Eugene Volokh's Blog, page 8

[Eugene Volokh] May a Guardian Get a Divorce on Behalf of a Mentally Incapacitated Adult?

["Marriage pre-dates and transcends our law (and will post-date our law, I expect)."]

A short excerpt from the long majority in In the Matter of Benavides, by Justice Jeffrey Boyd:

A woman appointed as guardian for her elderly father moved him out of the house he shared with his fourth wife and later filed for divorce on his behalf on the ground that the couple had lived apart for more than three years. The trial court granted the divorce, and the wife appealed…. The wife [appeals], arguing [that] … Texas law does not permit a guardian to sue for divorce on her ward's behalf ….

We need not definitively decide [this] issue …. To whatever extent the Texas Estates Code may allow a guardian to seek a divorce on her ward's behalf, it at least requires the guardianship and divorce courts to find that permitting the divorce would promote the ward's well-being and protect his best interests. Because neither court made that finding in this case and—because of the ward's death—neither can do so now, we reverse the court of appeals' judgment, vacate the divorce decree, and dismiss….

Carlos "C.Y." Benavides, Jr. was the [wealthy] patriarch of "one of Laredo's oldest and most powerful clans." … Carlos married his fourth wife, Leticia Russo, on September 11, 2004. They each signed a pre-marital agreement and a post-marital agreement in which they stipulated that no community property would ever be created during the marriage and that each spouse's separate property and any income it produced would belong solely to that spouse, or to his or her estate, unless one transferred the property to the other "by will or other written instrument."

About seven months after Carlos and Leticia married, Carlos filed for divorce (the First Divorce Proceeding). About five months later (a year after they married, and while the divorce proceeding was pending), a physician diagnosed Carlos with dementia. Carlos did not pursue the divorce, and the trial court dismissed the First Divorce Proceeding for want of prosecution in February 2007. Leticia asserts that Carlos changed his mind about wanting a divorce. Carlos's adult daughter from a prior marriage—Linda Cristina Benavides Alexander—contends that Carlos wanted the divorce but was unable to pursue it because of his quickly worsening dementia.

By the end of 2007, Carlos had signed documents adding Leticia's name to his bank accounts, designating the accounts as joint accounts with a right of survivorship, conveying an office building to Leticia, and identifying both spouses as borrowers on a loan to refinance their residence. Leticia asserts that Carlos gave her "full authority" over his accounts and repeatedly told her that "todo lo mio es tuyo"—"all that I have is yours." Linda contends that, to the extent Carlos in fact did or said any of these things, he did so only because Leticia took advantage of his mental incapacity. The ensuing disputes between Linda and Leticia have led to numerous lawsuits and appeals ….

And an interesting concurrence by Chief Justice Jimmy Blacklock, joined by Justices John Phillip Devine and James Sullivan:

"The [marriage] relation itself is natural; the prescribed impediments and the forms of laws for its legal consummation are artificial, being the work of government." The nature of marriage is such that it:

cannot be created except by the consent of the parties. It cannot be dissolved except by the consent and the intelligent exercise of the will of one of the parties. That is to say, that no matter what or how many valid grounds for divorce exist, it is only by the decision and will of the party aggrieved that an action for divorce may be brought.

The parties disagree on whether a guardian may obtain a divorce on behalf of a ward who lacks the capacity to intelligently seek an end to his marriage. The Court prudently declines to definitively answer that question because answering it turns out to be unnecessary to the disposition of this case. I do not object to the Court's silence, and I join the Court's opinion and judgment in full. I write separately with the following observations for consideration in future cases.

The traditional view … is that an "exercise of the will" is an essential element of both marriage and divorce. It follows from this traditional view that a guardian cannot obtain a divorce on behalf of a ward who cannot intelligently exercise his will to divorce. As the Court observes, some jurisdictions continue to hold the traditional view, while others have abandoned or modified it by authorizing guardians to obtain divorces on behalf of incompetent wards to varying degrees. The Court does not articulate Texas law's answer to the question. Neither does the Family Code. That does not mean there is no answer, although I agree that this Court's articulation of the answer should await a case in which the answer is necessary to the judgment.

