Legalese — Separation of Powers

“Separation of Powers.”  It’s a phrase that you may or may not remember from your 7^th grade social studies class when you (hopefully) learned basic civics.  But what does it really mean, and how does it affect your daily life?  Or is it like trigonometry – something you once knew, but never need to know again?

Just as a refresher, the US Government, in all its forms, has three branches of government: The Legislative, the Judicial, and the Executive.  This is true on the highest level (the United States Congress, the United States Supreme Court, and the President of the United States) and the most local (your city council, your local municipal judge, and your police chief or mayor.)  They each have different jobs to do.  The legislative branch makes the laws.  The executive branch enforces the laws, and the courts decide what the laws mean. This is a brilliant design, and no branch should have power over the other.  They work together as checks and balances, ensuring that no branch becomes too powerful.

Let’s take something simple as an example, like a noise ordinance.  Let’s say the city council, the legislative branch in Anytown, GA, decides to pass a noise ordinance.  They come up with language that says that you can’t make any noise that can be heard outside of your property line louder than 85 decibels.  They vote on this, and it passes and becomes a city ordinance.  They decide that if you violate this law, you can be fined up to $500.00 and be placed on probation or put in jail for up to 6 months. 

Your son and his garage band decide to practice in your garage for the school talent show.  They crank it up to 11 and let fly.  It is 3 in the afternoon, and you don’t think anything of it because it’s the middle of the day and you like the way they sound.  Only cranky Mr. Smith who lives next door and works the night shift tells your son to quit it.  Your son (unwisely, but typically for a teenager) ignores him and plays on.  The next thing you know, the police are at your house and giving your son a ticket for violating the noise ordinance and tells him to either pay the $200 ticket or go to court on the 15^th at 9:30.

You decide to go to court.  You talk to the prosecutor and tell him that there is nothing wrong with a teenage garage band practicing in a garage at 3 in the afternoon, and besides, Mrs. Jones’ son down the black practices with his garage band at 11 at night, and Mr. Smith himself cranks up his leaf blower at 6:30 on Sunday morning.  The prosecutor is unmoved, and you go to the judge with your story.  The judge finds that “I’m not the only one” and “this is not a big deal” are not adequate offenses to the noise ordinance, and fines your son $250.00 and requires that he go to a responsibility class on Saturday morning.  How is this possible, you ask, when you could have paid $200.00 from the get go and not had to take a class?

Here’s how: the city’s legislative branch has decided that the noise ordinance doesn’t have time restrictions on it, and has decided that the level of offending noise is at a relatively low 85 decibels.  There’s nothing the judge can do to change that.  The executive branch has decided to enforce this law as it pertains to your son.  Maybe they haven’t with Mrs. Smith’s son or Mr. Jones’ leaf blower because they didn’t know about it, or maybe it was because Mrs. Smith’s son or Mr. Jones didn’t display the same poor attitude as your son when they police arrived on the scene.  It doesn’t matter – it is the executive branch’s job to enforce the law, and they have discretion.  Not everyone who goes one mile an hour over the speed limit gets a ticket.    The judge can’t decide if the law itself is a good idea or a bad idea, or if your son should have been charged with violating the noise ordinance when the other’s haven’t.  It isn’t the judicial branch’s job to decide what gets brought before it, only the executive branch’s.  (This is also why you have to negotiate your charges with the prosecutor and not the judge.)  The judge, then, gets to decide what happens as a result, hence the fine and the class.  By choosing not to pay the ticket and bringing the case to the attention to the judge you have given the judge discretion to fine you up to $500 and put you on probation (with attendant conditions) for up to 6 months.  If you’d paid the ticket ahead of time, the judge would never have even known the ticket existed.

So, not everything you learned in 7^th grade is something you can forget at will.  Those teachers?  They’re teaching you things you might actually need to know!

Nothing in this article should be construed as legal advice.  It is being offered for general informational purposes only.