Opinion Testimony Concerning the Separation of Powers and the Judiciary, 0516 KSBJ, 85 J. Kan. Bar Assn 5, 38 (2016)

AuthorLumen Mulligan, J.

Opinion Testimony Concerning the Separation of Powers and the Judiciary

Vol. 85 J. Kan. Bar Assn 5, 38 (2016)

Kansas Bar Journal

May, 2016

Lumen Mulligan, J. [*]

Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Journal, or its Board of Editors. The material within this publication is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment. The Board of Editors does not independently research the content of submitted articles approved for publication.

I. Introduction

Separation of powers and the judiciary-or judicial independence, as it is often termed-"refers to the need for courts that are fair and impartial when reviewing cases and rendering decisions, . . . [which] requires freedom from outside influence or political intimidation."[1] As recognized by President Ronald Reagan, and scores upon scores of our nation's most preeminent leaders, "'[t]he independence of the courts from improper political influence is a sacred principle,. ... It must always be guarded.'"2

This cornerstone of our free society-judicial independence-has been the bedrock of Kansas' republican form of government since the state's founding.3 Indeed, separation of powers is one of the most important political principles upon which our entire nation was founded. As Thomas Paine ob-served: "No country can be called free which is governed by an absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people."4 George Washington forcefully advocated this same commitment to separation of powers in his famous Farewell Address. "Liberty itself will find in such a Government, with powers properly distributed and adjusted, its surest Guardian."5

President Reagan, Thomas Paine, and President Washington's message to us today is clear. The independence of the judiciary is not maintained for the benefit of the judges. It is for us-free citizens of a democratic republic governed under rule of law- for whom the courts stand open as fair and impartial tribunals.

II. The Vast Majority of the Time the Kansas Courts Act as Essential Implemented of Legislative Policy

To some, it may appear that over the past few years the Kansas courts and the Legislature are at odds on every issue. From this erroneous perspective, judicial independence could be misunderstood to mean that a judge is free to do as he or she sees fit in any situation. Nothing could be further from the truth, however. Indeed, the overwhelming bulk of the disputes resolved by our Kansas courts never reach the headlines, which distorts a true understanding of what our courts do. Some perspective, therefore, on the workload of our Kansas courts is helpful.

Kansas judges handled approximately 1,600 cases per judge in FY2015-6 Or. to look at it another way, there were about 392,000 judicial cases filed in FY2015 across the state of Kansas.7 Nearly 42 percent of these suits were traffic violations. Just about another 25 percent of cases filed in FY2015 were Chapter 61 Limited Actions, which are small-claims-court disputes. Another 10 percent were run-of-the-mill family-law matters such as divorces, alimony, child custody, etc. Non-traffic-related criminal cases-convictions and sentencing of crimes running the gamut from misdemeanor property crimes to felonies such as rape-comprise an additional 9 percent of the Kansas courts' caseload. Yet another 9 percent of the caseload from last year fell within lesser jurisdictions, such as municipal courts and the like; these are typically city- ordinance-violation complaints (noise violations and that type of thing). Finally, approximately 4 percent of cases filed in FY2015 were "civil" matters such as breach of contract suits, property claims and the like. Of course, each of these suits are of great importance to the parties involved; but of the approximately 392,000 cases filed last year, less than a handful of those suits made any ripples in the state-wide headlines.

This lack of newsworthiness is not surprising given that, in the vast majority of these 392,000 cases, the primary legal task for Kansas courts is to interpret statutory language. That is to say, in the overwhelming set of Kansas cases, the job for our Kansas courts is to apply the Kansas Legislature's directives as set out by statute. Indeed, when faced with this task, the Kansas courts universally hold that "[t]he most fundamental rule of statutory construction, is that the intent of the legislature governs."8 What this means is that when acting within constitutional bounds, the Kansas courts have always acknowledged that the Kansas Legislature reigns supreme in the making of Kansas law.9

Nevertheless, the independence of the judiciary remains crucial in these hundreds of thousands of run-of-the-mill cases. If citizens fear that the outcome of, say, their disputes over ownership of 300 acres of prime farm land hinges upon who has more political pull in the county or the state, then citizens will seek other, possibly more violent, avenues than the courts to solve their differences. Simply put, our free and democratic society would crumble, if these 392,000 annual disputes were not peacefully and orderly resolved under law.

The peaceful and orderly administration of this multitude of conflicts demands a system of dispute resolution that is fair, impartial, and just and that is perceived to be so by the citizenry. This is the case because every citizen who has his or her day in court must feel fairly treated-win or lose. Only courts that are insulated from outside intimidation and pressure can fairly administer justice and be perceived to be doing so by our fellow Kansans. As such, our family lives, our commercial transactions, our physical safety and our ability to pursue happiness is deeply rooted in the existence of independent courts. It is no surprise, then, that the leading economic studies find a strong causal link between economic growth and the existence of an independent judiciary that stands ready to resolve these many and various quarrels of our everyday personal and professional lives.10 Any attack upon the institution of independent courts sacrifices all these benefits.

III. Our History, Tradition and Law Compel the Conclusion that an Independent Judiciary Must Be Able to Strike Statutes in Order to Protect Constitutional Rights

In highlighting the Kansas courts' role in fairly deciding these thousands upon thousands of everyday statutory disputes, I do not mean to sweep the very small number of high-profile constitutional cases, in which the Kansas courts have struck down acts of the Kansas Legislature, under the rug. Quite to the contrary. As Chief Justice William Rehnquist, appointed to that post by President Reagan, recognized: "[An independent judiciary with the authority to declare laws passed by . . . [the legislature] unconstitutional .... is one of the crown jewels of our system of government today"11 In the throes of our fights here in Kansas concerning great issues of the day, one might question Chief Justice Rehnquist's view that judicial independence remains a crown jewel of our system of government. Reflecting upon our history, however, helps us understand the continuing importance, today, of the ability of an independent judiciary to find acts of the legislature unconstitutional.

Of all the evils listed in the Declaration of Independence, none was worse than the colonial judges' complete dependence upon the king. As Thomas Jefferson penned, "[King George III] has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries."12Although judges in England had life tenure protections and other hallmarks of judicial independence since at least 1700, colonial judges were under the direct political and financial thumb of the king. It is no surprise, then, that these judges ruled against the American colonists and in favor of the king and his agents in case after case.

Having experienced life under a system where judges bowed to political pressure, instead of standing up for the rights of the people under law, the founders were determined not to repeat that mistake. As such, James Madison stressed the importance of separation of powers. "An elective despotism was not the government we fought for; but one ... in which the powers of government should be so divided and balanced among the several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."13 Alexander Hamilton highlighted that in our constitutional republic "the legislative authority [is limited by the Constitution and that] .... [limitations of this kind can be preserved in practice no other way than t hrough the . . . courts . . ., whose duty it must be to declare all acts contrary to . . . the Constitution void. Without this, all the reservations of particular rights or privileges would...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT