Submitted by permission of the author. American Injustice, Inc. not responsible for the lies, untruths, inaccuracies, or misleading statements told by the Alabama Supreme Court.

STATEMENT OF THE CASE

On or about July 31, 1995, the plaintiffs, State of Alabama, filed in the Walker County District Court a Modification Petition for Support. (C-004). On August 21, 1995, defendant, James R. Blackston, filed his ANSWER and numerous COUNTERCLAIMS. (C-010).

The Walker County District Court entered its Order, denying all Counterclaims, on November 09, 1995. (C-099). Appellant Blackston appealed the District Court's Order on November 20, 1995, to the Walker County Circuit Court, for a trial de novo and demanded a trial by jury. (C-099).

The State of Alabama filed a Motion to Dismiss and a Motion to Strike Jury Demand on November 21, 1995. (C-099). A hearing was held on March 7, 1996, on Defendant's RESPONSE TO PLAINTIFF'S MOTION TO DISMISS and MOTION TO STRIKE JURY DEMAND. (C-099).

The Court's initial Order was filed on April 4, 1996. (C-052). Appellant Blackston filed a Motion to Alter, Amend, Vacate or Reconsider on April 29, 1996, (C-099), and asked for a Ala. R. Civ. Proc., Rule 59(g) hearing. (C-103.) . The Court entered its final Order on May 3, 1996. (C-105).

Appellant Blackston filed a timely Notice of Appeal on May 29, 1996, (C-109.), from the Order denying his Counterclaims, and all Motions conterminous thereto.

The Alabama Court of Civil Appeals (affirmed) the judgment of the trial court on October 18, 1996.

An application for rehearing was filed on October 28, 1996 and overruled on November 22, 1996.

 STATEMENT OF THE ISSUES

1) The Alabama Supreme Court's Advisory Committee on Child Support Guidelines Update and Enforcement violates the Separation of Powers Doctrine, enumerated in the Constitution of Alabama, 1901, Article III, §43.

2) A.R.J.A., Rule 32, in its entirety, violates the Separation of Powers Doctrine and specifically, Rule 32(A)(3)(b), the ten per cent (10%) modification rule, is unconstitutional and violates minimum due process standards.

STATEMENT OF THE FACTS

1. In 1974, Congress enacted Part D of Title IV of the Social Security Act (P. L. 93-647), which established a federal child support enforcement program. (C-022).

2. The Child Support Enforcement Amendments of 1984 (P. L. 98-378) revamped the federal child support enforcement program and required all states to develop an enforcement plan. (C-022).

3. One such requirement was the adoption of state guidelines for the determination of child support awards. (C-022).

4. Governor George C. Wallace, in 1984 appointed the Alabama Commission on Child Support to examine and study the operation of the state's child support system in view of the amendments and to make recommendations for legislative, administrative, or rule changes. (C-022).

5. The Alabama Commission on Child Support recommended that such guidelines be established by a rule of judicial administration of the Alabama Supreme Court. (C-022).

6. The Commission's decision was based on "limitations on legislative time." (C-022).

7. The Commission recognized that the legislature was already engaged in child support legislation in other areas. (C-022).

8. The Commission concluded that the subject of child support modifications "so directly effected the judicial administration of the courts that it should be dealt with by the Alabama Supreme Court." (C-022).

9. In March 1986, then Chief Justice of the Alabama Supreme Court C. C. Torbert, Jr. established the Child Support Committee to study and make recommendations on a number of issues including child support guidelines. (C-023).

10. In September 1987, based on the recommendations of the Supreme Court's Committee, The Alabama Supreme Court adopted Rule 32, Alabama Rules of Judicial Administration. (C-023).

11. The Family Support Act of 1988 (P. L. 100-485), further established state child support enforcement programs, including provisions to review the state's guidelines every four (4) years. (C-023).

12. In August 1989, the Alabama Supreme Court amended the state's child support guidelines to incorporate these new requirements. (C-023).

13. The Committee established by the Alabama Supreme Court, at the exclusion of the legislature, continues to coordinate with the Department of Human Resources concerning the State's Title IV-D child support program. (C-023).

14. Some of the child support issues addressed by the 1993 Committee include a calculation of child care cost, criteria for rebuttal, guidelines as the basis for modification, revised schedule of child support obligations, tax exemptions, health insurance/medical costs/enforcement, further modifications as an administrative procedure, shared physical custody, visitation abatement/cost, post minority support/ education, multiple support orders, other children/dependents, household income. (C-023).

