tag:blogger.com,1999:blog-4098620.post3164451037006407749..comments2024-03-15T04:02:42.341-04:00Comments on CrimLaw: Advisement: Theory Behind ItUnknownnoreply@blogger.comBlogger4125tag:blogger.com,1999:blog-4098620.post-74396375928754986402011-07-27T07:33:31.628-04:002011-07-27T07:33:31.628-04:00Hernandez didn't bring us to this point. Nor d...Hernandez didn't bring us to this point. Nor did the General Assembly just wake up one day and create out of whole cloth advisement as to certain offenses. This well established common law procedure has existed for a long time. I don't know how long it's been around exactly, but I do know that in about 2005 I found a case in a Amelia from 20+ years back which took a case under advisement (I was looking up an ambiguity on his record). Long time practitioners tell me it's been around much longer than that. This is a long established courtroom practice which was regulated in certain cases by the General Assembly.<br /><br />As for power residing where the people say it should, I'm sure your referring to the part of the Virginia Constitution (Art VI sec 5) which places procedural issues squarely under the control of the courts unless the General Assembly has passed a specific general law in conflict with a procedure the courts have developed. Right?Ken Lammershttps://www.blogger.com/profile/15646250142814585354noreply@blogger.comtag:blogger.com,1999:blog-4098620.post-66526871184536930852011-07-26T22:10:02.915-04:002011-07-26T22:10:02.915-04:00By arguing the GA should just pass legislation to ...By arguing the GA should just pass legislation to abolish this practice, you're assuming judges have the inherent authority to take a case, otherwise proven, under advisement. This is the mistake of Hernandez, which brought us to this point. That argument goes something like "Power exists unless the GA says otherwise." If that were so, why did the GA explicitly give judges this power under some statutes but not others? Power resides where the people say it should, not where judges wish it did.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-4098620.post-33682413960506302362011-07-26T16:37:23.446-04:002011-07-26T16:37:23.446-04:00I think the General Assembly should keep track of ...I think the General Assembly should keep track of the decisions of judges and ask them periodically to explain anything the General Assembly's members find troubling. However, the only time that periodic questioning can and should take place is when a judge is before the General Assembly seeking re-election. <br /><br />I also don't have any problem with a particular Senator or Delegate (or a group of them) publishing those things which he finds inappropriate for a judge to do in a newspaper editorial or on a web page. Even letter to all judges would probably be okay as long as there is nothing in there telling a judge how to act in a specific case. All it's doing is giving the judges a sense of where a certain percentage of the General Assembly stands as to the purpose of certain laws.<br /><br />Of course, if the Senators or Delegates involved are propounding a position which they cannot get passed into law, they are talking about a minority opinion and a judge should take that into consideration as well.Ken Lammershttps://www.blogger.com/profile/15646250142814585354noreply@blogger.comtag:blogger.com,1999:blog-4098620.post-53898787530183042772011-07-26T13:19:46.908-04:002011-07-26T13:19:46.908-04:00Good post. Can we assume, then, that you have no ...Good post. Can we assume, then, that you have no problem with the General Assembly keeping close tabs on judges and asking them to account periodically for the cases they have taken under advisement, as announced by Del. Albo, et al in their recent letter to incumbent judges? The VBA, of course, flipped out and accused the General Assembly of impeding upon judicial independence.Anonymousnoreply@blogger.com