# Alexander v. State > Court of Criminal Appeals of Oklahoma · May 30, 2002 · 73 O.B.A.J. 1667 URL: https://www.frixlaw.com/law-library/cases/9789279 ## Case - **Full name:** L.B. ALEXANDER, Appellant, v. STATE of Oklahoma, Appellee. - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** May 30, 2002 - **Citations:** 73 O.B.A.J. 1667; 48 P.3d 110; 2002 OK CR 23; 2002 Okla. Crim. App. LEXIS 28; 2002 WL 1067320 - **Precedential status:** Published - **Opinion:** Concurrence by Lumpkin - **Judges:** Lumpkin, Johnson, Viee, Chapel, Strubhar, Lile - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9789279 ## How later opinions describe it (automated extraction) - holding failure to re-cuse was not plain error but recognizing the potential for bias and noting, in the future, applications for recusal should be granted and the motion to remove the defendant from the drag court program should be assigned to another judge for resolution ## Opinion text LUMPKIN, Presiding Judge: special concur. . T1 I concur in the Court's decision to affirm Appellant's termination from Drug Court based on the analysis in the opinion. However, I find that in its present form, the Drug Court Act violates the separation of powers doctrine by placing a judge in the role of performing executive and judicial functions simultaneously, ie, serving as judge and parole officer at the same time. T2 Article IV, § 1 of the Oklahoma Constitution sets forth the three distinct branches of government, the Legislative, Executive, and Judicial. In this case we are concerned with the Executive Branch, which is addressed in Article VI, and the Judicial Branch addressed in Article VII. Article VI, § 10 provides for the creation and operation of a Pardon and Parole Board. The duty of the Board to "make impartial investigation and study of all applicants for commutations, pardons or paroles" is strictly a function of the executive branch of our government. In addition, the Department of Corrections is tasked with the responsibility of incarcerating and supervising individuals who have been convicted and sentenced for the commission of crimes in this state. See also 57 ©.8.1991, §§ 832.2 and 501 et. seq. Further, probation and parole officers, as defined in 57 0.8.1991, § 515, are deemed to be peace officers. ~~ 13 On the other hand, judges in our judicial system, are to be independent adjudicators. See Okla. Const. art. II, §§ 6, 7, 20, 21; art. VII, § 1; see also Canons 1 and 3, Code of Judicial Conduct, Title 5, Ch.1, App. 4 (2002). The specific adjudicative responsibilities of a judge in a pending case are set forth in Canon 8.5. Historically, in criminal cases in this state, a judge presided over a trial and imposed a judgment based upon the verdict. While certain sentencing powers of the judge are set forth in 22 O.S.1991, § 9912, including the power to set forth conditions of probation, the statutes historically have not empowered judges to create or act as a judicial triumvirate wherein the judge, *116 by performing three distinct functions, legislates the rules, determines the judgment and enforces/supervises the judgment. If conditions of probation were imposed, the probationer was supervised by the Department of Corrections pursuant to its executive branch duties. 22 O.S.Supp.1999, § 991a. If a violation of the conditions of probation occurred, a probation officer prepared a report and provided it to the court and the district attorney. Id. The district attorney then determined whether to file an application to revoke the suspended sentence. Id. If an application to revoke was filed, a hearing was held before a judge, evidence was presented by the State to support the application to revoke, and the judge determined, based only upon the evidence presented at the hearing, whether the conditions of probation had been violated so as to warrant the revocation of the sentence. Id. The judge was not involved in the process until the evidence was presented in open court. The judge's sole role was that of an adjudicator. The Oklahoma Drug Court Act, 22 O.S.Supp.1997, § 471 et seq., changed this process. . T4 The Drug Court Act runs afoul of the separation of powers doctrine in that it makes the adjudicating judge a part of an executive, judicial, legislative triumvirate. The Drug Court Act requires the judge to participate in legislating the drug court program, supervising the execution of the program, and then adjudicating the issue of whether the probationer has violated the rules that same judge helped legislate and enforce. In the process, the probationer is denied his due process guarantee of a hearing before an objective, uninterested, and impartial judge. 5 While it is commendable that the Legislature is seeking new ways to deal with eriminal offenders, it should not violate the concept of separation of powers by seeking to turn judges into probation officers. The role of the objective, unbiased judge is' a crucial part of our judicial system. That special position should not be denigrated in an attempt to ensure an offender complies with the rules of probation. I realize the use of these special type of courts are the "blue light specials" 1 in many states today. However, using courts and judges as the "hammer" to do the job corrections officials have failed to do cannot justify the violation of separation of powers provided in our constitution. 2 T6 Other constitutional avenues are available for the Legislature to implement an intensive supervision program for probationers. Administrative hearing officers within the Department of Corrections could be empowered to preside over and administer intermediate sanctions. Judges of the District Courts would retain the authority to revoke or accelerate probated sentences. This type of process would provide the same intensive supervision of probationers desired by the Legislature without violation of the doctrine of separation of powers. It would also continue to ensure that adjudications of violations of probation would take place before an objective independent judge. The role of a judge is not to be a social engineer but to interpret the law and facts and adjudicate the cases presented to the court. For that reason, I would urge the Court to uphold the legal doctrine of separation of powers and find the portions of the Oklahoma Drug Court Act which violate that doctrine unconstitutional. . A reference to the five minute specials promoted by a national discount store . In addition, placing judges in this role jeopardizes the protection of judicial immunity afforded to judges in performing their judicial duties. See eg., Pulliam v. Allen, 466 U.S. 522 , 104 S.Ct. 1970 , 80 L.Ed.2d 565 (1984); Forrester v. White, 484 U.S. 219 , 108 S.Ct. 538 , 98 LEd.2d 555 (1988). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9789279. Public record. Not legal advice.