'Reformer' Judges Still Insist That Courts Be Above the Law

Even as Connecticut’s acting chief justice, David M. Borden, is pushing the state’s court system into more openness, his chief court administrator, Superior Court Judge William J. Lavery, is arguing for continuing the judiciary’s unaccountability.

Judges, Judge Lavery wrote in a recent essay published in several newspapers, are like surgeons. Nobody would tell surgeons how to do their jobs, and so no one should tell judges how to do theirs, as with writing court rules of procedure. That is why, Judge Lavery wrote, the power to make the rules of court procedure should be left with the judges themselves.

Lavery’s analogy was not just insulting to anyone contemplating ordinary citizenship in a democracy. It was laughably wrong as a matter of law. It was too much even for another Superior Court judge, Dale W. Radcliffe, a former state representative from Trumbull, who wrote in reply to Judge Lavery that judges

often tell surgeons what to do, or at least what they should have done, as when judges preside over medical malpractice cases. And legislators and the governor write the law on medical malpractice.

Besides, it’s not as if rules of court procedure are brain surgery. They are issues of basic justice and due process of law in which the laity has claimed a right of participation since 1215, when King John resentfully signed the Magna Carta.

This right was claimed again in 1776 when the Declaration of Independence condemned George III for "refusing his assent to laws for establishing judiciary powers," for making judges "dependent on his will alone for the tenure of their offices and the amount and payment of their salaries," for denying trial by jury, and "for transporting us beyond seas to be tried for pretended offenses."

Of course none of the judicial rules in the Constitution and Bill of Rights was enacted by judges. Those rules were the work of the country’s fledgling democracy.

Besides, it’s not as if rules of court procedure are brain surgery. They are issues of basic justice and due process of law in which the laity has claimed a right of participation since 1215, when King John resentfully signed the Magna Carta.

This right was claimed again in 1776 when the Declaration of Independence condemned George III for "refusing his assent to laws for establishing judiciary powers," for making judges "dependent on his will alone for the tenure of their offices and the amount and payment of their salaries," for denying trial by jury, and "for transporting us beyond seas to be tried for pretended offenses."

Of course none of the judicial rules in the Constitution and Bill of Rights was enacted by judges. Those rules were the work of the country’s fledgling democracy.

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own hacks.

What is far more important about Judge Lavery’s defense of letting judges make court rules by themselves is that it gives the lie to the judiciary’s campaign to open up.

For that campaign has been undertaken only because of a revulsion with the judiciary’s historic unaccountability and secret politics, ranging from the concealment of dozens of court cases embarrassing to influential litigants, including some judges themselves, to former Chief Justice William J. Sullivan’s delaying publication of a Supreme Court decision so that a colleague’s participation in it would not embarrass him during a legislative hearing on his promotion.

The reforms under way in the judiciary have come about precisely because judges long have worked

What is far more important about Judge Lavery’s defense of letting judges make court rules by themselves is that it gives the lie to the judiciary’s campaign to open up.

For that campaign has been undertaken only because of a revulsion with the judiciary’s historic unaccountability and secret politics, ranging from the concealment of dozens of court cases embarrassing to influential litigants, including some judges themselves, to former Chief Justice William J. Sullivan’s delaying publication of a Supreme Court decision so that a colleague’s participation in it would not embarrass him during a legislative hearing on his promotion.

The reforms under way in the judiciary have come about precisely because judges long have worked

against accountability when they have been allowed to write their own rules. Connecticut’s judiciary has not been what Judge Lavery and even Justice Borden suggest, a divinely inspired self-correcting mechanism that needs no oversight. To the contrary, the judiciary has had to be bludgeoned into reform by years of clamor from the rabble, clamor given decisive force only by the recent scandal at the top.

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not signify the judiciary’s acceptance of the oversight imposed on the rest of government by Connecticut’s Freedom of Information Act, from which the judges still insist on exemption. No, these supposed reformer judges say they will grant more openness to the public only as a matter of their royal sufferance, not as a matter of law, so that any new openness may be withdrawn at the judiciary’s convenience when the revulsion and scandal fade.

That is why Gov. Rell and the General Assembly should force the issue of judicial rule making and restore the state Constitution’s separation of the powers of government.

That is why Gov. Rell and the General Assembly should force the issue of judicial rule making and restore the state Constitution’s separation of the powers of government.

The governor and the Legislature are to make the rules of government through legislation. The judiciary is to try cases under the rules, not to write the rules, too.

For if judges are not surgeons, they are not legislators and governors either.

For if judges are not surgeons, they are not legislators and governors either.

Chris Powell is managing editor of the Journal Inquirer in Manchester, Conn.