• Embed Doc
  • Copy Link
  • Readcast
  • Collections
  • CommentGo Back
Download
 
A Fourth Branch: Legal Arguments byFrancisco J. Gonzalez, J.D.(Text of presentation made on January 21, 2008 atThe Equality Campaign'sPublic Hearing,Concordia University.
 Additional information regarding this proposal follows
)
"In order to lay a due foundation for that separate and distinct exercise of the different powers of  government, which to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own: and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others" 
--James Madison, The FederalistPapers/No. 51, (1788).The constitutional amendment proposed by the Equality Campaign to create a Forth Branch of government here in Minnesota is part of a well-established trend in US and Internationalconstitutional theory and practice. Administrative, Ethics and Oversight bodies independent (to agreater or lesser degree from the traditional branches of the Executive, Legislative andJudiciary), have been active in the United States for decades.Many such agencies, such as Securities and Exchanges Commission, the National Labor Relations Board were created during Franklin D. Roosevelt’s New Deal era, expanding the roleof the central government in economic affairs and in promoting social and economic rights for citizens.In addition, arguments have been raised about certain government entities constituting a separate branch or government under the US constitution. A very interesting precedent, which was widelyreported in the press during the summer of 2007, is the argument raised by Vice President Dick Cheney that the Office of the Vice President is a unique entity with both executive and legislative branch duties, and thus exempt from certain oversight procedures imposed on the executive.http://www.time.com/time/nation/article/0,8599,1636435,00.htmlOther states also have separate independent regulatory entities created by constitutionalamendments. For example, in 1986, Rhode Island voters adopted a constitutional amendmentcreating an independent, non-partisan ethics commission to investigate ethics laws’ violationsand to impose penalties, including removal from office, on state and municipal elected andappointed officials.http://www.ethics.ri.gov/Commisssion_and_Staff/Commission_and_Staff.htm
1
 
Here in Minnesota the University of Minnesota has a special constitutional status within the stategovernment. According to a 2004 legal analysis prepared by the House Research Department,under the legal principle of constitutional autonomy the University of Minnesota is“a separate department of government, not merely an agency of the executive or legislative branch. A university with this status is subject to judicial review and to thelegislature’s police power and appropriations power. However, its governing board has asignificant degree of independent control over many university functions.”http://www.house.leg.state.mn.us/hrd/pubs/umcnauto.pdf In their ruling on
Star Tribune v. University of Minnesota Board of Regents
,
683 N.W.2d 274(Minn. 2004),
the Minnesota Supreme Court further described the special status enjoyed by thisinstitution as follows:“[t]he University and its Board of Regents indisputably enjoy special constitutionalstatus; the University is not just a typical state agency. As we have recounted on severaloccasions, the University was originally chartered by an act of the territorial legislature in1851.
See, e.g., Winberg,
499 N.W.2d at 801. The act created a board of regents for the purpose of governing the University.
 Id.
 
When Minnesota achieved statehood in 1857,the constitution confirmed the establishment of the University and provided that “[a]ll therights, immunities, franchises and endowments heretofore granted or conferred arehereby perpetuated unto the said University.”
 Knapp
, 125 Minn. at 198, 145 N.W. at 968(citing Minn. Const. of 1857, art. VIII, § 4). Thus, the University Charter of territorialorigins was given constitutional status within the state government.”Other countries have also adopted or considered adopting expanded branches of government. For example, the administration and governance of the European Union rests in five bodies belonging to four distinct branches:•European Commission - executive•European Parliament & Council of the European Union - legislative•European Court of Justice - judicial•European Court of Auditors - auditoryhttp://europa.eu/abc/panorama/howorganised/index_en.htmIn Australia, the Honorable James J. Spigelman, Chief Justice of the Supreme Court of NewSouth Wales, has proposed the creation of a fourth branch of government based on Chinesehistorical precedents, equivalent in significance to the legislative, executive or judicial branches.This new branch, which he calls the “integrity branch”, will “ensure that each governmentalinstitution exercises the powers conferred on it in the manner in which it is expected and/or required to do so and for the purposes for which those powers were conferred, and for no other  purpose.”http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_spigelman_ 290404The precedents just reviewed clearly establish that there are no prohibitions, under either theMinnesota or US constitutions, against creating additional independent branches of government.
2
 
The Equality Campaign has put forth a compelling set of examples identifying deficiencies inMinnesota’s current efforts to enforce human and civil rights. However, I would like to add twofinal thoughts on this matter.Brian K. Landsberg, a former lawyer in the Civil Rights Division of the United States JusticeDepartment has stated that“[t]he black poverty level continues to be more than twice the white poverty level;housing segregation persists, reinforcing school segregation. In my view racialdiscrimination is a core disease in this country, and the future of civil rights enforcementrequires that combating racial discrimination continue to occupy a central priority in theDivision’s work.”http://judiciary.senate.gov/testimony.cfm?id=2837&wit_id=6547"I think in part, this state has a false image of itself ... that we [are] different from the restof the U.S., and we're not. We're as racist as the red hills of Alabama." Chief Judge KevinBurke, Hennepin County District Court.--Quoted in William E. Martin and Peter N. Thompson
 , Judicial Toleration of Racial  Bias in the Minnesota Justice System,
25 Hamline Law Review 235-270, 236-240(Winter, 2002).I want to close my remarks by again quoting James Madison's Federalist 51:
“the separate and distinct exercise of the different powers of government … be essential to the preservation of liberty”.
Truly, an independent and autonomous Human Rights & Civil Rights branch is essentialto the preservation of our liberty.Thank you.
3
of 00

Leave a Comment

You must be to leave a comment.
Submit
Characters: ...
You must be to leave a comment.
Submit
Characters: ...