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Why I Will Vote No on Question 2
By James E. Duggan

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Voters Asked to Amend the NH Constitution

Question 2 on this year’s ballot is a proposed Constitutional amendment which gives the legislature the power to override any rule adopted by the courts. I intend to vote NO on Question 2 because it is at the same time both dangerous and unnecessary.

Question 2 is dangerous because its proponents, certain members of the legislature, intend to use it to assert unfettered control over the judiciary and effectively destroy the independence of the New Hampshire judiciary. Judicial independence is critical in a democracy because it allows judges to make decisions protecting individual citizens from governmental abuse of power without fear of retaliation.

Judicial independence will be compromised by adopting Question 2 because it will be used to repeal the existing independent judicial conduct committee and replace it with a legislative committee to control judicial discipline. That new process will be used by the legislature to intimidate judges.

This plan to take over judicial discipline is evidenced by statements of some proponents that this is their goal. In addition, during the most recent legislative session, a Committee on Redress of Grievances heard one-sided testimony from disgruntled litigants complaining that individual judges had wrongly decided their cases. For two hundred years, the procedure to correct a judge’s error has been to appeal to a higher court, not to seek legislative review. There is therefore every reason to believe that a legislatively created system of judicial discipline would hear not only legitimate complaints against judges but would also use its power to seek sanctions against judges based solely on the judge’s ruling in a particular case, thus undermining the independence of judges.

Most court rules cover routine matters such as how to file a lawsuit, filing fees, the conduct of trials, the procedures and requirements for proceedings in the circuit courts, superior courts and the Supreme Court. The courts have long taken the position that courts cannot dictate to the legislature what rules it must follow. The basic notion of separation of powers means that the legislature should similarly respect the rule making authority of the judiciary.

There is also good reason to fear that the legislature will try to micro-manage the judiciary. Again, in the most recent legislative session, the House of Representatives passed a bill that would have dramatically restructured the circuit courts including a provision that removed the current administrative judges and required the Chief Justice of the Supreme Court to also be the administrative judge of the circuit courts. The courts do not tell legislative leaders what duties they must perform. Nor should the legislature dictate the day-to-day administration of the court system.

While the most compelling reason to vote NO on Question 2 is the threat to judicial independence, the proponents have produced no evidence that a Constitutional amendment is necessary. The proponents apparently disagree with some court decisions but there is no evidence of widespread abuse of power that would justify a legislative takeover. New Hampshire's judges are honest and hard working even in the face of severe budgetary limitations. Adopting question 2 would trigger an onslaught of legislative proposals that would interfere with and impede the administration of justice.

We should amend our Constitution only when it is necessary to cure a significant problem and there are compelling reasons to do so. A Constitutional amendment should clearly state what defect is being remedied and how the amendment cures that defect. Amending the Constitution to alter the structure of our government should occur only when the proponents have met their burden of proving that a fundamental reorganization of the separation of powers is clearly necessary. That is precisely why a two-thirds majority is required for adoption. The proponents here are simply attempting to give the legislature unprecedented control over the New Hampshire judiciary. They have thus failed to meet their burden and the voters should vote NO on Question 2.

James E. Duggan
Retired Associate Justice of the New Hampshire Supreme Court

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