Restraining Orders and Equal Justice Under Law

It is our opinion that Restraining Orders will ultimately be found to be unconstitutional someday.
If you have a restraining order put in place against you by a court of law, you can be arrested and imprisioned for contacting the person who has the restraining order against you.
However, she can contact you at will, w/o and legal problems.
This is un equal justice under law.
Here is a good article to read.

The Meaning of Justice
By Hon. Anthony M. Peccarelli

The words "Equal Justice Under Law" are inscribed on the architrave, resting on Corinthian columns, above the entrance to the U.S. Supreme Court Building in Washington, D.C. The phrase did not occur in any significant government document or court ruling prior to the completion of the building in 1935. The U.S. Supreme Court in an 1891 case, Caldwell v Texas, 137 U.S. 692; 11 S.Ct. 224; 34 L.Ed 816, introduced a phrase, in obiter dicta, that may have given rise to the words that appear on the facade when it said,

". . . By the Fourteenth Amendment . . . no state can deprive particular persons or classes of persons of equal and impartial justice under the law (emphasis added). Law, in its regular course of administration through courts of justice, is due process . . . ".

And later in an 1897 case, Nobles v Georgia, 168 U.S. 398; 18 S.Ct 87; 42 L.Ed. 515, the Petitioner-defendant pled a violation of her Fourteenth Amendment rights and alleged,

". . . no State can deprive any person of equal and impartial justice under the law (emphasis added), and that law in its regular course of administration through courts of justice, is due process . . . " .

The architect, Cass Gilbert, who designed and supervised the construction of the Supreme Court building, until his death, apparently paraphrased the broad statement made by the court and alleged by the pleader as the source for the words "Equal Justice Under Law. The words "Equal Justice Under Law’ ignite an expectation by persons who seek redress in a judicial proceeding. The difference in perception by those who decide the issues in a judicial proceeding and the result understood by the public are sometimes in conflict. The finality and impact of what occurs in a judicial proceeding has an effect upon us all.

The wisdom of the concluding that "justice" is the result of "law" requires an examination and definition of the words in order to understand the meaning of "Equal Justice Under Law". A source to define, there being a dearth of reported precedent, was the venerable unabridged Oxford English Dictionary. The Oxford English Dictionary, in addition to historical anecdotes and descriptive quotations, primarily defines law as a rule of conduct imposed by authority; the body of rules, whether proceeding from formal enactment or from custom, which a particular state or community recognizes as binding on its members or subjects. The dictionary defines justice, with historical anecdotes and descriptive quotations, as the quality of being just, of being morally just or righteous; the principle of just dealing; the exhibition of this quality or principle in action; just conduct; integrity; rectitude; conformity (of an action or thing) to moral right, or to reason, truth, or fact; rightfulness; fairness; correctness; propriety.

Law seems reasonably well defined and understood. Further colloquy beyond rules imposed by constitution, statute, custom, or precedent which is binding on the members of a community, for regulation of conduct as suggested by the Oxford English Dictionary would not add to an understanding. Ambiguities attributed to the conclusiveness and understanding of law appear to occur by interpretations of law in various courts by diverse tribunals.

Justice has eluded a well defined and understood meaning. It is a value laden word which often precludes agreement on its meaning. It has a profound, learned, sage and exhilarating sound. It evokes strong emotions. The values and notions of justice that impact us today emanate and are synthesized from those commonly shared, timeless qualities of justice as described by Socrates, Lock, Hume, Machiavelli and Spinoza among others. The judicial process seeks to do that which is morally right in the name of justice. The public who seek, expect and demand justice as they enter and participate in the judicial process attribute specific expectations upon the conclusion of the process. It is not with any degree of certainty that the ultimate resolution of the dispute that caused involvement in the judicial process results in moral righteousness.

In an article in the 1997 October issue of the DCBA Brief I expressed my perplexity in the expectation of justice as a consequence of the judicial process. It was an attempt to contrast law and the result of the judicial process with justice. In that article, "Reflections on Law and Justice", I reported to you two dissimilar anecdotes, one historical and one personal. The historical anecdote of the role of the judicial process was expressed by United States Supreme Court Justice Oliver Wendell Holmes. I reported that in an exhortation to Justice Holmes that he "Do justice", Justice Holmes replied, "That is not my job. My job is to follow the law." The personal anecdote was by an informed, questioning lay person and friend whom I have known for many years. In an exchange of letters which included a discussion of the difference between a trial court judge and a reviewing court judge my friend wrote and raised the question, "What is the purpose of law, if not to increase justice?" The historical anecdote and the personal anecdote characterize two different perceptions as a consequence of a judicial proceeding.