The question is whether the law should—or even can—separate marriage and divorce from their essentially volitional nature by authorizing divorces even when neither party has personally, willfully sought a divorce. The traditional common-law view—the near-universal view until recent decades—says no. The basic moral and legal judgment from which the traditional view proceeds is that marriage and divorce are, in their nature, expressions of the will of the husband and wife and therefore cannot come about, either naturally or legally, absent a manifestation of that will. The judges who developed and preserved this view over the centuries were not merely making a legal judgment about the legal construct of marriage. They were making a moral judgment about the nature of an ancient and enduring fact about our civilization, a fact the law did not create and upon which the law merely purports to act around the edges. That fact is marriage.

Marriage pre-dates and transcends our law (and will post-date our law, I expect). Marriage is a unique, natural relationship reflected in the law and recognized by the law, but it was not created by the law. If marriage is a natural fact upon which the law acts, then judges and lawmakers must make judgments about the nature of marriage in the course of determining how the law will act upon it. Just as a judge must know what property is in order to say how a person's ownership of it can be ended, a judge must know what marriage is in order to say how a person's participation in it can be ended.

This kind of thinking inevitably entails a degree of moral judgment. We should not hide from that or try to conceal it. When the law delves into intimate moral questions like marriage, divorce, and family life, moral judgments are being made, whether we acknowledge it or not—both by judges and by legislators. A judge who thinks of marriage as a civil legal status created by and governed by the Family Code may not bat an eye at the notion that a guardian can seek divorce for an incompetent ward, just as a guardian may do many other important things for a ward. But a judge who thinks of marriage as a natural expression of the will of a man and a woman, which exists apart from and transcends our law's codification of it, is far more likely to gravitate toward the traditional view, as did an unbroken line of judges of generations past.

Judges of previous generations did not hesitate to adopt the traditional view, the truth of which seems to have been obvious to them. They developed, over the years, a longstanding rule that continues to prevail in many American jurisdictions. That traditional rule converts a moral judgment into a legal judgment, as judges so often do, whether or not we admit it. "Under the traditional rule, courts do not read statutes granting guardians general powers to act on behalf of the ward as authorizing divorce actions because the decision to divorce is too personal and volitional to be pursued at the pleasure or discretion of a guardian." The legal judgment is that courts will not read statutes granting general powers to a guardian to authorize the divorce of a ward. The moral judgment, which is the justification for the legal judgment, is that divorce is "too personal and volitional to be pursued at the pleasure or discretion of a guardian."

When modern courts abandon the traditional rule, they do not abandon the realm of moral judgment. Confronted with their predecessors' moral judgment that marriage and divorce are "too personal and volitional" to be pursued by proxy, they have responded with their own moral judgment—that marriage and divorce are not "too personal and volitional" to be pursued by proxy. There is no escaping the moral content of the judgment. What changed in the second half of the twentieth century as many courts moved away from the traditional rule was not that judges moved away from making moral judgments about marriage and divorce. The change was in the content of the judges' moral judgments. { Of course, if a legislature specifically codifies the power of guardians to obtain divorces for incompetent wards, then the legislators, not the judges, have made the relevant moral judgment, and the judges are likely bound to follow it. Yet in most of the states that have trended in the direction of allowing guardians and judges to decide whether a ward should divorce, it is the judges, not the legislators, who have driven the change.}

* * *

For many people, marriage is primarily a spiritual matter, not merely a legal one. {See Genesis 2:24 ("Therefore a man shall leave his father and his mother and hold fast to his wife, and they shall become one flesh.").} Quite obviously, courts are not well suited to judge the spiritual benefits of marriage or divorce on behalf of an incompetent person. And for everyone, regardless of religion, marriage is a uniquely personal matter. This is why the traditional rule holds that the decision to begin or end a marriage must be made by the individual people involved in this most intimate of human relationships, not by third parties like guardians and judges.

Texas appears largely to have followed the traditional rule for most of our history. Then, in 1988, this Court in Wahlenmaier v. Wahlenmaier stated—without elaboration or analysis—"that a guardian ad litem or next friend can exercise the right of a mentally ill person to obtain a divorce." Wahlenmaier does not grapple at all with the deep moral and jurisprudential foundations of the traditional rule with which it is in tension. The Court does not engage with those questions again today, nor need it have done so.

