The Connecticut Bar Association is having a panic attack. And in the process it’s spitting and spewing all sorts of blather about a proposed constitutional amendment to clarify who has ultimate authority over the procedural aspects of Connecticut’s judicial branch.
On April 9, the General Assembly’s Judiciary Committee is holding a hearing on the Senate Joint Resolution 32, a “Resolution proposing an amendment to the state constitution concerning the practices and procedures of the courts.” The bill previously won the endorsement of the Government Administration and Elections committee. But the lawyer-heavy Judiciary Committee has consistently refused to even hold a public hearing on the merits of the proposal.
But scandal and hubris have a funny way of changing people’s minds. So for the first time, this bill will get an airing in the committee most needed to move the proposal forward.
What has the CBA’s knickers in a twist? It doesn’t want anyone – in particular anyone accountable to the public – to have any say over the judicial branch. So it is resorting to lying about the nature of the proposed amendment.
Connecticut’s constitution is wonderfully succinct when it comes to judicial powers. It says simply that “The judicial power of the state shall be vested in a supreme court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.”
Since the state’s founding, that “by law” part has been pretty much understood to mean exactly what it says: that the legislature sets the procedural boundaries for the courts. Indeed, the wording is the same as in the U.S. Constitution. Federal courts may promulgate rules, but those must be approved by Congress.
Over the past 30 years, though, Connecticut’s courts have issued a series of rulings aggregating power to the judiciary and redefining the word “law” to mean law-in-theory rather than law-in-statute. The bar association claims that any re-assertion of authority over court rules is a violation of separation of powers – even though the bar doesn’t seem to have any problems with the federal courts.
Because the courts have continually claimed that they can interpret statutes any way they want, the only way to stop their power grab is to modify the state constitution in unambiguous terms. To the existing language, the proposed amendment would simply add this: “and the practices and procedures of the courts, including their openness and accountability to the public, shall be established by statute.”
None of this affects the court’s ability or independence in its core function of trying cases. The powers of the court remain safeguarded. But just as the legislature makes rules and procedures for agencies under the executive branch, so too does it have the power to set standards for the administration of the courts.
In the last few years, the courts have refused to hand over docket information to a commercial enterprise – asserting that it had no obligation under the law to make docket information public. The court system has been engulfed in scandal after scandal, from secret cases for influential people, to attempts to rig the nomination of the next chief justice.
The judicial branch didn’t address its problems on its own, it hid them until the press exposed the problems. Without a constitutional amendment the public can never rest easy that this major branch of government hasn’t again gone awry. The bar association is wrong, but – as every lawyer is an officer of the court – it’s no surprise that the CBA is circling the wagons to protect those who should be open and accountable to the public.
