Legal Issues in the Appeal Suit of Local Governments Based on the Supreme Court"s Cases

2021 ◽  
Vol 65 ◽  
pp. 35-71
Author(s):  
Sung Kyu Cho
Keyword(s):  
Supreme Court ◽  
Local Governments ◽  
Legal Issues ◽  
The Supreme Court

Parkland Dedication: How are Cities Implementing the Rough Proportionality Principle?

2021 ◽  
Author(s):  
John Crompton
Keyword(s):  
Supreme Court ◽  
Local Governments ◽  
Best Practice ◽  
Service Level ◽  
Professional Engineer ◽  
Large Cities ◽  
General Welfare ◽  
The Supreme Court ◽  
New Development ◽  
Proportionality Principle

As part of local governments’ mandate to regulate for the “health, safety, and general welfare” of their residents, many have included a parkland dedication exaction on new development in their sub-division regulations. The rules governing the magnitude of the dedication were established in 1994 by the U.S. Supreme Court in Dolan v City of Tigard. The Court ruled there must be “rough proportionality” between a dedication exaction and the projected new demand from a development. The ruling requires a local jurisdiction to be proactive in quantifying the justification for the magnitude of a dedication it imposes, but the Court offered no guidance on how the quantification should be done. This study’s two objectives were: (i) to investigate the extent to which cities’ ordinances comply with the Supreme Court’s ruling, and (ii) to identify best practices among cities’ ordinances relating to operationalizing the “rough proportionality” principle. Parkland dedication ordinances were analyzed from 73 Texas cities, supplemented by insights from those of 29 large cities outside Texas. In 65 of the Texas ordinances where “rough proportionality” comparisons could be made, the analyses found percentage under-dedications ranging from 9% to 1,250%. In defiance of the Court’s ruling, almost two-thirds of the ordinances showed no evidence of using an empirical quantitative method to establish “rough proportionality.” Many of these ordinances provided a service level ratio, but it appeared to be arbitrarily determined. These findings are especially egregious in Texas, since state law requires that the quantification of “rough proportionality” be certified as being appropriate by a professional engineer. Three models of best practice that used empirical methods to derive rough proportionality and met the Supreme Court guidelines are identified, described, and illustrated. Under-dedication often reflects the reluctance of elected officials to antagonize the development community. Thus, four strategies are offered to facilitate their efforts to impose a substantive exaction that relieves the burden on taxpayers, while demonstrating sensitivity to any protests arising from members of the development community.

Averting Diversity: A Review of Nominations and Appointments to the Philippine Supreme Court (1988-2008)

2011 ◽  
Vol 6 ◽  
pp. 1-18 ◽  
Author(s):  
Dante B. Gatmaytan ◽  
Cielo Magno
Keyword(s):  
Empirical Study ◽  
Supreme Court ◽  
Geographical Origin ◽  
Personal Characteristics ◽  
Legal Issues ◽  
Future Research ◽  
Professional Experience ◽  
Academic Background ◽  
The Supreme Court

AbstractThis paper is an empirical study on the nominations and appointments of Supreme Court Justices during a twenty-year period from 1988, when the Judicial and Bar Council (JBC) was created in the 1987 Philippine Constitution, to 2008. The study examines the profile of individuals nominated by the JBC including their gender, age, geographical origin, academic background, and professional experience. It also explores whether the appointing Presidents display any preferences based on personal characteristics relating the effects of these preferences to the diversity on the Supreme Court. The study indicates that nominees and appointees all hail from the same background. As a result, membership of the Supreme Court is sorely unrepresentative of Philippine society. This study sets the stage for future research that will determine how this lack of diversity on the Supreme Court can affect the resolution of legal issues.

scholarly journals Kewenangan Ketua Mahkamah Agung Mengeluarkan Surat Keputusan Ketua Mahkamah Agung Nomor 73/KMA/HK.01/IX/2015 Perihal Penyumpahan Advokat

2019 ◽  
Vol 3 (3) ◽  
pp. 429-444
Author(s):  
Muttaqin Asyura ◽  
Faisal A. Rani ◽  
Ilyas Ismail
Keyword(s):  
Supreme Court ◽  
Public Administration ◽  
Legal Issues ◽  
Government Official ◽  
Constitutional Court ◽  
High Court ◽  
Chief Justice ◽  
The Supreme Court ◽  
Legal Uncertainty

