Advisory opinion

President George Washington sought an advisory opinion (a practice then common in state courts) from the Supreme Court on 18 July 1793 concerning the obligations of the 1778 Franco‐American Treaty. The French minister's insistence that the treaty allowed him to commission privateers in the United States seemed in conflict with Washington's recent Proclamation of Neutrality. Concerned about the imminent departure from an American port of the Little Sarah as a French privateer, Washington sought the Court's advice on twenty‐nine issues related to the treaty.

Chief Justice John Jay, in a letter requesting a delay until the full court could meet, noted that the justices saw “much difficulty” in replying. On 8 August 1793, the justices by letter formally declined to provide the requested advice, citing problems related to separation of powers. Jay stated that the justices were “judges of a court in the last resort” and should not decide matters unless brought to the courts by actual litigation. This refusal reinforced the attorney general's role as presidential legal adviser as well as the court's independence of the executive.

Although later justices were tempted to provide advisory opinions concerning circuit duty and internal improvements, they refrained, using actual litigation as the forum for issuing legal opinions. Unofficially, justices have occasionally issued legal advice to the executive or legislative branches. Observers, however, have usually considered such informal measures unfortunate partisan activities. Some state constitutions do permit their supreme courts to issue advisory opinions.

See also Cases and Controversies: Justiciability.

— Joan R. Gundersen

An advisory opinion is a legal opinion given before a case is tried. Federal judges do not provide advisory opinions because Article 3 of the U.S. Constitution says their jurisdiction extends only to real cases and controversies “in Law and Equity, arising under this Constitution,” and they therefore cannot issue statements about hypothetical cases.

A precedent against advisory opinions was established in 1793, when President George Washington asked Chief Justice John Jay and the Supreme Court to advise him about the federal government's obligations stemming from a 1778 treaty made by the Continental Congress with France. John Jay replied in a letter (August 8 1793) that it was wrong, under the Constitution, for the Court to provide an advisory opinion to the President or anyone else. Jay's letter explained that the justices should not provide opinions on any matter unless it was brought to the Court through formal legal procedures as a real case.

The letter set a precedent against advisory opinions. It reinforced the principle of separation of powers and judicial independence from the executive branch. Thus, the President turns to the attorney general of the United States or to his own counsel, both of whom are officials of the executive branch, for legal advice.

See also Separation of powers

An opinion by a court as to the legality of proposed legislation or conduct, given in response to a request by the government, legislature, or some other interested party.

Advisory opinions are issued in the absence of a case or controversy. Although they are not binding and carry no precedential value, they are sometimes offered as persuasive evidence in cases where no precedent exists.

Federal courts will not issue advisory opinions. This rule, based on the constitutional guarantee of separation of powers, was established in 1793 when John Jay, the first chief justice of the Supreme Court, refused to provide legal advice in response to requests by President George Washington and Treasury Secretary Alexander Hamilton. Washington asked the Court for advice relating to his Neutrality Proclamation in regard to the French Revolution. Hamilton asked Jay for an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives. In both instances, the Court diplomatically but firmly refused to supply an opinion.

The Supreme Court has steadfastly resisted subsequent efforts to elicit advisory opinions, even when these efforts appear under the guise of an actual lawsuit. Thus, in Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911), the Court struck down an act of Congress that authorized the plaintiffs to sue the United States to determine the validity of certain laws. The Court found the lawsuits authorized by the act to be thinly veiled attempts to obtain advisory opinions, since the constitutional requirements of justiciability and an actual case or controversy were not satisfied. Justice William R. Day, writing for the Court, predicted that if the justices rendered a judgment in the case,

the result will be that this court, instead of keeping within the limits of judicial power and deciding cases or controversies arising between opposing parties, as the Constitution intended it should, will be required to give opinions in the nature of advice concerning legislative action, a function never conferred upon it by the Constitution.

Echoing the convictions expressed in Muskrat, Supreme Court Justice Felix Frankfurter, writing on advisory opinions, said, "Every tendency to deal with constitutional questions abstractly, to formulate them in terms of barren legal questions, leads to … sterile conclusions unrelated to actualities."

Unlike their federal counterpart, a number of state constitutions authorize their courts to issue advisory opinions. However, even in those states, courts usually restrict advisory opinions to pending legislation and refuse requests for opinions on abstract or theoretical questions of law. In any event, the opinions are not binding authority in future cases.