A serious consideration must be whether following the law and the expectation of justice as a consequence of the judicial process will remain unchanged or will it be redefined. In order to put such consideration in perspective we need only look at our own development of the judicial process. The Honorable John F. Daffron Jr., Judge of the Twelfth Judicial District in Chesterfield, Virginia and Vice-Chairman of the State Justice Institute in an address at the conference on "The Future and the Courts in Illinois" in April 1992 speculated that if Patrick Henry were to find himself in the trial courts of today,

". . . professionally, he would likely feel right at home. The configuration of the courtroom and the furnishings would be similar to what he had known. The substantive law would be similar and the procedural law would be familiar. He would recognize the burdens of proof and feel right at home with the rules of evidence. Even the types of relief obtainable, civilly and criminally, would be similar to those he knew 200 years ago."

The dispute would be resolved in a specified central location where all who seek judicial relief would be required to attend. "What this means" Judge Daffron continued, " is that in the trial courts, we haven’t changed much." It is in the trial courts that the public becomes aware of the strengths and weaknesses of the law, the judicial process and justice.

What does the public opine about the judicial process and by implication justice. Since 1977 there have been many surveys of public opinion about the courts and justice including three major national surveys and 27 surveys commissioned by the judicial branches of 24 states. Although the Illinois Supreme Court convened the conference "The Future and the Courts of Illinois" no statewide survey in Illinois of public opinion or trends materializes that could impact the current judicial process, the expectations of the public or the effect of law upon justice.

The most recent national survey conducted in 1999 was commissioned by the National Center for State Courts at the suggestion of the President of the Conference of Chief Justices and is commonly referred to as the "Hearst Report". Using the "Hearst Report" as a commentary on the perceptions of justice by the public is not to suggest that the result of the judicial process should yield to accommodate public opinion but only to summarize and report what a cross section of the public thinks about the judicial process and by implication justice. The "Hearst Report" commentary on the results of the survey were presented May 14, 1999 at the National Conference on Public Trust and Confidence in the Justice System. The survey covered four broad areas: access to the courts, timeliness of court decisions, fairness of judicial decision-making, independence and responsiveness to the public and changing conditions of society.

There was substantial affirmative consensus across all respondents for access to the courts although there were several caveats. The survey revealed that the courts do a good job insuring adequate representation and that users of the system were treated with dignity and respect. However, the respondents opined that the cost of legal representation was a barrier to access and slightly less than one-third believed that taking a case to court is affordable. The complexity of the procedural and substantive law was cited by many respondents who believed that procedures should be readily available for persons to represent themselves. An extraordinary majority of respondents disagreed with the statement, "It is affordable to bring a case to court". This result was exacerbated when race, economic status, social standing and cultural background was considered. Access appeared to be available to few but not the vast majority of respondents.

The slow pace of court proceedings, the failure of courts to adequately monitor cases, the amount of personal time required and expended by waiting for cases to be heard and concluded contributes to the lack of timeliness in the resolution of issues raised by bringing a case to court. The handling of juvenile delinquency, family relations and criminal cases were overwhelmingly considered poorly handled

Several items were assessed in addressing the issue of fairness of judicial decision-making. Most respondents believed that juries are not representative of the community. African-Americans overwhelmingly held that belief. The survey also reflected that 80% of all the respondents agreed that judges generally are honest and fair. However African-Americans and Hispanics were significantly less likely to agree concerning the honesty of judges. Those respondents also replied that failure to actively monitor cases, lack of clarity in the rulings resulting in inability to understand the rulings and familiarity and favoritism toward particular litigants negatively impacted the issue of fairness of judicial decision-making. The general answer to the inquiry concerning the fairness of judicial decision-making depended upon whether the respondent was Hispanic, Caucasian/non-Hispanic or African-American. African-Americans were consistently negative concerning the fairness of judicial decision making.

The respondents perception of confidence in the courts is effected by changing conditions in society, politics and the necessity to raise campaign funds by elected judges. These also influence responsiveness of the courts to the public and the independence of judges. There is a perception that courts are out of touch with reality within their community and that decisions result from political influences. Given those broad generalizations a substantial majority of respondents have trust and confidence in the courts in their community but that confidence varies systematically across racial groups with race being a significant predictor in the level of trust and confidence.

What do the contemporary philosophers suggest about the legal system and by implication justice. Several philosophers describe justice in terms of that which obliges a person to do or not do something that concerns another and the performance of which elicits approval. That suggestion epitomizes the divergence and chasm within several current prevalent theories of law. The following brief statements only touch the surface of the four theories.

The Positive Theorists suggest law is the product of the State, independent of justice and conformity is obligatory because of the need for an orderly society. The command of the sovereign power is enforced by the sovereign power’s ability to impose sanctions

The adherents of the law of Social Good theorize that law is formulated by human beings. Law and justice are social products, developing in tandem, which imposes a moral duty based on the social good, not dependant upon sanctions, and that social custom or tradition impact the relationships of people each to the other.

The proponents of Natural Law maintain that law preceded the existence of the state, is based on a natural right to render to each his due, is cognizable by pure reason and that which is not right is not law.

