SSTILLTILL CCOEQUALOEQUAL?? SSTATETATE CCOURTSOURTS,, LLEGISLATURESEGISLATURES,, ANDAND THETHE SSEPARATIONEPARATION OF OF PPOWERSOWERS Report of the 2004 Forum for State Appellate Court Judges ~FORUM ENDOWED BY HABUSH HABUSH & ROTTIER S.C.~ When quoting or reprinting any part of this report, credit should be given to the Pound Civil Justice Institute. Permission to reprint a paper should be requested from: Pound Civil Justice Institute 1054 31st Street, NW, Suite 260 Washington, DC 20007 [email protected] The endower, Habush Habush & Rottier S.C., has no control over the placement of information in or the editorial content of the Report of the 2004 Forum for State Appellate Court Judges. Library of Congress Control Number Pending ISBN: 0-933067-26-7 ©2006 Pound Civil Justice Institute Table Of Contents FOREWORD . 1 INTRODUCTION . 3 PAPERS, ORAL REMARKS, AND COMMENTS . 5 “Keeping Coequal: State Court Responses to Legislative Encroachment” Professor Robert F. Williams, Rutgers University School of Law-Camden . 5 Oral Remarks of Professor Williams . 21 Comments by Panelists, Response by Professor Williams . 26 “Lawmaking and Judicial Review: What Degree of Deference Should State Courts Give to Legislative Findings?” Professor Helen Hershkoff, New York University School of Law . 36 Oral Remarks of Professor Hershkoff . 54 Comments by Panelists, Response by Professor Hershkoff, Questions and Comments . 58 THE JUDGES’ COMMENTS . 69 POINTS OF AGREEMENT AND CLOSING COMMENTS . 113 APPENDICES . 121 i STILL COEQUAL? STATE COURTS, LEGISLATURES, AND THE SEPARATION OF POWERS ii REPORT OF THE 2004 FORUM FOR STATE APPELLATE COURT JUDGES Foreword he Roscoe Pound Institute’s (presently known as the Pound Civil Justice Institute) twelfth annual TForum for State Appellate Court Judges was held in July 2004, in Boston, Massachusetts. Continuing the standard of excellence that has marked our previous Forums, it featured outstanding scholars and panelists who examined the sometimes contentinous relationship between state courts and their legislative counterparts. During the program, judges, scholars, and attorneys engaged in an intellectual and pragmatic debate over the impact of state legislature encroachment into the judicial realm and the appropriate deference state courts should show legislatures when reviewing legislation’s constitutionality. We recognize that the state courts have the principal role in the administration of justice in the United States, and that they carry, by far, the heaviest of our judicial workloads. We try to support them in their work by offering our annual Forums as a venue where judges, academics, and practitioners can participate in a dialogue devoted to a timely issue, held on a single day. These discussions sometimes lead to consensus, but even when they do not, the exercise is bound to be very fruitful. Our attendees bring with them different points of view, and we make additional efforts to include panelists with outlooks that differ from those of most of the Pound Institute’s Fellows. The diversity of viewpoints always emerges in our Forum reports. Our previous Forums have examined such important topics as the rise of mandatory arbitration, state courts and federal authority, the jury in civil justice, judicial independence, the scientific evidence controversy, and secrecy in the courts. We are justifiably proud of our Forums and are gratified by the increasing attendance we have experienced since their inception, as well as the very positive feedback from attending judges. The Pound Institute is indebted to many people for the success of the 2004 Forum for State Court Judges: • Professor Robert F. Williams, of the Rutgers University School of Law-Camden, and Professor Helen Hershkoff, of the New York University School of Law, who wrote the papers that started our discussions; • Our panelists: Honorable John M. Greaney, Honorable Steven H. Levinson, Sharon J. Arkin, Kathryn H. Clarke, Stephen Daniels, F. Drake Lee, Robert S. Peck, Edwin M. Speas; • Our luncheon speaker, Honorable Herbert P. Wilkins, Chief Justice (retired), Massachusetts Supreme Judicial Court; • The moderators of our small-group discussions, for helping us to arrive at the essence of the Forum, which is to highlight what experienced state court judges think about the issues we discussed; • Dr. Richard H. Marshall, Executive Director of the Pound Civil Justice Institute, and his staff, Marlene Cohen and LaJuan Campbell, for developing and running the Forum, and publishing and distributing this report. It goes without saying that we appreciated the attendance of the distinguished group of judges, who took time from their busy schedules so that we might all learn from each other. 