some observations on the relationship between the and

Some Observations on the Relationship Between the Courts and Executive and Administrative Agencies in State Government

The Honorable Charles Horowitz*

Under our system of separation of powers, i t might be thought desirable, or even necessary, that members of a court keep themselves aloof from state agencies and officials who may appear before them as parties in cases and controversies. Judges will wish to avoid any appearance of partiality, lest the stature of the courts be compromised, and the courts thus lose their persuasive influence in administering justice under law. The Standards of Judicial Conduct make quite plain that judges must uphold the integrity and independence of the court, performing their duties impartially and dili- gently and avoiding impropriety in all their activities.

Prior to the formulation of the American Bar Association's Code of Judicial Conduct, it was not uncommon for judges, including appellate judges, to accept appointments on governmental committees or to undertake advisory or other functions dealing with fact finding duties or governmental policy. These activities in recent years met with criticism. Some writers have been interested enough to make specific proposals for change in the then current Canons of Judicial Conduct.'

This new Code of judicial Conduct, widely adopted in this country, tightened the requirements of acceptable judicial behavior. Canon 5G expressly provides:

A judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his country, state, or locality on ceremonial occasions or in connection with historical, educa- tional, and cultural activities.

This provision is a specific application of the Canons formu- lated in more general language, particularly Canon 1. The Code of

* Washington Supreme Court Justice; A.B., L.L.B. University of Washington. 1. See Bell, Extrajudicial Activity of Supreme Court Justices, 22 STAN. L. REV.

587 (1970); McKay, The Judicial and Nonjudicial Activities, 35 LAW & CONTEMP. PROB. 9 (1970).

12 The Journal of the Legal Profession

Judicial Conduct purports to apply to all judges, federal and state. Canon 7 deals particularly with the problem of the elected judge and describes the occasions when a judge should refrain from political activity inappropriate to his judicial office. With the exceptions stated in Canon 5G, what the Canons make clear is that judges may not act as advisors to governmental executives, administrators, and agencies or assist them in the performance of their fact-finding duties. There are a t least three reasons for this prohibition. First, judges might otherwise be compelled to disqualify themselves from sitting in cases touching on the matters discussed or acted upon. Second, the fact-finding or counseling relationship itself might suggest impropriety. Third, such conduct may constitute a violation in the letter or spirit of the doctrine of separation of powers.

The Code of Judicial Conduct has generally been well received throughout the country both by the judiciary and the public. No doubt questions involving specific application of the Canons will continue to arise. These can be handled by the eight member Ameri- can Bar Association Standing Committee on Ethics and Profes- sional Respon~ibili ty,~ or by a state committee as, for example, one appointed by the chief justice of the state and representing the various court levels and the public.

Nevertheless, some kinds of communication between the judiciary and executive and administrative agencies are both appropriate and desirable. Thus, information or advice given by the judiciary or under its direction concerning the court's budgetary requirements or the court's willingness to participate with other government agencies in a cooperative administrative program affecting the court, e.g. , the sharing of computer technology or the making of recommendations by the court concerning the administration of criminal justice by the executive branch of government or recommendations for change in the law, is not improper and is within the letter and spirit of the Canons including Canon 5G. Indeed, a constitutional provision such as article 4, 6 25 of the Constitution of the State of Washington provides for an annual written report by the judge of the superior court or the judge of the supreme court to the governor on "such defects and omissions in the laws as they may believe to exist."

2. See VII Martindale-Hubbell Law Directory 65M (1978) for the composition, jurisdiction, and rules of procedure of the ABA Standing Committee on Ethics and Professional Responsibility.

Some Observations 13

Judges are frequently called upon to interpret and decide the validity of statutes, administrative regulations, and actions of administrative and executive bodies. I t is important that judges know as much as they can about the problems facing these agencies so they may act with knowledge of the effect their decisions will have upon administrative and executive processes. Obviously this kind of knowledge is not information obtained by ex parte or other improper communication concerning a pending or impending proceeding. It is a kind of knowledge derived from a broad general understanding of executive and administrative processes and problems faced by agencies in discharging the functions which the legislature has dele- gated to them. Under the Code of Judicial Conduct, judges are expressly permitted to write, lecture, teach and speak on both legal and nonlegal subjects and to participate in other activities concerning the law, the legal system and the administration of justice. This provides an adequate opportunity for an interdisciplinary exchange of views which would benefit both the executive and administrative personnel of government and the judges who make decisions affecting them.

Of course nothing in the Standards of Judicial Conduct is in- tended to preclude judges from giving advisory opinions on legal questions submitted by executive or administrative personnel when the constitution or statutes permit. Such advisory opinions may be essential if the executive or administrative agency involved must act before i t would reasonably be possible to adjudicate the matter. Were agencies required to seek an opinion through litigation or a declaratory judgment action on some kinds of issues, for example, the interests of both the general public and individuals with cases pending in the administrative body could be adversely affected by the course of conduct to which the administrators of necessity committed themselves during the period of judicial consideration.

Similarly, i t is not improper for the executive and administrative agencies of government in brief. and oral argument in cases brought to the appellate courts to call the court's attention to the effect a particular decision might have on government agencies or persons who have relied on an existing rule, regulation, or interpre- tation. This can be extremely important for the court's determina- tion whether the decision it renders shall have retroactive or pro- spective operation. Occasionally the time period between the commencement of litigation and its ultimate termination is quite substantial. Rights and obligations may arise by virtue of action taken in the interim. It is important that appellate courts be made


aware in specific detail that its decision is made not in a vacuum but for a very practical purpose. The decision may properly seek to ameliorate and mitigate any adverse effects it may have on a relationship entered into in good faith and with the expectation that i t was entirely lawful.

