Separation of Powers Issue

[POC]

Soc, I've run into a group of people who have shed light on an interesting issue. Florida's State Constitution Article II, Section 3 states:

"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." In 1949 the Florida Bar was unified with, and became a part of the Supreme Court (See Petition of Florida State Bar Assn. 40 So. 2d 902.)

Q 1) Is such a petition invalid, thereby not actually making members fo the FL Bar Officers of the Court?

Q 2) If FL Bar members are in fact Officers of the Court, does serving in another branch violate Section 3 of Article II?

Q 3) If the answer to 2 is no, then would it be permissible for officers of the other two branches to serve as justices?

Q 4) Does dropping out of the Bar, but still practicing law before the court, serve as a sufficient separation of power if a Bar member wished to serve in one of the other branches?

Section 5 appears to further clarify Section 3 -

SECTION 5.  Public officers.--

(a)  No person holding any office of emolument under any foreign government, or civil office of emolument under the United States or any other state, shall hold any office of honor or of emolument under the government of this state. No person shall hold at the same time more than one office under the government of the state and the counties and municipalities therein, except that a notary public or military officer may hold another office, and any officer may be a member of a constitution revision commission, taxation and budget reform commission, constitutional convention, or statutory body having only advisory powers.

[socrateaser]

>Q 1) Is such a petition invalid, thereby not actually making
>members fo the FL Bar Officers of the Court?

I don't see why. The Bar is operated by the Supreme Court, which has authority to supervise attorney members. All part of the Judicial Branch of Government.

>
>Q 2) If FL Bar members are in fact Officers of the Court, does
>serving in another branch violate Section 3 of Article II?

No, because being an attorney doesn't mean that you are necessarily "exercising" the power of another branch of government, when you are, for example, Secretary of State. If you were simultaneously Secretary of State, or Speaker of the House, and a sitting judge or a member of the sheriff's department (sheriff/marshal is traditionally part of the judicial branch, while state/local police are part of the executive), then you would have a problem (being a deputy sheriff and a state policeman, would also be a problem).

>Q 3) If the answer to 2 is no, then would it be permissible
>for officers of the other two branches to serve as justices?

See above.

>
>Q 4) Does dropping out of the Bar, but still practicing law
>before the court, serve as a sufficient separation of power if
>a Bar member wished to serve in one of the other branches?

An attorney doesn't "excercise" the power of the judicial branch, just because the attorney is an officer of the court (well, actually, when an attorney issues a subpoena on his/her own signature authority, he/she does, and I can see an argument that such action would be unconstitutional if done while exercising authority for another branch, such as if the attorney were the attorney general of the state, or the local DA -- but you'll never convince the FL Supreme Court of this, so don't waste your time).

I don't know what the issue is, and I am reluctant to opine in a vacuum of facts, so if you want to discuss this farther, I need to know exactly what is at issue.

[POC]

I admit, previously, I had never given much thought about this issue. But, recently, I ran into a person named Bob Bertrand, who seems to have made this a life issue. His perspective has not swayed me. But, it has caused me to consider the issue. Here is what troubles me about it:

In 1949, the FL Bar and its members became a part of the Court. The Court's function is to interpret the laws, not make them. Every day, attorneys interpret laws, just like you are doing here. That is great. That's the function they are supposed to serve. I don't have anything to base this on, but I would presume that most interpretations of the law are not made as final judgements. Time after time, lawyers find themselves telling clients, "Yeah, you can go to court with that, but you're going to lose, because the law says..." Attorneys are the only people with legal authority to give such interpretations of the law. In the most basic sense of the court's authority, that is its purpose.

The problem is the same person making such interpretations could very well have written the law. In fact, from a client's perspective, who better to represent you than the one who sponsored the bill?

Q ) Is interpreting law not an exercise of the power of the judicial branch?

The particular facts are that attorneys all across the country interpret the law, while dually serving in one of the other branches of government. I am not talking about positions such as Atty Gen or the DA's office, which are specifically provided for in the Constitution. I am talking about members of the Legislature and Executive positions, which are not specifically provided for within the Constitution.

Sorry about all the particulars and background info, but at least it was only one question.

[socrateaser]

>Q ) Is interpreting law not an exercise of the power of the
>judicial branch?

Anyone can interpret law. Only a lawyer can give legal advice, based on the interpretation. Legislators write laws, they state their opinions about what laws mean, but they don't give legal "advice," to those outside the legislature.

You're stretching, although I understand where you're coming from. But, there's no compelling case.

