Friday, April 21, 2006

Zarella and the Opposition

Judge Peter Zarella, nominated by Governor Jodi Rell to be the next Chief Justice of Connecticut’s Supreme Court, begins his masterful disquisition on the separation of powers doctrine, printed in the Connecticut Bar Journal under the title “Judicial Independence at a Crossroad,” with a quote from Robert Frost: “Good fences make good neighbors.”

Frost, like Walt Whitman before him, first gorged himself on all things American before spewing out his poetic pearls; and with either poet it may truly be said that little from sea to shining sea was beyond their ken. Some of Frost’s poems are shockingly political; others, like “Good Fences Make Good Neighbors,” are allegories that outline the central truths of the American experience.

One has the same feeling reading Zarella’s “Judicial Independence at the Crossroad.” Everything American and familiar is here: Montesquieu on the laws; John Locke, the tutor of the founders who established our tri-partite form of government and thereby destroyed the possibility of tyranny; Hamilton on the independence of the judiciary; Jefferson and Alexis de Tocqueville; other political luminaries and former Chief Justice of Connecticut’s Supreme Court Ellen Ash Peters, who thought that the “functional blurring of the lines of executive, legislative and judicial power” might erode the authority of judges as independent judgers of fact.

Zarella begins his paper on the separation of powers doctrine with a worry expressed by Peters. The lady fretted that the independence of the judiciary would suffer from legislative and executive department accretions. The more the courts take on functions that overleap the bright constitutional boundary lines that separates judicial from legislative and executive responsibilities, the less independent and the more prone to conflicts of interest the courts must become.

These changes, Zarella warns, will affect the practice of the judiciary. They are not theoretical problems; they are sticks of cordite placed at the very cornerstone of judicial independence and threaten to politicize a department of government that, till now, has been respected by politicians, the media and the people, the final preservers and maintainers of constitutional government.

Citing Adams v. Rubinow, Zarella writes that “an
assignment by the General Assembly to the judiciary of a nonjudicial function will be unconstitutional under the following circumstances: (1) if the act requires a judge to perform a nonjudicial function in his or her judicial role; (2) if the assigned nonjudicial function unreasonably interferes with the performance of judicial duties; or (3) if the assigned function does not reasonably relate to the function of the judiciary.”

That passage was bound to catch the eyes of members of the General Assembly many of whom prefer that judges, rather than legislators or members of the executive department, should perform difficult functions that are legislative or executive by nature.

Under a constitutionally permissible apportionment of duties and responsibilities, Zarella writes, there is sound reason to believe that the following functions should not be administered by the judicial department: “the operation of juvenile detention facilities, the civil enforcement of child support obligations, victim advocacy, the operation of alternate incarceration centers, the administration of the alternative sanctions programs, and the transportation of incarcerated defendants between correctional centers and courthouses,” while “probation and bail … should be scrutinized to determine whether their retention within the Branch unreasonably interferes with its central purpose.”

The good fence that surrounds the judicial department is a combination of a constitutional grant of powers and a settled impression in the mind of the public that judges are fit to judge objectively and disinterestedly because they are not tainted by conflicts of interest.

In the last few decades the General Assembly has compromised both the separation of powers doctrine and the public’s impression of judicial disinterest by assigning to the judiciary functions and powers that belong elsewhere. It is only a matter of time before the judiciary is compromised by scandals involving serious conflicts of interest. When that happens, Zarella’s remarks will have served as sufficient warning.

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