Judge Made Law

I'm noticing that President Obama's nominee to the Supreme Court, The Honorable Sonia Sotomayor, is getting flack from conservatives for her comments stating that appellate courts are where "policy" is made. Conservatives are criticizing her for thinking that appellate court judges "make law" as opposed to merely interpreting the law.

People who make such statements reveal a stunning ignorance about our legal system. Under our "common law" system of jurisprudence (created when William the Conqueror organized the disparate courts of feudal England into a single "common" court system), judges regularly make law in the act of interpreting existing law. Judges were making law in this manner hundreds of years before the English legislature ever existed.

Here's a simple example from a case I worked on when I clerked at an appellate court. A Hawaii statute required drivers to be "secured" by a seat belt. One day on Maui, a young woman wore her shoulder belt under her arm and across her abdomen, instead over her shoulder and across her chest, which is how the belt is designed to be worn. Apparently, the front of her dress was decorated with something that she didn't want the seat belt to smash. The police stopped her and ticketed her for failing to wear her belt "properly."

In the district court, the woman argued that nothing in the statute required her to be "properly secured" by the seat belt - the statute only required her to be "secured" and she was secured. The judge didn't buy her argument and she was convicted and fined.

She appealed. Her argument was, once again, straight forward and simple. The law did not require her to be "properly secured." It only required her to be "secured," and she was secured. She added that it was not up to the prosecutor and/or district court to rewrite the law to insert the word "properly" into the statute.

Our court sided with the woman. The Hawaii Intermediate Court of Appeals cited the legal principle known as "in pari materia" - which holds that if two statutes address an identical or a substantially similar issue, any differences in the statutory language is presumed to be intended by the legislature. The Court then noted that the statute requiring small children to be placed in car seats that are secured by seat belts contained the phrase "properly secured." The court concluded that, pursuant to the doctrine of in pari materia, the Court was required to construe the lack of the word "properly" in the adult seat belt law as an intentional legislative omission. Consequently, the Court reversed the district court's ruling, noting that "because we are not judicial activists, we decline the prosecution's invitation to insert the term 'properly' into the seat belt statute."

The Hawaii Supreme Court reversed the Intermediate Court of Appeals' decision noting that the clear intent of the legislature in enacting the seat belt law was to render crashes less deadly, and that by wearing the seat belt under one's arm, the force of any crash is transferred into the abdomen (where all the vital organ's are) instead of dispersed across the torso. They said the in pari materi doctrine did not apply because the clear intent of the legislature was evident from the legislative history of the statute.

But one of the Supremes dissented, declaring that our court had decided the case properly!

Granted, all this lawyering seems like a great waste of judicial resources. However, the point of the example is that the Hawaii Court of Appeals and the Hawaii Supreme Court made law when they interpreted the seat belt statute. They had no choice. There was no other way to decide the case. And by creating new law, each court did exactly what appellate courts are designed to do - fill in the legislative gaps with judge made law/policy.

The legislature, of course, was (and is) free to overturn either court's decision. But the idea that it is inappropriate for judges to make law or policy is silly. Conservatives who make such arguments are grossly ignorant. Conservative lawyers who make such arguments are completely dishonest.

Joe H.