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Question 2 Erodes Separation of Powers

By Hon. Edwin Kelly, Hon. Tina Nadeau and former House Speaker Douglas Scamman

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Voters Asked to Amend the NH Constitution

For 200 years the balance of power among the three branches of government has been preserved through a system of checks and balances that is designed to protect and preserve democracy and equal access to justice. By the proposed amendment in Question 2, some legislators want to upset that balance and politicize the judicial system by giving themselves ultimate control over the manner in which the courts are administered. We believe this dangerous step would undermine the integrity of the judicial process. We urge the citizens of New Hampshire to vote “No” on Question 2, on November 6.

This is how the New Hampshire Constitution currently protects the people:

“In the government of this state, the three essential powers thereof, to wit, the legislative, executive and judicial ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”--N.H. Constitution Part 1, Article 37 (1783)

This is what the Legislature wants: “The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution shall prevail over the rule.”--Ballot Question #2 - Proposed Constitutional Amendment (2012)

For 229 years our government has functioned effectively under the guiding principle of separation of powers set forth in Article 37 of the constitution. The drafters of our constitution determined that no branch was ever meant to have the power to administer another branch. And experience has shown that the Legislature has considerable control over the judicial branch through its power to set the court budget and to impeach judges for misconduct.

The current Legislature has proposed that the vital constitutional concept of three separate but equal branches of government, and the delicate balance that is maintained by that separation, be abandoned. It is hard to understand how one branch of government can be considered independent if another branch is given the ultimate authority to regulate it when the two branches disagree.

If this amendment passes, a simple majority of legislators would have the power to run the court system. Should legislators be able to hire and fire court personnel? Should lawmakers decide how the courts are run on a day to day basis? Should court administrators report to the Speaker of the House? The President of the Senate? Should politicians be able to assign judges to sit in particular courts or on particular cases? That is where giving the Legislature power over court administration could lead. We wonder if the Legislature would support a constitutional amendment that gives the judicial branch the power of administration over the legislative branch. Of course not. Nor should it.

Over the course of our state and national history there have been countless times when that healthy, constitutionally necessary tension between the branches has seemed to boil over into distrust of one for the other. But time and again, our citizens, legislatures and state leaders have recognized that the answer to those tensions does not lie in changing our constitution to allow one branch to control the other. Rather it is to trust the wisdom of our founders and the experience of our state and country for more than two centuries; to trust our democratic form of government to continue to function effectively under the guiding principles of our constitutions.

Some legislators have very openly said their aim is to control the courts. To take the course proposed by this amendment is to threaten the survival of “…that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.”

This is the fourth time since 2001 that the N. H. Legislature has made essentially this same proposal and each of the three previous attempts has failed. We urge you to consider the motives and intent of supporters of this amendment and to vote “No” on Question 2 on November 6th.

Edwin W. Kelly is Administrative Judge, NH Circuit Court; Tina Nadeau is Chief Justice NH Superior Court, and Douglas Scamman, of Stratham, is a former Speaker of the NH House of Representatives.

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