When Michael Festa moved from the legislature to a cabinet post in the administration of Massachusetts Gov. Deval Patrick, he said “I was surprised at the level of misundersta nding of the role of the legislature in the way our government works in the states.”
Festa, who serves as secretary of the executive office of Elder Affairs in the Bay State, was one of three panelists who spoke on the obstacles that prevent better cooperation between the branches of state government during The Council of State Governments’ recent Interbranch Summit of the States in Bismarck, N.D.
Appearing on the panel with Festa were state Sen. Kevin Coughlin of Ohio and state Sen. Dan Kelly of Kentucky.
Festa’s experience as the only state Cabinet officer with executive experience wasn’t the first time he was surprised at the misunderstandings that exist between the three branches of government.
Courts and the Legisatures
While serving in the state legislature, said Festa, the Massachusetts Supreme Court ruled same-sex marriages constitutional, underscoring the absence of interbranch dialogue because the court’s ruling had major implications on public policy and the role of the other branches to deal with such an important issue.
“The judiciary did not perceive and constitutionally did not feel it was necessary to look to the other branches of government to either get direction or the implications of what they were about to do,” Festa said. “There is no doubt that the implication of the decision of that nature will emanate in the legislature sooner or later.”
Massachusetts Supreme Court judges are appointed, but that doesn’t mean there is no political interaction between the judiciary and the legislature.
“To suggest there is no politics in the business of the judiciary is, at best, naïve,” he said.
That’s because the legislature deals with judicial salaries which, according to Festa, have resulted in “blunt conversations around pay raises.”
The lack of communication is the biggest barrier to better cooperation between the branches, he said. There are perceived ethical barriers, for example.
“These obstacles are real,” he said. “They affect the ability government to function well.”
Personalities and Politics
Ultimately, Coughlin said, “it comes down to issues of personalities and politics.”
Legislatures are unique, Coughlin said. “It comes down to relationships. We make our decisions based on accurate information and sound logic. We need to know information given to us is sound and something we can take to the bank and count on.”
But those relationships are difficult to take outside your own particular branch of government, he said.
“Often people who work for the governor’s staff or high administrative positions have to follow rules and that creates barriers,” he said.
And, he said, there is frustration in the legislature with the executive branch. “There are barriers in dealing with often mid-level administrative positions,” he said. “They simply don’t understand legislative intent. There was a vision in the way a bill was written.”
He also cited term limits and the growing influence of people on the extreme opposites of the political spectrum.
Kelly said he appreciates that “conflict was written into our system checks and balances. I think it is a good thing.”
He, too, agrees that communication is an impediment to creating barriers to cooperation among the branches.
“Kentucky faces an issue on why so many people are incarcerated,” said Kelly. “Since 1972, we had a 600 percent increase in the numbers of incarcerated persons.”
The incarceration numbers continue to climb, said Kelly, despite legislative mandates for alternative sentencing.
“Where was the judiciary when this was happening? Why we not hear from you except if it's your pension benefits, or your pay and your working conditions, said Kelly. “Why was there not dialogue?”
Kelly doesn’t cast all the blame on the judiciary, “It was just as much our fault, because we didn’t reach to the judiciary.”
That example, said Kelly, is a problem. “The legislature expresses its intent to reduce the number of people in the penitentiary and obviously it’s still growing. The judiciary obviously has a role.”
Judge Russell Carparelli of the Colorado Court of Appeals suggested to Kelly the establishment of legislative liaison between the courts and the legislatures. Such a system, he said, has worked well in Colorado.
Kelly agreed it was a good idea and said he would take the suggestion back to Kentucky.
The discussion period following the panelists’ remarks served up several ideas for improvement in the interaction among the three branches of state government.
Chief Justice Sue Bell Cobb asked the panelists what courts could do differently. "I see a real tension between the legislature and the public wanting us to be strict constructionists, but no wanting laws to be stricken on a technicality.”
Coughlin answered that legislators have to draft better legislation and look through lens of how this will stand up in court. “A lot of us need to do that better.”
Mary McQueen, president of the National Center for State Courts, said that Washington state had developed a curriculum for legislative leadership and the courts which lay out standards court use and what evidence the legislature can help with in drafting legislation.
“The judiciary is saying 'give me something here’ and the legislature needs to know what evidentiary pieces they can provide.”
Coughlin said CSG’s Midwest leadership program, the Bowhay Institute for Legislative Leadership Development (BILLD), provides a similar opportunity that shows legislators what they need to know about the courts and provides legislators with a new perspective on the courts.