Separation of Powers, the Cba, and the Lpc

• Publication year: 2004
• Pages: 23
• Citation: Vol. 33 No. 9 Pg. 23

33 Colo.Law. 23 Colorado Lawyer 2004.

2004, September, Pg. 23. Separation of Powers, the CBA, And the LPC

Vol. 33, No. 9, Pg. 23

The Colorado Lawyer
September 2004
Vol. 33, No. 9 [Page 23]

Features
CBA President's Message to Members
Separation of Powers, the CBA, And the LPC
by Steve C. Briggs

The complete independence of the courts of justice is

Steve C. Briggs

peculiarly essential in a limited Constitution.
Alexander Hamilton1

Threats to judicial independence and its goals are greater in many state court systems than in the federal judiciary.
ABA Report on Separation of
Powers and Judicial Independence2

Last month I discussed how our Colorado courts in recent years have needed a haven from the current financial crisis.3 I reported on the efforts of the CBA and a broad-based bipartisan Coalition to enact two ballot initiatives. The goal is to amend the constitutional spending limits that are crippling our courts, as well as the rest of state government

Since that report, the Coalition has determined not to continue its campaign. The decision was based on several factors. These included a public opinion poll that showed it would be a close ballot issue; the public opposition of our Governor and Treasurer to the proposed ballot initiatives the difficulties in raising the necessary campaign funding particularly in light of that opposition, to educate the public about a complex issue; and the crowded ballot for the November election.4

With no change in the current spending limits, lawmakers fear they will have to cut approximately $254 million from state services and programs in the next year. The cuts will be on top of the more than $1 billion taken from state spending in recent years during the economic downturn.5

The legislature can be expected to include the judicial branch in the funding cuts to come. In addition, if the last legislative session is any indication, the legislature can be expected to introduce legislation and constitutional amendments that would undermine judicial independence in still other ways. This month's focus is on the role of the CBA in responding.

Judicial Independence and
Separation of Powers

The genius of our system of government is not in having a democracy, but rather in having a constitutional democracy, based on the rule of law.6 Our Founders created three separate but equal branches of government, each branch acting as a check on the others. Although this creates tension, it is intentional, resulting in the necessary balance that prevents one branch from obtaining excessive power.

The Founders understood the paradox that an "anti-democratic" judiciary - one independent of the electorate and its representatives - was needed to preserve the core values of a constitutional democracy. Only an independent judiciary could stand up to the political branches and the tide of public opinion when they encroached on fundamental rights and the rule of law.7 An independent judiciary is not a value unto itself. It is a vital component of our systems of checks and balances.8

To provide the necessary judicial independence, the Founders provided, among other things, that federal judges have lifetime tenure on good behavior. In contrast, our Colorado system provides less judicial independence, requiring periodic retention elections. At the same time, with retention elections, our judges are not subject to voter approval to the same extent as elected politicians. The goal of this compromise is to minimize political influence on individual judicial decisions, while retaining an element of popular control based on overall judicial performance over a period of time.

Because our state judges have less independence, the necessary separation of powers hangs in an even more delicate balance. Legislative attacks on the judicial branch, from inadequate funding to intrusion on the authority to regulate the courts and the practice of law, threaten the very foundation of our state constitutional democracy.9

Recent Legislative Attacks

Legislative attacks on the judiciary are nothing new.10 However, in recent years, these attacks, as well as attacks on our legal profession, have increased throughout the country.11 Colorado has been at the forefront. As CBA Legislative Director Michael Valdez reported last month, this past legislative session saw some of the most Draconian measures that have yet been introduced.12

House Resolution ("HR") 04-1007 received the most publicity. This was an ill-conceived attempt to impeach a Colorado district judge because some politicians and their supporters were unhappy with a single ruling - a ruling that was pending on appeal.13 Senate Concurrent Resolution ("SCR") 007, introduced by Senate President John Andrews, would have amended our Colorado...