As the Court recognizes, if the answer ends up being that a divorce may be obtained by a guardian on a ward's behalf, then the fate of the ward's marriage turns ultimately on a best-interest determination by a judge, not on an expression of the ward's desire to end the marriage. But it seems to me that whether a person will become married or will remain married are questions that are, in their very nature, impervious to a third-party's best-interest analysis.

In other words, whether I want to be married and whether somebody thinks I should be married are two completely different questions, and only the former has any bearing on the question of whether I am or will remain married. If an essential element of both marriage and divorce is the freely given expression of the human will, then when nature renders it impossible for that will to be expressed, neither a judicial best-interest analysis nor anything else can replace it. The thing can no longer be done. If we pretend otherwise, we are changing the nature of the thing.

I am inclined to think that only the individual person can answer, for himself, whether he should be married. If he becomes incapable of answering the question, there is nobody else to ask. The question can no longer be answered.

The courts, when properly called upon, can do our best to help manage the affairs of all involved in such a difficult circumstance with prudence and compassion. But we should not presume to answer a question that is not ours to answer. That has been the traditional, majority view of these matters throughout American legal history. I find it to be a compelling view, one which the Court may have occasion to adopt in a future case.

* * *

As the Court observes, the "recent and growing trend among American courts" is against the traditional view. On this and other matters, if I must choose between the accumulated wisdom of the ages and the "recent and growing trend among American courts," I expect the choice will be easy.

The post May a Guardian Get a Divorce on Behalf of a Mentally Incapacitated Adult? appeared first on Reason.com.

[Josh Blackman] The Heritage Guide to the Constitution: Essay Nos. 1–25

To continue my preview of The Heritage Guide to the Constitution, which will ship on October 14, here are the authors of the first twenty-five essays.

Essay No. 1: Preface —Justice Samuel A. Alito, Jr. U.S. Supreme CourtEssay No. 2: Foreword —Edwin Meese Iii Chairman Emeritus, Advisory BoardEssay No. 3: Editors' Note —Josh Blackman Senior Editor, John G. Malcolm Executive EditorEssay No. 4: The Preamble —John W. Welch & James A. HeilpernEssay No. 5: The Legislative Vesting Clause —Gary S. LawsonEssay No. 6: The House Of Representatives Clause —Bradley SmithEssay No. 7: The Elector Qualifications Clause —Derek T. MullerEssay No. 8: The Qualifications For Representatives Clause —Derek T. MullerEssay No. 9: The Three-Fifths Clause —Rebecca E. ZietlowEssay No. 10: The Enumeration Clause —Andrew C. SpiropoulosEssay No. 11: The Congressional Apportionment Clause —Michael R. DiminoEssay No. 12: The Executive Writs Of Election Clause —Paul TaylorEssay No. 13: The Speaker Of The House Clause —C. Towner FrenchEssay No. 14: House Impeachment Clause —Michael J. GerhardtEssay No. 15: The Senate Clause —Martin GoldEssay No. 16: The Senatorial Classes And Vacancies Clause —Martin GoldEssay No. 17: The Qualifications For Senators Clause —Martin GoldEssay No. 18: The Vice President As Presiding Officer Clause —Roy E. Brownell IiEssay No. 19: The President Pro Tempore Clause —Roy E. Brownell IiEssay No. 20: The Senate Impeachment Trial Clause —Michael J. GerhardtEssay No. 21: The Impeachment Judgment Clause —Michael J. GerhardtEssay No. 22: The Elections Clause —Derek T. MullerEssay No. 23: The Congressional Assembly Clause —Michael SternEssay No. 24: The Judge Of Elections Clause —Derek T. MullerEssay No. 25: The Quorum Clause —Seth Barrett Tillman

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[Eugene Volokh] Indiana Court Sets Aside $250K Default Judgment in Lawyer's Libel Case Related to "Scathing Google Review"

From Thursday's decision in Gillikin v. Mattingly, decided by Indiana Court of Appeals Chief Judge Robert Altice, joined by Judges Rudolph Pyle and Mary DeBoer:

Amy Gillikin appeals the trial court's denial of her motion to set aside a $250,000 default judgment entered against her for defamation, which was based on a scathing Google review that she posted online about Janice Mandla Mattingly and Mattingly's law firm, Janice Mandla Mattingly, P.C., D/B/A Carmel Family Law (collectively, Mattingly)….

