The separation of powers battle between the legislature and the judiciary moved ahead Monday as the legislature’s General Administration and Elections Committee voted 8 to 4 in favor of referring SJ 32 to the Judiciary Committee where another public hearing on the bill is expected to be held soon.
Three Republicans and Judiciary Committee Co-Chairman Michael Lawlor, D-East Haven, voted against the bill that calls for a constitutional amendment to give the rule-making power of the judiciary to the legislature. Click here for the vote tally.
Rep. Thomas Drew, D-Fairfield, said Monday it’s the legislature’s job to make sure the judicial branch is acting with sufficient integrity and it’s clear from their actions this past year “they have not.”
The separation of powers battle was prompted last year by a Supreme Court decision which found the court docket information is not subject to the state’s Freedom of Information laws. This decision known as GA-7 is the same court case that former Chief Justice William ‘Tocco’ Sullivan withheld from the public to help his friend, Justice Peter Zarella, succeed him as chief justice.
In his testimony to the GAE Committee Friday Acting Supreme Court Chief Justice David Borden said he was against the legislation.
“The judicial branch strongly opposes this resolution, which would transfer from the judiciary to the legislature the power to make the procedural rules that govern court practice and procedure in the courts, including their openness and accountability to the public,” he said. “We believe that the rule-making power should remain within the province of the judiciary, where it has been for nearly 200 years, since 1818 when our first Constitution created a separate and independent judicial department of government.”
Under Borden the Freedom of Information GA-7 decision that prompted this separation of power debate is not being upheld, rather criminal docket information is now being put online daily.
“It has often and rightly been said that a constitutional amendment should be a remedy of last resort. I strongly urge to you that we are nowhere near that point of last resort. Recent issues, such as the super-sealing of cases and the delayed release of the GA-7 case, were not the result of any rules. And they have been appropriately addressed and resolved,” Borden said.
But others like Superior Court Judge Dale W. Radcliffe said Friday that “Amending the Connecticut Constitution to designate rule making as a legislative function is necessary and long overdue.”
“This proposed amendment would restore the historic relationship between the legislative and judicial branches of state government—a relationship that was dramatically transformed when in 1974 the Connecticut Supreme Court decided State vs. Clemente (166 Conn. 501). Since that 3-2 decision, the Judicial Department has been permitted, perhaps due to abdication in some cases, to usurp the historic prerogatives of the General Assembly. A fundamental principle of our democracy is that lawmaking is inherently a legislative function. As such, it is the unique province of the General Assembly, not the courts,” Radcliffe said.
He said, “the recent upheaval at the highest level of Connecticut’s Judicial Department, including an attempt to deny information to an equal branch of government exercising its powers of advice and consent, has highlighted the need for the proposed constitutional amendment, as well as changes in the applicable statutes.”