Legal vocabulary lesson: "Ex post facto"

You have to love the elocution of certain words and phrases, particularly in the confounding arena of law and legalisms.

We’ve run into some of these before in this column, words and combinations such as “voir dire,” “in liminie,” arcania such as “nisi prius,” and my personal favorite, “ipse dixit,” which sounds, at least, when rolling off your tongue, like what must be a species of a small and cuddly creature in a fairy story. Conjure up an image of an ipse dixit if you will and see what comes to mind. What it means is simply “he himself said it.” How blah.

How “ipse dixit” is used as a bare assertion resting on no authority other than the individual stating it. Most people would be more straightforward, saying something like “there’s no support for that.” But no, not lawyers. Lawyers prefer to ipse dixit, sending the more faint of heart scrambling to their legal dictionaries in order to unknot the tangled lexicon of law.

Still, no less a sage than Bill Clinton once observed, “words mean things.”

“Ex post facto?” You know you’ve heard the phrase before. High school civics? Maybe the TV show “Boston Legal’?

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For the self-flagellists among you, ex post facto is, legally-speaking, the opposite or inverse of “ab initio.”

For the moment, let’s vivisect ex post facto bit by thorny bit and, once exposed, we’ll weave in its relationship to things “ab initio.”

Working backward

“Ex post facto” means, simply and literally, “after the fact.” An ex post facto law is one passed after the occurrence of a fact or commission of an act which changes the legal consequences or relations of such fact or deed. An ex post facto law is one which reflects backwards – reaching, like a wicked hand of retribution, into the past – which changes the rules which were in force at the time you did (or didn’t do) something. It’s like making up the rules in a sporting event and then applying them to an earlier moment in time.

Under the Constitution, at Article 1 Section 10, the states are expressly forbidden to pass “any ex post facto law.” Most state constitutions contain similar prohibitions which, it seems clear, is what democratic fairness dictates.

As an ex post facto law provides for the retroactive imposition of legal consequences upon a person for an act done which, when committed, was legal, if such laws were to be tolerated the predictability of the law would be sacrificed. If laws could be made in the future which related backward, how could you ever know when you were doing something that at some point in the future you would be punished for doing what was legal at the time you did it?

Similarly, an ex post fact law can exacerbate the consequences of something which was, at the time you did it, illegal by retroactively increasing the punishment associated with the act. Being admittedly farcical, let’s say the possession of an ounce or less of marijuana (about which threat of smoke swirled in the last election) which is now a class 2 petty offense, were later changed and applied backward to be classified a felony. What was at the time you did it an act punishable by a simple, relatively minor fine, would instead potentially subject you to hard time in the pokey.

Lightening the burden

This is not to say that laws and the punishment meted out with their violation cannot be changed. It’s just that if the punishment is changed, or if a new law is enacted, it cannot be applied backward to relate to conduct which occurred before the law was passed.

You’ve all seen the stickers, “Skateboarding is not a crime.” But what if it became a crime? If it became a crime, in the same way that an increased penalty cannot be applied backward, neither can the new illegal conduct. And so, if at the time you rode your skateboard, skateboarding was indeed not a crime, just because it later became one, you could not be hauled off and made to answer for your conduct which was innocent at the time you engaged in it. All of this lends both fairness and certainty to the law.

What now about the mirror image of ex post facto laws, laws “ab initio?” Well “ab initio” simply means from the beginning or from the first. Thus, an “ab initio” law is one which applied from the beginning or from the inception.

Owing to the enlightened guidance of the founders, ex post facto laws are forbidden. All we need concern ourselves with in monitoring our conduct are laws “ab initio.” And that should lighten all our legal burdens.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”.

Robbins may be reached at 926-4461 or at robbins@colorado.net