That is a strange question. But ask yourself, is your marital relationship, or if you’re unmarried, is a marriage worth 20 dollars? Is the custody of a person’s children worth 20 dollars? Is whether or not a person has exhibited domestic violence an issue worth more than 20 dollars? Is whether or not a grandparent has the right to visit with their grandchildren over the firm conviction of a fit parent worth more than 20 dollars? I think most of us would say it is. Your court system in West Virginia does not agree.
Is there an opinion out there from the Supreme Court that explicitly says these issues are not worth 20 dollars? No, there is not. Ironically, the filing fee for filing a petition regarding all of these questions, besides domestic violence, is far in excess of 20 dollars. Yes, it costs more than 20 dollars to get a judge to hear these cases in this system that does not value the matter at more than 20 dollars.
So what does 20 dollars have to do with it? Most Americans would agree and understand that a person accused of a crime has a right to a trial by a jury of their peers. It is repugnant to Americans to think of a situation in which a person standing accused of a crime is tried not by a jury, but by a Judge alone. The one thing Hollywood did ingrain in us is that a person standing accused of a crime has a right to a trial by jury.
If you were to ask many Americans, nay, most Americans, they would not believe you had a right to a trial by jury on civil matters, such as lawsuits over the property. I would say this is due to the fact that crime dramas draw more ticket sales in Hollywood than lawsuits over car wrecks or consumer finance law violations. However, you may be surprised to learn that after the very popular first five amendments to the U.S. Constitution, there remain five more that the architects of our country held dear enough to lay as settled law at the foundation of this republic that is America. The seventh among those being that:
“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.”
If you’re surprised by the text of our 7th amendment to the U.S. Constitution, don’t be alarmed, most corporations have gone to great lengths to keep this from your present knowledge. However, our founders were well aware that their civil grievances should be heard by their peers just as well as criminal matters. This is due to the fact that an appointed judge by the Crown of England presided over many if not all civil matters in the realm. Go figure, 250 years ago we encountered problems with a disconnected judiciary deciding civil outcomes in controversy. It was problematic enough that we elevated the right to have your civil wrongs to be heard by a jury of your peers to an inalienable right.
Believe it or not, if you sue ABC corporation because there was a hazard in their store in Crab Orchard that caused you to fall and be injured, you have the right in State and Federal Court for that matter to be heard not by a judge, but by a jury of your peers. A jury that you select, after voir dire, or interviewing them on just about any topic that you like until you are satisfied that you have a fair and impartial jury.
Ask yourselves, do you get to interview your judges in this manner? Absolutely not. Over the last 40 years, if not more, Judicial Ethics Commissions, State Bar rules, and the Judicial Canon of Ethics has evolved to demand and even restrict a judge from commenting on personal philosophical legal views so as not to provide grounds for an argument of prejudice concerning a matter that they may have to rule upon. This most notably started, at least according to me, with Justice Sandra Day O’Connor’s U.S. Senate confirmation hearing on September 9, 1981. Justice O’Connor famously avoided questions during her confirmation on “hot button” issues by stating that it would be improper for her to expound an opinion on something that she could possibly be called to rule upon in the future should she be confirmed. At the time, this was regarded as a well-reasoned political move by many pundits, but today this is the demanded standard of conduct for any judicial officer or potential judicial officer. In West Virginia, and every other jurisdiction, it is settled that judicial candidates are subject to the Judicial Canons of Ethics at the time they declare for office, and not when they are ultimately elected or appointed. This application causes the candidate or potential appointee to be unable to provide any useful information to the electorate or appointment officer about their overall judicial philosophy. What we are left with are canned statements about impartiality and reasoned thought that are pedestrian and meaningless. The electorate has no idea what they are voting on with a judge.
Compound this with the recent shift in America, as well as West Virginia, to non-partisan judicial elections. This shift takes the “R” or “D” from behind the name of the candidate and creates multi-candidate races in which no one can determine the values of the candidate. This results in the most well-funded candidate or most recognizable candidate gaining the advantage, regardless of the closeness of their values to that of the electorate. In essence, the electorate votes blindly for the candidate whose name is most recognizable to the voter. This leaves us, especially in West Virginia, with a statewide election in which the vast majority of the legislature, every constitutional officer, and the majority of county officials being conservative, while we elect judges that are liberal but recognizable. Most of you would be shocked to find the number of fundamental disagreements you have concerning a citizen’s rights with your recent judges for which you voted.
To avoid rambling and get to the point, how does this apply to your marriage being worth more than 20 dollars? You have a right to have your case before a court heard by a jury if the bank swindled you out of 20 dollars and one cent, but not in Family Court. Some states do allow for juries to be impaneled on certain issues in Family Court. The most conducive to this idea is Texas, where you have the right to a jury on many issues with a few exceptions, such as the calculation of child support being decided by a judge rather than a jury.
Why is this not the case in West Virginia? Much as the story of cutting off the end of the ham before putting it into the oven because grandma’s pan was too small, it is because that is how we have always done it. Believe it or not, divorce is a rather young action in American Jurisprudence. It is also an action that roots have been considered taboo by the moral conservative majority for much of our nation’s history. Given this, the action’s roots are in the liberal progressive movement that long ago sought to exclude the moral conservative majority from deciding the merits of the action due to perceived inherent societal bias. Almost fatally, it is cloaked in a closed-door proceeding that is inaccessible to the general public in an effort to “protect the interests of minor children” that are often the victim of judicial preference and prejudice.
Dispensing with big words… The liberal agnostic lawyers decided the common Christian folk were too biased by their religion to decide how to divorce folks. Hence, the King decides, just make sure you don’t remind them there is the 7th amendment.
How is this wrong you may ask? What is the problem? Individuals with 20 years of a liberal education are deciding how your children are to be raised, your marriages are to be dissolved, and your assets distributed while we all pretend you don’t have the right to that being tried by a jury. We endure decisions from a Supreme Court upholding strange decisions that violate the rights of fit parents that have a fundamental right to raise their children in the nurture and admonition of faith in the God they most hold dear. Ultimately, it is up to the electorate to remind the judiciary that we have a right to know their values prior to us endorsing them to apply the law to a set of facts, but we truly must remind them that it is the jury, or an impartial selection of the general population, that decides the facts. The moment you let the King decide the facts you have lost. This is the 300 year old lesson your founding fathers hoped you would never have to learn. The facts should be determined by you and your peers, not someone who you know nothing about, and who knows nothing about you. This applies to whether you are accused of a crime, you are harmed by another civilly, or your marriage is dissolving. Nonetheless, you could feel completely different from me and be particularly settled with an aristocracy appointing itself to be the arbiters of what is just and moral in your marriage, the rearing of your children, and the disposition of your property when that aristocracy has vowed to ignore all notions of faith, religion, and societal norms in determining what is just. It is up to you to demand more or accede more.