Angka 6 Surat Keputusan Ketua Mahkamah Agung Nomor 73/KMA/HK.01/IX/2015 perihal Penyumpahan Advokat (SK KMA Penyumpahan Advokat) menimbulkan polemik hukum karena substansi materi keputusan tersebut memperluas Putusan Mahkamah Konstitusi berkaitan dengan Organisasi Advokat yang dapat mengajukan penyumpahan Advokat di Pengadilan Tinggi. Terkait dengan hal tersebut apakah Ketua Mahkamah Agung memiliki kewenangan untuk mengeluarkan SK KMA Penyumpahan Advokat? Teori freies ermessen menekankan bahwa setiap pejabat pemerintahan memiliki kewenangan untuk membuat keputusan agar dapat berperan secara maksimal dalam melayani kepentingan masyarakat, namun keputusan yang dibuat harus sesuai dengan asas-asas umum pemerintahan yang baik. Berlakunya SK KMA Penyumpahan Advokat memperluas makna Organisasi Advokat yang telah diatur sebelumnya dalam  Putusan Mahkamah Konstitusi. Ketidakpastian hukum yang ditimbulkan oleh keputusan pejabat pemerintahan bertentangan dengan asas-asas umum pemerintahan yang baik, sehingga dengan demikian, Ketua Mahkamah Agung tidak berwenang mengeluarkan SK KMA Penyumpahan Advokat untuk mengatur mengenai Organisasi Advokat yang dapat mengajukan sumpah di Pengadilan Tinggi.Clause 6 a Decree Number 73/KMA/HK.01/IX/2015 on the Oath of an Advocate leads to legal issues due to expanding the decision of the Constitutional Court regarding advocate organization that can submit an oath of an advocate in the high court. Based on that issue, Is the Chief Justice of the Supreme Court authorized to issue a Decree Number 73/KMA/HK.01/IX/2015 on the Oath of an Advocate? Freies Ermessen’s theory states that every government official has authority to make a decree in order to serving public administration. But, the decree must be in accordance with the General  Principles of Proper Administration (GPPA). The enactment of the  Decree on the Oath of an Advocate leads to legal issues due to expanding the decision of the Constitutional Court. Legal uncertainty caused by the Decree is contrary to the General Principles of Proper Administration (GPPA). Therefore, the Chief Justice of the Supreme Court  is not authorized to issue a Decree Number 73/KMA/HK.01/IX/2015 on The Oath of an Advocate to regulate an Advocate Organization that can submit an oath in a High Court.

scholarly journals EFEKTIFITAS POS BANTUAN HUKUM DI PENGADILAN ( Studi Pada Posbakum Pengadilan Agama Sleman Tahun 2011-2012)

2013 ◽  
Vol 2 (1) ◽  
pp. 17
Author(s):  
Thalis Noor Cahyadi
Keyword(s):  
Domestic Violence ◽  
Supreme Court ◽  
Child Protection ◽  
Pilot Project ◽  
Legal Issues ◽  
Legal Assistance ◽  
Legal Aid ◽  
Pilot Projects ◽  
The Poor ◽  
The Supreme Court

Dalam Surat Edaran Mahkamah Agung (SEMA) No. 10 Tahun 2010 mengamanahkan tentang pembentukan Pos Bantuan Hukum (Posbakum) di setiap pengadilan di bawah Mahkamah Agung (MA). Pengadilan Agama (PA) Sleman menjadi salah satu pilot project dalam pembentukan Posbakum, yang dimulai sejak 2011 dan berakhir 2012. Penyelenggaraan Posbakum di PA Sleman dirasakan sangat membantu masyarakat miskin dan bagi mereka yang tidak dapat memahami birokrasi pengadilan dan bagaimana memecahkan persoalan hukum. Namun, keberadaan Posbakum perlu diteli Ɵ mengenai bagaimana penyelenggaraan Posbakum di PA Sleman dan sejauhmana efek Ɵ fi tasnya dalam membantu masyarakat miskin untuk mengakses keadilan? Hasil penelitian menunjukkan bahwa penyelenggaraan Posbakum di PA Sleman selama 2011 hingga 2012 dapat berjalan dengan baik dan efek tif. Data dari DPW APSI DIY dan LSBH UIN Yogyakarta menunjukkan bahwa lebih dari 1000 orang (1.272 orang) yang datang ke Posbakum PA Sleman mendapatkan layanan jasa bantuan hukum yang mereka butuhkan. Penelitian ini merekomendasikan untuk penyediaan anggaran bantuan yang lebih besar yang digunakan Ɵ dak hanya sebatas pemberian advis dan pembuatan berkas gugatan/permohonan saja, tetapi juga pada pendampingan perkara terutama perkara-perkara tertentu yang urgen seperti Kekerasan Dalam Rumah Tangga dan Perlindungan Anak. Selain itu penyelenggaraan bantuan hukum harus ditunjang oleh aturan main yang jelas yang tidak membuka tafsir liar sehingga membuat potensi adanya pemberian bantuan hukum yang salah sasaran.<p>The mandate Seth forth in SEMA No. 10 Year 2010 is establishing legal aid centre (Posbakum) in any court which under the Supreme Court authority. Religious Court (PA) of Sleman becomes one of the pilot projects in the establishment POSBAKUM, which started since Year 2011 and ended in Year 2012. Implementation POSBAKUM in Religious Court Sleman is extremely helpful for poor society and those who could not understand how bureaucracy of court and how to resolve legal issues. Nevertheless, the existence of Posbakum needs to be researched as to how the implementation of Posbakum in PA Sleman and how far its effectiveness in helping the poor to access justice. The result of research showing that implementation of POSBAKUM at religious court Sleman during year 2011-2012 runs properly and effectively. Data from DPW APSI DIY and LSBH UIN Jogjakarta showing that more than 1000 people (1272 people) comes into POSBAKUM Religious court Sleman and obtain legal assistance services which they needed. This research recommends providing a larger aid budgets are used not only limited to giving advice and making the lawsuit/petition but also on mentoring cases, especially in certain ma Ʃ ers such as domestic violence which urgent and child protection. Besides, implementations of legal aid have to support by clear rules that do not open to multi interpretation so that make a potential misdirected for legal assistance.</p>

