Wisconsin Lawyer: Wisconsin Lawyer August 1997: Is Our Judiciary a Co-Equal Branch of Government?:

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August 01, 1997

Wisconsin Lawyer August 1997: Is Our Judiciary a Co-Equal Branch of Government?

Is Our Judiciary a Co-Equal Branch of Government?

Will the judiciary ever get past the need to remind the public and the other two branches of government that it, too, is a co-equal branch? Perhaps not. But a State Bar commission came up with ideas on how to better get across the message.

By Dianne Molvig

On April 2, 1874, the state superintendent of public property, who managed the capitol building, fired the Wisconsin Supreme Court's janitor and hired a replacement. When the justices asked the superintendent to reverse his decision in order to keep the former employee, the superintendent refused.

The justices chose to take official action. Within two weeks they had issued a decision, reading in part:

"It is a power inherent in every court of record, and especially courts of last resort, to appoint such assistants . As a power judicial and not executive or legislative in its nature, and one lodged in a co-ordinate branch of the government separated and independent in its sphere of action from the other branches, it seems to be under the protection of the Constitution, and therefore a power which cannot be taken from the court, and given to either the executive or legislative departments, or to any officer of either of those departments." ¹

Thus, the court got to keep its janitor. This case may seem trivial by today's standards. But it wasn't the last time the court had to resist attempts by other government branches to usurp judicial authority. More recent examples include:

Several years ago the Wisconsin Legislature passed a law prohibiting judges from appointing lawyers to represent indigent parents at risk of losing custody of their children in CHIPS proceedings. The Wisconsin Supreme Court ruled that the law violated the federal and state constitutions. ²
In 1987 the Legislature took upon itself the authority to require and regulate training for lawyers serving as guardians ad litem in family court actions. The supreme court ruled against the law, stating that it interfered with the court's superintending powers and violated the separation of powers doctrine. ³

Not all reminders of the judicial branch's independence, however, have come in the form of formal court decisions. When the Department of Administration (DOA) wanted to take over the state courts' computer system a couple of years ago, the supreme court had to point out to DOA, an executive agency, that such a move would be a threat to separation of powers. Therefore, the court graciously but firmly refused to comply. Former Wisconsin Supreme Court Chief Justice Nathan Heffernan discussed the matter in a summer 1995 interview in The Verdict, noting, "I think that the main thing that the courts have to be worried about is that they not be treated just as another bureaucracy . and that under the Constitution they are independent of both the legislature and the governor."

Heffernan's words ring back to what we all heard in grade school civics lessons: Our government has three branches, each independent and equal in stature to the others. History shows that concept needs to be continually refreshed not only in the minds of the general public but in the minds of members of the legislative and executive branches. Toward that end, in 1995 State Bar immediate past president David Saichek established the Commission on the Judiciary as a Co-equal Branch of Government, which recently issued its report and recommendations.

"My reason for appointing the commission," Saichek notes, "is that I believe the people will be better served by three branches of government that understand each other's functions and communicate with each other in a friendly, cooperative way. I also had the perception that in some cases the other branches have treated the courts like an agency of state government. It's not an agency; it's a co-equal branch of government."

"I think there's concern as to just where the judiciary stands," agrees Wisconsin Supreme Court Justice Jon Wilcox, who cochaired the commission with Saichek. "But this [commission study] also was an opportunity to look inward at the operations of the judiciary, its relations with the other branches and how well it is serving the public."

A fresh look

The 33-member commission had two purposes:

1) to research the historical and current framework of the separation of powers doctrine; and

2) to explore ways the courts can properly maintain their independence while cooperating with other branches of government, toward the goal of serving Wisconsin citizens with basic good government.

"What we tried to do," Saichek explains, "was take a fresh look at the separation of powers doctrine as it exists today, because certain changes have been made in that doctrine which now make cooperation among the three branches of government a more realistic goal. I think that's an advance in jurisprudence, in which Wisconsin is on the leading edge."

At the outset, the commission realized its work had to have solid footing in legal and constitutional history. Therefore, the commission set up a research subcommittee, whose task was to create "the platform from which the other subcommittees made their recommendations," says Milwaukee attorney Walter Kelly, who cochaired the research subcommittee with Gary Sherman, Port Wing attorney and State Bar past president.

