A Threat to Judicial Independence

by Tom Yamachika, President Tax Foundation Hawaii

When we learn about our three branches of government, we’re usually told that the legislative branch makes the laws, the executive branch carries them out, and the judiciary branch interprets them. Each branch serves as a check and balance on the other two.

The legislative branch also has the power to raise money, for example by imposing taxes, and the power to spend it. It’s been written that such power is with this branch primarily because it’s most directly accountable to the people. Each state legislator must run for office either every two or every four years. Most in the executive branch and the judiciary are spared that ordeal.

With the power to spend money comes the power to place conditions upon its use. The legislature might not have the power to tell the executive branch what to do directly, for example, but it could certainly say that a particular agency shall do X, or shall not do Y, if it wants to see legislatively appropriated dollars flow into its coffers.

Against that backdrop is a very debate-worthy comment from one powerful senator at the end of the 2018 session. He described a “tension” between the legislative and judicial branches of government:

We also had some tension with the judiciary. That was very healthy as well. They did some rulings that we thought were stepping into the legislative arena, they were trying to legislate from the bench. We control the purse strings, so we said no to a lot of their money. They reversed some of their decisions. We gave them some money. So the tension worked.

--Civil Cafe: Legislative Wrap-Up 2018 Panel Discussion 23:10-23:34 (May 2, 2018).

In past articles we at the Foundation often have urged our legislators to use their power of the purse to set priorities for where we are going as a society. The state has a limited amount of hard-earned taxpayer dollars, and the legislature is there to make sure that the dollars they collect are spent wisely for our collective benefit.

In other states, this kind of tension has played out in the public arena, with observers scratching their heads and with the media having a field day. In New York in 1991, for example, Governor Cuomo slashed the judiciary’s budget and Chief Justice Wachtler sued, eventually resulting in a settlement. A similar spectacle occurred in Illinois in 2003, where the justices ordered the government to pay salary increases that its governor vetoed.

What the Hawaii Senator referred to, however, is not a question of finding the wisest use of scarce taxpayer funds. It was an attempt, and a successful one if we take the speaker at his word, to use that power to influence the content of judicial decisions. “Justice is blind,” we are told, meaning that justice should be applied without regard to money, power, or other status. If money — especially our own money — is used to skew or bend the justice we deliver here in Hawaii, then our justice is tainted.

Certainly, the Legislature and the Judiciary have their respective jobs to do and there is some merit to slapping down one branch that has entered the other’s kuleana. Legislating from the bench isn’t legitimate either; that’s why the courts have a “political question doctrine” that says policy issues for which no discernible standards in law exist are not issues for court resolution but are to be left to the legislature. What happens, though, if the judiciary and the legislature disagree on what questions are political and which are judicial? Do we let the courts decide, or should the legislature be allowed to take matters into its own hands by pulling the purse strings?