THE JUDICIARY

The trend of legislative interference with the judiciary is still troubling in Rhode Island. The idea of having magistrates instead of judges appears on its face to be a method of the legislature taking control from the judicial branch.

Magistrates, while they do have a function, are appointed through a legislative process and not through the traditional appointment from the executive branch.

Now this does not absolve the Governor’s office from its foot dragging in the appointment to fill judicial vacancies. The slow as we go approach has put great strain on the judicial system.

But, even with that said, the underlying argument still exists. Rhode Island is over burdened by the fact that it is over regulated. The need for the court system exists as a direct result of the legislature criminalizing all sorts of behaviors. The underlying reason for the judicial burden is the fact that every legislator wants to politically demonstrate he or she is “tough on crime”.

The judiciary must deal with the fallout of those legislative actions. The fact that the judiciary is little more than a processing factory for the most part is a clear tribute to the legislature’s over-extension.

The naming of magistrates is a solution to the problem, but it is not getting at the root. The addition of several more judges does little more than the same.

There is a place for the third branch, but the problems plaguing it are not necessarily of their own devise.

This is not a defense of the judiciary. They have stood silent as the cottage industry of crime has expanded. They have shirked responsibility to call the public’s attention to the fact that the legislature is being too active. This silence, while self-serving to the judicial branch, is a disservice to the people it was designed to serve.

The needs of the judiciary need to be met, but the judiciary cannot see itself as a tool of either the legislature or the executive branch. This sadly has been the history of the Rhode Island judicial branch.

Still, by letting the legislature name magistrates with sweeping powers, the legislature is knowingly crossing over into another branch of government. Separation of powers, a long standing Rhode Island concern, oddly doesn’t really speak to this issue.

The judiciary is also to blame. The allowance of administrative law to grow is at the door of a lazy judiciary. Instead of hearing legal matters, it has become customary to allow for administrative hearings, and those results are then limited on appeal. Is that real justice?

The fact that the judiciary has deferred to the executive in administrative hearings is equally as dangerous as the legislative interference into the appointments to the courts.

It is time to untangle this Gordian knot. Until this occurs, there is little chance of having a free and independent judiciary.

While it is hard to argue that the judiciary is not doing its job, it is easy to see that the problems in the system is a direct result of the judiciary’s failure to maintain its integrity in light of the executive and legislative branches.

The judiciary can claim its independence all it wishes, but until it is truly free from the executive and legislative influences, it is only free in its own words and not in reality.