May 2008 - Crossing the Separation of Powers Threshold: Legislative and Regulatory Control of Expert Testimony
Jurisdiction | Colorado,United States |
Citation | Vol. 37 No. 5 Pg. 27 |
Pages | 27 |
Publication year | 2008 |
2008, May, Pg. 27. May 2008 - Crossing the Separation of Powers Threshold: Legislative and Regulatory Control of Expert Testimony
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 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.
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)
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.
To continue reading
Request your trial