<<  <  >  >>

Page 17

Encroachment on the Judiciary: The Lateral Assault

Thus far, then, efforts by the legislative branch to

directly transfer the warrant-issuing power from the judi-

cial branch to the executive branch have failed.  But what

about an indirect transfer of power?  Legislatures have

attempted to compromise the independence of the judiciary

by converting the warrant-issuing procedure into a rubber-

stamping process for police officers.  Laws have been

passed that essentially command the judiciary to issue

search warrants once a legislatively prescribed set of

circumstances has occurred.  Such lateral assaults on the

judiciary's warrant-issuing authority have also been recog-

nized as a constitutional violation and have thus far been

thwarted.  Although that form of usurpation has not suc-

ceeded, it is nevertheless useful, by way of background,

to study how the danger arose--and, more important, to

learn how the courts repaired to constitutional principles

to avert encroachment.45

At the turn of the century, state legislators tried

to step up enforcement of local alcohol-prohibition laws

by rigging the outcome of the warrant-issuing procedure.

Most commonly, the legal threshold for warrant issuance

was lowered by allowing executive agents to swear merely

that they believed that a law had been violated instead of

requiring them to swear that they believed that a particu-

lar set of facts had occurred.  Then, once that very gen-

eral threshold was satisfied, the law mandated that the

judicial officer issue a search warrant.

Both of those changes were attempts to short-circuit

basic Fourth Amendment principles.  And the practical

effect was to increase significantly the power of the

executive branch vis-à-vis the judicial branch.  Legisla-

tors were essentially holding the judicial officer's hands

behind his back and inviting the executive to rifle

through the judicial robes for a search warrant.

A prohibitory liquor case from the state of Indiana

illustrates the legislature's lateral maneuver against the

warrant-issuing prerogative of the judiciary.  The relevant

portion of the Indiana law reads:

If any person shall make an affidavit before any

. . . justice of the peace or judge of any court

that such affiant has reason to believe, and

does believe, that on any described or designated

premises or tract of land, there is intoxicating

liquor or a still or distilling apparatus which

is being sold, bartered, used, or given away, or