Advisory opinions have their greatest effect as guides to policy making for the executive and legislative branches of state government. They are most often sought in the areas of intergovernmental relations, taxation, and finance.

Advisory opinions contrast with declaratory judgments, which determine the rights of litigants in an actual controversy and involve specific individuals who are at least nominally adverse to each other. Declaratory judgments are allowed by courts at both the federal and state levels. Although the line between advisory opinions and declaratory judgments is a fine one, the Supreme Court has consistently reiterated the necessity of keeping it intact. In Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 56 S. Ct. 466, 80 L. Ed. 688 (1936), the justices insisted that the Federal Declaratory Judgment Act, which gives federal courts the power to issue declaratory judgments, "does not attempt to change the essential requisites for the exercise of judicial power." An actual, not theoretical, case or controversy between specific parties must still be shown. In another case, the Court stated specifically that the Declaratory Judgment Act cannot be invoked to "obtain an advisory decree upon a hypothetical state of facts" (Electric Bond & Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 58 S. Ct. 678, 82 L. Ed. 936 [1938]).

This article needs additional citations for verification. Please help improve this article by adding reliable references. Unsourced material may be challenged and removed. (December 2007)

The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (September 2008)

An advisory opinion is an opinion issued by a court that does not have the effect of resolving a specific legal case, but merely advises on the constitutionality or interpretation of a law. Some countries have procedures by which the executive or legislative branches may certify important questions to the judiciary and obtain an advisory opinion. In other countries or specific jurisdictions, courts may be prohibited from issuing advisory opinions.

Contents 1 International Courts 1.1 International Court of Justice 1.2 Inter-American Court of Human Rights 2 National Courts 2.1 Canada 2.2 United States 2.2.1 United States federal courts 2.2.2 United States state courts 2.2.2.1 Florida 3 See also 4 References

International Courts

International Court of Justice

The International Court of Justice is empowered to give advisory opinions under Chapter IV of its Statute (an annex to the United Nations Charter) when requested to do so by certain organs or agencies of the United Nations. These opinions are essentially non-binding, but Pieter H.F. Bekker has argued that this non-binding character does not mean that advisory opinions are without legal effect, because the legal reasoning embodied in them reflects the Court's authoritative views on important issues of international law and, in arriving at them, the Court follows essentially the same rules and procedures that govern its binding judgments delivered in contentious cases submitted to it by sovereign states. In his view, an advisory opinion derives its status and authority from the fact that it is the official pronouncement of the principal judicial organ of the United Nations.^[1]

Advisory Opinions have often been controversial, either because the questions asked were controversial, or because the case was pursued as a "backdoor" way of bringing what is really a contentious case before the Court. The full list of the court's advisory opinions can be found in the section advisory opinions in the List of International Court of Justice cases article.

Inter-American Court of Human Rights

The advisory function of the Inter-American Court of Human Rights enables it to respond to consultations submitted by agencies and member states of the Organization of American States regarding the interpretation of the American Convention on Human Rights or other instruments governing human rights in the Americas. It is also empowered to give advice on domestic laws and proposed legislation, and whether or not they are compatible with the Convention's provisions.

• List of Advisory Opinions of the Inter-American Court of Human Rights.

National Courts

Canada

Under Canadian Law, the reference question mechanism is equivalent to an advisory opinion.

The Supreme Court of Canada will answer reference questions put forward by the Federal Government, while Provincial or Territorial government can put forward their question to their provincial/territorial highest appellate court for answer. If the provincial question was not answered or the government seek clarification on the answer, they can 'appeal' to the Supreme Court of Canada.

United States

United States federal courts

United States Federal civil procedure doctrines
Justiciability
Advisory opinions
Standing  · Ripeness  · Mootness
Political questions
Jurisdiction
Subject-matter jurisdiction:
Federal question jurisdiction
Diversity jurisdiction
Supplemental jurisdiction
Removal jurisdiction
Amount in controversy
Class Action Fairness Act of 2005
Personal jurisdiction:
Jurisdiction in rem
Minimum contacts
Federalism
Erie doctrine  · Abstention
Sovereign immunity  · Abrogation
· Rooker-Feldman doctrine  ·
Adequate and independent state ground
edit this template

The United States Supreme Court has determined that the case or controversy requirement found in Article Three of the United States Constitution prohibits United States federal courts from issuing advisory opinions. Accordingly, before the court will hear a case, it must find that the parties have a tangible interest at stake in the matter, the issue presented must be "mature for judicial resolution" or ripe and a justiciable issue must remain before the court throughout the course of the lawsuit. While this doctrine is still in full force, there has been a liberalization of these requirements in recent years.

