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"Legislative activity
over the past two decades has subdued the judiciary"
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A few years ago, a British magistrate
touring the Stearns County Courthouse remarked to me that he
found it surprising that the county's judges moved about so freely
among litigants, lawyers, and even criminal defendants. The absence
of cameras, armed guards, metal detectors, and identification
checks, and the presence of open areas between court buildings
and even between chambers and courtrooms didn't square with his
understanding of America's violent society and out-of-control
crime rate. We even had waste receptacles on the streets and
abutting court and law enforcement buildings, something the British
haven't had for years due to the convenient bomb storage opportunities
those receptacles offer.
Some of that has come to an end. A detail of armed deputies who
patrol county buildings during working hours was added last year.
The waste receptacles have been moved back from the buildings
(not because of bombs but because they double as ashtrays, the
waste cans were moved in the interest of protecting us from a
slow death by second-hand smoke). Finally, a metal detector will
soon be installed in the Court Facilities Building. Following
the metal detector will come the almost certain habit of using
the underground tunnel to cross the street between the court
buildings. The finishing touches on total judicial isolation
are almost complete.
Also nearly complete is the metamorphosis of the state Judiciary
from an independent, coequal branch of government to a bureaucratic
state agency staffed by civil servants.
Some members of the Bar complained about ten years ago when judicial
chambers were made a secure area in the courthouse. Then, sound
caseload management practices caused us to add individual calendar
clerks to our personal staff to handle case scheduling, including
continuances and routine phone calls. We also have telephone
answering machines to enable you to leave messages when we and
our calendar clerks are in court. Judges now have no need to
talk to members of the Bar at all except when court is in session,
but then you probably aren't in court anyway, unless you are
a criminal prosecutor, or a public defender, or you are appearing
pro se. By and large, attorneys in private practice have
found it more profitable and less stressful to use alternative
dispute resolution to settle their cases. Most have become mediators
and transactional lawyers. Judges have correspondingly become
civil servants.
The judicial branch is micro-managed by the political branches,
which have imposed statutory formulas requiring a specific result,
not only in broad categories of controversies, but in specific
situations and in individual cases. Statutory guidelines
address criminal sentencing, child support, and child custody.
Legislative mandates control rules of procedure, evidence, and
scheduling to the extent that there is even a statute specifying
the time of day a certain class of cases must be heard
by the court. The result has been the creation of a judiciary
with so little discretion that private sector dispute resolution
has become a more flexible and a more attractive forum. While
the reality is and always has been that alternative dispute resolution
provides litigants with far more options and fewer constraints
than does a judge applying the law, the bureaucratization of
the judicial system has made that truth more evident. If all
of this seems the rational result of an orderly progression in
the management of human problems, consider the following two
instances in which a statutory matrix was substituted for judicial
discretion:
- Since the child support guidelines were enacted almost 20
years ago, the state of Minnesota has accumulated $1 billion
in judicially nonforgivable child support arrearages for which
the Legislature, at the suggestion of the Department of Human
Services, is considering forgiveness, or an amnesty program for
"deadbeat dads."
- Since enactment of the sentencing guidelines in 1980, Minnesota's
prison population has more than doubled, costing millions of
dollars in new prisons and jails, the construction of which has
not had a noticeable affect on public safety. More importantly,
racial equality in sentencing, the ostensible purpose for enactment
of the guidelines, has shown no improvement over the past 20
years -- a recent survey shows Minnesota to be a national
champion in the incarceration of its minority citizens
Inasmuch as we have always been taught that democracy is not
very efficient, politically driven efficiencies are frightfully
ironic. Theoretically, the raison d'etre of democracy
is that it's more fair. While it is difficult, if not impossible,
to make that which is efficient a model of fairness, it is relatively
simple to make that which is efficient equal. If we refuse
to get hung up on the petty differences between fairness and
equality, the Legislature can deliver relatively fair
and efficient justice. That is, justice that defines fairness
onlyby the relatively equal treatment of individuals.
In a less than perfect world shouldn't that be good enough? The
prospect of an independent judiciary deciding cases one at a
time, considering individual circumstances and creating precedent
is too inefficient and too tempting a target for the politically
ambitious. Legislative activity over the past two decades has
subdued the judiciary, made it more politically accountable,
and brought the appearance of efficiency and equality to judicial
decision making.
I'm reminded of the scene in Dr. Zhivago when, after returning
to Moscow from the army, the aristocratic doctor found a political
commissar assigning the rooms in his mansion to poor families
as apartments. His somewhat laconic comment to the commissar:
"Yes, this is a better arrangement comrades, more just."
If not more just, it certainly is more equal and that's close
enough for government work. |
The Hon. Bernard Boland is Judge
of District Court in Minnesota's Seventh Judicial District, with
chambers in St. Cloud. He was appointed to the County Court bench
for Stearns and Benton counties in 1983. |