In June 2024, Mattingly and Gillikin did not personally know each other, but Mattingly represented the former spouse of Gillikin's fiancé in a pending legal matter involving child custody and parenting time. Around the middle of that month, Gillikin posted a review on Mattingly's Google review page.

In the post, Gillikin described Mattingly as a corrupt attorney and a monster, who exploits abused children for her own monetary gain, and who would soon be disbarred. Gillikin suggested that Mattingly colludes with the Hamilton County magistrates, among others, and that Mattingly knows that her clients continue to abuse their children. She concluded her post: "We pray that the Attorney General can stop this racket before anymore children are affected by her unethical conduct." …

Mattingly got a default judgment against Gillikin, because Gillikin didn't timely respond to the lawsuit. But the appellate court concluded that the trial court should have set aside the judgment:

We first address whether Gillikin alleged a meritorious defense to the defamation action. Her defense was that the statements she made in the post were true, and she testified as such and that she looked forward to proving it all true at a trial on the merits. When she attempted to provide the basis for her belief that the statements were true, she was cut off by Mattingly with an improper hearsay objection and then the court redirected the parties to Gillikin's procedural failure to respond to the complaint.

In any case, Gillikin asserted a meritorious defense, as "[t]ruth is an absolute defense to a claim of defamation." And her testimony, despite its self-serving nature, was sufficient to clear the low bar of making a prima facie showing of a meritorious defense. Contrary to Mattingly's claim on appeal, Gillikin was not required at this stage to provide evidence that proved the truth of the defamatory statements.

We now turn to Gillikin's claim that the trial court abused its discretion by refusing to set aside the default judgment based on T.R. [Rule of Trial Procedure] 60(B)(8)…. Our Supreme Court has cautioned:

[T]he important and even essential policies necessitating the use of default judgments—maintaining an orderly and efficient judicial system, facilitating the speedy determination of justice, and enforcing compliance with procedural rules—should not come at the expense of professionalism, civility, and common courtesy. An extreme remedy, a default judgment is not a trap to be set by counsel to catch unsuspecting litigants and should not be used as a gotcha devi[c]e when an email or even a phone call to the opposing party inquiring about the receipt of service would prevent a windfall recovery and enable fulfillment of our strong preference to resolve cases on their merits….

Here, just over a month after Gillikin posted the allegedly defamatory Google review and only twenty-five days after service of the complaint and summons, Mattingly sought a default judgment against Gillikin and damages of $250,000. This was the quintessential gotcha maneuver, which worked when the very next day the trial court granted Mattingly's motion and awarded $250,000 without holding a hearing.

Gillikin quickly sought to set aside the judgment, filing her motion twelve days after the default judgment was entered. At the hearing on Gillikin's motion, Gillikin testified that everything she stated in the review was a fact, thus asserting the meritorious defense of truth. Gillikin also challenged the amount of damages and the fact that a hearing was not held to determine the reasonableness of the $250,000 requested by Mattingly in the motion for default judgment. Gillikin argued that because the damages sought by Mattingly were not liquidated or for a sum certain, the trial court should have held a hearing on damages. See Allstate Ins. Co. v. Love (Ind. Ct. App. 2011) (holding that because damages were unliquidated—not a sum certain or able to be reduced to fixed rules and mathematical precision—trial court erroneously entered the $225,000 damages award along with the default judgment without holding a damages hearing); Stewart v. Hicks (Ind. Ct. App. 1979) (affirming, on the basis of T.R. 60(B)(8), trial court's setting aside of $50,000 award entered in a default judgment without a hearing where damages were unliquidated).