The research subcommittee's section of the report drives home two key points about the separation of powers doctrine. First, the doctrine exists not to protect governmental turf, but to safeguard individual liberty by diffusing power among three branches, rather than concentrating it in one. Second, the Wisconsin Constitution is even more specific in spelling out judicial powers than is the U.S. Constitution. "Wisconsin's is a strong judicial branch constitution," Kelly points out, "and that has been a developmental and evolutionary process over the years."

That said, history also shows that the judiciary has on occasion deferred to the other government branches, in the interests of cooperation between branches and better government for the state's citizens. "There's no effort by the judiciary in this state," Kelly says, "to drive the other branches to the wall. Sometimes the court will choose, even in an area where it has considerable power, to defer to either the legislative or the executive branch or both. I would call that a form of interbranch diplomacy."

"The trick," Kelly adds, "is to have that kind of diplomacy without surrendering ultimate bottom-line power. For all the talk about cooperation among branches, the final word on separation of powers issues in Wisconsin clearly remains with the supreme court."

With such concepts as a framework, the other commission subcommittees set to the task of drawing up recommendations in four areas: interbranch relations, court-community collaboration, court accountability, and funding and allocation of resources.

Interbranch relations

A certain tension between branches of government perhaps always will exist. In fact, it may be a crucial ingredient in a system based upon three branches keeping one another in check, assuring no one branch exceeds or misuses its powers. Yet, cordiality and respect must exist alongside interbranch scrutiny, or all of government suffers as ultimately do its citizens.

The interbranch subcommittee looked at ways to "build the trust level," says Regina Frank-Reece, commission member and director of the Office of Management and Budget in the Division of Juvenile Corrections. "I think we all realize that our work is interdependent, and that we can have better government if we learn how to work together better."

Frank-Reece describes her subcommittee's recommendations as "very commonsense sorts of things." But she adds, "in my experience - which has always been in the executive branch - these just don't happen. One of the challenges is: How do we improve communications?"

The subcommittee came up with the following possibilities:

1) Formal communications should be developed among the three branches and all levels of government to foster better understanding of their functions, needs and problems, including:

presentation of the annual state of the judiciary speech directly to the legislative and executive branches;
orientation programs for new legislators and new judges that address the roles and responsibilities of each other's branch;
materials and information on the judicial branch to be included in orientation programs for new legislators and in interbranch conferences;
materials and information on the legislative branch to be included in orientation programs for new judges and in interbranch conferences;
expansion of the Judicial Ride-Along Program;
interbranch conferences; and
joint study committees and task forces.

Although diverse, the above suggestions all aim toward the same result: improved understanding among the branches of what other branches do - and why and how they do it.

Of these recommendations, one of the simplest to implement may be the first on the list. Currently, the supreme court chief justice delivers the "state of the judiciary" speech to judicial colleagues at the annual Judicial Conference. The impact may be comparable to "preaching to the choir."

"As it is now the [state of the judiciary] speech is printed and circulated to members of the other branches," notes Linda Clifford, Madison attorney and chair of the interbranch relations subcommittee. "But there's nothing like being in the same room together and listening to the speech. That would give it a higher profile than it gets now."

Sharing information is an element running through all the above recommendations. Another common thread is facilitating personal connection to promote communication among branches. "All branches are operated by people," Clifford says. "You can have tools to make communication easier, or more routine or more expected. But it's people who have to carry that out and do it with sincerity."

2) Informal communications, such as regular meetings and discussion groups for branch leaders at the state, county and local levels, should be encouraged and fostered to improve understanding of the functions, needs and problems of each branch.

In addition to formal meetings and conferences, the subcommittee cites the value of informal gatherings of members of different government branches. "It can be as informal as having breakfast once a month," Clifford explains, "without having any agenda - just talking about ideas and getting to know people. That keeps the lines of communication open. And it humanizes the issues."

Supreme Court Chief Justice Shirley Abrahamson already has initiated various efforts to informally bring together people from different branches. Likewise, circuit court judges in some counties have made efforts to build friendly relationships with their local government officials. Still, some judges are wary, fearing that efforts to reach out to other branches may be perceived as playing politics.