15. The only issue under study by the Committee that rightfully belongs to the courts is an automatic recording of judgments. (C-023).

16. Based upon the foregoing, on July 31, 1995, the State of Alabama, by and through its District Attorney, filed a Modification Petition for Support, against appellant James R. Blackston. (C-004).

17. The petition stated the state's intention to modify Blackston's support obligation because an application of the child support guidelines results in a change of ten per cent (10%) or more. (C-004).

18. The state proceeded to obtain Blackston's employment record without his knowledge or consent. (C-005).

19. On August 21, 1995, Blackston filed his Answer and Six (6) Counterclaims in the Walker County District Court. (C-010).

20. The illegal, premature and unnecessary actions of the state reopened old and painful wounds and perpetrated severe harm upon appellant Blackston and his children. (C-082-93; C-011).

21. The Alabama child support collection and enforcement process, operated by the Walker County D. H. R. and Paul Heffler, by strategically forming a partnership with the mother, denying a right to be heard, denied the father's right to be a parent and to direct the affairs of his children and has destroyed the integrity of the Blackston family. (C-011).

22. The mother undertook and pursued a "sustained course of conduct to disrupt and destroy the integrity of the family, particularly the father child-relationship." (C-011).

23. The mother, plaintiff herein, used child support to gain an unfair advantage over the father in all aspects of the health, education and welfare of the Blackston children. (C-012-015).

24. The family's income and resources are squandered and the children's future destroyed because of "lack of accountability." (C-012-015).

25. The "standard of living" the children would have enjoyed if the marriage had not been dissolved has been destroyed by the irresponsible squandering of the family's resources. (C-012-015).

26. The Blackston children will never recover from the harmful effects of their parents divorce. The harm is permanent. (C-012-015).

27. The State of Alabama's role, through various state actors, cannot be minimized. (C-012-015).

28. The State failed to assist and actually hindered the father's ability to maintain a meaningful relationship with his children and directly relates and is an approximate cause of the harm inflicted upon the father and his children. (C-012-015).

29. Blackston's affidavit details some of the harm. (C-082-093).

30. The Circuit Court held a summary judgment hearing, without the required 10 day notice, on a Motion to Dismiss and Motion to Strike Jury Demand. (C-099).

31. The Court dismissed Blackston's Counterclaims on Rule 12(b)(6), after considering and understanding all pleading, including affidavits. (C-098).

 ARGUMENT

I. STANDARD OF REVIEW

"The standard of review for certiorari limits the scope of review to questions of law and does not extend to review of the weight and preponderance of the evidence." Parker v. Reaves, 531 So. 2d 853 (Ala. 1988). Thus, "if there is any legal evidence to support the decision of the lower tribunal, such is conclusive on the reviewing court." Lovelady v. Lovelady, 281 Ala. 642, 206 So. 2d 886 (1968). Sanderson v. City of Dothan, 642 So2d 437 (S.Ct. 1994.)

When the Court of Civil/Criminal Appeals issues a decision without an opinion setting out the facts upon which the conviction is based, the burden is on the petitioner, pursuant to Rule 39(k), to present a factual statement sufficient to allow this Court to review each issue raised on appeal regarding the correctness of the conviction. See Ex parte Winchester, 544 So. 2d 967, 968 (Ala. 1989). Rule 39(k) provides: "The [scope of] review shall be that generally employed by certiorari and will ordinarily be limited to the facts stated in the opinion of the particular court of appeals. If the petitioner is not satisfied with that statement of facts, he may, on application for rehearing in that court, present any additional or corrected statement of facts and request that court to add or correct those facts in its opinion on rehearing. If the court fails to accede to the request, petitioner may copy the statement in the petition to [the Supreme Court], with references therein to the pertinent portions of the clerk's record and reporter's transcript, and it will be considered along with the statement of facts in the opinion of the appellate court, if found to be correct." Id.

This Court is not free to peruse the record for facts that support the petitioner's contentions. Ex parte Gwin, 425 So. 2d 510 (Ala. 1983). Consequently, when the Court of Criminal Appeals issues a decision without an opinion setting out the facts on which the conviction is based, the only facts that may be considered by this Court are those set forth by the petitioner pursuant to Rule 39(k). Ex parte Save Our Streams, Inc., 541 So. 2d 549 (Ala. 1989). Blackston's factual predicate includes all reference to facts that relate to his claims and were included in his Application for Rehearing in the Alabama Court of Civil Appeals.

II. SEPARATION OF POWERS DOCTRINE

The Alabama Rules of Judicial Administration, Rule 32 is unconstitutional, violates defendant's right to due process and violates the United States Constitution and the Constitution of Alabama, 1901, Article III - Separation of Powers.

The Constitution of Alabama Provides for a Separation of Powers Between the Legislative, Executive, and Judicial Branches.

One of the first principles of democratic government that young school children learn is that the legislature makes the law, the executive enforces the law, and the judiciary interprets the law. That principle of democratic government, the separation of powers doctrine, is at the very foundation of a government of the people, for the people, and by the people, and is included in the Alabama Constitution of 1901. Henderson v. Alabama Power Co, 627 So2d 878 (S.Ct. 1993).

Alabama Constitution. 1901, §43 provides:

"In the government of this state, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men."

Shortly after the implementation of the Child Support Enforcement Amendment of 1984, Governor George C. Wallace appointed the Alabama Commission on Child Support to examine and study the operation of the state's child support system in view of the amendments and to make recommendations for legislative, administrative, or rule changes. In reference to the requirement for the adoption of child support guidelines, Governor Wallace's Alabama Commission on Child Support recommended that such guidelines be established by a rule of judicial administration of the Supreme Court. (C-022).

The Commission's decision was based on "limitations on legislative time." (C-022). The Commission recognized that the legislature was already engaged in child support legislation in other areas. (C-022). The Commission erroneously concluded that the subject of child support modifications "so directly effected the judicial administration of the courts that it should be dealt with by the Alabama Supreme Court." (C-022).

The governor cannot discharge the functions of the legislature in any manner by so acting in his official capacity that his conduct is tantamount to a repeal, enactment, variance, or enlargement of legislation. Hawkins v. James, 411 So2d 115 (Ala. 1982).

The Alabama Supreme Court's Advisory Committee on Child Support Guideline's Updates and Enforcement (Committee) reviews child support guidelines every four years. The Alabama Supreme Court and the Committee usurps the power of the legislature through the functions of the Committee and writes substantive law based on the committee's findings.

Some of the child support issues addressed by the 1993 Committee include a calculation of child care cost, criteria for rebuttal, guidelines as the basis for modification, revised schedule of child support obligations, tax exemptions, health insurance/medical costs/enforcement, further modifications as an administrative procedure, shared physical custody, visitation abatement/cost, post minority support/ education, multiple support orders, other children/dependents, household income. (C-023).

The only issue under study by the Committee that rightfully belongs to the courts is an automatic recording of judgments. (C-023). How can any intelligent person conclude that issues such as tax exemptions and health insurance to be a procedure of administration of the courts?

The executive and legislative branches of the State have broad powers and responsibilities, but the powers of each branch of government are bounded by the mandates and restraints of the constitution of the State of Alabama. This principle of separation of powers of government that is now included in the Alabama constitution was first decided in the famous case of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77 (1803). Pinto v. Alabama Coalition, 662 So2d 894 (S.Ct. 1995), Opinion of the Justices, 624 So2d 107 (S.Ct. 1993). State ex. rel. Sokira v. Burr, 580 So2d 1340 (S.Ct. 1991).

It is the province and duty of the judicial branch of government to interpret the constitution and to say what the law is, not to write substantive law, in the form of court rules that have the same force and effect as statutory law. See Opinion of the Justices, No 338, 1993 Ala. LEXIS 1119 (S.Ct. 1993.) The Committee openly admitted in a meeting on March 16, 1993, in which the appellant, herein, was present, that substantive law on child support was written by the Committee. (C-087).

The establishment of Rule 32 is flawed and therefore unconstitutional because the citizens of Alabama do not have an elected legislative representative in the Rule making process. The State of Alabama, through a Committee, made up of judges, lawyers and D.H.R. personnel and absent any elected legislators, writes substantive law - a function, delineated by the Alabama Constitution, Article III, intended for the Alabama Legislature. Constitution of Alabama, 1901, §43.

Additionally, the legislature cannot delegate its power to make a law, therefore the Alabama Supreme Court's Advisory Committee on Child Support Guideline's Update and Enforcement is unconstitutional. See Morton v. Lusk, 248 Ala. 110, 26 So2d 849 (1946); Knight v. West Ala. Environmental Imp. Auth., 246 So2d 903 (1971).

The reason given for the establishment of the Supreme Court's Committee was the "limitations on legislative time." (C-022). No such provision exist in the Alabama Constitution, that allows the legislative functions to be taken over by another branch of the government. Opinion of the Justices, No 338, 1993 Ala. LEXIS 1119 (S.Ct. 1993.)

Governor Wallace's Commission arbitrarily decided that the legislature did not have time to author Alabama's child support laws even though the legislature had written other child support laws previous to Governor Wallace's 1984 Commission. See Code of Alabama, 1975, § 30-10-1 et seq. entitled "Child Support Act of 1979." Governor Wallace's Commission erroneously and arbitrarily assumed that the legislature could not appoint its own Commission to study child support issues.

Today, the Supreme Court's Child Support Committee, (Judicial branch,) continues to usurp the function of the legislature, initiated by an illegal Executive Order of Governor George Wallace, (Executive branch,) in 1984. (C-022).

Great care must be exercised by the courts not to usurp the function of other departments of government. Piggly Wiggly No. 208, Inc. v. Dutton, 601 So2d 907 (Ala. 1992); Ball v. Jones, 272 Ala. 305, 132 So2d 120 (1961).

III. SUPREME COURT'S RULE MAKING AUTHORITY

The Supreme Court's rule making powers are severely limited to the promulgation of rule governing the administration of all courts. The court's rules shall not abridge or modify a substantive right of any party.

The supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, however, that such rules shall not abridge, enlarge or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided, further, that the right of trial by jury as at common law and declared by section 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate. These rules may be changed by a general act of statewide application. Constitution of Alabama, 1901, Amendment No. 328, § 6.11.

The Supreme Court shall have authority:
(4) To make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts; provided, that such rules shall not abridge, enlarge, or modify the substantive right of any party nor affect the jurisdiction of circuit and district courts or venue of actions therein; and provided further, that the right of trial by jury as at common law and declared by Section 11 of the Constitution of Alabama of 1901 shall be preserved to the parties inviolate. Code of Alabama, 1975 § 12-2-7(4).

When the courts undertake to establish rules of law that have the full force and effect of substantive law, the courts begin to usurp the authority of the legislature. Such actions equate to secret and clandestine activities.

"The reasons underlying the policy of open and public administration of justice are clear and compelling. Because of our natural suspicion and traditional aversion as a people to secret proceedings, suggestions of unfairness, discrimination, undue leniency, favoritism, and incompetence are more easily entertained when access by the public to judicial proceedings are unduly restricted. 'Secrecy of judicial action can only breed ignorance and distrust of courts and suspicion concerning the competence and impartiality of judges . . . .' Nebraska Press Assn. v. Stuart, supra, 427 U.S. at 587, 96 S.Ct. at 2816 (Brennan, J., concurring)" State v. Wilson, 601 So2d 423 (S.Ct. 1992).

CONCLUSION

"Thus, the openness which serves as a safeguard against attempts to employ our courts as instruments of persecution also serves to enhance public trust and confidence in the integrity of the judicial process. Such trust and confidence is a vital ingredient in the administration of justice under our system of jurisprudence. The efficiency, competence, and fairness of our judicial system are matters of legitimate interest and concern to our citizenry, and free access to our courtrooms is essential to their proper understanding of the nature and quality of the judicial process." State v. Wilson, 601 So2d 423 (S.Ct. 1992).

In like manner, the Supreme Court must dissolve an illegal practice of writing substantive law though its rule making powers and return the confidence of the judiciary to the public. (C-083).

Petitioner respectfully requests that after a preliminary examination, the writ of certiorari be granted and that this Court proceed under its rules to review the matters complained of, and to reverse the judgment of the Court of (Civil) Appeals, and for such other relief as Petitioner may be entitled.

Respectfully submitted,

DATED this ______ day of December, 1996.

Alabama Court of Civil Appeals
Office of the Clerk
300 Dexter Avenue
Montgomery, Al 36104-3741

State of Alabama
Attorney General
Honorable Jeff. B. Sessions, III
11 South Union Street
Montgomery, Ala. 36130-0152

Lois Brasfield
50 Ripley Street, Rm. 2122
Montgomery, Al 36130-4000
334-242-1310