THE SEPARATION OF POWERS CHALLENGE TO STATUTES

By Ben Sessions on February 22nd, 2017 in Criminal Defense

If you are looking for the textual basis for the separation of powers challenge to statutes in the Georgia Constitution, keep on looking. The doctrine is a judicial construct, but it can be extremely powerful. In this post, I intend to provide sections of cases that describe what the separation of powers doctrine is in Georgia and how it is applied to statutory challenges.

This Court may construe statutes to avoid absurd results…. [Cit.] However, under our system of separation of powers this Court does not have the authority to rewrite statutes. “(T)he doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature. We can not add a line to the law.” [Cit.]

Allen v. Wright, 282 Ga. 9, 12, 644 S.E.2d 814, 816 (2007).

“[T]he doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature. We can not add a line to the law.” (Citations and punctuation omitted.) Etkind v. Suarez, 271 Ga. 352, 353(1), 519 S.E.2d 210 (1999). Curing the overbreadth in OCGA § 16–11–34(a) would be less a matter of reasonable judicial construction than a matter of substantial legislative revision.

State v. Fielden, 280 Ga. 444, 448, 629 S.E.2d 252, 257 (2006).

It is beyond the power of the General Assembly to specify what evidence can or can not be introduced to prove just and adequate compensation. If they have such power they could exclude all evidence and thus destroy the Constitution and private property also. If they can by the 1966 Act exclude evidence held judicially to be relevant and admissible as was done in the Hard case, they can render the judiciary impotent. See McCutcheon v. Smith, 199 Ga. 685, 35 S.E.2d 144; Northside Manor, Inc. v. Vann, 219 Ga. 298, 133 S.E.2d 32.

Calhoun v. State Highway Dep’t, 223 Ga. 65, 68, 153 S.E.2d 418, 421 (1967).