Crime & Federalism

I just don't get it. The judiciary has all but rolled over and died. Lawmakers are now aching to call the shots on court rulemaking, as though we need more hooplah from the part-timers over in the legislature. Have we not already learned that the legislature is the most dangerous branch of government?

Perhaps former Supreme Court Chief Justice William "Taco" Sullivan was right, lawmakers really can't be trusted to use judgment. They are prone to overreact and seek political advantage over trifles.

Sullivan's decision to delay publication of a controversial Supreme Court decision is by now the stuff of legend. He wanted to help along the nomination of Associate Justice Peter Zarella. Both Sullivan and Zarella had taken a position in the decision Sullivan thought might offend lawmakers. So he sat on the case for awhile.Then the law of unintended consequences kicked in.

Fellow justices tattled to the legislature. They probably expected some clucking and cooing by the Judiciary Committee. What they got was a holy war. The co-chairs of the committee, state Rep. Michael Lawlor and state Sen. Andrew McDonald, are now trying to run the courts. Can't someone tell these two to sit back down and shut up?

Lawlor scares me. He strikes me a Huey Long in the making. He's tapped into some populist vein and he's milking it for all it is worth.

Not long ago, I represented a young man arrested after taking photographs of Gov. Jodi Rell. His name is Ken Krayeske. Within a day or so of his arrest, lawmakers got their hands on a police report that mentioned Krayeske's name was on a list of potential threats to the governor.

Lawlor took it upon himself to call the State's Attorney's office in Hartford to say that the Krayeske case should be dropped. When I heard about this, I was less than pleased. It appeared to me there was no case against Krayeske. But it also seemed obvious that when the legislature calls the Executive Branch on such a matter, lines were being crossed.

To my naive way of thinking, Lawlor's call was far more offensive than Sullivan's pocket pool with a decision. Why no prosecution of Lawlor for obstruction of justice? Why not hearings, replete with subpoenas and threats of lost pensions?

In part that is because the different branches of government have different functions. It takes a case or controversy to engage a court's attention. The Judicial Branch does not have the equivalent of a Judiciary Committee sitting at will with a mandate as broad as the imagination of the lawmakers presiding over it.

We have lifetime appointment of federal judges to insulate them from political pressures. Jefferson, Hamilton, Madison might well look at the state's Judiciary Committee as little more than low-rent thugs bent on self-aggrandizement.

I don't comprehend why so few see the proposal to turn rulemaking power for the courts over to lawmakers as something akin to a constitutional crisis. It is akin to calling for the popular election of judges.

I keep thinking that if Lawlor called the prosecutor on the Krayeske case, he must be making other calls. His tentacles are reaching into places they do not belong.

Giving rulemaking power to the legislature would be a disaster. In an uncanny way, Taco was right: You really can't trust what the part-timers will do once their passions are aflame. •

Reprinted courtesy of the Connecticut Law Tribune.