In 1776, we declared independence from King George III because, among other things, "He has obstructed the administration of justice, by refusing . . . judiciary powers," making "judges dependent on his will alone."
We then jealously divided governmental power into three co-equal branches, with Madison observing: "There can be no liberty where . . . the power of judging be not separated from the legislative and executive powers."
Utah's Constitution enshrines the same three co-equal branches and likewise declares that "no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others."
We applaud the Utah Judicial Council for focusing attention on judicial independence. But the current proposal to eliminate local courts is reminiscent of King George's "refusing . . . judiciary powers." It is a major mistake.
Under the proposal, an effective local judiciary would be replaced by a centralized state system. That violates good policy and constitutional principles "essential to the security of individual rights and the perpetuity of free government."
The Bill of Rights carefully reserved to states and people all powers not delegated to the federal government. Similarly, "each city [under Utah's Constitution is] granted the authority to exercise all powers relating to municipal affairs . . . "
How would Utahns respond if the federal government determined to abolish Utah courts based on the unproven idea that uniform federal courts nationwide would be more open, fair, efficient and independent? The answer should be obvious - big government is not necessarily better, and balance is destroyed.
I am an attorney and a trustee and have served as a part-time justice court judge for more than 10 years. I have presided over trials (jury and non-jury) involving theft, child abuse, drug charges and driving under the influence in two cities.
Never during my 10 years as judge have the other two branches of local government interfered. We have had complete independence as one of the three legs of the democratic government stool. Ironically, if the reform is instituted as proposed, it may have the effect of causing many cities to simply shut down local courts, using the space and clerical personnel for other purposes.
So, Utah may go from having an effective local third branch of government to absolutely no local judicial branch in some places - truly no judicial independence. The damage would be worst in small areas away from the Wasatch Front that will not be well-served by roving or centrally located state judges.
Other far less intrusive alternatives exist, such as: (1) involving the public in the selection process in partnership with local government, (2) retention elections for all judges, (3) setting uniform compensation requirements, and (4) formalizing the separation of power at the local level, including specific prohibitions against inappropriate intervention and the power to slap the hands of those who offend judicial independence.
The current proposal throws the baby out with the bath water, which may not even be dirty. If it is, the Legislature can certainly take less intrusive steps to clean it up. Please, let us not be blind about justice. We must not join King George in being guilty of obstructing justice by "refusing judiciary powers" to local government.
To do so severely jeopardizes the balance and stability of the three-legged stool of government on a local basis.
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* DAVID MILLER is justice court judge in Centerville and Fruit Heights.
