Lesson Plan 1a
The Role of the Judiciary in a System of
Separation of Powers and Checks and Balances
(In conjunction
with the Judicial Track of the Checks and Balances Project)
By Millie Aulbur,
Director of Law-Related Education, The Missouri Bar
Objectives:
- To reinforce the concepts discussed in the telecast on
the role of the judiciary on a system of separation of powers and checks and
balances.
- To demonstrate the role of judiciary in our system of
government.
Suggested grade levels: 9-12
Materials needed: Handouts for and access to either
a writing board or a flip chart.
Procedures:
1.
Distribute the student handout—What is the Role of the Courts in a
System of Separation of Powers and Checks and Balances? This is reprinted
from the Constitutional Rights Foundation website (www.crf-usa.org
from the Online Lessons section) with edits and additions provided by The
Missouri Bar.
2.
Have the students read the handout either silently or together as a
class.
3.
As a class or in groups of three to four, have the students complete the
charts on the student handout—Checks and Protections. The purpose of this
handout is to show both the “separation” of the branches and the checks and
balances between the judicial branch and the other two branches.
Possible answers for legislative
and executive checks on the judiciary:
·
Missouri legislative checks on the judiciary include the power of
the purse—each year the legislature decides the budget for every state branch
and agency, including the judiciary.
·
Federal legislative checks include the power of the purse and the
Senate must approve any federal judge nominated by the president.
·
Missouri executive checks include the governor chooses appellate
court judges, including Missouri Supreme Court judges, from a panel of three
nominated by a special commission. In Missouri, unlike the federal government,
the chief executive—the governor—has line item veto and can veto all or parts of
the judiciary budget.
·
Federal executive check is the power to nominate federal judges.
Possible answers for protections
the judicial branch has from the other two branches of government:
·
Federal legislative protections—Congress cannot reduce a judge’s
salary while he/she is on the bench, Congress may not nominate a judge—only
confirm a presidential nominee, the Congress has no control over the cases the
Court hears and Congress cannot overrule the Court.
·
Federal executive protections--the president cannot demand loyalty
from a judge he/she nominates and has no control over the cases that the Court
hears.
·
Missouri legislative protections—The Missouri General Assembly has
no part in selecting judges under Missouri’s Non-Partisan Court Plan and has no
power over the cases that the Courts hear.
·
Missouri executive protections—the governor chooses a judge from a
panel presented to him/her and does not nominate or choose judges and the
governor has no control over the cases the Courts hear.
4.
Follow up activities:
a.
Distribute the student handout—The Least Dangerous Branch? or
make it into a transparency and project it where all students can see it. Have
the students react to Hamilton’s belief that the judiciary will be the least
dangerous to individual freedoms. Discussion questions follow the quote on the
handout.
b. Do the case study of State
v. Rowe. (Attached)
5.
Debrief:
·
What did you learn from this lesson?
·
What information do you still need?
·
Where might you go to find out this information?
Student Handout
What is the Role of the Courts in a System of
Separation of Powers and Checks and Balances?
The United States Court System
When the framers of the Constitution arrived in Philadelphia in 1787 to
consider a new form of government for the United States, it was a foregone
conclusion that it would have three branches. Well-educated students of history,
the framers had been influenced by great political thinkers of the past,
including the Frenchman Montesquieu. Central to his ideas about government was
the concept of separation of powers. He believed that the best way to preserve
individual liberty and avoid tyranny was to divide the powers of government into
the legislative, executive, and judicial function. (See Articles I, II and III
of the United States Constitution.) In this way, none of the branches would
possess all of the power and each would balance one another off.
Those at the Constitutional Convention worried about power, too. Fresh from
the revolutionary experience, they wanted to make sure that the government had
enough power to solve the country’s problems, but not too much power to ride
roughshod over the states or individual citizens. Many viewed the judicial
branch as, in the words of Alexander Hamilton, “the least dangerous to the
political rights of the Constitution” and as a necessary buffer between the
powerful presidency and Congress.
