Alabama Family Rights Association

On a weekly basis many Alabama judges issue judgments without written explanation. 

On appeal, many times the appellant courts - using the "ore tenus" rule - only assumes the trial court made necessary findings of fact to support the judgment, when in reality there is no legal basis in fact to support such ruling.

According to the U.S. Supreme Court such actions violate Fundamental Rights, Associational Rights and Due Process Rights of the First and Fourteenth Amendment of the United States Constitution. 

The U.S. Supreme Court in Santosky v Kramer (1982) said, "a 'clear and convincing evidence' standard adequately conveys to the fact finder the level of subjective certainty about his factual conclusions necessary to satisfy due process."  

Yet, the clear and convincing legal standard is not used in most Alabama family court proceedings.

The Court in Santosky went on to say, "The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures."

The U.S. Supreme Court Troxel v Granville (2000) said, the Due Process Clause of the Constitution does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a “better” decision could be made.  

Yet again, this is exactly how many Alabama judges issue rulings.

The U.S. Supreme Court also said, when a state court issues a legal judgment or opinion based on "mere assumption" because no written findings of fact were listed state courts have violated Due Process Rights of the Constitution.

Again, this is exactly how many Alabama judges issue orders.

As for Associational Rights of the Constitution, the U.S. Supreme Court in Roberts v. United States Jaycees, U.S. (1984), said,

The void-for-vagueness doctrine reflects the principle that "a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law." Yet, this is exactly how Alabama's Child's Best Interest Standard and/or the ore tenus rule, which is not a statute, is applied in family law matters.

Further, the court went on to say,

"The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review.

Now that we have provided federal case law on point showing how many Alabama courts are not following Constitutional law.  What are these Fundamental Constitutional Rights?

Fourteenth Amendment of the United States Constitution

The Fourteenth Amendment (Amendment XIV) to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868.

The amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which had excluded slaves, and their descendants, from possessing Constitutional rights; this was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. The amendment also includes a number of clauses dealing with the Confederacy and its officials.

Fundamental Rights

History in United States Law

In American Constitutional Law, fundamental rights have special significance under the 14th Amendment to the Constitution. Via the due process and equal protection clauses of that amendment, the Supreme Court has held that some rights are so fundamental, that any law restricting such a right must both serve a compelling state purpose, and be narrowly tailored to that compelling purpose.

While the recognition of such rights have changed over time, they are generally coterminous with the rights listed in the Bill of Rights. Although some of the rights enumerated in the Bill of Rights are currently recognized as fundamental, others statements were included to restrict the government's permission with respect to the privileges granted by Citizens, or more clearly explain one of the many rights each Citizen was born with, declared in the preamble of the United States Bill of Rights. There are exceptions to these amendments; states are not required to obey the Fifth Amendment requirement of indictment by grand jury. Many states choose to have preliminary hearings instead of grand juries. While having power to neither grant nor remove an individual right, the Supreme Court has legally recognized some fundamental rights not specifically enumerated in the Constitution, including:

• the right to privacy
• the right to marriage
• the right to procreation
• the right to interstate travel

Any restrictions on these rights on the basis of race or religion are evaluated with strict scrutiny. If they are denied to everyone, it is an issue of substantive due process. If they are denied to some individuals but not others, it is also an issue of equal protection.

During the Lochner era, the right to freedom of contract was considered to be fundamental and thus restrictions on that right were subject to strict scrutiny. Following the 1937 Supreme Court decision in West Coast Hotel Co. v. Parrish, though, the right to contract became considerably less important in the context of substantive due process and restrictions on it were evaluated under the rational basis standard.

Associational Rights

While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama that the freedom of association is an essential part of the Freedom of Speech because, in many cases, people can engage in effective speech only when they join with others. The Supreme Court has found the Constitution to protect the freedom of association in two cases (NAACP v. Alabama, 1958 and Roberts v. United States Jaycees, 1984).

1. Intimate Associations. A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are known as "intimate associations." The paradigmatic "intimate association" is the family.

2. Expressive Associations. Expressive associations are groups that engage in activities protected by the First Amendment—speech, assembly, petitioning government for a redress of grievances, and the free exercise of religion.

Associational Rights were first attached to the First Amendment of the Constitution by the U.S. Supreme Court in NAACP vs. State of Alabama U.S. (1958). The State of Alabama attempted to shut down the NAACP and the state of Alabama demanded a member list, which the NAACP refused. 

This case was sent to the U.S. Supreme Court five (5) times because Alabama Courts would not follow or honor Federal law or obey remand orders from the U.S. Supreme Court. 

In NAACP the U.S. Supreme Court said,

"It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech."