In a letter to President George Washington, replying to the president's request for such an opinion, then-Chief Justice John Jay replied that it would violate the separation of powers for the Supreme Court to provide such an opinion, noting that the president could rely on advice from anyone within the executive branch under Article Two of the United States Constitution which expressly permits the President of the United States to "require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices".

Over a century later, in the case of Muskrat v. United States, 219 U.S. 346 (1911), the Court dismissed a case because there was no "actual controversy" between the parties; thus, any opinion rendered would be advisory.

United States state courts

Many state courts are similarly barred from issuing advisory opinions, although there are often specific exceptions to these limitations. Some states, like Rhode Island, permit the governor to certify questions on the constitutionality of laws to the state supreme court. Also, some states require their supreme court to give advisory opinions on particular matters, such as whether proposed amendments to the state constitution violate the U.S. Constitution.

Eight states have provisions in their constitutions permitting or requiring their supreme courts to give advisory opinions to the governor or legislature: Colorado, Florida, Maine, Massachusetts, Michigan, New Hampshire, Rhode Island and South Dakota. Two states provide for supreme court advisory opinions by statute: Alabama and Delaware. The texts of all the advisory opinion provisions are collected in M. Topf, "The Jurisprudence of the Advisory Opinion Process in Rhode Island," Roger Williams University Law Review, Vol. 2, Spring 1997, at 254-256. The article also gives a general treatment of how the advisory opinion process works. Topf also follows the story of the creation of a single Rhode Island advisory opinion (the only article to do so) in "The Advisory Opinion on Separation of Powers," Roger Williams University Law Review, vol. 5, Spring 2000, at 385-416.

Advisory opinions should not be confused with certified questions by one court to another, which are permissible. U.S. federal courts, when confronted with real cases or controversies in which the federal court's decision will turn in part on a question of state law, occasionally ask the highest court of the relevant state to give an authoritative answer to the state-law question, which the federal court will then apply to its resolution of the federal case (see e.g. Pullman abstention). Because the state court in such circumstances is giving an opinion that affects an actual case, it is not considered to be issuing an advisory opinion.

Florida

The Florida Supreme Court has two specific constitutional grants of authority to issue advisory opinions. First, it can issue an advisory opinion to the Governor of Florida on constitutional questions affecting the powers of the state's executive branch. Second, it can issue an advisory opinion to the Attorney General about two narrow legal issues affecting proposed citizens' initiatives to amend the state Constitution. These two issues are whether the ballot summary is fair and accurate and whether the initiative contains only a single subject as required by law. The Florida Supreme Court cannot include any other issue in its advisory opinion, including whether or not the initiative would be constitutional if adopted by the voters in the required statewide election.

See also

Look up advisory opinion in Wiktionary, the free dictionary.

• Declaratory judgment - a binding opinion assigning rights, duties, and obligations within a specific case or controversy.

References

1. ^ The UN General Assembly Requests a World Court Advisory Opinion On Israel's Separation Barrier, Pieter H.F. Bekker, ASIL (American Society of International Law) Insights, December 2003.

v • d • e Law Core subjects Administrative law · Constitutional law · Contract · Criminal law · Property law · Public international law · Public law · Tort · Trust law Other subjects Admiralty law · Aviation law · Banking law · Bankruptcy · Commercial law · Competition law · Conflict of laws · Consumer protection · Corporate law · Environmental law · Evidence · Family law · Human rights · Immigration law · Intellectual property · International criminal law · Labour law · Media law · Military law · Procedure (Civil · Criminal) · Product liability · Restitution · Space law · Sports law · Tax law · Unjust enrichment · Wills Legal systems Canon law · Civil law · Common law · Comparative law · Halakha · Sharia · Xeer · Roman law · Socialist law Legal theory Economic analysis · History · Philosophy · Sociology Legal institutions Bureaucracy · Civil society · Executive · Judiciary · Legal profession · Legislature · Military · Police Category · Portal

This entry is from Wikipedia, the leading user-contributed encyclopedia. It may not have been reviewed by professional editors (see full disclaimer)