Judicial Independence at a Crossroads
| Publication year | 2021 |
| Pages | 21 |
77 CBJ 21. JUDICIAL INDEPENDENCE AT A CROSSROADS
"Good fences make good neighbors." Robert Frost, Mending Wall
On a typical arraignment day in a geographic area court, a defendant will be interviewed by a bail commissioner who will make a recommendation to the court concerning conditions of release. This may include a discussion of whether the defendant should be referred to the alternate incarceration program. If the defendant is charged with a family violence crime, the defendant and victim may be interviewed by a family service counselor who will recommend to the court whether the defendant should be referred for family violence education. Later in the life of the case, an advocate may appear in court on behalf of a victim. Also, a probation officer may report whether the defendant is eligible for a pre-conviction deferral program or, may file a presentence report recommending a proposed disposition of a convicted defendant.
We think it is noteworthy that all of these helping individuals - the bail commissioner, the family relations counselor, the victim's services representative, and the probation officer - are Judicial Branch employees and the services they offer are all programs of the Judicial Branch.
In other courtrooms and courthouses, superior court judges preside in drug courts,(fn1) truancy courts, and community courts. What distinguishes these courts from other dockets is that these specialty courts are, in fact, judicially run social service programs. Thus, drug, truancy, and community courts are not only presided over by judges but also they entail programs administrated by the judiciary.
In addition to the development of programmatic courts, the judiciary has, over time, undertaken several tasks that have no readily apparent direct link to the adjudicative process.
Many would argue that the concentration of functions and proliferation of programs, even those arguably not related to a judicial function within the judiciary, enhance government efficiency. We are concerned that the provision of services and sponsorship of programs not related to the core function of the judiciary may put at risk the doctrine of separation of powers and may jeopardize judicial independence.
Our concerns are not new. In 1996, former Chief Justice Ellen Ash Peters delivered the William B. Lockhart Lecture at the University of Minnesota.(fn2) The topic of Chief Justice Peters's paper was the application of the doctrine of separation of powers in the state court context. Contrasting state judiciaries from their federal counterparts, Chief Justice Peters noted: "Unlike federal courts . . ., state courts also administer social services agendas that transcend classic judicial responsibilities."(fn3) After noting Connecticut's experience with a drug court, family court, and its response to victim's rights as an example of judicial involvement in social services, Peters commented:
In undertaking these programs as part of the judicial social service agenda, judges and judicial staff fill roles that historically have been performed by private groups or other branches of government. . . . Whatever the relevant pros and cons of judicial participation, concern for separation of powers has not been high on anyone's list.(fn4)
Chief Justice Peters posed this question: "Is the functional blurring of the lines of executive, legislative and judicial power a matter for applause or for concern?"(fn5) And she asked:
If a judge embraces the role of a participant in the provision of social services, will the judge continue vigilantly to protect the individual rights of the litigants and to act conscientiously on their claims of innocence in the face of their
need for therapy? Again, even more importantly, will the judge risk being perceived as having a personal stake or psychological investment in the outcome, so as to cause litigants or the general public to doubt the judge's impartiality?(fn6)
Chief Justice Peters continued:
Rigorous insistence on absolute separation of powers is indigestible; rigid lines of demarcation cannot be reconciled with the operational interdependence of the three branches of government that marks the modern state. However, widespread abandonment of the political wisdom underlying the separation of powers should also give us pause. The absence of meaningful limitations on the power of any one branch of government, even in only some parts of its governmental operations, may also prove to be indigestible in the long run.(fn7)
And, Chief Justice Peters concluded:
How can we make sure that the calls for efficiency in moving state court dockets and for constructive partnerships with other branches of state government do not seduce us away from the bedrock principle of providing justice for all?(fn8)
In posing this question, Chief Justice Peters invited scholarly response.
We believe that the question whether the assumption of multiple programs and executive functions by the Judicial Branch is simply an admirable example of interbranch cooperation and governmental efficiency, or represents a significant risk to public confidence in judicial impartiality, is worthy of consideration not only by academics, but also by those who are charged with doing justice, those responsible for creating the structures of justice, and those who represent parties in the judicial system. The purpose of this paper is to provoke such a discussion.
On the federal level, judicial independence and separation of powers were interwoven values at the heart of American democracy. Separation of powers was viewed, in part, as a vehicle to promote judicial independence and to protect the citizens in the enjoyment of their liberties. In the Federalist
No. 78, Alexander Hamilton argued for an independent judiciary and a separation of powers among three branches. In support of his perspective, Hamilton quoted Montesquieu: "[F]or I agree, that there is no liberty, if the power of judging be not separated from legislative and executive powers."(fn9) A more modern expression of the singular importance of judicial independence has been stated as follows:
The Due Process Clause of the Fifth and Fourteenth Amendments secure an individual's right to life, liberty and property. "None of the core values of due process . . . can be fulfilled without the participation of an independent adjudicator." In other words, the procedural safeguards of due process which attempt to assure accuracy and fair procedure - notice, hearing, counsel, transcript, and confrontation - are unattainable without a neutral and detached decision maker.(fn10)
We understand judicial independence to have two aspects: decisional independence, and institutional independence. Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court described individual or decisional judicial independence as embodying the concept that "individual judges decide cases fairly, impartially and according to the facts and the law, not according to whim, prejudice or fear, or the dictates of the legislature or executive, or the latest opinion poll."(fn11) In distinguishing decisional independence from branch independence, Chief Justice Abrahamson commented:
Institutional judicial independence, or branch independence, embodies the concept that the judiciary as a separate branch of government acts independently of the other two branches, without legislative or executive control. Institutional judicial independence includes the relationships among the branches of government and is closely related to the doctrine of separation of powers. Branch independence serves individual judicial independence.(fn12)
Perhaps combining both notions, Professor Peter M. Shane asserts that judicial independence is a normative ideal
- an institutional virtue - which is the capacity of courts to protect individual rights, to police structural limits on governmental power, and to decide individual disputes based solely on the applicable law and the factual records presented, without regard to intimidation or other impermissible influences.(fn13)
The great power of the court to decide individual rights and responsibilities is premised not only on the obligation of the court to adhere to the law, but is based also on the notion that judges decide individual cases and do not make policy. Thus, while the beam of judicial light is bright, its focus is narrow. When Alexis de Tocqueville toured the United States in the mid-nineteenth century, he marveled at the influence of the American judiciary, and he properly attributed its power to three principal characteristics: that judges decide only the contested cases brought to them; that the power of the judiciary is pronounced only in individual cases and not upon general principles; and that the power of the judiciary can be utilized only when it is called upon from an external cause.(fn14)
Although the independence of the judiciary was an essential feature of the federal constitution from its inception, a review of Connecticut's constitutional history demonstrates that, until the late nineteenth century, the judiciary was not recognized as an independent...
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