May 2008 - Crossing the Separation of Powers Threshold: Legislative and Regulatory Control of Expert Testimony

JurisdictionColorado,United States
CitationVol. 37 No. 5 Pg. 27
Publication year2008
37 Colo.Law. 27
Colorado Lawyer

2008, May, Pg. 27. May 2008 - Crossing the Separation of Powers Threshold: Legislative and Regulatory Control of Expert Testimony

The Colorado Lawyer
May 2008
Vol. 37, No. 5 [Page 27]

The Civil Litigator
Crossing the Separation of Powers Threshold Legislative and Regulatory Control of Expert Testimony
by Ronald M. Sandgrund, Scott F. Sullan, Leslie A. Tuft Jennifer A. Seidman

The Civil Litigator articles address issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year.

Article Editors

Donald Kelso, Denver, of Holme Roberts & Owen LLP - (303) 861-7000,; Eric Bentley, Colorado Springs, of Holme Roberts & Owen LLP - (719) 473-3800

About the Authors

Ronald M. Sandgrund is Of Counsel, Scott F. Sullan is a Shareholder, and Leslie A. Tuft and Jennifer A. Seidman are Associates with the law firm of Sullan,(fn2) Sandgrund, Smith & Perczak, P.C. in Denver. The firm represents commercial and residential property owners and homeowner associations and unit owners in construction defect and insurance coverage disputes. Mr. Sullan spoke against the engineering testimony regulations discussed in this article.
This article considers the effect of and potential legal problems with efforts by state legislatures, administrative agencies, and professional licensing boards to restrict the scope of expert testimony, focusing on the difficult issues that Colorado courts likely will need to address.

In Federalist Paper No. 47, James Madison wrote:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.

A few state legislatures and professional licensing boards have adopted regulations intended to limit who may testify in court and what they may say, raising separation of powers questions. Recently, the Colorado Board of Licensure for Architects, Professional Engineers, and Professional Land Surveyors rejected such regulations due to serious rulemaking authority and constitutional concerns.

Such regulatory efforts typically arise from complaints regarding the nature and substance of, and qualifications for giving, expert witness testimony, which complaints often are lodged by the very persons criticized by these testifying experts. This article surveys legislative and professional licensing board attempts to regulate the qualifications of testifying experts and the substance of their court testimony. It also identifies legal concerns raised by such efforts, including Colorado constitutional and statutory limits on the scope of legislative authority over the courts' power to determine the requirements for expert qualification and the nature and extent of permissible expert testimony.

Courts have reached varying conclusions concerning the propriety and limits of legislative and regulatory control of expert testimony. Although courts generally are reluctant to allow licensing boards to usurp their authority to govern the admission of expert testimony, they remain sensitive to the legislature's prerogative to speak and act for the people. Where courts have struck down or restricted such legislative or regulatory efforts, they often have done so based on the circumscribed rulemaking authority of licensing boards or separation of powers concerns. First Amendment "free speech" challenges to legislative and regulatory efforts to control expert testimony have succeeded, as well.

Nonjudicial efforts to regulate expert testimony and the concomitant specter of claims and counterclaims of ethical violations by and against testifying experts and the potential loss of their licenses may have a chilling effect on expert witness testimony and the truth-seeking purposes of the judicial system. One commentator has noted that the "legislative motives behind revision of evidence rules is to inferentially influence trial outcomes, rather than to preserve fundamental fairness," and that "[u]nlike its rival branches, the judiciary has generally remained insulated from public political pressures for evidence rule change."(fn1) Prudential considerations arising from interference with historical court processes and purposes, and the costs associated with the disruptive effect of debatable allegations and counter-allegations of ethical violations, may shape courts' separation of powers analysis.

Because conflicts arise when the applicable rules of evidence permit court testimony purportedly "disallowed" by nonjudicial efforts to regulate expert testimony, courts often have to either harmonize the potentially conflicting standards or strike them down if such harmony cannot be achieved.

Although courts presume rules adopted by administrative regulatory agencies to be valid, an administrative rule is invalid if the rulemaking body: (1) violated statutory rulemaking requirements; (2) exceeded its statutory authority; or (3) acted unconstitutionally.(fn2) If an administrative agency exceeds its rulemaking authority or violates statutory rulemaking requirements, courts will strike the resulting rules without reaching constitutional questions, such as whether the rules violate separation of powers.(fn3)

Statutory Authority and Rulemaking Requirements

Colorado's Administrative Procedure Act (APA)(fn4) requires all state agencies to comply with certain formal procedures to adopt new or amended administrative rules. It prescribes very specific requirements for public notice, review by the general assembly, public comment, and public hearing before adoption of any rule. Failure to substantially comply with any of these requirements renders the rule invalid.(fn5)

Moreover, agency rulemaking may not exceed the scope of authority granted to an agency by the Colorado legislature in the agency's enabling act.(fn6) The legislature may not delegate to administrative agencies the power to make or define laws, but it may delegate power to promulgate rules and regulations if it provides the agency with sufficient standards for rational and consistent rulemaking and adequate procedural safeguards for effective judicial review of administrative action.(fn7) In the absence of clear statutory authority, courts may find that an administrative agency, such as a licensing board, bears a heavy burden to establish that a general grant of authority to license and regulate the ethical conduct of a certain profession includes the power to prescribe who among those it regulates may testify in court and what they may say.(fn8)

Separation of Powers Concerns: Potential for Conflict

In addition to complying with any applicable statutory rulemaking requirements, administrative rules and statutes regulating expert testimony also must pass constitutional muster.(fn9) The Colorado Constitution provides that the executive, legislative, and judicial departments of government each may exercise only its own constitutionally granted powers, and prevents one branch of government from exercising powers within the exclusive domain of another.(fn10) Moreover, the Colorado Constitution acknowledges that the Colorado Supreme Court's rulemaking authority is an inherent power essential for the efficient administration of the court system:

The supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases. . . .(fn11)

In Colorado, many legislative enactments affecting courts do not, per se, violate separation of powers.(fn12) However, when appropriate, the Colorado Supreme Court will strike down statutes or administrative rules that improperly usurp judicial functions. Colorado courts will permit legislative policy and judicial rulemaking powers to overlap to some extent, as long as the administrative rule or statute does not substantially conflict with a court rule.(fn13)

If a conflict exists, the court must determine whether the statute or administrative rule regulates procedural or substantive matters.(fn14) If substantive, the statute generally prevails; if procedural, it improperly usurps judicial functions and violates separation of powers.(fn15) The Colorado Supreme Court has explained that one widely recognized test for distinguishing procedural from substantive matters is whether "the purpose of a rule's promulgation is to permit a court to function and function efficiently," or whether the rule "conflict[s] with other validly enacted legislative or constitutional policy involving matters other than the orderly dispatch of business."(fn16)

In its seminal decision upholding the constitutionality of Colorado's "rape shield" law against a separation of powers challenge, the Colorado Supreme Court said:

While the three branches of our government are separate, equal and coordinate, they are nevertheless branches of one government, and they cannot operate in mutually exclusive, watertight compartments. If government is to serve the people, each branch must seek to cooperate fully with the other two. Confrontations of constitutional authority are seldom in the long-term public interest and therefore are to be avoided where possible. Rather, mutual understanding, respect and self-restraint, the lubricants of good government, are to be sought.(fn17)

Colorado's judiciary historically has been deferential to the General Assembly. Even so, legislative or regulatory efforts to control expert witness testimony may test the boundaries of such deference.

Statutory and...

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