Nothing in the Code of Judicial Conduct prevents a judge from speaking or writing in general terms on the subject of executive and administrative law and practice, and on problems peculiar to executive and administrative actions revealed through causes submitted for adjudication. If, therefore, administrative and executive personnel are wrestling with particular problems and make this fact known in some appropriate way, independent of particular litigation, courts may be able to better perform their duties in decision making in the areas of such concern.

One of the more useful and successful ventures of layman-court cooperation to lessen the necessity of litigation is the Bench-Bar- Press committees established by joint action of courts and the media in various parts of the country. These committees have established written guidelines for conduct of the media and the courts. They are not legally binding, of course, because they are only guidelines. They do, however, minimize those confrontations between the media and the courts which arise as the media pursues what its members consider to be first amendment rights, and the courts enforce the sixth amendment right to counsel and a fair trial. This successful cooperation has not compromised either the courts in their independence and fairness or the media in its independent effort to discharge its own function.

The model of the Bench-Bar-Press committee may not be as successful for a dialogue among executive, administrative, and judicial personnel. There is always the possibility that participation in such an organization on a regular and permanent basis will give an appearance of unfairness. Such an arrangement may be criticized on the ground that courts would be unduly influenced. States could meet his criticism, however, if state agencies organized administrative conferences along the lines of the Administrative Conference of the United States, created by Congress in 1964 as an independent a g e n ~ y . ~ The Conference is empowered by statute to study administrative procedures and make recommendations for improvements.

3. 5 U . S . C . $5 571-76. See Miller, A Continuing Forum for the Reform of the Administrative Process, 27 AD. L. REV. 205 (1975).

Some Observations 15

A liaison member from the Judicial Conference is a nonvoting par- ticipant in its deliberations. Also, members of the judiciary may speak a t special seminars for Conference members.

A state organization modeled on the federal Conference could invite judges t o speak on subjects of their particular expertise gained through actual adjudication of issues relating to administrative law. Participating judges would be exercising their right under the Code of Judicial Conduct to write, lecture, teach and speak on subjects concerning the legal system, the law, and the administration of justice.

It should be pointed out that such a body need not be the creation of a statute. The Administrative Conference of the United States is the successor of two temporary conferences established by United States Presidents. Other temporary committees had also studied the problems of the federal administrative process, one hav- ing been established by the Attorney General.4 Thus both executive orders and independent agency action may be tools for creating a study committee of the type proposed.

There is another technique which could be used to create a dialogue between executive and administrative personnel on the one hand and the judiciary on the other. That is the seminar technique. From time to time seminars could be sponsored by agencies or executive offices to which judges would be invited as participants. Prob- lems of administrative processes and relevant law would be topics of discussion. The views of both administrative and executive personnel and the judges would be represented. This technique has been effectively used by the Ford Foundation in acquainting the media with relevant problems as seen both from the perspective of the media and the judiciary.

If such a seminar is to be successful, it is essential that subjects be carefully chosen. Many developing concepts in the field of administrative law could benefit from further elucidation from a legal point of view. Administrative law journals, texts, and treatises suggest a wide range of problems needing consideration and discussion.

4. The following materials provide useful information about the functions of the Administrative Conference of the United States: Administrative Conference Authorization: Hearing on S. 1792 Before the Subcomm. on Administrative Prac- tice and Procedure of the Comm. on the Judiciary, 95th Cong. 1st Sess. 97 (1977) (statement of Robert A. Anthony); [I9671 & [1974-751 AD. CONF. OF THE U.S. REP.


A few recent articles suggest some of the many possible topics for such a ~ e m i n a r . ~

In summary, as long as the integrity of the respective functions of government agencies and the courts are scrupulously observed, and as long as mutual respect for the importance of these functions is maintained, there is no reason for aloofness on the part of the judiciary. On the contrary, there is every reason for judges to engage in an open exchange of views, under appropriate circumstances, to the end that the public may benefit.

5. Davis, Revising the Administrative Procedure Act, 29 AD. L. REV. 35 (1977); Drachsler, T h e Freedom of Information Act and the "Right" of Non-Disclosure, 28 AD. L. REV. 1 (1976); Ehrman, Administrative Appeal and Judicial Review of Property T a x Assessments in California-The New Look, 22 HASTINGS L.J. 1 (1968); Fiorino, Judicial-Administrative Interaction in Regulatory Policy Making: The Case of t he Federal Power Commission, 28 AD. L. REV. 41 (1976); Haskell, Judicial Review of School Discipline, 21 CASE W.L. REV. 211 (1970); Miller, Separation of Powers: A n Ancient Doctrine Under Modern Challenge, 28 AD. L. REV. 299 (1976); Safers te in , Nonreuiewability: A Functional Analysis of "Committed t o Agency Discretion," 82 HARV. L. REV. 367 (1968); Sullivan, From Kroner to Fasano: A n Analysis of Judicial Review of Land Use Regulation i n Oregon, 10 WILLAMETTE L.J. 358 (1973); Symposium: Review of Administrative Adjudication, 26 AD. L. REV. 49 (1974); Comment, Judicial Review in Urban Re- newal Cases: Concepts and Consequences, 57 GEO. L.J. 615 (1969).

some observations on the relationship between the and

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