Arkansas Watch | Judge’s ruling appears to disregard wishes of governed

— Pulaski County Circuit Judge Christopher Piazza threw out Arkansas Initiated Act 1 on the grounds that it violated the Arkansas Constitution. The act prohibited co-habiting couples from adopting children whom they were not related to in the state of Arkansas. The act was approved by 57 percent of the people in the last election. It was a response to a previous judicial order overturning the policy of the Child Welfare Department banning practicing homosexuals from adopting children.

The judge in that case said that such a ruling could not be made by the department on its own authority, there would have to be a law authorizing that. But the judge hinted that if such a law was in existence, he might have to throw it out anyway. The sponsors of the act, Arkansas Family Council, decided to make the adoption ban apply to all co-habiting couples so as to avoid singling out banning homosexuals who cohabit. This broadening was done in part to appease the leftist judges who would rule on the case.

At the time, I objected to such appeasement, and thought the initiated act should have been a straightout ban against practicing homosexuals using the power of the state to obtain access to other people’s children. My fears were confirmed. Attempts to appease judicial tyrants do not work any better than appeasement works to mollify the tyranny of any other class of tyrant. Rather, it only emboldens them to further acts of contempt for the populace. Piazza threw the law out anyway.

Piazza claimed the law violated the due process rights of co-habiting couples, but the point of due process is to make agents of the government follow their own laws when meting out justice. This view of due process is the traditional one, but activist judges have expanded judicial power by claiming that “due process”can be used to void the substance of laws, not simply validate the procedures used to enforce them.

The very term “due process” makes it clear that it is the procedures used by government agents that judges are authorized to rule on, not the substance of what the law determines is legal or illegal. If Piazza had said, “The state must give those who have been ruled ineligible a legal process to show that they are, in fact, not co-habiting and are therefore eligible,” then that would be a valid use of due process. But he did not do that. Rather he threw out the substance of the law. He rejects the very idea that the people have a right to place restrictions on the behavior of those who approach their government for access to children.

It’s a shameful and arrogant abuse of a cherished legal concept.

This doctrine, invented by judges, expands judicial power over the legislative power. That is bad enough, but this law was enacted by ballot amendment. This means that Piazza used this unsound judicial doctrine to expand the power of judges over not simply another branch of government, but over and against the people themselves.

Piazza claimed Arkansas Constitution Article 2, sections 2 and 29 as the grounds for his ruling. That is ironic because section 2 notes that governments derive “their just powers from the Consent of the Governed.”

Section 29 says: “The enumeration of rights shall not be construed to deny or disparage others retained by the people.... ” It seems Piazza made his ruling in disregard of the wishes of the governed and disparaged the retained right of the people to determine who their state government will assist in giving access to other people’s children.

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Mark Moore is the lead writer for an Internet blog on matters pertaining to Arkansas culture and government, Arkansas Watch, and on Tuesday nights is the host of an Internet-based radio program, Patriots on Watch. He can be reached through The Times at prtnews@ nwanews.com.

Opinion, Pages 4 on 04/21/2010