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What makes a family court judge’s order “judicial”?

A court order, including an order from family court, is just as much “law” as the statutes passed by our legislature. Just as with statutes, the government will enforce these orders using its police powers and will imprison people who violate these orders in order to force compliance.

The legitimacy of statutes is that they are passed by a democratically elected legislature. In theory the desire of legislators to be reelected and to be esteemed by the public they represent acts as a check on their actions. So long as their votes are based on considerations of their constituents’ desires and their view of the public good, their actions have legitimacy. That is why substantial investigative and prosecutorial resources are devoted to allegations of vote selling and similar corruptions: if legislative acts are based on corruption they lose their democratically based legitimacy.

So what makes judicial decisions legitimate? It is the requirement that judicial decisions be explained and harmonized with past judicial decisions and statutes. A judge’s order must do a few things in order to be “judicial”: 1) make an honest evaluation of the evidence presented in the findings of fact; 2) show the judge’s best understanding of the legal issues involved in the case and the application of appellate decisions and statutes to the case; 3) fashion a ruling that does “justice” to the parties with proper consideration and deference to the first two things. Rule 26 of South Carolina’s Family Court Rules specifically requires family court final orders and adjudications to “set forth the specific findings of fact and conclusions of law to support the court’s decision … By signing his name to an order in a domestic relations case, the judge certifies compliance with this rule.”

A jury’s decision acquires legitimacy because it represents the judgment of a cross section of the community (and gives rise to similar corruption concerns that arise from a legislator’s decisions). Just like a legislature’s decisions, it does not need to be explained to be legitimized. A judge’s decision only acquires legitimacy because it must be explained in writing and harmonized with existing statutes and case law. A family court judge’s final order that is based on inaccurate legal conclusions or factual findings without substantial evidentiary support is subject to reversal on appeal because it cannot be harmonized with existing law.

That Rule 26 does not apply to temporary orders of the family court creates some interesting jurisprudential concerns regarding their legitimacy. An order that does not need to be explained or harmonized with existing law yet carries with it the force of police powers it is a hallmark of totalitarian regimes. There are outstanding arguments that South Carolina’s whole procedure surrounding temporary hearings and orders from these hearings fails to comport with procedural due process in that it does not allow for the introduction of evidence or the cross examination of witnesses. Rule 21(b) of the family court rules reads “Evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary.” Yet the Supreme Court decision from the appeal I handled in Moore v. Moore, 376 S.C. 467, 657 S.E.2d 743, 746 (2008) held that “Procedural due process requires (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses.” I do not believe that Rule 21(b) can be reconciled with items three and four in Moore’s procedural due process requirements.

Judicial orders affecting substantial rights (and, other than taking away a people’s freedom or their life, taking their children, money and residences are about the most important things one can take from them) require legitimacy in a democratic culture. While many family court judges scrupulously follow the mandates of Rule 26 in drafting final orders, such rigorous adherence is not as uniform as it should be. Further temporary orders contain none of the legitimizing constraints that are a hallmark of “judicial” decision making. A legal culture that puts its police powers behind judicial rulings that lack the hallmarks of judicial decision making puts its whole legitimacy into question. Many of the citizen complaints regarding family court are not the crackpot complaints of dissatisfied litigants but are merely a less analytical version of these concerns.

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