While the commission recognizes that as a valid concern, it also emphasizes that this concern should not preclude advocating for the judiciary. What's more, if friendly interaction is ongoing, it's far less likely to be construed as politically motivated. "If we can establish formal and informal relationships over time," Frank-Reece points out, "and not just during the biennial budget process, then everybody will be better served. It makes sense that if people are talking to each other on a more frequent basis, there will be better understanding of the judicial branch's needs and perspective."

3) Institutional mechanisms, such as judicial checklists, judicial impact statements and joint reports, should be developed cooperatively by the three branches of government to improve the process of legislative drafting and to measure and report on the effect of legislation on the court system.

The mechanisms mentioned here are tools for preventing problems. Judicial checklists could help legislators draft a bill in a way that averts legal conflicts down the road. Judicial impact statements, on the other hand, come along later in the process. For instance, if the Legislature passes a new "get tough on crime" law, a judicial impact statement can assess: What will this law do to the courts? Will it create new burdens the courts won't have the resources to handle? "We'd like to give the Legislature more opportunity to think that through," Clifford points out. "Whether they choose to address that remains up to them. This recommendation just does half the job."

Court-community collaboration

Better understanding of the judiciary among those in government is but one piece of the puzzle. Equally important, the commission emphasizes, is public awareness of the judicial branch. The workings of the judiciary are mostly outside the public spotlight, except for certain notorious trials. The upshot: The public's perception of the courts often is either nonexistent or grossly skewed.

Court-community collaboration works both ways: It's vital to an accurate public view of the judiciary and to the courts truly serving their "customers," the citizens. "Lawyers are a critical part of this process," says Mary Lynne Donohue, Sheboygan attorney and chair of the court-community collaboration subcommittee. "The community can't do it alone; the judiciary can't do it alone. Lawyers, out of honor for their profession, are an important part of implementing these recommendations." The recommendations include:

1) The State Bar of Wisconsin should support the Wisconsin Supreme Court's community involvement projects, including its "Volunteers in the Courts" project.

Noting Chief Justice Abrahamson's proactive stance in this area, the subcommittee called upon Bar members to get actively involved in supreme court projects.

2) The Local Bar Grant Committee should encourage local bar efforts to make their courthouses user-friendly.

The State Bar funds small grants to local bar associations for public education. The commission suggests funneling some of these funds into projects that help people find their way through the court system. Ultimately that leads to better understanding of the court's function in society.

3) The State Bar's Law-related Education Committee and Videotape Committee should develop a videotape and study materials to explain the judicial system and its relationship to the other branches of government for distribution to schools.

A well-done videotape could introduce a realistic image of the judiciary at a young age and help bring students' civics lessons to life.

4) The State Bar should increase its support for local bar efforts to enhance community understanding of the judiciary's role as an equal branch of government by:

providing program information at the local bar leaders' conference; and
providing increased opportunity for bench/bar interaction at bar conferences.

Local efforts are key to creating awareness of the judiciary. Through informational and conference programs, the State Bar can support local efforts.

5) The State Bar should continue its commitment to the work of its Cable and Broadcast Committee, which is educating the public about the role of lawyers and the judicial branch.

This project was launched last year by then president David Saichek. The program "Law Talk" now is shown on Milwaukee and Madison cable stations and soon will be broadcast statewide.

Court accountability

Proclaiming co-equal status is little more than talk if the judiciary can't demonstrate it is effectively serving the people. "A lot of what we have now is word-of-mouth stories, some true, some untrue," says Patricia Heim, La Crosse attorney and chair of the court accountability subcommittee. "It's hard to actually state with any certainty that a court system has been reviewed and that it's performing to meet standards. We wanted to come up with concrete measurements."

Some might argue that accountabilities for the judiciary already abound: elections, codes of ethics, media scrutiny, to name a few. Why does the commission feel compelled to add more? Heim contends that far from being a burden on the judiciary, new accountabilities based upon objective measures will be a boon to the courts' cause.

"I think there's potential merit," Heim says, "when the court needs to go to the Legislature for additional monies for facilities, judges, personnel and so on, to be able to say, 'We have objective measurements and here's why we need such-and-such.'"

Currently, such negotiations mostly come down to looking at court case-counts. But objective measurements would assess quality of the system, providing "concrete evidence to show whether the system is working or not working," Heim says. "That will take this process out of the number-crunching and elevate it to another level. It also takes it out of the realm of thinking of the judiciary as just another state agency, where the emphasis is on the bottom line."

