503, 10 L.Ed.2d 513, 83 S.Ct. 1336 (1963). The Supreme Court of Washington clearly adopting the principles of law of Anders in State v. Koehler, 73 Wn.2d 145, 436 P.2d 773 (per curium, Feb. 2, 1968), State v. Atteburry, 87 Wash. 556, 554 P.2d 1053 (1976), and in State v. Theobald, 78 Wn.2d 184, 470 P.2d 188 (June 4, 1970) which absolutely requires that the appointed counsel or public defender to submit an appeal brief pursuant to Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (May 8, 1967), rehearing denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (June 12, 1967), and Penson v. Ohio, 488 U.S. 75, 102 L.Ed.2d 300, 109 S.Ct. 346 (1988) and to properly take over and preserve any assignments of error for the court of appeals. The fundamental tension between the policies of validity and finality is clearly illustrated in case such as this, in which a party to a prior final action seeks to collaterally challenge that decision on the ground that the judgment is invalid for lack of subject matter jurisdiction. The Restatement (Second) of Judgments, section 15 (2), (Tent. Draft NO. 6, 1979), recognizes that, while the policy of finality may, in some cases, bar a collateral attack upon a final judgment for lack of subject matter jurisdiction, collateral attack is to be permitted when, . . . “allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of the government. This provision of the Restatement (Second) of Judgments reflects the holdings of the United States Supreme Court in Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 285, 84 L.Ed.2d 313 (1940) and U.S. v. United States Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. (1940). The United States Supreme Court has itself recognized the inherent equitable powers of a court to modify or otherwise relieve a party from prospective requirements of a final order. As stated by the Court in the landmark case of U.S. v. Swift Co., 286 U.S. 106, 114-115, 52 S.Ct. 460, 76 L.Ed. 999 (1933) which reads: “. . . A court does not abdicate its power to revoke or modify its mandate if satisfied that what it has been doing has turned through changing circumstances into an instrument of wrong.” U.S. v. Swift Co., 286 U.S. 106, 114-115, 52 S.Ct. 460, 76 L.Ed. 999 (1933). And; “Due process of law does not mean a statute passed for the purpose of working a wrong.” DENNIS v. MOSES., 18 Wash. 537, at 595 (February 15, 1898) Later decisions of the United States Supreme Court have further observed that a court order is transformed into . . . “an instrument of wrong” . . . when, by the court order, a party is restrained from carrying out what has become a legal course of conduct. System Federal v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961). The “Plain Error Doctrine” requires a court to rule on plain error if the defense counsel fails to recognize it and ask for a dismissal. United States v. Payseno, 782 F.2d 832 (9th Cir. 1985). In Marbury v Madison, the court said (John Marshal), in part; "It is, emphatically, the province and duty of the judicial department, to say what the law is....the court must determine which of these conflicting rules governs the case; this is the very essence of judicial duty.” Marbury v Madison, 5 U.S.(1 Cr.)137, 2 L.Ed. 60 (1803). In Puget Sound Gillnetters vs. Moos, 88 Wn.2d 677, 687, 565 P.2d 1151 (1977) this court said: “It is the duty of judges to declare and not to make the law. Miller v. California, 413 U.S. 15.” Puget Sound Gillnetters vs. Moos, 88 Wn.2d 677, 687, 565 P.2d 1151 (1977). “As Mr. Justice Frankfurter said, speaking for the Court: “[S]tare decisis embodies an important social policy. It represents an element of continuity in law, and is rooted in the psychologic need to satisfy reasonable expectations. But stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.” Helvering v. Hallock, 309 U.S. 106, 119 (1940).” Williams v. Florida, 399 U.S. 79, 118-119 f. 3 (June 20, 1970). And; CONCLUSION AND RELIEF REQUESTED! I RESPECTFULLY REQUEST THAT YOU ORDER THE BAILIFF TO CHOP THE CPS SOCIAL WORKERS HEADS OFF, DUCK TAPE DANA LAWHON’S MOUTH AND GIVE MY CHILDREN BACK! _____________________ Luis Ewing Dated this 18th day of September, A.D. 2013 * * * snip NOTE: IF YOU PUT MY LITTLE DISSERTATION ON . . . “THE DOCTRINE OF STARE DECISIS” . . . AT THE END OF ALL YOUR MOTIONS OR LEGAL BRIEFS, IT WILL GREATLY INCREASE YOUR CHANCES OF WINNING YOUR CASES . . . “IF” . . . YOU CITED A BUNCH OF CASES IN YOUR STATE AND FEDERAL CIRCUIT THAT ARE SIMILAR TO YOUR CASE AND THE COURT RULED IN FAVOR OF THE PARENTS! luisewing/flyers/index.html
Posted on: Fri, 20 Sep 2013 06:01:17 +0000
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