The Expanding Role of the Supreme Court of Canada in International Law Issues

1997 ◽  
Vol 34 ◽  
pp. 89-102 ◽  
Author(s):  
Gérard V. La Forest
Keyword(s):  
Supreme Court ◽  
International Law ◽  
Legal Issues ◽  
Supreme Court Of Canada ◽  
Private International Law ◽  
Public And Private ◽  
National Courts ◽  
The Supreme Court ◽  
The World

SummaryThe rapid globalization that marks our era has resulted in increasing demands for the legal resolution of disputes arising out of interstate activities. National courts throughout the world have been significantly affected by this development. This article describes the recent expansion of the work of the Supreme Court of Canada in relation to transnational legal issues, including issues of public and private international law, human rights, admiralty law, and issues of private law having international ramifications. It traces the Court's evolving approach to international law issues and its willingness to reformulate its principles to meet modern conditions and to foster compliance with its norms. The more cosmopolitan attitude thereby generated has worked in concert with the Court's increasing willingness to rely on comparative law techniques in assuting in the resolution of issues of a localized character.

Institute of discretion of the subject of authority in administrative judiciary

2020 ◽  
pp. 46-51
Author(s):  
Yurii Vovk
Keyword(s):  
Supreme Court ◽  
Local Governments ◽  
Case Law ◽  
Problem Analysis ◽  
Public Authorities ◽  
The Supreme Court ◽  
Legislative Regulation ◽  
The Subject ◽  
Administrative Courts ◽  
Discretionary Powers

Problem setting. Article 19 of the Constitution of Ukraine provides: “Public authorities and local governments, their officials are obliged to act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine.” However, quite often this constitutional norm is violated in practice. This forces citizens to apply to the administrative court for protection of the violated right. As a result, the number of citizens’ appeals to the administrative court is constantly increasing. Due to the significant workload, the increase in the number of appeals, the terms of consideration of the administrative case provided in Art. 193 of the Code of Administrative Procedure of Ukraine are often violated by administrative courts and the case is not considered within a reasonable time. At the same time, one of the most problematic categories of disputes in administrative courts are those concerning the discretionary powers of the subject of power. In these disputes, the plaintiff usually asks to recognize the actions (inaction) of the subject of power illegal and oblige to take certain actions. The administrative court usually finds the actions illegal, but does not oblige the subject of power to take certain actions in favor of the plaintiff, referring to the discretionary powers of public authorities and local governments, their officials in making the decision. In the future, citizens are forced to spend a lot of time and money to restore the violated right. Courts in different situations act differently. In addition, the lack of a legislative definition of “discretionary powers” is also a problem. Analysis of recent research and publications. In the modern scientific literature, the works of Belkin L.M., Boychuk M.I., Wenger V.M., Vlasov A.O., Grin A.A., Zolotareva M.K., Magda S.O., Panov G.V., Staryk A.M., Tarasenko T.M., Fedchuk S.I., and others are devoted to the question of discretionary powers of the subject of power. Along with this problematic issue, the institution of discretion of the subject of power, analysis of the case law of the Supreme Court is not given enough attention. The aim of the article is to investigate issues related to discretionary powers, determine the possible limits of court interference in the administrative discretion of the subject of power, based on the case law of the Supreme Court. Results and discussion. In modern conditions, a significant number of cases in administrative courts are related to the discretionary powers of the subject of power. These are mostly social disputes. Given the uncertainty of such a concept as “discretionary powers”, the courts refer in their decisions to the Recommendation NR(80)2 of the Committee of Ministers of the European Council, adopted by the Committee 10 on 11th of March 1980 at its 316th meeting, according to which discretionary powers should be understood as the administrative body, in making decisions, may exercise with a certain discretion. The above means, that such a body may choose from several legally admissible decisions the one, that is considered to be the best in the given circumstances. At the moment, there is a certain case law of the Supreme Court regarding the discretionary powers of the subject of power. Conclusions. The Supreme Court’s case law seeks to fill the gaps in the lack of proper legislative regulation of the issue of discretion and the relationship between the discretion of the court and the discretion of the subject of authority. However, this case law may not always be completely homogeneous. Given the significant number of cases related to discretionary powers and the lack of proper legislative regulation of this issue, it is time for the Verkhovna Rada to adopt a law to comprehensively regulate this issue, defining the concept of “discretionary powers”. This may provide guidance to the authorities and courts on how to act in specific situations and reduce the number of cases in the courts and will help to properly protect the rights and legitimate interests of individuals and legal entities.

