By David Tulis
An important way for common people like you and me to hold public officials accountable is to deny them grounds for claiming “good faith” error as they tromp over your rights and impose by hook and crook a tort against you.
One way of doing that is by filing administrative notice, a practice that presents to the state actor a nonargumentative recitation of relevant law, statute, regulatory provision or court decision. Once a state actor knows the baseline of law that binds him and his office, he may be a little less eager to prosecute you outside the scope of his authority.
Maintaining good faith is important, too, for honorable public officials facing lawlessness by other public officials. It is important for them to perform their acts of resistance in a democratic spirit and with an inner well of good faith upon which they draw. In defying the LGBT-Queer onslaught, a few American officials have stood their ground. But most have yielded and gone to recording Jim-Joe unions as marriage.
What do county clerks and probate judges, once in the reserves and now on the firing line, do to act in good faith?
A distillation of good faith
Good faith is the opposite of bad faith. Bad faith is malice and recklessness, an indifference to injury to others, a slackardliness. It’s easier, really, to highlight bad faith, with its slitted eyes and tightened jaw. I’ll get to that in a few days.
Good faith requires “honesty of intention.” In one case, good faith is seen in the likelihood of a plan for a debtor achieving results consistent with the objectives and purposes of the bankruptcy code. A debtor proposing a Chapter 13 plan must give full disclosure and have intent to make proposed plan payments. Good faith is honest belief based on reasonable grounds, honest intent and genuine desire. You cannot sell a piece of property if you know that the deal would render the other party insolvent – that’s not good faith.
Good faith, “for purposes of implied covenant of good faith and fair dealing means faithfulness to agreed common purpose and consistency with justified expectations of other party; it excludes variety of types of conduct characterized as involving bad faith because they violate community standards of decency, fairness or reasonableness” (18A W&P—337).
A county clerk steadfastly doing his job in recording marriages is, perhaps, by definition acting in good faith. If he fails to act in good faith, he is acting outside the scope of his authority – for recording marriages is one of the assignments charged him by the public. He is then acting in bad faith.
Good faith implied in every contract
The doctrine of the lesser magistrate taught by Daniel, the Apostles and others in the Bible and restored during the Reformation requires courage of public officials in my state and yours. Good faith defeats attempts to show bad faith – and in the culture war for marriage, no doubt, the LGBTQ lobby will heatedly pretend a refusenik clerk is acting in bigotry and in bad faith.
Good faith lets the clerk refuse to take advantage of the members of the public. It is the honest intention to abstain from taking an unconscientious advantage of another, even through the forms and technicalities of law are at his disposal. A good faith clerk believes it would be mischievous and insidious for him to record a Jim-Joe union as marriage.
His belief is his defense. His good faith belief about his job is an immunity. This state actor is not another malefactor acting against the public under color of law. He is a benefactor upholding his duty.
Sources: Good faith, Words & Phrases, Thompson, 2003
My good-faith clerk analyses
Clerk facing gay mudslide can act in good faith, say ‘sorry, boys’
Gleanings from sniveler’s lips: Oath of office controls duty of marriage clerks
Truth be told; how clerks, judges may cheerfully reject gay fibs in public record
Judges give glad defense of democratic processes, states’ rights, federalism