Roswell to Violate State Separation of Powers doctrine

The following represents excerpts reprinted with the permission of the author, Mr. John Monroe, a lawyer from Roswell practicing in the area of civil rights litigation for 20 years. These come from his letter to Mayor Wood & City Council and shed much more light on the subject than expressed in this article alone:


Dear Mayor and Council,

I am writing you as a follow-up to my remarks made at the 12 Hours Ago Special Called Meeting....

...It is true that Roswell is not required, as a municipality, to separate its powers. It is not true, however, that there is no current separation of powers. We currently enjoy a separate judiciary, with a judge elected by the people and not subject to dismissal by the Mayor and Council except for cause. The current proposal is to go to a system whereby the Mayor and Council will appoint a judge to serve at its pleasure…...

……..As I will show below, it would be unconstitutional for the Mayor and Council to follow through with the proposal as described above...

…... the constitutional separation of powers doctrine fully applies to municipal officers when they are exercising state powers. Thus, Roswell’s police officers are “state executive officers” when they enforce state criminal laws, and Roswell’s judge is performing “state judicial powers” when he issues warrants based on alleged violations of state laws, and when he presides over cases involving violations of state traffic or misdemeanor laws. Because the police enforce state criminal laws on a continual basis, and because the municipal judge presides over state violation cases at virtually every court session, it is nearly impossible in today’s arrangements to claim the police and judge are ever performing solely municipal functions…..

….The days are long gone when “police courts” or “city courts” applied only municipal law. We now use our municipal courts as “junior varsity” state courts. Indeed, the municipal courts are answerable to the Supreme Court as the State Judicial Qualifications Commission as part of a unified court system……

……the Supreme Court affirmed that the separation of powers doctrine does not apply to municipalities when they are strictly performing municipal functions in Building Authority of Fulton County v. State of Georgia, 253 Ga. 242 (1984). In that case, the Supreme Court remarked that a county commission is both the executive and legislative branch (much like the Roswell Mayor and Council is both the legislative and executive branch)…..

…… (despite City Attorney Davidson’s assertion that Roswell contains only a “trunk” and “no branches.”) One might wonder, then, how the separation of powers doctrine even applies in the present situation, where the Mayor and Council are contemplating only the power to appoint (and dismiss) the municipal judge…. ....It should be clear that those two powers, especially the power to dismiss, is a de facto power to control….....

….If the Mayor and Council move to a system whereby the municipal judge is appointed to serve at the Mayor and Council’s pleasure, the result will be an unconstitutional violation of the separation of powers doctrine. The Mayor and Council will have given itself the power to control the state executive and state judicial powers wielded by Roswell. ...