"This Court has repeatedly held that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly, and thereby invade the area of protected freedoms." The power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom."

". . . Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."

The U.S Supreme Court in NAACP also said, 

"Novelty in procedural requirements cannot be permitted to thwart review in this Court applied for by those who, in justified reliance upon prior decisions, seek vindication in state courts of their federal constitutional rights."

Again, in a second Associational Rights case, the U.S. Supreme Court in Roberts v. United States Jaycees, (1984) said,

“The void-for-vagueness doctrine reflects the principle that "a statute which either forbids or requires the doing of an act in terms so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law....

...The requirement that government articulate its aims with a reasonable degree of clarity ensures that state power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values, reduces the danger of caprice and discrimination in the administration of the laws, enables individuals to conform their conduct to the requirements of law, and permits meaningful judicial review.

Due Process History

In the early years of the United States the terms law of the land and due process were used somewhat interchangeably. The 1776 Constitution of Maryland, for example, used the language of Magna Carta, including the law of the land phrase.^[16] In New York, a statutory bill of rights was enacted in 1787, and it contained four different due process clauses.^[17] Alexander Hamilton commented on the language of that New York bill of rights: "The words 'due process' have a precise technical import...."^[18]

New York was the only state that asked Congress to add "due process" language to the U.S. Constitution. New York ratified the U.S. Constitution and proposed the following amendment in 1788: "[N]o Person ought to be taken imprisoned or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law."^[19]

In response to this proposal from New York, James Madison drafted a Due Process Clause for Congress.^[20] Madison cut out some language, and inserted the word without, which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed, after Madison explained that the Due Process Clause would not be sufficient to protect various other rights:

Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body [Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed.^[20]

No state or federal constitution in the U.S. had ever before utilized any "due process" wording, prior to 1791 when the federal Bill of Rights was ratified. However, when the U.S. Constitution took effect in 1789, it did contain a Supremacy Clause, which specified that the Constitution itself, and federal statutes enacted pursuant to the Constitution, would be the supreme "law of the land". As mentioned, in the early United States, the terms law of the land and due process were used somewhat interchangeably.

Due process alternatively due process of law or the process that is due, is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state.

Due process has also been frequently interpreted as placing limitations on laws and legal proceedings, in order for judges instead of legislators to define and guarantee fundamental fairness, justice, and liberty. This interpretation has often proven controversial, and is analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions.

The Fifth Amendment guarantee of due process is applicable only to actions of the federal government. The Fourteenth Amendment contains virtually the same phrase, but expressly applied to the states. Therefore, those two clauses only apply against state actors, and not against private citizens. The Supreme Court has interpreted those two clauses identically, as Justice Felix Frankfurter once explained in a concurring opinion: “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”^[21]

The due process clause applies to "legal persons" (that is, corporate personhood) as well as to individuals. Many state constitutions also have their own guarantees of due process (or the equivalent) that may, by their own terms or by the interpretation of that State's judiciary, extend even more protection to certain individuals than under federal law.

The Enumerated Due Process Rights

Due process under the U.S. Constitution not only restrains the executive and judicial branches, but additionally restrains the legislative branch. For example, as long ago as 1855, the Supreme Court explained that, in order to ascertain whether a process is due process, the first step is to “examine the constitution itself, to see whether this process be in conflict with any of its provisions....”^[22]

In case a person is deprived of liberty by a process that conflicts with some provision of the Constitution, then the Due Process Clause normally prescribes the remedy: restoration of that person's liberty. The Supreme Court held in 1967 that “we cannot leave to the States the formulation of the authoritative ... remedies designed to protect people from infractions by the States of federally guaranteed rights.”^[23]

Unenumerated Due Process Rights

As a limitation on Congress, the Due Process Clause has been interpreted by the Supreme Court not only as a remedial requirement when other constitutional rights have been violated, but furthermore as having additional "procedural" and "substantive" components, meaning that the Clause purportedly imposes unenumerated restrictions on legal procedures—the ways in which laws may operate—and also on legal substance—what laws may attempt to do or prohibit. This theory of unenumerated rights is controversial. For example, Justice Clarence Thomas stated as follows, in a 2004 dissent:^[24]

As an initial matter, it is possible that the Due Process Clause requires only “that our Government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions.” In re Winship, 397 U.S. 358, 382 (1970), (Black, J., dissenting).

Despite the objections of people like Justice Hugo Black in Winship, the courts have attempted to extract unwritten requirements from the Due Process Clause, regarding both procedure as well as substance. The distinction between substance and procedure is difficult in both theory and practice to establish. Moreover, the substantive component of due process has proven to be even more controversial than the procedural component, because it gives the Court considerable power to strike down state and federal statutes that criminalize various activities.

