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Bar News - August 15, 2003 HB 175 'Unwise, Unnecessary and Unconstitutional' NH Bar Association Position Paper Re: House Bill 175 THE NEW HAMPSHIRE Bar Association opposed House Bill 175, relating to legislative deunification of the Bar, because it represents unwise, unnecessary and unconstitutional legislation. The Bar offered a reasonable compromise during the legislative process, which included a voluntary referendum with certification of the results to the Supreme Court, as well as codification of the limits on legislative activity established by Chapman and federal decisional law. The General Court rejected such effort, and therefore the Bar has sought a court ruling on the validity of the legislation. By way of background, the Bar was unified, on a trial basis, by order of the New Hampshire Supreme Court in 1968: We hold that the determination of whether the administration of justice in New Hampshire will best be served by the compulsory enrollment of all the members of the Bar of this state into one unit to which the members must pay dues necessary to its efficient operation is an integral part of the inherent power of this court to regulate the practice of law and to supervise those engaged therein in New Hampshire. Lawyers being thus uniquely related to, and subject to supervision and regulation by the judiciary, we hold that this court has jurisdiction to decide the issue of the unification of the Bar of this state presented by the petition before us. In Re Unification of the New Hampshire Bar, 109 N.H. 260, 264 (1968). Three years later, the Court continued its order, observing as follows: We conclude that the association has prospered and grown in stature under unification, and that unification should now be continued without limitation of time, under the court's continuing jurisdiction. In Re Unified New Hampshire Bar, 112 N.H. 204, 207 (1972). The Bar has remained unified since that time. In 1986, in connection with a challenge to the breadth of the Bar's legislative activities by one of its members, the Court defined the proper limits of such activities, adding the following observation: The Association has played a crucial role in maintaining and upgrading the quality of the bar in New Hampshire. The lawyer referral network has increased the availability of, and access to, lawyers in this state. Its public education and information efforts have been exemplary, and its continuing education program is among the best. The various committees of the Association provide substantive and procedural assistance both to the bar and to the courts. Unification of the bar may not be the sole reason for these successes, but we are confident that it has played a substantial role in contributing to these accomplishments. Petition of William Chapman, 128 N.H. 24, 29 (1986). See also Petition of Tocci, 137 N.H. 131 (1993): Our prior decisions were reinforced when the State Constitution was amended in 1978 to provide, in part II, article 73-a, that the chief justice of this court, 'shall, with the concurrence of a majority of the supreme court justices, make rules governing ... the practice and procedure to be followed in all [the] courts' of New Hampshire. We must assume that the judicial branch possesses all the authority necessary to perform its judicial functions; otherwise, the judicial power vested in the courts by part II, article 72-a becomes meaningless. Because the judicial branch requires a qualified and ethical bar to perform its functions, we hold that it has the inherent power to regulate the bar to ensure that the bar is, in fact, qualified and ethical. House Bill 175 would jeopardize the extraordinary public benefit that has flowed from the unification of the Bar. See Concord Monitor Editorial of May 22, 2003: "The de-unification bill took aim at the state's lawyers. They are popular and easy targets. But it is the public that will suffer if this bill becomes law." The bill would also confront the authority of the Supreme Court in this area, by invalidating the Court's order on unification if the mandated referendum of Bar membership should result in a negative vote. These provisions of House Bill 175 violate the separation of powers provision in the New Hampshire Constitution, Part I, Article 37, as well as the specific authority of the Court in Part II, Article 73-a. In addition to those infirmities, the restrictions on legislative activity in House Bill 175 run afoul of the first amendment protection of the United States Constitution, as well as the free speech rights in the New Hampshire Constitution, Part I, Article 22. Finally, meddling in the internal affairs of a private organization violates the contract clause of the United States Constitution, as well. See Dartmouth College v. Woodward, 4 Wheaton 518 (1819). While the Bar's challenge of House Bill 175 will be based on these constitutional infirmities, it is motivated by the serious detriment to the profession and the public that House Bill 175 creates. See Frederic K. Upton, HB 175 Seeks to Cripple the Bar, NHBN May 23, 2003. Accordingly, the Bar has initiated a petition for declaratory relief in the New Hampshire Supreme Court, seeking a ruling as to the constitutionality of this legislation. Opinions in Bar News Unless otherwise indicated, opinions expressed in letters or commentaries published in Bar News are solely those of the authors, and do not necessarily reflect the policies of the New Hampshire Bar Association Board of Governors, the Bar News Editorial Advisory Board or the Bar Association staff.
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