January 2013 Bar Bulletin
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January 2013 Bar Bulletin

Separation of Powers and Judicial Independence

By Scott M. Missall


Everyone learns in grade school that we have three branches of government - legislative, executive and judicial - designed to provide the checks and balances that protect our democratic system of government. Lawyers spend years learning what the law is, what judges and courts do, and how to work within the judicial branch to solve their clients' problems.

Few of us, however, have the professional opportunity to delve deeply into what is actually meant by "coequal branches" of government, and where the boundaries lie among the actions and duties of the three branches. The separation of powers doctrine provides some of those answers, and is gaining renewed importance and visibility as a consequence of the sustained reduction in government funding over the past few years. This article outlines some of the judiciary's basic authority to ensure that the courts have sufficient funding to perform their constitutional duties.

The separation of powers doctrine is embedded in the Washington and U.S. constitutions.1 The Washington Supreme Court recently explained the history and application of this doctrine as follows:

Separation of powers created a clear division of functions among each branch of government, and the power to interfere with the exercise of another's functions was very limited. The doctrine recognizes that each branch of government has its own appropriate sphere of activity [and] ensures that the fundamental functions of each branch remain inviolate, [but also] recognizes that the separate branches must remain partially intertwined in order to maintain an effective system of checks and balances, as well as an effective government.2

In the doctrine's simplest terms, the judiciary is an independent branch of governĀ­ment, charged with the constitutional duty to provide for the effective administration of justice, and is fully responsible for the management of the judicial branch to achieve that result. The Washington Supreme Court put it this way:

For the courts to effectively maintain their independence as a separate branch of government, they must have the power to do all things that are reasonably necessary for the proper administration of their office within the scope of their jurisdiction. This includes not only the power to control the decision making and the adjudicatory process, but also the ancillary functions which are subordinate to the decision making process.3

The U.S. Supreme Court described the scope and means of exercising this power in very plain language:

To perform [their] functions courts must have the ability to determine and compel payment of those sums of money which are reasonable and necessary to carry out their mandate and duty to administer justice if they are to be in reality a coequal independent branch of our government.4

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