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The Imperial Judiciary
July 16, 2006

For nearly 200 years, the legislature and the judiciary in Connecticut have avoided an outright constitutional clash. The collision nearly came to Capitol Avenue last month.

The former chief justice of the Supreme Court refused to testify before a legislative committee investigating his attempt to deceive the committee. Forcing him to testify, he argued, would violate the principle of separation of powers.

The separation-of-powers doctrine that one branch of government should not exercise the function of another was not intended to make branches impervious to checks from other branches.

But Connecticut's judiciary has used the doctrine to develop what a University of Connecticut law professor has called "exclusive and supreme" power to make its own rules for proceedings, practices and more.

In 2003, the judiciary, invoking separation of powers, even refused to let state auditors look at judges' work-time records a routine check for all other state agencies. The judiciary eventually agreed to release the anonymous records of some, but not all, judges.

Rule-making powers were once shared by the General Assembly and the judiciary. But the Supreme Court, in the 1974 case State vs. Clemente, struck down a statute on court procedure on the grounds "that it infringed on the exclusive power of the judicial department," wrote University of Connecticut law professor Richard S. Kay in his seminal article, "The Rule-Making Authority and Separation of Powers in Connecticut." [1]

Mr. Kay wrote a year after Clemente: "The court has asserted a potential claim to exclusive authority, which at least includes control over matters of practice and procedure."

Connecticut's judiciary is not typical. In many other states, legislatures grant courts authority to make rules on procedures and practices; those rules are subject to review by the legislatures. Congress delegates rule-making to the Supreme Court, and its rules need the congressional nod. Connecticut's judiciary, however, can make its own rules in closed meetings. It may hold public hearings on proposed rules, but when the judges gather to vote, the public is barred.

Considering that Connecticut's judges serve virtually lifetime appointments, this is a disturbing custom that insulates the courts from accountability. "Separation of power," Mr. Kay wrote, "must be coupled with the requirement that all significant actions of any department undergo review by an independent department."

Judges must be protected from political meddling. Courts can't become politicized or they will lose trust. But this state's judiciary has walled itself off from reasonable checks on its workings.

For example, reporters discovered a few years ago that judges had for two decades labeled certain cases "Level 1" and super-sealed them so no public traces of those records could be found. Many cases involved influential people, including judges. The Courant and the Connecticut Law Tribune sued in federal court to find out such basic information as the names of litigants and of the judges who approved the sealings.

Judges voted (behind closed doors) to ban the practice. But they also voted to automatically seal all financial affidavits in divorce cases. They didn't ask for the legislature's blessing.

The courts can also define their own duties, and put themselves outside the public's reach. For example, anything to do with court administration falls under the state's Freedom of Information law and must be made public. But anything that is adjudicative concerning judges' decision-making is exempt from the FOI law. The Supreme Court recently decided that computerized court logs on pending criminal and motor vehicle cases including names and court dates fall into the latter category and are not public records. That's an absurd redefinition of a record-keeping duty that has nothing to do with rendering a decision.

The judiciary's so-called watchdog is actually a toothless lapdog that operates in secrecy. The Judicial Review Council was created by constitutional amendment to discipline judges, and it does include three lawyers and six laymen in addition to three judges. But The Courant reported in 1999 that in 17 years of operation, it had not removed a single judge from office; it had heard only six cases in public. In all those years, only 17 cases resulted in private reprimands; 826 were thrown out. In 2000, all 91 judicial misconduct complaints were dismissed.

The council is now investigating the wrongdoing of Justice William J. Sullivan the one who refused to testify before the legislature's Judiciary Committee. He was caught withholding a Supreme Court ruling from publication in March because he thought it might hurt the chances of a colleague to be chosen as his successor as chief justice. Will this be another mock trial?

To its credit, the judiciary has appointed a panel of judges, lawyers and laymen to look into court opacity. The governor appointed a similar panel. They'll find that the extraordinary, unchecked powers the robed fellowship has given itself are causing the very imbalances the Constitution's separation of powers clause meant to counteract.

The solution lies in making the judiciary subject to independent scrutiny.

Copyright 2006, The Hartford Courant

From: Hartford Courant [EDITORIAL], Hartford, Connecticut, July 16, 2006, p. C-2.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. 107 for a non-profit educational purpose.

  1. Richard S. Kay, "The Rule-Making Authority and Separation of Powers in Connecticut," 8, Connecticut Law Review, 1 (1974).


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