By the middle of the 19th century, "due process of law" was interpreted by the U.S. Supreme Court to mean that “it was not left to the legislative power to enact any process which might be devised. The [due process] article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law’ by its mere will.”^[22] But determining what those restraints are has been a subject of considerable disagreement.

Procedural Due Process

In the United States, criminal prosecutions and civil cases are generally governed by explicit guarantees of procedural rights under the Bill of Rights. Most of these rights have been incorporated under the Fourteenth Amendment to the States. Among those rights is the constitutional right to procedural due process, which has been broadly construed to protect the individual so that statutes, regulations, and enforcement actions must ensure that no one is deprived of "life, liberty, or property" without a fair opportunity to affect the judgment or result.

This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature, from parole violation hearings to administrative hearings regarding government benefits and entitlements to full-blown criminal trials. In criminal cases, many of these due process protections overlap with procedural protections provided by the Eighth Amendment to the United States Constitution, which guarantees reliable procedures that protect innocent people from being executed, which would be tantamount to cruel and unusual punishment.^[25]

At a basic level, procedural due process is essentially based on the concept of "fundamental fairness." For example, in 1934, the United States Supreme Court held that due process is violated "if a practice or rule offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental".^[26] As construed by the courts, it includes an individual's right to be adequately notified of charges or proceedings, the opportunity to be heard at these proceedings, and that the person or panel making the final decision over the proceedings be impartial in regards to the matter before them.^[27]

Or, to put it more simply, where an individual is facing a (1) deprivation of (2) life, liberty, or property, (3) procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge.

The Supreme Court has formulated a balancing test to determine the rigor with which the requirements of procedural due process should be applied to a particular deprivation, for the obvious reason that mandating such requirements in the most expansive way for even the most minor deprivations would bring the machinery of government to a halt. The Court set out the test as follows: "[I]dentification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and, finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."

Procedural due process has also been an important factor in the development of the law of personal jurisdiction, in the sense that it is inherently unfair for the judicial machinery of a state to take away the property of a person who has no connection to it whatsoever. A significant portion of U.S. constitutional law is therefore directed to what kinds of connections to a state are enough for that state's assertion of jurisdiction over a nonresident to comport with procedural due process.

The requirement of a neutral judge has introduced a constitutional dimension into the question of whether a judge should recuse himself or herself from a case. Specifically, the Supreme Court has ruled that in certain circumstances, the Due Process Clause of the Fourteenth Amendment requires a judge to recuse himself on account of a potential or actual conflict of interest. For example, on June 8, 2009, in Caperton v. A. T. Massey Coal Co. (2009), the Court ruled that a justice of the Supreme Court of Appeals of West Virginia could not participate in a case involving a major donor to his election to that court.

Substantive Due Process

Main article: Substantive due process

Courts have viewed the Due Process Clause, and sometimes other clauses of the Constitution, as embracing those fundamental rights that are “implicit in the concept of ordered liberty.”^[32] Just what those rights are is not always clear, nor is the Supreme Court's authority to enforce such unenumerated rights clear.^[33] Some of those rights have long histories or “are deeply rooted” in American society.

The courts have largely abandoned the Lochner era approach (ca. 1897-1937) when substantive due process was used to strike down minimum wage and labor laws in order to protect freedom of contract. Since then, the Supreme Court has decided that numerous other freedoms that do not appear in the plain text of the Constitution are nevertheless protected by the Constitution. If these rights were not protected by the federal courts' doctrine of substantive due process, they could nevertheless be protected in other ways; for example, it is possible that some of these rights could be protected by other provisions of the state or federal constitutions,^[34] and alternatively they could be protected by legislatures.^[17][35]

Today, the Court focuses on three types of rights under substantive due process in the Fourteenth Amendment,[citation needed] which originated in United States v. Carolene Products Co., 304 U.S. 144 (1938), footnote 4. Those three types of rights are:

• the first eight amendments in the Bill of Rights (e.g. the Eighth Amendment);
• restrictions on the political process (e.g. the rights of voting, association, and free speech); and
• the rights of “discrete and insular minorities.”

The Court usually looks first to see if there is a fundamental right, by examining if the right can be found deeply rooted in American history and traditions. Where the right is not a fundamental right, the court applies a rational basis test: if the violation of the right can be rationally related to a legitimate government purpose, then the law is held valid. If the court establishes that the right being violated is a fundamental right, it applies strict scrutiny. This test inquires into whether there is a compelling state interest being furthered by the violation of the right, and whether the law in question is narrowly tailored to address the state interests.

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