Article III of the Constitution states: “The judicial Power of the United
States shall be vested in one Supreme Court and in such inferior Courts as the
Congress may from time to time ordain and establish.” The article goes on to
describe what kinds of cases the “judicial Power” would be empowered to hear.
Language in the article suggests that the framers wanted the judicial branch to
serve an independent role free from political pressure. It stated that judges
should “hold their Offices during good Behavior.” This meant a judge could only
be removed for misconduct. It also stated that judges should receive a salary
that could not be reduced during the time they held office. This would assure
that judges could not be punished by salary reductions if they made unpopular
decisions.
Though the framers created an independent judiciary in Article III, they also
included some checks and balances against too much judicial power. The
Constitution gave the president the power to appoint judges with the “Advice and
Consent of the Senate.” (Article II, Section 2.2) (See more on how the
Senate’s power to give “advice and consent” to the president has evolved in
Lesson 3—The Selection of Judges.) It gave Congress the power to create
or eliminate lower federal courts and determine what cases could be appealed to
them.
Oddly, the Constitution says nothing about the one job the Supreme Court is
most known for today. That is the power to review federal and state laws to
determine whether or not they are constitutional. (See the Lesson Plan
2—Judicial Review.) Some scholars have argued that the framers assumed that the
Supreme Court would have this power without having to spell it out in the
Constitution. They cite, for example, Alexander Hamilton in The Federalist
Papers, a series of articles published to support the ratification of the
Constitution. He wrote:
The interpretation of the laws is the proper and peculiar province of the
courts. A constitution is, in fact, and must be regarded by judges, as
fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body.
Once the Constitution was ratified, the First Congress of the United States
went about establishing the rest of the federal courts under the powers given to
it. The Federal Judiciary Act of 1789 laid out a plan that today has grown into
an extensive system of federal trial and appeal courts. It also gave federal
courts the power to take appeals from state decisions. The U.S. Constitution
attempts to ensure judicial independence.
Missouri’s Court System
Missouri has the same separation of powers system of
government as the United States and grants its courts have the same powers as
the federal courts. (See Articles II, III, IV and V of the Missouri
Constitution.) Unlike the federal constitution, Missouri’s Constitution grants
the power of judicial review to Missouri’s courts (Article V, Section 3) and
extensively lays out how many courts there will be, how many judges there will
be and what their qualifications will be. (Article V)
Missouri also has a system of checks and balances—balanced
power between the three branches and each branch has checks on the other two.
In Missouri, the Governor appoints some circuit court judges and all appellate
judges from a special non-partisan panel. The legislative branch (Missouri’s
General Assembly) has the power of purse—it decides the budget of the
judiciary. The Governor also has the power to approve or veto all or part of
the budget. (The President of the United States does not have the power of line
item veto like the Governor of Missouri.) The judicial check on the executive
and legislative branches is the power to declare laws and executive acts
unconstitutional, which means the laws and acts are null and void.
Student Handout
Checks and Protections
Legislative and Executive Checks on the Judiciary
|
|
Missouri |
United States |
|
Executive |
|
|
|
Legislative |
|
|
Judicial
Protections from the Executive and Legislative Branches
|
|
Missouri |
United States |
|
Executive |
|
|
|
Legislative |
|
|
Student Handout
The Least Dangerous Branch?
From Federalist Paper # 78 by Alexander Hamilton:
Whoever attentively
considers the different departments of power must perceive that, in a government
in which they are separated from each other, the judiciary, from the nature of
its functions, will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them.
The executive not only dispenses the honors but holds the sword of the
community. The legislature not only commands the purse but prescribes the rules
by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either ht sword or the purse;
no direction either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have neither FORCE
nor WILL but merely judgment; and must ultimately depend upon the aid of the
executive arm, even for the efficacy of its judgments.
Discussion questions:
- Do you agree with Hamilton’s statement that the
judiciary is the least dangerous to our political rights (think of the rights
guaranteed in the Bill of Rights)? Why or why not?
- What does he mean by “sword of the community”?
- Why do you think Hamilton felt that the “power of the
purse” is more dangerous than anything the judiciary might do?