The recommendations are:

1) The supreme court should hold court commissioners to the same standards of conduct, education, performance and reporting as the judiciary.

Often citizens' only contact with the court system is with court commissioners, who are not elected by the public. The commission recommends that court commissioners be subject to regular and objective evaluation, and that they pursue continuing judicial education. ⁴

2) The supreme court should create a task force on the Quality of the Court System comprised of judges, attorneys, legislators and citizens to consider a methodology for judicial assessment and improvement using the Trial Court Performance Standards and Measurement System.

Creating a measurement tool from scratch would involve years of work. Fortunately, a project of the National Center for State Courts and the Bureau of Justice Assistance of the U.S. Department of Justice has already invested the time and effort. Their Trial Court Performance Standards and Measurement System has been developed and tested in several states. The commission suggests that some of the 68 standards in the Measurement System be implemented in pilot projects in selected judicial districts.

The commission also suggests that the task force explore whether Total Quality Management (TQM), or certain aspects of this evaluation system, are applicable in Wisconsin. TQM is being used by courts in Minnesota, Connecticut, New Jersey, Maryland and Maine.

3) The Wisconsin Lawyer editorial board should consider establishing a monthly column about issues of concern to the bar and the judiciary, including the functioning of the court system.

This column could be a forum for discussion of concerns about the court system. "This would be a great way for either a judge or lawyer to pose an issue or question and have a response from the other side," Heim explains.

4) The judiciary should take a leadership role in educating the public about the court system, including sponsorship of public forums and participation in educational programs.

5) The judiciary should work cooperatively and proactively with the media to educate the public about the effect of decisions by legislative and executive branches on the judicial branch.

Recommendations 4 and 5 speak to the need for public education about the judiciary - a need that surfaced in other portions of the commission's report. These recommendations tie into accountability as well. "I think education can only help," Heim says. "When people know more about the court system, they feel more assured about it."

Funding and allocation of resources

Funding is a chicken-and-egg issue for the courts. Adequate funding is an indicator that the other branches, and the public at large, value the judiciary's role and deem it a co-equal branch. At the same time, adequate funding is crucial if the judiciary is to function well enough to earn co-equal stature in others' eyes.

The commission refrained from simply calling for more money for the courts - although numerous stories of funding shortages surfaced in the public hearings held in Green Bay, La Crosse, Wausau, Milwaukee and Madison. Rather, the funding subcommittee undertook the gargantuan task of better understanding the state budget process. It also suggested steps to assure the courts get the funds they need. In addition to recommending that the State Bar and the judiciary itself actively educate the public and other branches of government about the courts' needs, the commission recommended:

1) The State Bar should support the Wisconsin Supreme Court's efforts to reallocate judges throughout the state based upon caseload need.

This is not about massive reorganization, but simply states that when circuit court judges' caseloads allow, they should step in to help other districts having a caseload crunch. "When I sat as a judge in Waushara County, each judge in that district had to take a certain number of cases in another jurisdiction," notes Supreme Court Justice Jon Wilcox, commission cochair. "I think that's a reasonable expectation. We need that kind of flexibility because it allows optimum use of the judiciary."

2) Judicial compensation should be taken out of the political process by creation of a Judicial Compensation Commission comprised of members of the public and of the three branches of government.

Until the commission is established, an Advisory Committee to the Legislature's Joint Committee on Employment Relations on judicial compensation should be established.

3) The supreme court should consider the advisability of submitting its budget directly to the Legislature, in addition to submitting it to the executive branch.

Recommendations 2 and 3 aim to drive home the key point of this report: The judiciary is a co-equal branch. That point becomes clouded by current practices in which judicial salary negotiations become political haggling. And the judiciary budget is submitted to the Legislature as part of the executive branch budget, further feeding the perception that the court is just another state agency.

"As someone who worked in the state budget office and through my interactions with folks in the Legislative Fiscal Bureau," says commission member Frank-Reece, "my sense is that is sometimes how [the judiciary] becomes perceived." Directly submitting the judiciary budget to the Legislature instead would reinforce the message "that the judiciary is a separate entity," Frank-Reece points out. "It would be very symbolic."

Dianne Molvig operates Access Information Service, a Madison research, writing and editing service. She is a frequent contributor to area publications.