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A few years ago, while attending the National Judicial College, I met a judge from another state who was lamenting the fact that he was running for reelection and, upon
returning home, had to raise a great deal of money. His jurisdiction covered three rural counties. I asked him how much money he needed to raise, and he replied, "Well over a hundred
thousand dollars." I asked him where in the world he would get that amount of money, and he replied, "Well, principally from the local banks, farm implement dealers, and large
farmers." I then asked what happens when one of those appeared in his courtroom as a party. He replied, "Well, it makes it pretty tough." I wondered at the time what kind
of justice was served in that jurisdiction when the judge, obligated and sworn to uphold and apply the law, was subject to such pressure.
On May 1 of each year, our nation pauses
to give recognition to the foundation stone of our political, economic, and social structure - the rule of law. Contracts are entered into with knowledge that they will be enforced as
written. Residential property is purchased with the assurance that in thirty years, upon making the final payment, the buyer will receive the document finalizing ownership. A person
accused of a crime has the assurance that individual constitutional rights will be protected by a judge who will apply the rule of law. Every facet of our way of life is dependent, to
some degree, upon the rule of law.
Of all the lessons I have learned in my many years of legal service, none is more important than that the preservation of the rule of law is
dependent upon an independent judiciary secure in its constitutional position and prerogatives. It is a convenient coincidence that at the time of my observations here we also mark the
200th anniversary of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the United States Supreme Court's first landmark decision marking the ascendency of the judicial branch to
its proper place alongside its coequal branches in our constitutional constellation, establishing that "[i]t is emphatically the province and duty of the judicial department to say
what the law is." Id. at 177.
My observations, in addition to being sparked by the celebration of the anniversary of the United States Supreme Court's decision in Marbury, are
a result of reflection on my many years as a trial lawyer and a jurist and, at least in some part, are motivated by what appears to be an increasing misunderstanding in regard to the
judiciary by some members of the Legislature.
Perhaps the most important - and unfortunately in some quarters also the most misapprehended - concept in our constitutional system is
the doctrine of the separation of powers and the necessity of an independent judiciary beholden to no other branch of government. This concept of an independent, neutral, and coequal
judicial branch was one of the fundamental principles embraced by the founding fathers of our federal system. Alexander Hamilton aptly noted during the period of debate on the
ratification of the federal constitution that "there is no liberty if the power of judging be not separated from the legislative and executive powers." The Federalist No. 78
(Alexander Hamilton).
In fact, that judges were accountable to the king and not the rule of law was of such great concern to the founders as to be included as a grievance in the
Declaration of Independence itself: "[T]he present King of Great-Britain . . . has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and
Payment of their Salaries." In crafting the republic's constitutional framework, the founders recognized that the "accumulation of all powers, legislative, executive, and
judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The
Federalist No. 47 (James Madison).
The framers of our federal constitutional system therefore designed the judicial branch "to stand independent of the Executive and
Legislature - to maintain the checks and balances of the constitutional structure, and also to guarantee that the process of adjudication itself remained impartial." Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 58 (1982).
The United States Supreme Court summarized and reaffirmed the significance of this feature of the framers' constitutional design when it stated:
"A Judiciary free from control by the Executive and Legislature is essential if there is a right to have claims decided by judges who are free from potential
domination by other branches of government."
In sum, our Constitution unambiguously enunciates a fundamental principle - that the "judicial Power of the United States" must be reposed in an independent
Judiciary. It commands that the independence of the Judiciary be jealously guarded, and it provides clear institutional protections for that independence.
Id. at 58-59 (quoting United States v. Will, 449 U.S. 200, 217-18 (1980)).
In fact, an independent judiciary was deemed so important that our federal
constitution provided that federal judges be appointed for life. Without an independent judiciary, unbeholden to and unswayed by the other branches of government, the people would have no
means of preserving the fundamental law laid down in the constitution that they established or of defending against legislative encroachments on the fundamental rights reserved to the
people in that constitution.
No responsibility is greater than where the judiciary is asked to review the constitutionality of a statute. The role of the judicial branch is to
neutrally and impartially determine whether the legislative enactment is consistent with the most fundamental of all laws, the constitution. This is the role envisioned by the federal
framers for the independent judicial branch:
If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the
other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not other
wise to be supposed, that the Constitution could intend the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose,
that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their
authority. The interpretation of the laws is the proper and peculiar province of the courts.
The Federalist No. 78 (Alexander Hamilton).
These same concepts and principles have been incorporated into the Utah Constitution to accomplish the same ends. Many of
the provisions of the judicial article of the Utah Constitution parallel the provisions of article III of the federal constitution. In some respects, the provisions of the Utah
Constitution are more specific than its federal counterpart. In any event, despite any differences in the language employed in the two constitutions, the fundamental, foundational
principle of the separation of powers, with independence of the judiciary, is held in common and in the highest esteem at all levels of our government.