- Supreme Court judges—both Missouri and United
States--are not elected. Why doesn’t this make them the “most dangerous”
branch of all? How does the fact they are not elected insure everyone’s
political rights? How does the fact that they do not have raise money for
elections make for a more independent judiciary?
State v. Rowe,
63 S.W.2d, 847 (Mo banc 2002).
(In conjunction
with the Judicial Track of the Checks and Balances Project)
By Millie Aulbur,
Director of Law-Related Education, The Missouri Bar
Description: This lesson uses the case of State v.
Rowe to explore how the legislature makes the law, the executive branch enforces
the law and the judicial branch interprets the law.
Objectives:
- To explore the concepts of separation of powers and
checks and balances.
- To see how the concept of separation of powers and
checks and balances applies in an actual situation.
Suggested grade levels: 9-12
Materials needed: Handouts and access to either a
writing board or a flip chart.
Procedures:
- As a class read the case of State v. Rowe. (Attached
and may be found at
www.osca.state.mo.us by going to “Opinions” and then putting “State v.
John Rowe” in the search box.)
- Possible vocabulary words to define prior to the
lesson: revoked, felony and plaintiff.
- After reading the case, have the students discuss this
case and fill in the handout:
Possible answers to the questions
in the handout:
·
John Rowe was arrested for driving while his license was revoked.
·
In court he was found guilty of the Class D felony (least severe
of felony classes) of driving with his license revoked and sentenced to three
years in prison and given a fine of $1,000.00.
·
The State of Missouri is the plaintiff because John Rowe is
accused of breaking a Missouri law. The prosecutor is the state lawyer in this
case.
·
This was a jury tried case.
·
It was in Clark County because that is where he was arrested.
·
John Rowe (through his lawyer) argued that the law said he would
be guilty of driving while his license was revoked if it had been revoked under
the laws of “this” state (meaning Missouri) and his license had been revoked by
the state of Iowa.
·
The role of the legislature was to pass this bill.
·
The role of the executive branch was twofold: the governor signed
this bill into law and law enforcement officials arrested Mr. Rowe.
·
The role of the judiciary is two fold: the trial court provided
Mr. Rowe with a place to have his case heard and then convicted and sentenced
him and now the Supreme Court is reviewing the trial court’s action to make sure
the trial court applied the law correctly.
·
§302.321. (See
www.moga.state.mo.us for access to Missouri’s statutes.)
·
A person commits the crime of driving while revoked if such person
operates a motor vehicle on a highway when such person's license or driving
privilege has been canceled, suspended, or revoked under the laws of this
state…
·
The Court believed the intention of the legislature was to make it
illegal for anyone with a revoked license from any state to drive on Missouri’s
roads and highways.
·
The Supreme Court reversed Mr. Rowe’s conviction because the
statute’s clear language was that it was illegal only when the license had been
revoked by Missouri law and since Mr. Rowe’s had been revoked under Iowa law,
the Missouri law could not apply to him.
·
Because “this court….cannot rewrite the statute.” This is the
role of the legislative branch, not the judicial branch.
·
It does—“The legislature may wish to change the statute to cover
out-of-state multiple offense drivers such as Rowe.”
Student handout
DISCUSSING STATE V. ROWE
- Establishing the facts:
- What did John Rowe do to get in trouble with the law?
- John Rowe is the defendant in this case. Who is the
plaintiff? Why?
- What happened to him in court? Was it a judge tried
or jury tried case? What county did he go to court in? Why?
- Why does John Rowe think that he should not have been
convicted of driving while his license was revoked?
- How were all three branches of the government
involved?
- What role did the Missouri legislature have in this
case?
- What role did the executive branch have in this case?
- What role did the judiciary have in this case?
- What did the Supreme Court of Missouri decide?
- What statute is the court looking at to make its
decision?
- What wording in the statute particularly concerns the
parties?
- What did the Supreme Court think the intention of the
legislature was when it passed this law? What do you think?
- Did the Supreme Court find in Mr. Rowe’s favor or
agree with the trial court?
