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The "Voters Guide" on Question 2 is Misleading

By Former Supreme Court Justice Joseph Nadeau and Former Governor Stephen Merrill

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Voters Asked to Amend the NH Constitution

We do not want you to be misled by the explanation of Question 2, prepared by its supporters for the "Voters Guide." This proposed constitutional amendment does not clarify the relationship or restore some lost balance between the legislative and judicial branches; it changes the relationship and destroys the balance. No matter how harmless some try to paint the language, legislators favoring the amendment are clear: they seek ultimate control over courts. We trust the citizens of New Hampshire to reject this extreme proposal, for the third time, by voting "No" on Question 2 on November 6.

In the "Voters Guide," supporters say there is confusion about the Court's rule-making authority under Part 2, Article 73-a. There is no confusion but there is misunderstanding by some. The Supreme Court does not enact laws. The Supreme Court decides contested cases and makes enforceable rules governing the administration of the courts.

By the way, did you know that before any rule is voted upon the Supreme Court Rules Committee holds public hearings on each one? Did you know that right now Supreme Court rules require over one third of the Committee to be legislators and members of the public? But that is not enough for politicians who want sole final control of court administration.

We do not have to guess why some legislators want to change the Constitution. At a recent Strafford County forum, supporters told us. They said they intend oversight of court rules and decisions so they can change results they do not like. In fact they have already shown that intention. After 150 years, the legislature in 2011 revived and the Redress of Grievances Committee. That committee is not required to obey rules of law and evidence, and was used by legislators to intrude into private disputes, especially family law cases--even ones already decided in the courts. At the forum, supporters also said they want to replace the independent Judicial Conduct Committee, which has a majority of public members, as well as legislative and judicial members. Will politicians replace that committee with the Legislative Redress of Grievances Committee which is made up only of legislators? Will they again summon judges to Concord to justify their court decisions?

In the name of oversight, will the legislature create its own Administrative Office of the Courts to compete with or replace the judicial Administrative Office of the Courts? Will politicians seek to designate the Administrative Judges of the courts, as they have tried in the past? Will they use rules to assign and reassign judges; to assert final supervision of Court administrators or clerks?

Remember; it is by enacting rules that the Supreme Court conducts administration of the courts. So when legislators say they want to oversee rules, to ‘control’ the courts, they mean it.

But there is no place in a constitutional democracy for this kind of legislative intrusion into the courts. 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, without equal access and without impartial justice. Is it any wonder that no state in the country permits such far-reaching legislature interference into judicial branch administration?

We cannot wait until it is too late to learn the full extent of this attempted political takeover. The point is that legislative oversight of judicial administration not only violates the basic democratic principle of separation of powers, it is dangerous and unnecessary.

For over a hundred years the Supreme Court has adopted administrative rules. Thirty five years ago the people reaffirmed the Supreme Court rule-making authority and enshrined it in our Constitution. For over two hundred years, existing checks and balances among the branches has served the people well. We should not disrupt these constitutional safeguards. They protect the public and the courts from political intrusion. The amendment does the opposite.

It is a responsibility of citizenship not just to support good laws but to oppose bad ones. As we have done twice before, the people must 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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