Wednesday, August 03, 2016

The Missouri Public Defender just appointed the Governor to represent an indigent defendant

The letter is here.


H/T A.B.


nonlawyer said...

Bravo Director Barrett, excellent move. This case raises another important issue relative to Jeremiah W. (Jay) Nixon, Bar No. 29603, who is also Governor of the state of Missouri.

Is it unconstitutional for a lawyer (judicial branch) to be governor (executive branch) because it would violate separation of powers?

The US Supreme Court held in Ex parte Garland that lawyers are officers of the court, and members of the judicial branch of government. By the Judiciary Act of 1789, the Supreme Court has power to make rules and decide upon the qualifications of attorneys.

Ex Parte Garland, 71 U.S. 333 (1866)

Case (Wikipedia)
In January 1865 the Congress of the United States passed a law that effectively disbarred former members of the Confederate government by requiring a loyalty oath be recited by any Federal court officer affirming that the officer had never served in the Confederate government.

Augustus Hill Garland, an attorney and former Confederate Senator from Arkansas, had previously received a pardon from President Andrew Johnson. Garland came before the court and pleaded that the act of Congress was a bill of attainder and an ex post facto law which unfairly punished him for the crime for which he had been pardoned and was therefore unconstitutional.

Decision (Wikipedia)
In a 5-4 vote the Supreme Court ruled that the law was indeed a bill of attainder and an ex post facto law. The court ruled that Garland was beyond the reach of punishment of any kind due to his prior presidential pardon. The court also stated that counselors are officers of the court and not officers of the United States, and that their removal was an exercise of judicial power and not legislative power. The law was struck down, opening the way for former Confederate government officials to return to positions within the federal judiciary.

Separation of powers is clearly expressed in the Florida Constitution (Article II, Section 3), and inferred in the U.S. Constitution (Article I Legislative; Article II Executive; Article III Judicial).

Missouri Constitution


Section 1 Three departments of government--separation of powers.

Section 1. The powers of government shall be divided into three distinct departments--the legislative, executive and judicial--each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.
Source: Const. of 1875, Art. III.

Florida Constitution (Article II, Section 3)

SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

I raised a similar issue in the comments section of the American Bar Association blog Jul 25, 2016 08:08 am CDT as "nonlawyer"

"Now there are three lawyers in the presidential race: HRC, Tim Kaine, and Mike Pence. Donald Trump is not a lawyer. Is it unconstitutional for a lawyer (judicial branch) to be president (executive branch) because it would violate separation of powers?"


Does Amendment XXII, and the holding of [STATE ex rel. PEREZ et al. v. WALL, Judge, 49 L.R.A. 548, 41 Fla. 463, 26 So. 1020], where HRC and Bill Clinton are considered as one person, block HRC from the presidency in 2016?

Anonymous said...


Now who can argue with that? I think we're all indebted to [5:28am] for clearly stating what needed to be said. I'm particularly glad that these lovely children were here today to hear that speech. Not only was it authentic frontier gibberish, it expressed a courage little seen in this day and age.

Anonymous said...

That has got to be the most bad ass letter I've seen in a long time. I mean, I'm pretty sure there is a conflict of interest for the Governor (an executive officer) to represent defendants, but the letter is bad ass nonetheless.

Anonymous said...

Just pardon the dude and be done with the issue.

Anonymous said...

Way to go!
But he's supposed to appoint 'competent' counsel. Doesn't sound like the governor meets that qualification.

nonlawyer said...

@9:06 AM, re "authentic frontier gibberish"

Is that all you got?

With each passing day it appears Donald Trump is throwing the election for Hillary. Who could orchestrate that, other than the lawyers at team Clinton?

Or is Trump actually going mad, as suggested in the media?

Anonymous said...

@"nonlawyer", from 9:06am above:

That's all I need.

nonlawyer said...

The ABA is reporting "Governor who blocked public-defender budget increases is ordered to represent indigent defendant"

@Anonymous 11:07 AM "That's all I need."

There is another scenario, "Is Trump crazy like a fox?"

See comment 4, "Is Trump crazy like a fox?" (not my comment)

"The fact is, there are many people who feel that Trump is just like them, or how they wish they could be if the could speak freely and not get fired or ostracized by their neighbors and friends. Or laughed and scoffed at as happened months ago to Rep. Keith Ellison when he stated on 'This Week' that Trump could end up winning the nomination. The panel burst out laughing. George Stephanoupolis even said dismissively "I know you don't believe that"...." read more

Unfortunately the some in the legal profession operate outside Constitutional restraints, and outside common sense restraints. For an excellent essay on this topic generally, see The Secret Life of Judges, 75 Fordham L. Rev. 2855 (2007), by the Hon. Dennis Jacobs, U.S. Court of Appeals for the Second Circuit. He previously served as Chief Judge of the Second Circuit from October 1, 2006 to August 31, 2013. The Secret Life of Judges won a Green Bag Award.

Final paragraph:

"As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, selfrestraint, and respect for other influences."