- Since the Supreme Court thinks the legislature
intended for the law to apply to anyone who had a license revoked in any
state, why didn’t the court just let Mr. Rowe’s conviction stand?
- Why doesn’t the Supreme Court change the law to what
it thinks the legislature intends?
- Does the Court tell the legislature how it can fix the
law?
Supreme Court of
Missouri,
En Banc.
STATE of Missouri,
Respondent,
v.
John ROWE,
Appellant.
No. SC 83880.
Jan. 8, 2002.
Driver was convicted in the Circuit Court, Clark
County,
Gary Dial, J., of driving with a canceled license. Defendant appealed. On
transfer from the Court of Appeals, the Supreme Court,
Wolff, J., held that driver could not be prosecuted for driving with license
canceled "under the law of this state," as license had been canceled in Iowa.
Reversed and remanded.
Emmett D. Queener, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen.,
Evan J. Buchheim, Assistant Atty. Gen., Jefferson City, for Respondent.
MICHAEL A. WOLFF, Judge.
John Rowe, an Iowa resident who had his driver's
license cancelled in Iowa, appeals his conviction under
section 302.321
[FN1] for driving in Missouri when his license or driving privilege "has
been canceled, suspended or revoked under the laws of this state...." The state
asks this Court to construe the statutory words "under the laws of this state"
to include the laws of Iowa.
FN1. All references are to RSMo 2000 unless otherwise specified.
The meaning of the statute's words is plain. They
cannot be construed to mean anything other than what they say. Rowe's conviction
is reversed, and the case is remanded.
John Rowe, an Iowa resident who had
his driver's license cancelled in Iowa, appeals his conviction under
section 302.321
[FN1] for driving in Missouri when his license or driving privilege "has
been canceled, suspended or revoked under the laws of this state...." The state
asks this Court to construe the statutory words "under the laws of this state"
to include the laws of Iowa.
FN1. All references are to RSMo 2000 unless otherwise specified.
The meaning of the statute's words is plain. They
cannot be construed to mean anything other than what they say. Rowe's conviction
is reversed, and the case is remanded.
The Case Against Rowe
On October 2, 1999, Rowe pulled his car off the road
onto a shoulder near a checkpoint that police in Clark County were operating at
the intersection of two highways. Police saw Rowe get out of the car and a
passenger, later identified as his wife, move over into the driver's seat. The
officers arrested Rowe for driving without a valid license.
The state charged Rowe with the class D felony that
is included in
section 302.321: driving while his license was canceled, suspended or
revoked, after multiple prior such offenses. At trial, Rowe's Iowa driving
record was admitted. The Iowa record showed that he was barred from having a
driver's license because he was a habitual offender and that his license had
been indefinitely suspended and revoked. Section 302.321.2 makes the offense a
class D felony where there are multiple instances of driving while revoked. The
jury found Rowe guilty of the class D felony and, upon the jury's
recommendation, the trial court sentenced Rowe to three years in prison and a
fine of $1,000.
Rowe appealed. This Court granted transfer after
opinion by the court of appeals. We have jurisdiction.
Mo. Const. art. V, sec. 10.
The Law
The statute under which Rowe was convicted, section
302.321.1, provides:
A person commits the crime of driving while revoked
if he operates a motor vehicle on a highway when his license or driving
privilege has been canceled, suspended
*649
or revoked under the laws of this state and acts with
criminal negligence with respect to knowledge of the fact that his driving
privilege has been canceled, suspended or revoked. (Emphasis added.)
[FN2]
FN2.
Section 302.321.2 provides that a violation is a class A misdemeanor but
enhances the offense to a class D felony where there are multiple driving while
revoked offenses. Section 302.321.2 provides:
Any person convicted of driving while
revoked is guilty of a class A misdemeanor. Any person with no prior
alcohol-related enforcement contacts as defined in section 302.525, convicted a
fourth or subsequent time of driving while revoked and any person with a prior
alcohol-related enforcement contact as defined in section 302.525, convicted a
third or subsequent time of driving while revoked is guilty of a class D felony.
