Monday, November 27, 2006

Rebuttal to Justice Borden

Last week, I posted on Justice Borden's opposition to a Constitutional Amendment that would subject the judicial branch's rule and procedure making process to legislative oversight.

In Yesterday's Courant, Mitchell W. Perlman, former Executive Director of the Connecticut Freedom of Information Commission, provided a rebuttal on the Op-Ed Page. While I still agree with Justice Borden (and my discosure of having taken the Justice's Statutory Interpretation class still applies), Mr. Perlman is persuasive and worth a look:

Justice Borden's argument against this constitutional amendment was two-fold. First, he argued that the recent scandal that precipitated the call for such an amendment had nothing to do with the judicial branch's power to make rules governing the courts.

Second, he maintained that such an amendment is unnecessary now since internal reforms are already under way that, if implemented, will provide for far greater transparency than is currently the case.

It was a good argument, articulately presented. But I think it falls short on both accounts.
The fact is, there is no guarantee without a constitutional amendment.

Why is this so important? In effect, Justice Borden is attempting to establish within the judicial branch, by rule and policy, something akin to our Freedom of Information Act. But alleged violations of these provisions would not be reviewable by, or appealable to, any independent authority, such as the Freedom of Information Commission. Nor would any rule change be subject to legislative approval, as it is in the federal system.

Thus, any newfound transparency would be exclusively at the sufferance of the very judges who, in the future, may decide to close records or proceedings from public scrutiny.

Go read the whole thing and let me know what you think in the comments!


Mirror said...

Pearlman is still careful about who he goes after - his tenure at FOI was consistent in allowing those in a position to get even with him and his little agency to keep their secrets from public view and now that the court system is weakened, he starts waaving a torch - where was he when all this was going on when he was running the FOI commission? Nothing , Nothing should be keep from public review that any of these people do - They set the rules for all of us and literally decide issues of life and death -often influenced by politics, who they know or owe or religion. I even find it debateable that they are able to argue in secret conferences between themselves. Recordings should be made available to the public so we can more accurately judge the judges.

bluecoat said...

from Sunday's NYT: Courts Don’t Belong to Judges

bluecoat said...

The Criminal Justice Commission, set up by a Constitutional Ammendment in 1984, puts judges in the loop for picking state prosecutors who will appear before them or at least their peers in what sure seems to me a violation of the separation of powers.

Republicans could get into this good government stuff but they seem too interested in tagging the Democrats with having cooties.

Anonymous said...

After the hearings, I remain convinced that Justice Borden's conduct was inappropriate and likely will have ramifications to Connecticut's judiciary going forward. Justice Sullivan's error in judgment lacked malice and should have been resolved by the justices on the court. The fact that this could be done is an indictment of the state's highest court. As for Pearlman, you may recall his letter in defense of SEEC's Jeff Garfield. Pearlman, like Garfield and Plofsky before him cater to those in power. That's how they kept their jobs for so long. Plofsky overdid it. It's not surprising Pearlman would come out in support of Borden. What's Pearlman doing today?

Anonymous said...

Perhaps we should also have a constitional amendment mandating that all rules of the General Assembly need judicial approval before they take effect.

The legislative branch in CT is taking on imperial characteristics

Anonymous said...

Read the NYT editorial. The federal legislature makes the rules for the federal courts. The state legislature should be able to do the same. And Sullivan's actions were more than an error in judgement ----- he was wrong and the Judicial Review Council found that he was wrong. The way he has run the Judiciary has already had "implications" and it's gone on for many years.