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Bar News - October 3, 2003 Opinions - NH's Three Branches of Government Must Co-Exist The following editorial, published Sept. 8, 2003 in Foster's Daily Democrat, is reprinted with permission. It was subtitled: "Independent judiciary relies on communication." IT IS HARD to tell what will come of a recent meeting of Gov. Craig Benson, the Executive Council and the justices of the New Hampshire Supreme Court. The fact that they are talking to one another is encouraging. It is the second time in less than a month that the high court and the other two branches of government have shown signs of lessening the tension that has been building in the past decade. They're good first steps to understanding the co-equality of the three principal divisions of government. Recently, the courts and the Legislature were able to come to terms on the 2004-05 budget in an atmosphere lacking acrimony. Chief Justice David Brock explained to the governor and council the frustration the courts feel over "the lack of understanding on the part of the public and others of the role of the judicial branch." Brock added that the justices have an obligation to preserve "the constitutional independence of the judiciary." At the same time, the courts have come to recognize that independence is not synonymous with isolation. It is the judiciary's independence with which the elected branches of government have taken issue in recent years. The courts - the Supreme Court in particular - have forced the Legislature to act in areas in which lawmakers might have been politically loath to act or otherwise failed to do so. Judicial review is a long-standing principle almost as old as the republic itself. But some people might argue that if there is no law, there is nothing to review. The law is always present, if not in statutory form, then imbedded in the framework of law - implicit in the constitutions under which we have agreed to be governed. The principle of judicial review is the ability of the judiciary to interpret the constitutions of the United States and the state of New Hampshire. Neither document is static. Each is alive. The only way in which either can survive is for both to be interpreted in the context of the society in which they exist. If we were to abandon or severely limit judicial review, we would soon become mired in a swamp of political expedience. The protections we have been granted and to which we are entitled would soon swing on the gallows of whatever is popular at a given moment. The law is not always clear. The courts do not have the luxury of acting quickly in matters where clarity is absent. Laws enacted in haste require deliberate review when challenged in the courts. If it is true that justice delayed is justice denied, so, too, is it a fact that justice hastened is no justice at all. Gov. Benson showed an executive's interest in the speed with which appeals might be heard by the Supreme Court. "I know you've made huge progress," said the governor. At the same time, he asked if the justices had a goal for pending cases. The chief justice replied by outlining the manner in which the court handles its caseload. It hears oral arguments for three months, said David Brock. It then takes one month to read cases and write opinions. The goal, he said, is to issue opinions on all cases before the next round of oral arguments. The courts in New Hampshire have declined to set up a system of assembly line justice - a system in which one size fits all. What some people are looking for is simplistic interpretation of the law - interpretation that pleases the most people most often; not an independent judiciary, but a judiciary at the heel of the Legislature - or worse. Such an approach comes nowhere close to defining what the Founders constructed on our behalf more than 200 years ago. An independent judiciary is part of the bedrock on which our nation and its several states was constructed - a solid underpinning on which the institutions of government have been made to be held accountable to all the people. The Supreme Court has taken steps by which it and other courts may be held more accountable. The high court has come to acknowledge the wide gulf that has come to separate it from the other branches of government - and even the people. Recent signs are good ones; signs that the courts, the Legislature and the executive branch have found ways to better understand and communicate with one another. All three may have found the way to maintain what all should desire - what the people desire: an independent judiciary. 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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