Judicial control of public authorities Supreme Court USA by Snježana Husinec

The Judiciary vs. The Executive Courts vs. Public authorities New Brunswick Parents Request Judicial Review of FSL (French Second Language programs) Changes (www.educationnb.org.) “A millionaire businessman today won permission for a high court challenge over the government’s refusal to hold a referendum on the EU reform treaty.” (The Guardian, 2nd May 2008) “A legal bid to challenge the power of the police to use surveillance against peaceful protesters has been launched at the High Court.” (www.bbc.co.uk) Small shareholders seek judicial review over Northern Rock compensation (The Times, 24th April 2008) by Snježana Husinec

Public authorities governmental agencies or corporations that provide public services for the citizens Central government Local government The health service Maintained schools and other educational institutions Police Other public bodies and officials by Snježana Husinec

Judicial review process by which courts exercise judicial control of legislative and administrative action (a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body) – courts have the power to annul legislative or executive acts which are contrary to the provisions of the constitution SUBJECT MATTER of every judicial review – a decision made by some person or body - refusal to make a decision an example of SEPARATION OF POWERS in a modern legal system by Snježana Husinec

Types of judicial review A) Judicial review of administrative acts (e.g. decisions to grant a subsidy or to withdraw a residence permit) - CARRIED OUT BY administrative courts – (Germany, France, Croatia …) regular civil courts, special divisions of civil courts (UK, Netherlands) B) Judicial review of legislation review of constitutionality of legislation (USA) in some jurisdictions review of primary legislation is not allowed (UK – the doctrine of Sovereignity of Parliament; Netherlands – ruling on the questions of constitutionality expressly forbidden) by Snježana Husinec

Examples of the types of decision which may fall within the range of judicial review Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education Certain decisions of the immigration authorities and Immigration Appellate Authority Decisions of regulatory bodies (US - Interstate Commerce Commission; Food and Drug Administration; UK- the Medicines and Healthcare Products Regulatory Agency) Decisions relating to prisoner's rights by Snježana Husinec

Judicial review or appeal? – the court can substitute its decision for that of the administrative body JUDICIAL REVIEW – concerned only with the legality of the decision or act under review (the court simply quashes the decision and the administrative body can reconsider the matter) by Snježana Husinec

Judicial review in the United States James Madison, State Secretary of the US William Marbury Marbury v. Madison (1803); Supreme Court of the United States by Snježana Husinec

Facts On his last day in office, President John Adams named forty-two justices of the peace and sixteen new circuit court justices for the District of Columbia under the Organic Act. The Organic Act was an attempt by the Federalists to take control of the federal judiciary before Thomas Jefferson took office. The commissions were signed by President Adams and sealed by acting Secretary of State John Marshall (who later became Chief Justice of the Supreme Court and author of this opinion), but they were not delivered before the expiration of Adams’s term as president. Thomas Jefferson refused to honor the commissions, claiming that they were invalid because they had not been delivered by the end of Adams’s term. William Marbury (P) was an intended recipient of an appointment as justice of the peace. Marbury applied directly to the Supreme Court of the United States for a writ of mandamus to compel Jefferson’s Secretary of State, James Madison (D), to deliver the commissions. The Judiciary Act of 1789 had granted the Supreme Court original jurisdiction to issue writs of mandamus “…to any courts appointed, or persons holding office, under the authority of the United States.” by Snježana Husinec

Issues Does Marbury have a right to the commission? Does the law grant Marbury a remedy? Does the Supreme Court have the authority to review acts of Congress and determine whether they are unconstitutional and therefore void? Can Congress expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution? Does the Supreme Court have original jurisdiction to issue writs of mandamus? by Snježana Husinec

Holding and Rule (Marshall) 1.Yes. Marbury has a right to the commission. The order granting the commission takes effect when the Executive’s constitutional power of appointment has been exercised, and the power has been exercised when the last act required from the person possessing the power has been performed. The grant of the commission to Marbury became effective when signed by President Adams. 2. Yes. The law grants Marbury a remedy.The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. Where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, the individual who considers himself injured has a right to resort to the law for a remedy. The President, by signing the commission, appointed Marbury a justice of the peace in the District of Columbia. The seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment. Having this legal right to the office, he has a consequent right to the commission, a refusal to deliver which is a plain violation of that right for which the laws of the country afford him a remedy. by Snježana Husinec

3. Yes. The Supreme Court has the authority to review acts of Congress and determine whether they are unconstitutional and therefore void. It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. by Snježana Husinec

4. No. Congress cannot expand the scope of the Supreme Court’s original jurisdiction beyond what is specified in Article III of the Constitution. The Constitution states that “the Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction.” If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, this section is mere surplusage and is entirely without meaning. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. 5. No. The Supreme Court does not have original jurisdiction to issue writs of mandamus. by Snježana Husinec

Disposition Application for writ of mandamus denied. Marbury doesn’t get the commission. by Snježana Husinec

Judicial review in the United States no judicial review explicit in the United States Constitution; the doctrine has been inferred from that document 5 of the 13 states had some form of "judicial review" or "judicial veto" in their state Constitutions at the time of 1787's Constitutional Convention Article III of the United States Constitution – Article on judicial power by Snježana Husinec

Judicial review in English law a procedure in English administrative law a person who feels that an exercise of such power by a government authority (e.g. a minister, the local council or a statutory tribunal), is unlawful may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside and possibly obtain damages (a court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally) no judicial review of primary legislation (laws passed by Parliament) by Snježana Husinec

Grounds for judicial review ULTRA VIRES (beyond power) – the starting point of judicial review Administrative action is subject to judicial control under 3 heads: I. ILLEGALITY II. IRRATIONALITY III. PROCEDURAL IMPROPRIETY by Snježana Husinec

Match the grounds for judicial review with their definitions ILLEGALITY Failure by the decision maker to observe procedural rules that are expressly laid down in the legislation – PROCEDURAL ULTRA VIRES IRRATIO- NALITY The decision-maker must understand correctly the law that regulates his decision-making power and give effect to it Acts done in excess of power – invalid as being ULTRA VIRES PROCEDURAL IMPROPRIETY Unreasonableness – in the event of an unreasonable decision from the point of view of its logic or accepted moral standards by Snježana Husinec

Two ways to obtain a remedy 1. DIRECT CHALLENGE - the object of the proceedings is simply to impugn an administrative act 2. CHALLENGE IN COLLATERAL PROCEEDINGS - the validity of the administrative act arises incidentally by Snježana Husinec

Essential expressions to exercise judicial control to review, a review to annul/quash/set aside/invalidate/ impugn a decision ultra vires = beyond power to exceed power = to step outside the limits to intervene acts done in excess to abuse power a challenge a remedy by Snježana Husinec

Read the text and summarize each of the three paragraphs in one sentence Paraghraph 1. Paragraph 2. Paragraph 3. by Snježana Husinec

Read the text and find English equivalents for the following legal expressions: sudski nadzor organ vlasti krši ovlasti bitna prirodna posljedica vrhovne vlasti parlamenta opravdanje za intervenciju suda pribaviti pravnu pomoć direktna provjera ustavnosti/zakonitosti prethodna (akcesorna) kontrola ustavnosti/zakonitosti pobiti odluku administrativnog tijela pravovaljanost administrativnog čina kršenje mjesnog propisa/uredbe počiniti prekršaj by Snježana Husinec

Translate the following sections of Article III of the United States Constitution. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.... Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority....In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress by Snježana Husinec