Comity and the Whole-of-Government Approach in the Judicial Branch

Do the formal safeguards of judicial independence and the separation of powers of the judicial branch impede a whole-of-government approach to addressing complex public policy problems that require inter-agency communication, coordination, and collaboration across all three branches of government?

This question plus my tentative answer, namely that the de jure and de facto safeguards of judicial independence and separation of powers constitute a serious impediment to the whole- of- government approach, were prompted by my participation in two events in the last two weeks.

The most recent was the Inaugural Whole of Government National Security Conference in Williamsburg, Virginia, April 20, 2018, sponsored by the William & Mary’s Whole of Government Center of Excellence. Variously termed “one-stop government” and “joined-up government,” “whole-of-government” represents a change in emphasis away from organizational devolution, disaggregation, and single-purpose organizations towards a more integrated approach to addressing pressing complex societal problems that call for collaborative approaches. The Conference explored impediments to effective cooperation and strategies for overcoming them, and emphasized practical solutions at the local, state, federal, and international levels.

The Williamsburg “whole-of-government” conference was preceded by an unrelated scientific gathering April 12-13, 2018 in Utrecht, Netherlands, sponsored by the European Network of Councils for the Judiciary (ENCJ) and by Utrecht University’s Montaigne Centre for Judicial Administration and Conflict Resolution. It brought together 26 international researchers and scholars to review  ENCJ’s framework for the measurement of judicial independence and accountability.  ENCJ’s vision and framework for independence and accountability of the judiciaries in the European Union do not explicitly recognize the need for communication, coordination, and collaboration across all branches of government. While such strategies may be suggested in ENJC’s framework, the emphasis is clearly on “independence,” “separation,” and “self-government” of the judiciary.

Thinking back on the discussions about judicial independence and accountability in Utrecht in view of last week’s presentations in Williamsburg on a whole- of- government approach, I am today convinced that the principle of and practice of comity in judiciaries’ government relationships needs to be recognized as an integral part of judicial accountability.

Judicial Accountability and Comity

The five standards in the performance area of independence and accountability in the seminal 1997 Trial Court Performance Standards (TCPS) combine the principles of separation of powers and judicial independence with the need not only for public accountability, but also comity. Black’s Law Dictionary defines comity as courtesy, complaisance, respect, and a willingness to grant a privilege, not as a matter of right or obligation, but out of deference and good. The TCPS takes the doctrine of comity beyond the legal sphere into judicial administration, i.e., the practices, procedures, and organizational structures that deal with the management of the administrative systems of the courts.

Specifically, Standard 4.1 of the TCPS, Independence and Comity, states: The trial court maintains its institutional integrity and observes the principle of comity in its governmental relations. Comity is integral to public accountability.

For a trial court to persist in both its role as preserver of legal norms and as part of a separate branch of government, it must develop and maintain its distinctive and independent status. It also must be conscious of its legal and administrative boundaries and vigilant in protecting them. Effective trial courts resist being absorbed or managed by the other branches of government. A trial court compromises its independence, for example, when it merely ratifies plea bargains, serves solely as a revenue-producing arm of government, or perfunctorily places its imprimatur on decisions made by others. Effective court management enhances independent decision making by trial judges. … The court must achieve independent status, however, without damaging the reciprocal relationships that it maintains with others. Trial courts are necessarily dependent upon the cooperation of other components of the justice system over which they have little or no direct authority.

The link of judicial independence with public accountability is widely recognized.  Accountability is seen as a necessary condition of judicial independence and the separation of powers. For example, in its framework, the ENJC explicitly links judicial independence with accountability and transparency. This linkage recognizes that the greater degree of freedom from scrutiny and interference traditionally enjoyed by the judiciary and courts compared to other public institutions (at least in much of the Western world) must be balanced by the quid pro quo of transparency and accountability. While the TCPS has been influential in linking judicial independence and accountability, its incorporation of comity as an element of public accountability seems not to have been widely embraced. 

Recognizing the Risks

The doctrines and the terms used to describe judicial independence and the separation of powers may be construed by some observers as incompatible with -- even antagonistic to -- strategies of communication, coordination, and cooperation of the whole-of-government approach. Such a view sets the judiciary apart in a silo operating in isolation from other branches of government. The ENCJ seems to recognize the risks of such a silo mentality noting in its 2017 report on independence and accountability that a judiciary that “does not want to be accountable to society and has no eye for societal needs will not gain the trust of society and will endanger its independence in the short or long run” (emphasis added).

Breaking Down the Silo Mentality with Comity

I would argue that making comity in government relations a part and parcel of judicial independence and accountability is an imperative. Faced with far-reaching threats and rapidly developing problems, governments can ill afford to insulate judiciaries from society, out of touch with rapid responses to those threats and problems, and accountable to no one. The principle and practice of comity by judicial actors opens the door for breaking down the silo mentality and making the judicial branch amenable to a whole-of-government approach.

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