It May Take A Constitutional Amendment To Rein In Judiciary
September 17, 2006

Events this year have convinced some people that something is wrong with the relations between the courts and the other branches of government, between the courts and the press, and between the courts and the public.

Richard S. Kay
Richard S. Kay

Richard S. Kay is Wallace Stevens Professor of Law at the University of Connecticut School of Law
(Photo courtesy U. of Conn.)

In the spring, the state Supreme Court held that computerized case schedules were not open to public examination under the Freedom of Information Act. The chief justice delayed publication of that decision to influence the confirmation of his successor. This summer, a legislative committee subpoenaed the chief justice, but a trial judge, citing the independence of the judiciary, ruled he need not testify. Now the retired chief justice is facing the Judicial Review Council on charges that he violated the judicial code of ethics.

Two commissions, one named by the senior presiding justice of the Supreme Court, the other by the governor, are soon to report on possible judicial reforms. Several questions are on the table - what judicial records should be public, how should judges and lawyers be disciplined, who may draft rules of procedures.

But there is a more fundamental issue - not what things to change, but who may change them. That issue cannot be resolved by anything less than an amendment to the state Constitution.

About 30 years ago, the Connecticut Supreme Court started taking a new and assertive view of its own constitutional authority. It held that the legislature had no power to regulate the operations of the courts. These holdings were, to put it charitably, arguable as a matter of constitutional law.

The Supreme Court has never defined this exclusive judicial authority with much precision. In fact, in recent years, it has gone out of its way to avoid invoking it. Instead, the courts have found ways to protect judicial turf without actually holding legislation unconstitutional.

Sometimes, this takes the form of stretching (even to the breaking point) the meaning of a potentially encroaching statute. Sometimes, the courts and legislatures quietly compromise disputed matters before a law is enacted. Of course, in such discussions, the threat of the courts holding unwelcome legislative initiatives unconstitutional is always the 800-pound gorilla in the corner.

However, some issues cannot be evaded, obscured or finessed. The chief justice's attempt to influence the legislative power of judicial confirmation has forced the governor and General Assembly to face the implications of the Connecticut judiciary's bold claims of immunity from external regulation of any kind.

This may be the moment to reconsider the central problem of constitutional authority. If we do, we will need to think again about the meaning and value of "separation of powers."

Judicial openness, procedural rules and judicial discipline raise important questions of public policy. In our system of government, such questions are matters of law-making and have been committed to representatives who are accountable to the people.

The legislature, of course, acts subject to the rules of the state Constitution. Among those rules is the commandment that state power must be divided between three independent branches. Legislation may not impose requirements on the judiciary or on the governor that make it impossible to carry out their essential functions. For courts, those functions are hearing and deciding legal disputes. We might disagree on just what laws would have such a destructive effect, but it is obvious (from the experience of other states and the federal government) that no Connecticut statute in memory has remotely approached that level.

In fact, in the American version of separation of powers, judicial, legislative and executive functions are never exercised in isolation. They inevitably collide with, or require the cooperation of, the other departments. Judges need legislation to organize and fund the courts; they need police and prisons to enforce criminal convictions.

At every turn, each "independent" branch relies on the other branches. That is no accident. It is part of a constitutional plan to make the exercise of state power more difficult. "Ambition," as James Madison said, "must be made to counteract ambition."

This design has been put at risk by judicial insistence on broad, exclusive powers. Since this position has been deployed in un-reviewable constitutional terms, there is no way to overcome it except by constitutional amendment.

Such an amendment would reserve to the legislature the authority to make law governing the general operations of the courts - not the decision of cases. It might mention court rules, judicial organization or the openness of proceedings.

All these matters are regulated by elected legislatures elsewhere without notable damage to the rule of law.

It would be a great mistake to leave untouched Connecticut judiciary's vague and restless claim to final say. That is the problem that has produced all the others. The process of constitutional amendment is slow and difficult, but this may be a perfect time to start it.

Copyright 2006, Hartford Courant

From: Hartford Courant, Hartford, Connecticut, September 17, 2006, p. C-6.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.