[Private] Advisory opinions

r3naissanc3r

r3naissanc3r

TNPer
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First of all, please read my answer to question (3) in this post: http://forum.thenorthpacific.org/single/?p=8104757&t=7079553 .

My answer there should clarify the difference between actual judicial reviews, and advisory opinions. Answer (3) and, to a lesser extent, answer (4) also explain why I believe advisory opinions are bad.

Following these, I propose we adopt a policy where we completely prohibit advisory opinions. People will no longer be able to request clarification on theoretical or likely future situations. They will only be able to seek review of actions that have already taken place. If they need counsel in advance, they can ask the Attorney General or anyone well-versed in our laws for that.

I believe the current laws, court rules, and judicial precedent allow for this policy and do not need any alterations. In fact, I would say that advisory opinions are arguably illegal. The Constitution in 4.1 allows for cases to be brought before the Court only "by request of an affected party"; that is, somebody who has already been affected by an action that already took place, not potentially affected in a hypothetical future. Similarly, this judgment discussing the meaning of "affected party" uses past tense throughout; the effect must have already taken place before the case is petitioned for. The court rules, then, say that requests must be brought by "affected parties" without any further specification, so they pretty much derive from the previous two.

The above mean that, to effect this policy, we would only have to reject any such cases brought our way. The first time we do so, we would need to post our reasoning, which would be a longer version of what I described above. Then for all other cases, we would just refer back to that decision.

Let me know what you think.
 
People will no longer be able to request clarification on theoretical or likely future situations. They will only be able to seek review of actions that have already taken place.
Click to expand...

I tend to agree on clarification on theoretical and likely future situations mainly because it tends to put a justice in the position of making a statement that could be construed to prejudice opinion against the court or prejudice future opinions in unforeseen future cases.

As you note in the second part of the quote I extracted from your post: They [complainants] will only be able to seek review of actions that have already taken place.

Hence, the very definition of Judicial Review: Review by the Court on the constitutional validity of a legislative act.

All other 'reviews' would technically fall under the appeal process as judicial review, per se, only could cover legislative actions or the application of a given law.

Also, judicial review can be concisely defined as:

"A constitutional doctrine that gives to a court system the power to annul legislative or executive acts which the judges declare to be unconstitutional."

Especially to be scrutinized under the doctrine of Judicial Review would be items such as:

Actions bearing on civil rights (or civil liberty),
Due process of law,
Equal protection under the law,
Freedom of religion,
Freedom of speech,
Rights of privacy.
Actions or laws pertaining to checks and balances.
 
The trick is to reduce a principle, constitutional or legal, to the simplest and most concise terms. Otherwise the lawyers get a hold of it and it results in some serious obfuscation. :yes:
 
Going by Roman's first post, I believe we have unanimous agreement on the subject. Excellent then.

As I said in first post, there is nothing we need to do to effect this policy. As soon as a case that amounts to an advisory opinion is submitted, we will reject it and explain our reasoning, which will make the policy apparent. Hopefully future justices will also follow it.
 
Think about it, advisory opinions are like surreptitiously asking for a decision before a case is brought before the Court.

If someone ever asks me for an advisory opinion about a specific law, my tendency will be to say, "Read the existing cases in the archives. Asking me for an opinion about the dispensing of a particular law would be a prejudical opinion to which I could be held and would deny me the ability to take into consideration the particulars of a case not yet rendered."
 
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