What about separation of powers?
The governments in Florida, Washington, and Alabama have begun to consider passing legislation that will allow it to overrule “certain state court decisions.” However, some have concerns over this due to separation of powers.
Florida GOP Rep. Julio Gonzalez filed two bills that gives the Florida government or the U.S. Congress the ability “to override or nullify court decisions.” House Joint Resolution 121 will add an amendment that allows lawmakers to take that step “by a two-thirds vote of each chamber for up to five years after a decision at any level – county, circuit, appeal or supreme court.” His House Memorial 125 aims at “Congress to propose a similar amendment, but to the U.S. Constitution, granting Congress the power to nullify federal court decisions.”
The Washington bill will also allow its legislators “to vote to ‘reject the determination of the court,'” if a court rules an act unconstitutional.
In Alabama, two legislators have proposed legislation that will not allow a judge to impose the death penalty if the jury recommends life imprisonment.
From The Wall Street Journal:
One of the Washington bill’s sponsors, Republican Rep. John Koster, said he had been motivated by a tort case on education funding that he believed prompted the court to overstep its authority.
Mr. Koster conceded that the bill’s chances of passing were uncertain. “But it’s a worthy effort to tap [judges] on the shoulder and remind them of separation of powers.”
Gonzalez said he wants to stop judicial overreach:
“Indeed, we have seen these encroachments play out on countless occasions,” he wrote, explaining his decision to file the bills. “Supreme Court rulings have mandated that religious symbols be taken down from public places or be replaced with others. They have placed prohibitions on prayer in public schools, commencement ceremonies, and athletic events. Negations of laws prohibiting the desecration of the American flag have made the unconscionable legally acceptable, and judicial prohibitions on federal term limits have overturned the will of the people of a state, even if that will is enshrined in the affected state’s constitution. And recurrently, the distributions of votes in these opinions largely mirror the party affiliations of its members.”
He continued: “It is my concerted view that such provisions, if enacted by the people would curtail the tendency of activist judges to manipulate the law to suit their political views and agendas. Equally as importantly, this would force the people to engage the legislature in enacting rectifications to current laws that they see as objectionable or flawed, restoring the natural relationship between the people and their legislative bodies. This would also force the electorate to more carefully look at their candidates and their actions during times of reelection.”
Randolph Mclaughlin, professor at Pace Law School, said that separation of powers is the “bedrock principle of American democracy” (For the record, America is a REPUBLIC). He also said in this form of government the court determines what is constitutional. But Gonzalez said there should be a check on the courts since it doesn’t exist.
This is not the first time a state has attempted to overrule the courts. The Kansas Senate passed a bill in 2016 that “allowed the impeachment of state Supreme Court justices for discourteous conduct of for ‘attempting to usurp’ legislative power.” The bill never made it out of the House. New Jersey has proposed similar legislation, but never got anywhere.
Alabama’s legislation only aims at the death penalty. In this case, a Republican and Democrat joined forces:
Sen. Dick Brewbaker, R-Montgomery, has filed a bill that “would prohibit a court from overriding a verdict by a jury in a capital case,” while Representative Terry England, D-Tuscaloosa, filed House Bill 32 to “require a verdict of death to be based on a unanimous vote of the jury and would prohibit a court from overriding a verdict by a jury in a capital case.”
Last year, Jefferson County Circuit Court Judge Tracie Todd ruled it unconstitutional for the state “to allow judicial override.”. She even noted that in the county, more judicial overrides occur on death penalty cases “when judges are running for office.” Randall Marshall, the acting executive director of the American Civil Liberties Union of Alabama, said this causes a judge’s “decisions on such cases” to become politicized. From Weld for Birmingham:
She noted that Alabama judges have overridden jury sentences of life to impose the death penalty 97 times since 1976, the year the U.S. Supreme Court reinstated capital punishment. In June, the Alabama Court of Criminal Appeals ordered Todd to vacate her ruling, upholding judicial override in death penalty cases.
In her order, Todd also found that “Jefferson County leads the state in total death sentences resulting from judicial overrides,” with 17 such sentences between 1976 and 2011. A report released in October by Harvard Law School’s Fair Punishment Project made similar criticisms of how capital cases are resolved in Jefferson County. The project found that since 2006, Jefferson County trial judges overruled jury recommendations of life imprisonment and imposed capital punishment in 44 percent of capital case verdicts.
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