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Proposed Constitutional Amendment Does Not Serve the People
Legislators’ ‘guide’ for voters is misleading

By Gov. Stephen Merrill and Supreme Court Justice (retired) Joseph P. Nadeau

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Voters Asked to Amend the NH Constitution

We do not want voters to be misled by the explanation of Question 2 in the Voters Guide, which is prepared by its supporters. This proposed amendment to the New Hampshire Constitution does not clarify the relationship between the legislative branch and the judicial branch, it changes the relationship. No matter how harmless some may try to paint the language, the amendment’s supporters are clear: they intend a legislative takeover of the courts. We trust the citizens of New Hampshire will again reject this extreme proposal by voting “No” on Question 2 [which passed the legislature as CACR 26] on November 6.

The Voters Guide, prepared by the legislature, says there is confusion about the interpretation of Part 2, Article 73-a of the New Hampshire constitution, which authorizes the Court to make rules governing administration of the courts. There is no confusion. Rather, this amendment alters the historic role of the judicial branch of government as written in our constitution.

The Supreme Court does not enact laws. It decides cases and adopts judicial branch rules.

And make no mistake; it is by rule-making that the Supreme Court conducts administration of the judicial branch of government. So, oversight of rules is oversight of administrative activities. And there is no place in a constitutional democracy for legislative intervention of the judicial branch. Political oversight of courts existed in dictatorships of Eastern Europe, Southeast Asia, and the former Russian Republics before they embraced democracy. We all know that resulted in judicial systems without independence, and without equal access or impartial justice.

So why do legislators say they need “oversight” of judicial rules? Are our legislators interested in deadlines for filing briefs or time limits for oral arguments? Of course not. They want the power to control the administration of the courts. Want more proof?

After 150 years, the legislature in 2011 revived the Redress of Grievances Committee which is not required to obey rules of law and evidence. It permits the legislature to intervene in private disputes, including cases already resolved in the courts; among those are cases involving abused and neglected children.

Is that Committee intended to replace the Judicial Conduct Committee which is made up of a majority of public members? In the name of “oversight” will a Legislative Office of the Courts compete with the Judicial Branch Administrative Office of the Courts? Will politicians seek to designate the Administrative Judges of the Courts, as they have sought in the past? Worse yet, will this mean legislative “oversight” of judges and their decisions, as some have implied?

So how would all this turmoil impact the activities of our judiciary? Gravely. Can you imagine a similar rule-making power grab by the legislature over the Executive Branch? Unthinkable. The point is that legislative oversight of judicial administration of the courts not only violates the basic democratic principle of separation of powers, it is dangerous, unnecessary, and not authorized by a single constitution of any other state in the nation.

We cannot discard our constitutional checks and balances. We cannot wait until it is too late for answers to these critical questions. We must defeat this amendment.

It is a responsibility of citizenship not just to support good laws but to oppose bad ones. As we have done before, we must preserve our Founders’ principles, and reject this legislative assault on the courts by going to the polls on November 6th and voting “No” on Question 2.

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