Perspective: The Judicial Branch is Alive and Kicking

By 
Judge Vernon Daniels
Douglas County Separate Juvenile Court

Separation of Powers: Framework for Freedom. What a timely theme for Law Day 2018. It is equally important for all three branches of our government to take notice of the same. Now, much can be said and written on the subject and indeed this has been done. Readers have ample selections from which to read and to form their own opinions.

Pending independent review of writings on the topic, please allow me to offer a few things to ponder along the way. The foundation for the pondering is that the judiciary must remain independent of the legislative and executive branches of government and others who may seek resolutions of legal disputes on anything but our laws. Assuring this is the responsibility of the three branches of government and all citizens. All must remember that the majority is not always correct and/or acts in a constitutional manner.

It is my hope that whatever one’s viewpoint, after a fair analysis, we all reach the same conclusion. Separation of powers is indispensable to the orderly society that we seek to maintain. Political views aside, whenever one feels aggrieved by another member of society or a governmental body, the familiar step is to “lawyer up” and turn to the judiciary -that rather quiet branch of the government. A review of the legal proceedings pending and noted on the back pages of the Daily Record or a peek into a The Judicial Branch is Alive and Kicking courtroom provides adequate proof that the judicial branch is alive and kicking.

Whether at state or federal levels, the judicial branch of our government is coequal to the legislative and executive branches. Put another way, the judicial branch is neither inferior nor subservient to the legislative and executive branches. Just as the judiciary is not to perform or assume the constitutional authority conferred on the other branches, the legislative and executive branches are to remain in their respective constitutional lanes.

Judges in our courts are to impartially hear disputes, determine which fact or set of facts are entitled to legal weight, and then apply the law as our intellectual analysis dictates. Judges do not and should not have a horse in the race. However, this function is not done in isolation. Attorneys perform a critical role in the process.

Attorneys must develop the facts, articulate the issue(s) and clearly identify why their client is entitled “under the law” to the relief requested (and being ever so mindful that argument of counsel is not evidence). Failure at any of these stages may lead to an undesired relief and assertions that the readers of this article can freely insert. Most commonly, the judge is ill-equipped for the black robe.

Assuming that all have discharged the duties that we are all assigned, there must be the recognition that reasonable minds and people can and do disagree on the facts and how laws are to be applied. Indeed not all legislation enacted is crystal clear and it is the duty of the court to interpret the law using the judge’s best abilities. The judicial branch presumes until shown otherwise that our co- equal branches are acting in a manner consistent with their constitutional duties. The judicial branch is entitled to the same presumption. If change in the law is required, it is the providence of the legislative and executive branches to do so. The courts and judges specifically are not entitled to act as a legislative or executive officer any more than these latter branches can overreach into the judicial realm.

The branch of government where I proudly serve does not hold press conferences or engage in the political thicket. In short, beyond its written orders, the court can neither explain nor defend itself. This is unlike the two other branches of government. For this reason, once rulings are made, improper motives can be assigned by others to rulings. In such situations, the court through its judges must remain silent. Silence, however, must not be interpreted as weakness. Rather restraint for fear that impartiality would be compromised.

Just as the other branches of government require others to speak on their behalf, the judiciary requires the same consideration. The judiciary is not to be treated as a door mat or afterthought. Assuming that our judges are showing up, treating litigants fairly, and discharging our duties, let us not assign improper motives as the reason for an unfavorable outcome. As noted above, many factors independent of the judges can and do impact outcomes. Assuming that all of the moving parts in the fact finding process are operating “on all fours,” it bears repeating that “reasonable minds looking at the same set of facts and the law can and will differ”. This certainly does not mean that the judicial branch and its judges have failed. If there are disagreements, the appellant process exists.

When practicing, on behalf of my client, the desired outcome did not always obtain. (Lest the reader form the wrong impression, there were also favorable outcomes). My attempt at humor aside, I was careful not to rip apart the judge and/or the judicial branch of government. In order for any judicial decision to have any meaningful impact, the integrity of the court must not be destroyed. I knew that future clients would be returning to the same courts for an orderly resolution of a dispute. Baseless assignment of motives will render any, if not all, decisions suspect. If this happens, all three branches in our governmental arrangement will be in peril and materially compromised to the point of being unable to discharge their respective duties

So as we celebrate Law Day let us also remember the vital, and at times imperfect, role that all of the governmental branches and the separation of powers play en route to a more perfect society.

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