Our View - Friday

Skirting the edge

Judge comes close to overstepping his role

Few things are more corrosive of the public’s trust in the justice system than high-handed judges whose positions have gone to their heads. Hand some people a robe and a gavel, sit them behind a bench at the front of a court room, and an obnoxious transformation sometimes occurs. Before one knows it, these people are acting as though they are the law, rather than unbiased referees.

It may go down as minor incident in the annals of American juris-imprudence, but Fourth Judicial Judge Ronald Crowder’s failed attempt to bully the district attorney’s office into offering a better plea deal in a murder case is something that can’t go unnoticed.

The incident occurred last week, when a murder suspect’s attorney asked Crowder to hold the district attorney's office in contempt for failing to negotiate a better plea deal for his client than one that had already been offered. Crowder should have dismissed the request, but said he would consider it.

The judge on Monday declined to hold prosecutors in contempt, conceding that he had the authority to order mediation but couldn’t compel prosecutors to come up with a better plea deal than they were willing to offer. Noting that Colorado law (quite correctly) prohibits judges from involving themselves in plea negotiations, Crowder said he nonetheless hoped that “the parties will negotiate in good faith.”

Crowder said in his ruling that plea-bargaining “works well” for the district, because a crowded court docket would otherwise overwhelm the system. It’s a defense of plea bargaining we’ve heard before — usually after a repeat offender ends up in the headlines, having murdered, raped or maimed somebody — and it’s certainly true. But it still sticks in our craw.

We understand that plea bargaining is a fact of life in today’s justice system. We understand that a crowded court docket places stress on those who are tasked with keeping the system from backing up, like a blocked sewer. But our sense of justice is nonetheless offended when we see plea deals being handed out like hotcakes, especially if some of those deals seem to be for the benefit of the system rather than true attempts to provide justice. And district attorneys must retain their authority to push forward with a trial if a reasonable plea deal can’t be struck.

We applaud the district attorney’s office for not being bullied into compromising for the sake of a judge’s convenience or a defense attorney’s whims. Crowder didn’t cross the line in this case, but he came uncomfortably close — which should be kept in mind when he next comes up for retention.

Navigating muddy waters

Many public policy disputes that now routinely get settled in federal court, by unelected and unaccountable judges, should more appropriately be battled out in the political arena. But be careful what you wish for, as the old saying goes, because Congress might settle these conflicts in a way you find objectionable.

The dispute in question is whether the federal Clean Water Act applies not just to “the navigable waters of the U.S.,” as the law says, but to every pond, ditch, slough, wetland, bog, wash, vernal pool and mud puddle in the country. Some federal agencies have taken an expansive view, not surprisingly, believing they have authority to regulate any place that gets damp, even intermittently, while others argue, for reasons of practicality or political philosophy, that only navigable (meaning significant) bodies of water are covered by the act.

Uncertainty about this question, and inconsistent regulatory approaches by various federal agencies, cry out for a resolution, but the U.S. Supreme Court further muddied the waters last year with a confusing ruling in a case (Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers) that could be read either way.

A majority of justices ruled that there are limits to what waters the feds can regulate, but a concurring ruling by Justice Anthony Kennedy (the court’s swing vote) left the door open to the more expansive reading by saying that regulations might apply to waters that have a “significant nexus” to navigable waters.

What constitutes a “significant nexus” wasn’t explained, which left agencies free to regulate at will.

We said at the time that Congress probably needed to step in and settle the dispute, given the impact regulatory uncertainty can have on property owners, large and small. But that was when Republicans controlled Congress and the White House, bolstering hope that they would settle it on the side of regulatory restraint. With regulation-happy Democrats now in charge, we’re having second thoughts.

A bill sponsored by Minnesota Rep. James Oberstar — the Clean Water Authority Restoration Act — has property-rights groups, farmers, homebuilders and other heavily regulated industries worried because it might remove the term “navigable waters” from the 35-year-old law, meaning that “virtually every wet area in the nation” would be subject to regulation, according to a Waters Advocacy Coalition letter being circulated on Capitol Hill.

Oberstar’s bill defines “waters of the United States” as all interstate and intrastate waters and their tributaries, but goes on to include “intermittent streams, mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing,” according to reports.

Even if you don’t own a home on the shore of a playa lake or a mudflat, or spend a lot of time bathing in prairie potholes, the potentially vast expansion of government power should be of concern to you. We’ll be tracking the progress of this piece of legislation, and will keep readers posted.