In establishing the Utah
State Constitution, the people of the state of Utah made it perfectly clear that they understood the principle of popular sovereignty. The preamble to the Constitution states:
[W]e, the people of Utah, in order to secure and perpetuate the principles of free government, do ordain and establish this CONSTITUTION.
Then, significantly, in article I, section 2 of the Constitution, they stated:
All political power is inherent in the people; and all free governments are founded on their authority for their equal protection and benefit, and they have the right to
alter or reform their government as the public welfare may require.
In establishing our Constitution, the people of the state of Utah provided for a separation of powers between three distinct departments, the legislative, the executive, and
the judicial, and prohibited persons in one department from exercising the powers of another. Article V, section 1 states:
The powers of the government of the state of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person
charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein
expressly directed or permitted.
The legislative power of the state was vested in the Legislature and in the people of the state by way of initiative. This power allows for the establishment of laws
protecting and governing our society. Utah Const. art. VI, ¤ 1.
The executive power of the state was vested in the Governor, who is obligated to see that the laws are faithfully
executed. Utah Const. art. VII, ¤ 5.
The judicial power of the state was vested in the Supreme Court, district courts, and other courts that may be established, with the clear
proviso that no law could be declared unconstitutional by the Supreme Court, except by a concurrence of a majority of that court. Utah Const. art. VIII, ¤ 2.
An independent
judiciary, free from control or pressure by the executive or legislature, is essential and fundamental to our system of government inasmuch as the state, its agencies, and officers are
frequently named parties in lawsuits in the courts. The state, its agencies, or its officers named in their official capacities were parties to lawsuits in which the Utah Supreme Court
rendered opinions in fifteen cases in 2001 and fifteen cases in 2002. These cases involved the State Tax Commission, State Department of Health, University of Utah Medical Center,
Lieutenant Governor, Governor, Board of Oil and Gas, Department of Natural Resources, Department of Environmental Quality, Department of Transportation, and Public Service Commission.
These numbers do not include the numerous criminal cases in which the state is generally a party. It is only through the courts that the people can seek redress for alleged wrongs caused
by their government. The people must be able to bring legal action against their government before a judge who is independent of that government.
While the judiciary must be
independent from the other branches of government, the initial selection of those who will serve as judges directly involves these branches. The executive branch is involved inasmuch as
the Constitution provides that the Governor is to appoint a new judge from a number of names submitted by an independent nominating committee. The Legislature is involved inasmuch as the
Constitution provides that the Governor's appointment must be approved by the State Senate.
This raises the question of how to create and preserve an independent judiciary when the
very members of the judiciary are appointed by the Governor with approval of the Senate. The solution is found in the State Constitution. Article VIII, section 8 provides for the
appointment of new judges by the Governor from a list of names submitted by the judicial nominating commission, a constitutional body of which no member can be a legislator nor appointed
by the Legislature. The Governor's selection is subject to approval by the State Senate. The selection of a judge is to be based upon fitness for office, not upon politics, and
thereafter, the judge is subject only to the people in retention elections. Article VIII, section 8 states:
Selection of judges shall be based solely upon consideration of fitness for office without regard to any partisan political considerations.
Partisan politics, therefore, is not to be given consideration. In other words, it does not matter what political party or philosophy an applicant may embrace, or what his or
her opinion is about political issues, including abortion, guns in schools, or nuclear waste storage. The constitution clearly states that such is to be disregarded in selecting judges.
One might wonder why the Constitution would have such a prohibition. The answer is quite simple. What makes the office of judge unique is that it requires a judge to be able and willing
to set aside personal opinions and beliefs, political, social, or otherwise, in interpreting and applying the law. It requires legal decisions to be based upon the law as it is, not upon
the law as the judge believes it ought to be. The Code of Judicial Conduct requires a judge to "apply the law" and "not be swayed by partisan interests, public clamor, or
fear of criticism." Canon 3B. It also prohibits a candidate for selection to a judicial office from "making promises or pledges of conduct in office other than faithful,
impartial, and diligent performance of judicial duties," or "taking a public position on a non-partisan political issue which would jeopardize the confidence of the public in
the impartiality of the judicial system." Like most people, judges may have strong political opinions on every subject, but they must put such opinions aside and apply the law. These
are the qualities that make a person fit for the office of judge. These are the qualities that should be meticulously examined by the Governor in selecting a new judge, and by the Senate
in its confirmation proceedings.
When nominees abide by the Code of Judicial Conduct and refuse to answer pointedly political questions during the confirmation process, they are
not doing so to spite or circumvent their legislative inquisitors. The rules of judicial ethics regarding answering such questions or taking such political stands are designed to preserve
the impartiality of the judges and the courts.
