Monday, March 3, 2008

Missouri’s judiciary is under attack, AGAIN

From an editorial by Skip Walther in the Columbia Tribune about unfair attacks on the judiciary by SOME Republicans:

I remember the agony of studying into the early-morning hours for that all-important civics exam in seventh grade. How many members in the House of Representatives? Who succeeds to the presidency if the president and vice president suddenly die? Which branch of government must overturn an unconstitutional law? Remember the answer to that question? It’s OK if you don’t; neither does the governor of Missouri.

Unfair, you say. OK, let’s see. Go back to 1820. That is the first year when our soon-to-be state adopted its first constitution. In that year, in that constitution, is found the idea that no law retrospective in its operation can be passed. Our state cannot pass a law that creates a disability for past actions. That makes sense, doesn’t it? It has made sense since 1820, which is the year before Missouri became a state. That has been the law without interruption.

Fast-forward to Feb. 19, 2008. The Missouri Supreme Court published an opinion on a law deemed to be retrospective. The law relates to sex offenders, who are not a popular group in any setting. In 2006, the Missouri General Assembly passed and our governor signed a law that prohibited sex offenders from living within 1,000 feet of a school. Unfortunately, the law applied to anyone who, since 1979, moved to a house after the school was built. In other words, even sex offenders with the same residence address for two decades must move if that address is close to a school. Failure to move is a felony. Our Supreme Court said the law violates the state constitutional provision in effect since 1820 that prohibits retrospective laws. In so deciding, our Supreme Court took a path that it must take, which is to say it followed the rule of law, regardless of the political consequences and regardless of public opinion. Our society demands nothing less.

Gov. Matt Blunt wasted no time in denouncing the Supreme Court. Mere hours after the opinion was published, our governor decried the "outrage that our state’s highest court has ruled in favor of sex offenders." I can honestly say I do not think I have ever read a more ignorant statement from an elected official, ever. Our Supreme Court did the job it has done since statehood, which is to elevate the constitution above any law passed by the legislature.

Those who paid attention in junior high civics remember the case of Marbury v. Madison (1803), in which the U.S. Supreme Court decided legislative enactments that violate the U.S. Constitution must be struck down by the judiciary. This is not rocket science. It is called separation of powers. The people adopt the Constitution. The legislature passes laws, and the executive enforces the laws. If a law violates the Constitution, the judiciary strikes down the law. So the answer to the seventh-grade civics exam question is: The judiciary is the branch of government that overturns unconstitutional laws.

In striking down the sex offender law, our Supreme Court gave life to the Missouri Constitution, which the citizens of this great state adopted long ago. Attacking the judiciary on this elementary example of constitutional law is a political ploy that Gov. Blunt is using once again in an attempt to re-energize a disinterested political base. He wants our judges to be subservient to politics instead of the law.

Unfortunately, this attempt is one of many. At this moment, members of the Missouri General Assembly are trying to close the courthouse doors to our citizens (HJR 41); attempts are under way to politicize the judiciary (HJR 49 and 52); and to give the legislature control over the courts and disrupt the flow of serious and intelligent lawyers seeking a judicial position (HJR 66 and SB 968). The legislators who are trying to pass these laws do not seem to understand the role judges play in the separation-of-powers scheme that has made our country the greatest on Earth.

This is not a minor event, nor is this an insignificant problem. Ignorance of the separation-of-powers concept is creating needless tension among the branches of government. This tension has led to the introduction of a number of bills that threaten the integrity of our courts. Until we, as citizens, tell the legislature to learn that its job is to pass laws that are consistent with the constitution and to respect the co-equal role the judiciary plays in our system of government, the agony of studying for a test will pale compared to the pain all of us will experience when our courts become dominated by politics.


whistleblower said...

Stephen, Stephen, Stephen….(while shaking my head in dismay)

I think it may be time for you to revisit that 7th grade civics class.

It is not the Separation of Powers that gives the court the power to invalidate an Act of the General Assembly. It is an exception to that separation that gives the Court that power.

At a federal level, it was the very Legislative Act addressed in Marbury v. Madison, in which a clause was deemed to be unconstitutional, that specifically granted the U.S. Supreme Court the power to determine the constitutionality of an Act of Legislature. The Judiciary Act of 1789, Section 25, for the first time, specifically granted the Supreme Court with the power of judicial review.

