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CACR 26 Restores Legislative Oversight of Courts

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Voters Asked to Amend the NH Constitution

In an op-ed in the September 14 edition of the NH Bar News entitled "Legislators Should Not Run the Courts," former NH Justice Joseph Nadeau and former NH Governor Steve Merrill recommended voting against CACR 26, a proposed constitutional amendment that will be on the ballot this fall [Appearing on the ballot as Question 2]. What they want everyone to vote against is restoring legislative oversight of NH Supreme Court rule- making that was lost when Part II, Article 73a of the State Constitution was unwisely adopted in 1978. They are wrong.

The legislature does not “want to run the courts.” The legislature simply wants to restore public oversight of the courts.

Further, it is NOT, as the authors claim, the same amendment that was proposed in 2004, opposed by the Justices then and rejected by the voters that year. The current language is much better. It passed both the House and Senate by a necessary 60 percent vote of both chambers and not by a 'slim' majority of legislators as inferred.

Justice Nadeau and Governor Merrill must know - and your readers should know - that when current Supreme Court Justice Hicks and Justice Lynn testified at the Senate hearing on the subject of CACR 26 they offered for the Senate's consideration the exact amended language that will appear on the ballot in November and in the course of their testimony they assured the Senate that the language that they were proposing had the blessing of all of the Justices on the Court. In other words, the CACR 26 language that will be on the ballot for voter approval this time around is language that was created and endorsed by the Justices of the NH Supreme Court themselves.

Obviously, our justices have also come to realize that our current lack of public oversight of judicial rule-making has unnecessarily provoked friction between the branches that in turn has resulted in bad public policy outcomes for both the judicial and legislative branches of state government.

When opponents of court reform like former Governor Merrill and former Justice Nadeau quote the language from Part 1, Article 37 of the New Hampshire Constitution that provides that the branches of government “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.” they deliberately abuse the language to promote absolute separation between the branches when the Part I, Article 37 wording has the exact opposite meaning. The most important phrase within Part I, Article 37 consists of the words "as the nature of a free government will admit." It is a simple and undeniable fact that a "free government" cannot exist without constant and effective public oversight of ALL branches of government - including the judiciary. It is public oversight that blind allies of the courts always want to stifle, but it is public oversight of Court rule- making that must be restored in order to help restore comity between the legislature and the judiciary.

Since our present Justices all support the CACR 26 language that will be on November's ballot, I encourage members of the NH Bar to also embrace the amended language as well.

Rep. Paul Mirski
Enfield Center, NH

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