II. Memo to the Legislature
Because of the unusual circumstance of construing a piece of legislation that has less than 18 months before it sunsets, we address the Legislature directly:
Section 4326 is scheduled to terminate on January 1, 2011. If you decide to renew it, please consider saying exactly what you mean by “is in effect.” One easy solution: Specify a time frame around the termination date of child support: say, plus or minus six months, when a spousal support modification request based on the termination of child support may be filed. (Cf. Code Civ. Proc., § 473.)
This reminds me of a passage from the classic THE CASE OF THE SPELUNCEAN EXPLORERS by LON L. FULLER, where Chief Justice Truepenny asks the Chief Executive to grant clemency to the cannibalistic cave climbers.
On the basis of this verdict, the trial judge ruled that the defendants were guilty of murdering Roger Whetmore. The judge then sentenced them to be hanged, the law of our Commonwealth permitting him no discretion with respect to the penalty to be imposed. After the release of the jury, its members joined in a communication to the Chief Executive asking that the sentence be commuted to an imprisonment of six months. The trial judge addressed a similar communication to the Chief Executive. As yet no action with respect to these pleas has been taken, as the Chief Executive is apparently awaiting our disposition of this petition of error.
In a case like this the principle of executive clemency seems admirably suited to mitigate the rigors of the law, and I propose to my colleagues that we follow the example of the jury and the trial judge by joining in the communications they have addressed to the Chief Executive. There is every reason to believe that these requests for clemency will be heeded, coming as they do from those who have studied the case and had an opportunity to become thoroughly acquainted with all its circumstances. It is highly improbable that the Chief Executive would deny these requests unless he were himself to hold hearings at least as extensive as those involved in the trial below, which lasted for three months. The holding of such hearings (which would virtually amount to a retrial of the case) would scarcely be compatible with the function of the Executive as it is usually conceived. I think we may therefore assume that some form of clemency will be extended to these defendants. If this is done, then justice will be accomplished without impairing either the letter or spirit of our statutes and without offering any encouragement for the disregard of law.
While it is kind of bizarre for a Judge to label a section “Memo to Legislature,” Courts send these kinds of signals all the time, just usually more implicitly. Perhaps the most recent illustration is Northwest Austin Municipal Util. Dist. No. One v. Holder The Supreme Court basically told Congress to fix the voting rights act. If they don’t the Court would strike it down the next time.