[POC]

Soc, I really haven't formed my own opinion about this issue yet. So, any stretching on my part is to seek better understanding, to which I thank you for your insight. But, to seek truth you have to look at an issue from one side and then the other. The problem I am having is that yes, legislators do give legal advice to those outside the legislature. There are numerous attorneys who practice law (almost seems redundant) while dually serving as legislators and crafting laws the very laws that they will or may interpret. Your reply of, "Only a lawyer can give legal advice, based on the interpretation" seems to simultaneously place one person in two branches of government, when that person happens to be a practicing attorney, who happens to be a legislator or Chief Executive.

Q) I guess I will work this from the opposite angle, other than constitutional offices, which are specifically provided for, is there any provision within the Constitution that allows for members of the Court (be they considered exercising that authority or not) to simultaneously serve in anohter branch of the government?

While there is no compelling case before a court that I am aware of, the compelling reason to discuss the issue should be self-evident. At issue is whether attorneys ought to be allowed to craft legislation or carry out laws which they are legally authorized to interpret and give advice about.

[socrateaser]

>Q) I guess I will work this from the opposite angle, other
>than constitutional offices, which are specifically provided
>for, is there any provision within the Constitution that
>allows for members of the Court (be they considered exercising
>that authority or not) to simultaneously serve in anohter
>branch of the government?

An attorney can give private advice to a private client without simultaneously undertaking the role of a member of another branch.

An attorney is not deemed to be a governmental actor, when engaged in private practice. A state legislator who was also a working prosecuting attorney would violate the separation of powers, because he/she would be undertaking the role of two branches simultaneously.

Otherwise not.

>
>While there is no compelling case before a court that I am
>aware of, the compelling reason to discuss the issue should be
>self-evident. At issue is whether attorneys ought to be
>allowed to craft legislation or carry out laws which they are
>legally authorized to interpret and give advice about.

Ah! "Ought" is a synonym for "should." The question of what "should" or "should" not be, is one for the political process to sort out -- not the courts. Modern, courts deal with what "is," based upon existing legislation, not about what "should" happen.

You're wasting your time with this. No Supreme Court of any jurisdiction is suddenly going to rule that its attorneys can't be legislators. You may as well ask God to step down in favor of Satan.

If you want to change the law in this area, you'll need to do it through the legislative process, not the courts.

[Finnchadh]

This is interesting; I have always been under the impression that an Officer of the Court was given the "Trust" of the Court because they have been charged with an obligation of candor to the Court to assist the Court in the determination of the Truth of the given issue.  While they have a duty to their client, they are ordinarily prevented from placing the interest of the client above the Court's purpose or the Law itself.  Case in point would be Attorney Client privilege is limited to the Lawful Practice of the Law; anything outside that scope is fair game.  No I am not debating the Court's "Responsibility" to regulate the affairs before the Bench to protect its purpose and integrity; however, the powers associated with that responsibility are also limited.  One of those limitations falls under an aspect of Due Process.  

[POC]

I am not looking to change the law in this area. Personally, there are legislative issues of more importance to me, for which it would not be in my best itnerests to agitate all attorneys, who happen to be legislators. Besides, if there is a problem with it, no law would need changed. It would be a matter of interpeting the existing law that this circumstance is a violation of separation of powers.

From your replies what seems to be at issue is whether the attorney is afforded the liberty to change hats as he does one job and then the other. Does the law not consider him to be an attorney while he is legislator and vice-versa? I don't know the answer to that question, nor do I know if it has been put before a court to consider. I do know that I won't be involved in such a case. But, I am troubled that a legislator has the ability to vote on laws that are likely to affect his clients one way or the other. I would be very distraught to find out my attorney voted against my best interests. At the same time, he may have another client whom he is representing that would be distraught if he were to vote in my best interests.

Thank you for your insight.

[socrateaser]

>One of those limitations falls under an aspect of Due Process.  

Conclusory. Which one? Discuss.

[socrateaser]

> But, I am troubled that a legislator has the
>ability to vote on laws that are likely to affect his clients
>one way or the other. I would be very distraught to find out
>my attorney voted against my best interests. At the same time,
>he may have another client whom he is representing that would
>be distraught if he were to vote in my best interests.

An attorney who has an actual or potential conflict of interest on a legislative issue, which might materially limit the attorney's legal representation of a current client, must either refrain from voting, or withdraw from the client representation.

Failure to do so, violates the Rules of Professional Conduct which may subject the attorney to sanction, suspension or disbarrment.