No court shall suspend the imposition of sentence as to such a person nor
sentence such person to pay a fine in lieu of a term of imprisonment, nor shall
such person be eligible for parole or probation until he has served a minimum of
forty-eight consecutive hours of imprisonment, unless as a condition of such
parole or probation, such person performs at least ten days involving at least
forty hours of community service under the supervision of the court in those
jurisdictions which have a recognized program for community service. Driving
while revoked is a class D felony on the second or subsequent conviction
pursuant to
section 577.010, RSMo,
or a fourth or subsequent conviction for any other offense.
Rowe's sole contention on appeal is that his license
was not canceled, suspended, or revoked "under the laws of this state" and,
thus, he cannot be found guilty of the felony offense set forth in
section 302.321.
Rowe apparently concedes that he had no privilege to drive on Missouri roads and
that he violated section 302.020, a misdemeanor offense of driving without a
valid license.
[FN3]
FN3.
Section 302.020.1 provides in pertinent part:
Unless otherwise provided for by law, it
shall be unlawful for any person, except those expressly exempted by section
302.080, to: (1) Operate any vehicle upon any highway in this state unless he
has a valid license; ...
Missouri extends to residents of other states the
privilege of driving here. Section 302.080. Missouri participates in the "Driver
License Compact" with other states; the policy of the compact is to make
"reciprocal recognition of licenses" and to help achieve compliance with motor
vehicle laws of the participating states. Section 302.600. But nowhere in the
compact or other statutes is a provision that includes the laws of another state
in the phrase "under the laws of this state."
[1]
 [2]
Section 302.321.1 would mean precisely what the state says it
means if the phrase "under the laws of this state" were omitted. If that were
the case, Rowe would be guilty of driving while his license was canceled,
suspended or revoked regardless of which state's licensing agency took away his
license. The state wants this Court to construe the statute to achieve this
result. Courts apply certain guidelines to interpretation, sometimes called
rules or canons of statutory construction, when the meaning is unclear or there
is more than one possible interpretation.
[FN4] When the words are clear, there is nothing to construe
beyond applying the plain meaning of the law.
State ex rel. Missouri Pacific Railroad v. Koehr,
853 S.W.2d 925, 926 (Mo. banc 1993).
FN4.
See generally, Karl Llewellyn, Remarks on the theory of Appellate
Decision and the Rules or Canons About How Statutes Are to be Construed, 3
VAND. L.REV. 395, 398-406 (1950).
[3]
Despite the phrase "under the laws of this state," it seems
unlikely that the Missouri legislature intended to let out-of-state drivers with
multiple offenses suffer only the consequences of a misdemeanor for driving
after revocation while subjecting
*650
Missouri drivers to a felony for the same act. Legislative intent can only be
derived from the words of the statute itself.
Spradlin v. City of Fulton, 982 S.W.2d 255, 258 (Mo.1998).
[4]
Courts
do not have the authority to read into a statute a legislative intent that is
contrary to its plain and ordinary meaning.
Kearney Special Rd. Dist. v. County of Clay, 863 S.W.2d 841, 842 (Mo.
banc 1993). The legislature may wish to change the statute to cover
out-of-state multiple-offense drivers such as Rowe. But this Court, under the
guise of discerning legislative intent, cannot rewrite the statute.
[5]
This
is not an application of the rule of lenity. The rule of lenity gives a criminal
defendant the benefit of a lesser penalty where there is an ambiguity in the
statute allowing for more than one interpretation. See
State v. Stewart, 832 S.W.2d 911, 912 (Mo.1992)
citing
Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 65 L.Ed.2d 205
(1980). There is no ambiguity in the words of the statute.
Conclusion
Rowe's license or driving privilege has not been
"canceled, suspended, or revoked under the laws of this state;" thus, he cannot
be found guilty of violating
section 302.321. The judgment of the circuit court is reversed, and the case
is remanded.
All concur.
Mo.,2002.
State v. Rowe
63 S.W.3d 647
END OF DOCUMENT
| 