The Mechanism of Case Reopening Based on New and Newly Discovered Circumstances: Aims, Meaning, Judicial Interpretation (the final part)

2020 ◽  
Vol 10 ◽  
pp. 27-30
Author(s):  
Elvina I. Fagmanova ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Judicial Review ◽  
Legal Issues ◽  
Final Part ◽  
Constitutional Court ◽  
Judicial Interpretation ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation

The article is devoted to the research of the mechanism in the reconsidering judicial acts under reopened or new circumstances as providing the necessary deviation from the requirement of stability in judicial practice to correct an erroneous judicial act, an analysis of the grounds for reviewing and the importance of judicial review procedures in the system. The author pays an attention to discussions about the possibility of reconsidering a judicial act, due to the development of the position of the supreme court on legal issues, on its borders. The article also analyzes the most important judicial practice of the Constitutional Court of the Russian Federation, the ECHR, and the Resolutions of the Plenum of the Supreme court of the Russian Federation, which substantively reveal the approach of these courts to the mechanism in reconsidering judicial acts under reopened or new circumstances.

Judicial Method and the Interpretation of Papua New Guineas Constitution

1980 ◽  
Vol 11 (2) ◽  
pp. 121-166
Author(s):  
Peter J. Bayne
Keyword(s):  
Supreme Court ◽  
Papua New Guinea ◽  
Social Philosophy ◽  
Legal Issues ◽  
Legislative History ◽  
Fundamental Significance ◽  
The Social ◽  
The Supreme Court ◽  
The Government ◽  
Judicial Method

In the latter half of 1979 the Supreme Court of Papua New Guinea delivered judgment in two cases in which it was called upon to decide a number of issues of fundamental significance to the interpretation of that country's Constitution. In the course of this litigation, several of the Justices of the Court became embroiled in confrontation with the Government. The potential for such conflict had been foreseen by the makers of the Constitution, who took the view that conflict would be ameliorated if the Court adopted an autochthonous interpretation based on the social philosophy of the Constitution and on its legislative history. This article surveys the legal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an “absolutist” with a “purposive” mode, with the latter expressing the intention of the Constitution's makers. It concludes that for the most part the Court adopted the absolutist mode, and that thereby the autochthonous nature of the Constitution has been undermined.

scholarly journals Legal Theses of the Kraków Court of Appeal in 1940–1943

2021 ◽  
Vol 14 (1) ◽  
pp. 59-82
Author(s):  
Hubert Mielnik
Keyword(s):  
Supreme Court ◽  
Present Article ◽  
Legal Issues ◽  
Scientific Methods ◽  
Territorial Jurisdiction ◽  
The Supreme Court ◽  
General Government ◽  
History Of ◽  
History Of Law ◽  
Court Of Appeal

The German occupiers abolished the Supreme Court in the General Government. In the Polish (non-German) judiciary sector, there was no court of the highest instance to ensure the unification of jurisprudence. The competence to ensure the uniformity of jurisprudence and resolve existing doubts and legal issues was transferred to the courts of appeal. The objective of the present article was to demonstrate the procedure and practice of issuing legal theses by the Court of Appeal in Kraków. The article also presents changes in the composition of the judges and the territorial jurisdiction of the Kraków Court of Appeal. Archival sources constitute the source basis of the work. We also resorted to the latest subject literature. The work is based mainly on the analysis of archival sources and legal acts, so the scientific methods typical of the history of law were applied.

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