What Leevin could have done

Tall Tales By Robert Klitzkie

Attorney General Leevin Camacho marshaled enough judicial authority to employ the magic words, “void ab initio,” to deep-six PL 20-134, former Sen. Belle Arriola’s anti-abortion law.

“Void ab initio” means having no legal effect from inception. A law, agreement, sale, or other action that is void has no legal effect. A void action cannot be ratified or validated. End of story, right?

Maybe not. The answer one gets depends on the question he asks. Here’s what Leevin said, “We limit our opinion in this case to instances where laws are passed in clear violation of established constitutional rights.” So Leevin limited the question he asked.

But try this: type in “effect of an unconstitutional statute” on Google search. The first hit you’ll get is an ancient Indiana U. law review.

Thumb through the pages and you’ll find this entry: “…the theory that the statute is void ab initio should be tested. Suppose a case where the court declares a statute unconstitu­tional today, and then six months hence reverses this decision and decides that the statute is constitutional. If the void ab initio doctrine be applied, the first decision would leave a situation similar to that described by the Indiana court, as if no statute had been passed.

“[But] All courts seem to agree that the void statute (if such a contradiction be permitted) is resurrected and is effective as from the date of its enactment. The purported enactment which was said to have been fatally smitten at its birth by the constitution has by some legal hocus pocus been cured of its congenital disease. This is also the Indiana rule.”

So, the “Indiana rule”— take note, all courts!— mandates the resurrection of a void ab initio (dead) statute. What Leevin didn’t do is ask this question: “Is an unconstitutionally void ab initio (dead) statute resurrected when a court overrules the constitutional infirmity?”

Sure, we’re closer to Indonesia than Indiana but Leevin might have reached a different result had he plumbed the depth and tested the breadth of the Indiana rule in American jurisdictions.

Leevin told us: “We recognize that ‘[a]n analysis of the constitutionality (or organicity) of a local statute must begin with the general rule that legislative enactments are presumed to be constitutional.’” Along the same lines, attorneys general routinely defend the statutes in their respective jurisdiction if such can be accomplished absent the use of an antiemetic.

If it can be argued that the Dobbs decision is the talisman that resurrects Belle Arriola’s law, then Leevin should move to dissolve the district court injunction that prevented the enforcement of that law. Otherwise, the answer to his truncated question is the death of Belle Arriola’s law. If he moves to dissolve the injunction, then we’ll have a judicial declaration of the viability of Belle’s law. (There’s no need to seek a hokey declaratory judgment as Leevin did in the quarantine hotel procurement matter.)

In the benediction of his opinion, Leevin tells us, “Moving forward, difficult moral and policy questions such as the decision of whether to allow or limit abortion must be decided by the Legislature, not the courts.”

Our legislature has spoken unanimously on the moral and policy question. The reason that the voice of the people, i.e., the legislature, is muted and mooted is apparent.

Because the 20th Guam Legislature did not have the power to pass P.L. 20-134 in the first place, it is void ab initio and has had no legal effect on Guam since its passage.

It’s not what Leevin did; it’s what Leevin didn’t do.

Bob Klitzkie is a former senator and Superior Court of Guam judge pro tem. He hosts the talk show, “Tall Tales,” on KUSG-FM (93.3 FM) weekday afternoons from 4 to 6 p.m. Send feedback to klitzkie@hotmail.com.

Subscribe to

our digital

monthly edition