How does a society agree that a law is unjust? Some thoughts and ideas…

In a civil society, we take rules and laws for granted; they must exist in order to prevent anarchy, conduct business, and progress the state of humankind with civility. We also associate “laws” with the “government”, and the enforcement of those laws rests in a power that resides above us.

But what happens when the laws no longer represent the consensus?

What of laws that do not reflect the current social mores and tolerances of the times?

What recourse is available to the proletariat when those in power enforce rules that disenfranchise one or more classes of society?

How does a civil society agree that a law is unjust?

 Sarah Iozzio writes:

For me, the definition of an unjust law is a law that perpetrates more harm than it prevents. Getting society to agree to this definition would take more people waking up an(d) becoming aware of that harm rather than believing the propaganda of what that law is supposedly accomplishing.

Sarah’s first step is to create a definition. I also agree, as it seems reasonable to me that reasonable people would then find a reasonable argument compelling.

While publicly elected legislatures create most laws, they are administered and enforced through Executive administrations, and upheld by the court systems at both Federal and State levels.  This three tiered system of checks and balances is designed to prevent abuses, yet it is also slow and cumbersome, fraught with politics and plunders.

So even if we can get people to agree, can we get change?

In order to get people to agree that a law is unjust and therefore should be changed, the mindset that created the law in the first place must be denounced:  People will have to admit that they were wrong. Changing minds can be a difficult row.

I hope this has sparked some ideas of your own on what it takes to change a law that is unjust. The “Law” could be a local ordinance that limits the parking on your street, a State regulation that prevents a fair hearing in child custody, or a Federal policy of criminalizing cannabis. It doesn’t matter if it is at the local level or if it is a Federal issue, if the law is contrary to the social beliefs of the voters, how do we convince those whom we’ve elected to change their minds and champion our causes?

I appreciate your comments and ideas.  You may post them here, or on Facebook at https://www.facebook.com/mariesrun or https://www.facebook.com/Sustainablygreen

THANK YOU!

k rojas

If You Don't Agree With Your Benefit Decision

APPEALING YOUR PUBLIC BENEFITS DECISION:

Agency Hearings Vs. Court Trials

The recession and double digit unemployment has forced many once stable middle class families to apply for Unemployment Benefits, Food Stamps, Medicaid and other public benefits, many for the first time. If benefits are denied, discontinued, or lowered, and you disagree with the agency's decision, you can appeal the decision. When appealing decisions from a government agency, it is important to know the difference between agency hearings and court trials.

Agency hearings and court trials are both adjudicative proceedings, yet court trials are likely, but not necessarily, to be more formal. A judge or a jury may adjudicate Court trials, but administrative law judges (ALJ) decide administrative proceedings. Some believe that administrative agencies should not adjudicate because the primary purpose of an administrative agency is to carry out the statutory rules as set forth by Congress; however, administrative agencies can take on quasi-legislative and quasi-adjudicative characteristics in addition to the administrative duties of implementing statutes.

Critics of administrative hearings argue that agency adjudication usually involves privilege disputes, not rights violations, and as such, the matter could be handled best informally. In Goldberg V. Kelly (397 US 254, 1970), the Supreme Court upheld the administrative hearing process, citing that the test of hearing or trial is not whether the matter under adjudication involves rights or privileges, but the extent to which the litigant “could or has suffered a grievous loss.” In 1984, the 9th Circuit Court of Appeals ruled in Freeman v. Hittle (747 F.2d 1984) that liquor licenses could be taken away because they are a “privilege, not a right”. This decision is usually ignored by the Supreme Court and other adjudicative institutions, and act instead on the Goldberg decision.

The Administrative Procedure Act of 1946 sets out specific rules and uniform standards for conducting hearings. In addition, the courts try to pressure agencies into “reasonable fairness” by imposing their own rules of adjudication on administrative hearings. Critics site the lack of a uniform agency procedure for conducting hearings. With over 200 different procedural codes in place across administrative agencies, judges believe that administrative hearings should be more like court proceedings, claiming that on a court appeal of the informal hearing decision, [court judges] can not tell if due process has been achieved.

Particular aspects of judicial trials versus agency hearings are related to the rules of evidence. The main point of the Rules of Evidence in the context of administrative adjudication in a democratic society is “evidence employed to justify conclusions in trials or hearings should be gathered, presented, and evaluated” in a manner consistent with principles of fair procedure. “Unreliable Evidence” is usually in the form of hearsay or “he said she said” second-hand testimony. In hearsay testimony, the person giving witness did not directly experience the event described or is relating conversation second hand. Court proceedings have specific rules of hearsay exceptions and exclusions to allow hearsay evidence to be used; administrative agencies may use hearsay evidence without exceptions, and it is up to the ALJ to decide if the testimony is reliable or not. Due process is another key aspect in determining the rules of evidence. The purpose of presenting evidence is to have or provide the opportunity for the opposition to challenge the evidence and to show it as unreliable (Davis). The ability to provide and challenge evidence is an important aspect of due process.

Others believe that agency hearings should not be more like court proceedings, although their “quasi-judicial” standing should be maintained. Agency administrators and Administrative Law Judges prefer to keep these hearings simple, and as long as they do not remove life, liberty or property (a line that is often crossed in agency hearings), informal procedures are adequate. If the issue is of serious consequence, the case may eventually end up in front of a judge, and all of the time on agency grievance procedures has been spent for naught. At this point, it may also be a fair bet that the complainant no longer has the resources (emotionally, physically, financially) to go on to a trial court, which will generally uphold the administrative decision requiring the claimant to proceed through the judicial appeals process. By this time, this issue originally adjudicated has become irrelevant, and the issue has already done damage that may no longer be easily remedied.

Author and attorney, Kenneth Warren advises that administrative disputes may best be handled by contacting one’s congressional representative, than through the informal adjudication process. You should contact your representative first, regardless of your intent to follow through with the appeal process. There is often a 60 day limit for filing an appeal of your benefit decision. These are often held by conference call, between the agency ombudsman, the administrative law judge, and the complainant.







The Green Association for Sustainability