Archive for July 31st, 2013

Separation of Powers; Three Branches of Government

If I’ve heard it once, I’ve heard it 1,000 times.  “We have to move these foreclosure cases along because the legislature has told us to do so.”  I understand the sentiment, I suppose.  I get that judges are being pressured to get foreclosure cases off their dockets.  I understand, but I don’t agree.

For me, it all goes back to a term called “separation of powers.”  You remember the term.  You learned it in elementary school.  That’s when we all learned about the three branches of government in America – the executive branch, the legislative branch, and the judicial branch.  It’s probably been a while, so check out this website, appropriately called Congress for Kids, which explains the roles of each branch of government.  Now take a look at the “checks and balances” page on that website.  My favorite part?  This quote:

“By creating three branches of government, the delegates built a “checks and balance” system into the Constitution.  This system was built so that no one branch of government could become too powerful.”

When you read that quote, and remind yourself about what you learned in elementary school, I can’t help but think you’ll agree:

the legislature can’t tell the judiciary what to do.

The legislature isn’t the boss of the judiciary.  The legislature is an equal – a separate but equal branch of government.

This is why I cringe when someone from the judiciary, be it a judge, judicial assistant, or case manager tells me “the legislature told us we have to move these cases.”  I’m sorry, but that goes against the most basic form of government in America.  It’s against everything we learned in elementary school.  It’s contrary to what we teach our children today.  The legislature doesn’t get to boss the judiciary around – it just doesn’t.

So what’s my point?  Am I just another foreclosure defense lawyer advocating for delay?  Hardly.  I’m advocating for implementation of the very system of government upon which our country was founded.  I’m suggesting the judiciary should respond to the legislature’s pressures by saying:

“No.  We will not move cases faster just because you want us to.  We will operate the judiciary in the manner we see fit.  If you want the foreclosure cases to go faster, then give us the funding we need to hire more judges, more judicial assistants, more case managers, and more clerks.  We will not sacrifice the integrity of our judicial system because you refuse to give us the funds we need.”

Is that message isn’t being conveyed, and the judiciary keeps telling me they’re doing what the legislature is telling them to do, then I can’t help but wonder … is this foreclosure crisis really so big that we’re willing to ignore the principles of government upon which this nation was founded?  Is the stuff we learned in elementary school about “separation of powers” just a fallacy?

Mark Stopa

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