In Missouri, it is not the Separation of Powers Doctrine that grants the Court with the power of Judicial Review either. Judicial Review is an exception to the separation of powers.

Article II, Section 1 of the Missouri Constitution states;

”The powers of government shall be divided into three distinct departments--the legislative, executive and judicial--each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.

That little part about except in the instances in this constitution expressly directed or permitted is very important. Missouri does have an exception that grants this power to the Missouri Supreme Court. Article V, Section 3.

"The supreme court shall have exclusive appellate jurisdiction in all cases involving the validity of a treaty or statute of the United States, or of a statute or provision of the constitution of this state, the construction of the revenue laws of this state, the title to any state office and in all cases where the punishment imposed is death…"

I think the problem we have is that the Missouri Supreme Court has failed to remain consistent when it interprets retroactive laws.

In SC85652, Jan. 2005, Judge Teitelman, the same judge that authored the Feb. 15th opinion, determined that; “The registration statutes do apply retroactively to conduct that R.W. committed before the statutes took effect, but they predominantly are civil and regulatory in nature”. –Therefore not unconstitutional.

This standard has been widely accepted in courts across the nation, including the U.S. Supreme Court. Ex post facto laws has been determined on the basis of whether the legislative intent of the law is civil and regulatory in nature, or if it is intended to be punitive. While many laws that provide regulation to enhance public safety do have punitive consequences for failure to follow them, the intent is not punitive. Those laws have been challenged many times, and have been determined to be constitutional.

In Smith v. Doe, cited in SC85652, the Court utilized five factors for assessing whether a statute constitutes a punishment under the Ex Post Facto Clause. Those factors should have been used by the court to determine the recent R.L. v. DOC decision. The factors are, whether the move requirements: have been regarded in our history and traditions as punishment; promote the traditional aims of punishment; impose an affirmative disability or restraint; have a rational connection to a non-punitive purpose; or are excessive with respect to the purpose.

I agree with the Court’s decision in this case. The cost of moving is an undue burden that can easily be viewed as punitive. The court should have simply noted that the cost of the move presented what should be seen as excessive with respect to purpose. Though the law does not require the offender to sell their property, it does require them to move. They can rent their house to a non-offender, but may incur the additional expense of the move itself. If the legislature would have provided funding to assist with the move, the court may have had a different view.

As for you claims about the Resolutions and Bills currently being reviewed by our Legislature, you present nothing but blanket claims as a clear attempts to use fear to influence the public.

Why don’t you tell your readers the truth?

The voters never adopted a plan for judicial selection that permitted a committee dominated by the judiciary to select their judges. When the non-partisan plan was adopted in 1940, the Missouri Bar Association was a benevolent society outside of the control of the Supreme Court. It wasn’t until 4 years after the “plan” was adopted that the Missouri Supreme Court made the Missouri Bar Association a subcommittee of the Judiciary (The Missouri Supreme Court). That significantly changed the dynamics of the non-partisan plan, and was done without voter approval.

In 1976, a Bar dominated Senate pushed thru SJR 24. This Resolution presented the citizens of Missouri with an oligarchy of non-elected committee members that then had the authority to place a judge on the bench without the approval of any elected representative of the people. Did the voters know that was what they were voting for? –I seriously doubt it!

The 1976 ballot language for Constitutional Amendment #6 presented the voters with;
”Changes authority and jurisdiction of Supreme Court, Courts of Appeal, and circuit courts; abolishes all other courts; creates associate circuit judges; amends non-partisan plan; amends judges retirement provisions; abolishes constables and St. Louis City prosecuting attorney; municipal courts become divisions of circuit courts.”

The complete text of the proposed amendment was only published in relatively small newspapers that catered to the Bar.

The current method of selection, and lack of elected representative accountability, came about as a sham perpetrated upon the citizens of Missouri. Attacks on the current system started in 1980, and have continued, and rightly so. Any attempt by the Missouri Bar Association, or any of its members, to interfere with giving the voters a chance to decide for themselves if they really want an oligarchy, or if they really want to have members of the judiciary picking their own judges, should be viewed as an attempt to perpetuate this sham.

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