Given the meritorious defense, the magnitude of the damages award issued without a hearing, the promptness in which Gillikin sought to set aside the default judgment, and the lack of any demonstrated prejudice to Mattingly, we hold that the trial court abused its discretion by refusing to set aside the default judgment on equitable grounds under T.R. 60(B)(8). Accordingly, we reverse the trial court's order denying the motion to set aside the default judgment, instruct the trial court to vacate the default judgment, and remand for further proceedings before a different judicial officer, as requested by Gillikin.

{While we do not agree with Gillikin that Magistrate [Erin] Weaver was constitutionally required to sua sponte recuse herself, we observe that some of Magistrate Weaver's actions during the very brief hearing were problematic. She abruptly stopped Gillikin from presenting evidence related to excusable neglect, prevented inquiry into the reasonableness of the damages award, and conducted a sua sponte Google search of the alleged defamatory statement during the hearing.}

Nathan Vining represents Gillikin.

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[Josh Blackman] Today in Supreme Court History: September 22, 2005

9/22/2005: Senate Judiciary Committee votes 13-5 to send Judge John Roberts's nomination to the full Senate.

Chief Justice John Roberts

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[Eugene Volokh] Monday Open Thread

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[Ilya Somin] Trump's Harmful and Illegal Plan to Gut H-1B Visas by Imposing $100,000 Fees

[The plan violates the relevant visa law. If allowed to stand, it would significantly harm productivity and innovation.]

The president recently issued an executive "proclamation" imposing a $100,000 fee on applications for H-1B visas. This would effectively end most such visas, which are used by tech firms and research institutions to hire immigrant workers and researchers with a variety of specialized skills. My Cato Institute colleague David Bier, a leading immigration policy expert, has a helpful summary of the policy and the harm it is likely to cause, if not struck down by courts:

President Trump is imposing a $100,000 fee to obtain an H-1B visa—the primary visa for skilled foreign workers. To be clear, this $100,000 fee is in addition to the salary, lawyer fees, and other costs of hiring an H-1B worker. This fee would effectively end the H-1B visa category by making it prohibitive for most businesses to hire H-1B workers. This would force leading technology companies out of the United States, reduce demand for US workers, reduce innovation, have severe second-order economic effects, and lower the supply of goods and services in everything from IT and education to manufacturing and medicine.

H-1B visa holders are extremely valuable contributors to research and innovation, and some have gone on to be world-leading scientists and industry leaders, making truly massive advances.

Defenders of the visa fee argue that, if these workers are so great, then it will be worth it for employers to pay the $100,000 price to get them. But a fee that high likely exceeds the average expected profit from one worker during the time he or she is going to work for the sponsoring employer.  There are individuals who produce much more than that, but such extraordinary success is hard to predict in advance. As I have argued previously, this is one of many reasons to avoid immigration restrictions and other government restrictions on labor mobility. In any large group of new workers, there are likely to be a few extraordinary innovators and entrepreneurs, but government planners cannot identify them in advance, and should not try. "Ordinary" workers are still useful, and the extraordinary minority who go far beyond the ordinary will become evident once given a chance. Keeping them out harms migrants and natives, alike, depriving both groups of the benefits of  scientific and entrepreneurial breakthroughs.

H-1B workers, it is argued, drive down wages for natives who compete with them. But, by that reasoning, any new entrants into the work force are bad for existing workers. The truth is that benefits to the overall economy and society far outweigh any detriment to direct competitors. We readily see this when it comes to new native workers entering the work force, and the same logic applies here. We should reject the zero-sum game "lump of labor" fallacy that assumes there is a fixed pot of labor opportunities. A dynamic economy helps new and old workers prosper together, bolstered by growth and innovation.  This is why deportations destroy more jobs for US citizens than they create, and the same is likely to be true for keeping out H-1B visa holders.

As David Bier notes, the new $100,000 fee is likely illegal, because the statutes authorizing H-1B fees only allow for fees to recoup administrative costs and some other types expenses. They certainly don't authorize anything remotely resembling a $100,000 fee.

Trump is trying to get around these constraints by relying on  8 U.S.C. Section 1182(f), gives the president the authority to "bar the entry of any aliens or of any class of aliens into the United States" whose admission he finds "would be detrimental to the interests of the United States." This is the same provision used to impose the anti-Muslim "travel ban" upheld by the Supreme Court in its badly flawed ruling in Trump v. Hawaii (2018).

