Vail Daily column: Ex post facto laws | VailDaily.com
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Vail Daily column: Ex post facto laws

You gotta love the elocution of certain words and phrases, particularly in the confounding arena of law and legalisms. We’ve run in to some of these before in this column, words and combinations like “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. But, alas, in the world of legal circumlocutions, “ipse dixit” is nothing of the sort. Instead, in Latin, the mother tongue of law, it is nothing so exotic. What it means is simply “he himself said it.” How blah.

How “ipse dixit”is used is in the context of a bare assertion resting on no authority other than the individual holding forth what was said. Now, most people, I presume, would be more straightforward, saying something like “there’s no support for that.” Or perhaps, waxing ever so slightly more eloquently, “that’s a bare assertion!” But no, not lawyers. Lawyers prefer to ipse dixit, sending the more faint of heart scrambling to their Black’s (a legal dictionary) 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 may be scratching your head. You know you’ve heard the phrase before. High school civics? “Boston Legal”? A self-contained aphorism, the DaVinci Code of which remains unlocked?

For those self-flagellists among you, ex post fact is, legally-speaking, the opposite or inverse of “ab initio.” More on that in just a sec.

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.”

“Ex post facto” means, simply and literally, “after the fact.” An ex post facto law then is, logically, one which is passed after the occurrence of a fact or commission of an act which retrospectively changes the legal consequences or relations of such fact or deed. Less obtusely, 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 to which the law relates. It’s like making up the rules in a sporting event and then applying them to an earlier moment in time. For example, you score and in the middle of your scoring dance, the rules are changed to redefine what constitutes a score, thus nullifying the points you’ve put on the board and rendering your silly dancing without meaning (other than, of course, the Zeitgeist of silly self-expression).

Under the Constitution, at Article 1 Section 10, the states are expressly forbidden from passing “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 (usually, the infliction of punishment) for an act done which, when committed, was legal, the predictability of the law generally, if such laws were to be tolerated, would be sacrificed. Simply, if laws could be made in the future which related backward, how could you ever know when you were doing something – conceivably any “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 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 some serious time in the pokey.

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. Using our pot example again, let’s say the legislature in its wisdom, or the electorate, determined that possession of pot in any amount should be a felony. If that law were adopted, it could be adopted only to provide that “henceforth” possession of marijuana will be a felony. If you possessed less than an ounce before the penalty was increased, the new increased penalty could not be enforced backward and applied to you.

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.

Thankfully, owing to the enlightened guidance of the founder, ex post facto laws are strictly verboten. 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. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his email address, robbins@colorado.net.


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