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Is There More to the Non-Delegation Doctrine than Duties Judges Won?t Miss?

By Eric L. Lipman

A panel of the Minnesota Court of Appeals issued an interesting separation-of-powers opinion last Tuesday ? and one that arose in a noteworthy context; namely, a challenge by an offender to the revocation of her court-supervised probation.

Elizabeth Suzanne Bradley challenged the imposition of a 15-day jail sentence as an intermediate sanction for her violation of the conditions of her probation. Bradley asserted that the District Court could not punish her for failing to either submit to a chemical health assessment or to follow the treatment recommendations made by the reviewing alcohol and drug counselor. As Bradley argued, the delegation of the authority to set the scope and intensity of any later chemical dependency treatment (and presumably whether that treatment occurs in an inpatient or outpatient setting), to the alcohol and drug counselor, was an impermissible surrender of the District Court?s judicial powers to an executive branch official.

Disagreeing, the appellate panel held that the ?administrative implementation of probation conditions is appropriately delegated to an administrative body. [The Minnesota Supreme Court in State v. Henderson, 527 N.W.2d 827] concluded that it is appropriate to delegate as administrative implementation the authority to determine appropriate levels of probation supervision. The Supreme Court noted that 'some flexibility in the administrative implementation of probation conditions is desirable and . . . trial judges should not be burdened with administrative issues relating to the implementation of conditions of probation.'?

While the appellate panel accurately summarizes the instruction from the Supreme Court, and correctly decided Ms. Bradley?s appeal, I wondered whether the convenience to the state courts is the best method of marking the dividing line between the judicial and executive branches.

The panel?s complete analysis is accessible here.

Full post as published by Within the Scope on October 13, 2008 (boomark / email).