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Friday, October 26, 2007
Court ruling is legislating from the bench
The Atlanta Journal-Constitution
Judicial activism?
No need to quibble about definitions. All of Georgia has before it the definitive example of judicial activism in last week’s decision by four members of the Georgia Supreme Court to legislate from the bench in the Genarlow Wilson case. Mark it down: Chief Justice Leah Ward Sears, justices Carol Hunstein, Robert Benham and Hugh Thompson are guilty of judicial activism.
Of those, Hunstein and Thompson are five years removed from the voters, having just been re-elected. Sears is three years removed. Benham faces the voters next year.
Hunstein’s legislate-from-the-bench decision is most surprising. As the able strict constructionist Justice George H. Carley noted in dissent from the 4-3 opinion written by the chief justice, Hunstein now crosses a line she chose to honor prior to her re-election last year.
Wrote Carley:
“When Wilson applied unsuccessfully for a writ of certiorari to review the Court of Appeals’ affirmance of his conviction, Presiding Justice Hunstein concurred and took that occasion to note for the benefit of the bench and bar that … ‘this Court is bound by the Legislature’s determination that young persons in Wilson’s situation are not entitled to the misdemeanor treatment’ ” set forth in a 2006 law.
This was not an oversight by the General Assembly. More from Carley:
“When Wilson engaged in the very public act of oral sodomy with a 15-year-old child, he committed the crime of aggravated child molestation and, as a result, he received the felony sentence mandated for that offense.”
Some 18 months later, the General Assembly revisited the law, writing a new one that took effect July 1, 2006. In writing that law, the Legislature could not have been clearer. “Provisions of this Act shall not affect or abate the status as a crime of any such act or omission which occurred prior to the effective date of the Act repealing, repealing and re-enacting, or amending” the law under which Wilson was sentenced.
Plain and clear. “Obviously,” wrote Carley, “the effect of this clear and unambiguous provision is to preclude giving retroactive effect to the 2006 amendment so as to ‘affect or abate’ the status of Wilson’s crime as felony aggravated child molestation punishable in accordance with the sentence authorized at the time the crime was committed.”
Hunstein acknowledged as much before the election. She lamented Wilson’s situation, but noted that a clear separation of powers prevented the Supreme Court from substituting its judgment for that of 236 elected officials.
That was then, though, and this is now.
The four judges in the majority “simply ignores that express legislative intent” and has no sound basis for concluding that “a felony sentence which was authorized when Wilson committed the offense of aggravated child molestation became cruel and unusual punishment when, more than a year later, the General Assembly lessened the penalty for that offense and mandated only a prospective application for that change.”
The General Assembly knew what it was doing and acted with full awareness of the facts in the Wilson case — and chose not to apply the new law retroactively, as was its right.
Make a note, here and now. This is a results-oriented Supreme Court that reacts to the 6 o’clock news.
It concluded that Wilson had served sufficient time for the offense, as they weighed it, and overriding the Legislature, they wrote the law they wanted. Part of its reasoning, as expressed in Sears’ opinion, is that “a review of other jurisdictions reveals that most states either would not punish Wilson’s conduct at all or would, like Georgia now, punish it as a misdemeanor.” The relevance?
That’s a line no conservative jurist would write. But then this is a cross-the-line decision no conservative court would have issued.
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