But it is far from clear that Section 1182(f) and Trump v. Hawaii give the president a blank check to exclude any potential immigrants for any reasons he wants, or to impose any fees he wants. In 2020, as David Bier also notes, Trump tried to impose a similar ban on new H-1B visas, but a federal district court ruled against the ban. As the court pointed out, " there must be some measure of constraint on Presidential authority in the domestic
sphere in order not to render the executive an entirely monarchical power in the immigration context, an area within clear legislative prerogative."

The Supreme Court has repeatedly indicated that immigration is an area of legislative power. If so, there must be at least some constraint on how far it can be delegated to the executive.

In an article published in June, I advocated a nondelegation challenge to Trump's sweeping new travel ban barring all or most immigration from numerous nations. If Section 1182(f) really does give the president unlimited authority to impose massive fees on visa applications, overriding all other statutes, the same reasoning applies here.

in the same article, I also responded to arguments that the executive branch has inherent authority to impose immigration restrictions:

Prominent Founding Fathers such as James Madison and Thomas Jefferson rejected the notion that the federal government possessed any general power to restrict immigration. The Supreme Court only held otherwise in the Chinese Exclusion Case in 1889…. But if this governmental power does indeed exist – as longstanding Supreme Court precedent holds – the most plausible place for it is Congress. In the 1889Chinese Exclusion Case – that upheld the deeply racist Chinese Exclusion Act of 1882 – the Supreme Court stated that the authority belongs to "the legislative department…"

[A] few academics have argued that immigration power is actually an inherent executive power. Supreme Court Justice Clarence Thomas has suggested the same in a solo opinion joined by any other justice…. But this executive power theory makes little sense. If the president possesses inherent, virtually unlimited power to exclude non-citizens, there would be no need for the many congressional statutes that grant him some degree of authority to do so, going all the way back to the Alien Enemies Act of 1798, a wartime authority that Trump has been (illegally) trying to use to facilitate peacetime deportations without due process.

Under the inherent executive power theory, all such laws would become superfluous. The president could just exclude any immigrants he wants without any need for legislative authority. Indeed, there would be no need for Section 1182(f), either….

Since 1889, the Supreme Court has indicated that immigration restriction is a legislative power on several other occasions. For example, in Fiallo v. Bell (1977), the Court noted it "has repeatedly emphasized that over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens."  Such "complete" legislative power is incompatible with giving the executive a blank check to impose fees and restrictions.

I don't claim the current H-1B system is ideal. But improving it would make the visas easier to get and more flexible (e.g. - by making it easier for visa holders to switch employers). Trump's new policy would effectively gut them entirely.

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[Josh Blackman] Today in Supreme Court History: September 21, 1981

9/21/1981: Justice Sandra Day O'Connor is confirmed by the Senate, 99-0.

Justice Sandra Day O'Connor

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[Eugene Volokh] Sunday Open Thread

[What's on your mind?]

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[Eugene Volokh] David Kopel Makes the Oxford English Dictionary Examples

From the usage examples for the word Hitlerist; the quote is from David's post Data on Mass Murder by Government in the 20th Century:

2022
Although the party had explicitly Stalinist and Hitlerist roots, the deaths are not assigned to either ideology.
Newstex Blogs: Volokh Conspiracy (Nexis) 9 November

Big time! Reason also makes it with an example of "puppycide" (in an article by Radley Balko):

2006
When the speaker mentions that the government also slaughtered two dogs during the siege, eyes light up, the indifferent get angry, and skeptics come around. Puppycide, apparently, goes too far.
Reason Magazine

Just to be clear, these weren't the first examples; puppycide, for instance, goes back to 1865.

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[Josh Blackman] Today in Supreme Court History: September 20, 1968

9/20/1968: The New York City Landmarks Preservation Commission denied a certificate of no exterior effect to the Penn Central Transportation Co. The Supreme Court found that the City of New York did not violate the Takings Clause in Penn Central Transportation Co. v. New York (1978).

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