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Legally Speaking


Issue: June, 2005
Author: Mark W Harris

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From the President . . .

Changes in Attitudes

Maurice Blake stands as a picture in my mind that I shall never forget. “Mr. Blake,” as all students of the Evanston Junior High School eighth grade civics class would respectfully refer to him, was one of the first, if not the first, mentors who instilled in my mind a basic principle of our government that since my eighth grade experience has been repeated several times: our government is based upon the separation of powers into three distinct, but equal, branches of the government - the Executive, the Legislative and the Judicial branches.

The separation and sharing of powers by three different branches of government is a fundamental and central precept of the United States Constitution as well as the Wyoming Constitution. It is the lynchpin of our form of government. We, as lawyers, may take for granted the importance of the concept of an independent and equally empowered judiciary with the same standing as presidents, governors, Congress and legislatures.

Recently, the independence of our judiciary has been challenged and sharply criticized. Courts in Florida were particularly besieged by personal attacks on judges as a result of the unfortunate case of Terri Schiavo. On the national stage, the judiciary and the regulation of the practice of law have been the subject of bitter debate and frontal attacks by legislative leaders and the public. Particularly disturbing are provisions in federal legislation which would interfere with and encroach upon the confidential nature of the attorney/client privilege. Additionally, the constant political bickering concerning nomination and appointment of federal judges has diminished the public perception of the judiciary.

Criticism of any branch of government, including the judiciary, is to be expected. In fact, the freedom to question or criticize the government is one of the very bases upon which our country was founded. Healthy debate and questioning social and legal policy are healthy and promote change. However, recent events go far beyond criticism of the judiciary and constitute harmful personal attacks which threaten the physical safety and well being of members of the judiciary and call into question the motives of those on the bench.

Security of court houses, court facilities and court and law enforcement personnel are of heightened concern after the recent events in Atlanta, Georgia. Although the tragedy that befell that community was not generated by hostility to the judicial process, but was the violent act of a criminal defendant, the violence heightens the safety concern for judges and their staffs. The judge who was initially assigned the case involving Terri Schiavo requires 24-hour a day security services to protect his physical safety and that of his family. We also take note of the murder of members of a federal court judge’s family in the Chicago area. Again, no random act of violence, but purportedly a cold and calculated decision to “even a score.”

Members of the federal and state judiciary also face personal attack in the political arena. I do not question the need for one branch of our government to engage another in debate over the merits of issues. Some members of the executive branches and Congress and state legislatures, however, have either knowingly or unwittingly taken a role in the enactment of laws or shaping of attitudes that may significantly adversely affect the administration of justice and the attorney/client relationship.

One of the most alarming results of recent actions and debate is the casual way in which our society appears to view our judiciary. It appears at times Mr. Blake’s wisdom is lost and that many of our citizens view the judiciary as a body established to bend to the political or other whims of some members of society, subservient to other branches of government.

Is it conducive to the administration of justice to find that our judges require continuous security service when that service is not afforded to those in most executive branch positions or those in Congress? When have we seen a prominent public individual compare a member of the executive branch or Congress to Joseph Stalin? Do we often see members of Congress or the executive branch being labeled a murderer because of a decision or decisions made in performance of their duties? Attitudes have changed.

What will be the end result? Will judges vacate their positions out of intimidation? Will qualified and excellent candidates for the federal bench refuse to subject themselves to the threat of physical violence or political reprehension? Will there be more pressure in an attempt to bend the will of the judiciary? Will the public begin to believe that threats of physical harm, infliction of physical harm or political threats against the judiciary are somehow now acceptable and escalate these threats?

A good friend of mine tells me not to complain about a problem – be part of a solution to a problem. Good advice. I believe it is our obligation to uphold the fair administration of justice and promote an equally balanced, independent judiciary. The Bar’s role in our communities is to mentor other attorneys and members of the public so as to provide information about the importance of the judicial branch of government. This responsibility cannot be fulfilled by writing columns in publications meant to be seen primarily by members of our Bar. We must take the responsibility for mentoring and public debate to our communities. That is our obligation. Speak to your local schools, your local community organizations, your local governments. Start a discourse. The attitude has changed. It is not too late to seek to change to another course.

Copyright © 2005 – Wyoming State Bar