1 STILL COEQUAL? STATE COURTS, LEGISLATURES, AND THE SEPARATION OF POWERS We hope that you enjoy reviewing this report and that you will find it useful when considering the how the separation of powers protects the right to trial by jury in the state courts. Richard H. Middleton Jr. Gary M. Paul President President Roscoe Pound Institute Pound Civil Justice Institute 2003-2005 2006-2007 2 REPORT OF THE 2004 FORUM FOR STATE APPELLATE COURT JUDGES Introduction ne hundred forty-three judges, representing 39 states, took part in the Pound Institute’s 2004 Forum Ofor State Appellate Court Judges, held on July 3, 2004, in Boston, Massachusetts. They listened to presentations based on original papers written for the Forum by Professor Robert F. Williams, Rutgers University School of Law-Camden (“Keeping Co-Equal: State Court Responses to Legislative Encroachment”), and Professor Helen Hershkoff of New York University School of Law (“Lawmaking and Judicial Review: What Degree of Deference Should State Courts Give to Legislative Findings?”). Each presentation was followed by a panel discussion with distinguished commentators, followed by judges breaking into small groups to talk about the issue. A break between the morning and afternoon sessions provided time for lunch and a talk by the Honorable Herbert P. Wilkins, former Chief Justice of Massachusetts. Responding to Professor Williams’s paper were Sharon J. Arkin, a plaintiff lawyer from Newport Beach, California; Robert S. Peck, an appellate attorney from Washington, D.C.; Edwin M. Speas, an attorney from Raleigh, North Carolina; and the Honorable John M. Greaney, an Associate Justice on the Massachusetts Supreme Judicial Court. Responding to Professor Hershkoff’s paper were Kathryn H. Clarke, a plaintiff attorney from Portland, Oregon; Dr. Stephen Daniels, a researcher with American Bar Foundation in Chicago, Illinois; F. Drake Lee, a defense attorney from Shreveport, Louisiana; and the Honorable Steven H. Levinson, an Associate Justice on the Hawai’i Supreme Court. After each paper presentation and commentary, the judges separated into small groups to discuss the issues raised in the papers, with Fellows of the Pound Institute serving as group moderators. The paper presenters and commentators visited the groups to share in the discussion and respond to questions. The discussions were recorded on audio tape and transcribed by court reporters, but, under ground rules set in advance of the discussions, comments by the judges were not made for attribution in the published report of the Forum. A selection of the judges’ comments appears later in this report. Judges, when identified, are only identified at the level of specificity of the region of the country they were from, i.e., “a Mid-western state” or a “southern state.” At the concluding plenary session, the moderators summarized the judges’ views of the issues under discussion, and all participants in the Forum had a final opportunity to make comments. This report is based on the papers written and presented by Professors Williams and Hershkoff and on transcripts of the plenary sessions and group discussions. Richard H. Marshall, Ph.D. Editor Executive Director, Pound Civil Justice Institute 3 STILL COEQUAL? STATE COURTS, LEGISLATURES, AND THE SEPARATION OF POWERS 4 REPORT OF THE 2004 FORUM FOR STATE APPELLATE COURT JUDGES Papers, Oral Remarks, and Comments KEEPING COEQUAL: STATE COURT RESPONSES TO LEGISLATIVE ENCROACHMENT Robert F. Williams rofessor Robert Williams begins his paper by reviewing the historical background of separation of powers issues Prelating to the state judiciary. In the early post-colonial years, state constitutions gave more power to legislatures than they did to the courts. The nineteenth century saw constitutional revisions that strengthened both the executive and judicial branches. In part II, Professor Williams distinguishes federal separation of powers doctrines from state doctrines, and also points out that different states have widely divergent arrangements for their governments in general and for their judiciaries in particular. Scholars have observed numerous differences between the state and federal judiciaries—differences that often give state courts more power within their spheres than federal courts have. In part III, Williams utilizes an analysis in which the exercise of judicial power is based either on “freestanding” judicial power (the general power of the state’s courts within the state’s constitutional structure) or on “specific” grants of authority to the courts under the state’s constitution. Additionally, separation of power controversies can be addressed either “formally” or “functionally.” A formal approach emphasizes strong, substantive, “pure” separation of the powers of the branches of government, and analyzes alleged