It is vitally important to realize and remain cognizant of the fact that the restraint imposed upon sitting judges and judicial
nominees by the rules of judicial ethics is aimed not at stymying the confirmation process or the Legislature's constitutional role, but at preserving the independence and impartiality of
the judicial branch by maintaining a focus on the rule of law instead of the whim of politics.
By demanding that judicial nominees answer specific questions about their political
views and by conditioning their confirmation to the bench on their passing such political litmus tests, politics is unduly injected into the judicial branch, which was designed to be
nonpolitical. It erodes the separation between the two branches, rendering the judicial branch the mere handmaiden of the Legislature, as judicial nominees are judged not for their
capabilities as scholars and jurists or their willingness to follow the law regardless of personal political, religious, or social views, but instead by adherence to party platform.
The intended purpose and goal of the confirmation process is to ensure that the executive's appointments to the bench are fit for the office. Fitness for office certainly includes
legal knowledge, ability, experience, integrity, judicial temperament, and the ability and willingness to apply the law regardless of personal political philosophy. It is the
Legislature's constitutional prerogative through the confirmation process to make its own assessment as to whether the executive's appointment meets these criteria.
Once the
confirmation process has been completed and the new judge has taken office, the roles of the Legislature and the Governor end. Any future evaluation will be done by the electorate in
nonpartisan retention elections. Article VIII, section 9 states: "[E]ach supreme court justice every tenth year, and each judge of other courts of record every sixth year, shall be
subject to an unopposed retention election . . . on a nonpartisan ballot . . . ." It should be kept in mind, however, that while the judiciary is independent, it is not free to
interpret and apply law in any manner it wishes. It, too, is subject to the rule of law. It should also be noted that judges are subject to disciplinary measures involving specified
misconduct as set forth in article VIII, section 13 and article VI, section 19.
The message is clear. Our State Constitution, which mandates that judges be selected solely upon the
basis of fitness for office without regard to any partisan political considerations, is consistent with the basic message of the founding fathers of this country and the words of
Alexander Hamilton that "there is no liberty if the power of judging be not separated from the legislative and executive powers." To state again the words of the United States
Supreme Court: "A judiciary free from control by the Executive and Legislature is essential if there is a right to have claims decided by judges who are free from potential
domination by the other branches of government."
If we are to maintain the autonomous, independent, and impartial judicial branch that is so essential to our system of
government, we, as members of the bar and bench, must be ready to diligently and consistently invoke these fundamental principles and defend our judicial institutions and prerogatives. It
would be a sad day, indeed, if a Utah judge, when asked the question "what happens when the state, its agencies, or officers appear as a party in your courtroom?" had to reply,
"Well, it makes it pretty tough."
EDITOR'S NOTE: Justice Leonard H. Russon retires from the Utah Supreme Court this month, following many years of service to the citizens of this state. The Utah Bar Journal congratulates Justice Russon on his long and distinguished career and wishes him good health and contentment in his retirement. We are pleased that he was willing to share these parting observations with our readers, and take this opportunity to highlight some of his accomplishments.
Justice Russon is the only Utahn who has been a member of the District Court, the Court of Appeals, and the Supreme Court. Each appointment was made by a different governor. He
was appointed to the Third District Court in 1984 by Governor Scott M. Matheson, to the Utah Court of Appeals in 1991 by Governor Norman H. Bangerter, and to the Utah Supreme Court in
1994 by Governor Michael O. Leavitt. At the time of his appointment to the Third District Court, he was the senior partner of the law firm of Hanson, Russon & Dunn.
Justice
Russon has served in numerous positions within the state court system, including Associate Chief Justice of the Supreme Court, Associate Presiding Judge of the Utah Court of Appeals,
Chairman of the Board of District Court Judges, Chairman of the Judicial Conduct Commission, member of the Supreme Court Advisory Committee on the Code of Professional Conduct, member of
the Judicial Performance Evaluation Committee, and member of the Utah Judicial Council.
Justice Russon was raised and educated in Salt Lake City. He served in the United States
Navy during the Korean War (1952-54), as a radioman on a destroyer, the USS Cassin Young. He was a church representative in Great Britain from 1956 to 1958. He graduated from the
University of Utah, with a Bachelor of Science Degree in 1959, and from the University's College of Law, with a Juris Doctor in 1962. Between 1962 and 1984, he practiced law as a trial
lawyer in California and Utah. He is a member of the bar associations of both states. He was admitted to practice before the United States Supreme Court in 1977. He was inducted as a
Fellow into the American College of Trial Lawyers at Chicago, Illinois, in 1984.
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