Therapeutic Law, sometimes called Restorative Law or Healing Law, a more recent development by courts and sociologists during the past twenty years extends the role of courts beyond an adjudicative function to active intervention to divert defendants charged with antisocial behavior away from courts and criminal penalties by encouraging social rehabilitation and reintegration into society. Examples of this concept are drug courts, conciliation family courts and juvenile courts exercising the standard of the best interests of the individual balanced with the rights of the aggrieved party. In the settlement of civil disputes the active intervention extends the power of courts through alternative means, such as arbitration or mediation, to resolve disputes. The alternative of combining the adjudicative process with active intervention attempts to enable participants in the judicial system to cope with their behavior. This is an attempt to impact the existing social order and address social problems. It combines the resolution of legal issues and social issues and seeks to reeducate the participants. The concept focuses on due process, equal protection and other constitutional safeguards with the viewpoint of repairing damaged relationships.

Without attempting to name or give credit to particular philosophers the four distinct philosophical approaches to law include all or some of the following: (1) that like persons should be treated alike without reference to race, ethnicity, economic status or social status in that law defines a persons legal standing and is incapable of effecting righteousness and that the judicial process should protect the needy and easily exploited classes of society; (2) one or more arbitrary values are developed and codification of law is to stabilize a sound social order; (3) what is perceived to be good is good and justice is established in terms of just rulers and judges and a right order of society will follow; (4) equality to all in that justice does not define particular duties but challenges one to learn what is his particular duty and obligates that person to perform that duty; and (5) applications under one interpretation of law may be justice but under another interpretation of law may be unjust.

The meaning of justice today by jurists appears to be that justice emanates from conforming to the Constitution, body of statutory law and common law. If litigants have been accorded the constitutional safeguards of due process, equal protection, statutory and common law consistent with the standards of conduct approved by society the result of the judicial process is deemed justice. Therefore justice is what the judicial process says it is. Something good occurs in the peaceful resolution of disputes. This brings to mind a quotation from United States Supreme Court Justice Robert H. Jackson commenting on the meaning of law and its effect upon society by the Supreme Court when he wrote;

"We are not final because we are infallible, but we are infallible because we are final."

This is extraordinarily true at all levels of the judicial process. Particularly when the vast majority of cases are ultimately resolved at the trial level. Few cases are reviewed by intermediate appellate courts or the ultimate supreme court..

Unanimity of the concept of justice is sometimes lacking. If the essence of justice is to do that which is morally righteous and just that is not without conflict. Thomas Stoppard in his play "Professional Foul" suggested, "There would be no moral dilemmas if moral principles worked in straight lines and never crossed each other." When we comply with the rules of conduct and standards established by society in an orderly non-confrontational non-violent way in resolving a dispute which may satisfy one persons interest at the expense of another persons interest, under the law, does that constitute justice? If there is tension to do that which is morally righteous and just in the pursuit of justice through the judicial process and that which is to abide by the rules of conduct established by society how can that seeming conflict be reconciled.

The perception of justice is evolving. It will be impacted by the future. The future of the judicial process and the outcome may be significantly different than the prevailing result of the judicial process. The traditional resolution of disputes in a judicial proceeding in the past was usually dominated and resolved by caucasian males. The future trend will be influenced by the increasing, progressive inclusion of females, diversity of non-caucasian groups, impact of differing cultures, aging population, unconventional family units, medical technology, active judicial intervention, complex litigation and resolution of disputes outside a court room.

The leadership of the federal and state court systems will need to address affordability of access to the courts, existing protracted judicial proceedings, perception of favoritism toward particular participants, government intrusion in individual decision making and the expectations of the public from the judicial system. A different active intervention beyond the adjudicative approach to the current traditional judicial proceeding may well be the result. The evolving possibilities include the creation of specialized structured procedures to resolve disputes such as mandatory mediation, mandatory arbitration, drug courts, proactive courts addressing social problems through counseling or monitoring conduct of public governmental bodies, courts developed to address the disintegration of family or other relationships and court procedures dominated by technology. The traditional background of judges may lack the inclusion of skills to adequately address the publics expectation of a judicial proceeding shifting from an adjudicative function to active intervention by the courts.

The judiciary should be aware and be responsive to the potential changing demographics and the public expectation of justice in the resolution of disagreements pursued in a court proceeding. The willingness for the public to seek a resolution of disputes outside of the traditional judicial proceeding will distinguish the expectation of justice from a highly structured environment in a judicial setting to alternatives to litigation by removing cases from the court system and seeking other peaceful means to resolve their dispute and thus perceive the result to be justice.

Honorable Anthony M. Peccarelli (retired) was appointed to the Illinois Appellate Court, 2nd Judicial District in 1993 and served through 1994. Judge Peccarelli was Chief Judge of the Eighteenth Judicial Circuit Court, DuPage County, Illinois for four years prior to his appointment to the Appellate Court. He joined the judiciary in the Eighteenth Judicial Circuit Court as an Associate Judge in 1979, was elected Circuit Judge in 1982, and retained as a Circuit Judge in 1988. Prior to 1979 he was a trial attorney for 17 years