THE NH ATTORNEY general and the leaders of the House and Senate last month filed briefs with the NH Supreme Court, contesting the assertions of the Bar Association, which is challenging the constitutionality of legislation requiring the Bar to hold membership referenda on its unified membership status. The Bar is also challenging the law's narrower definition of allowable legislative lobbying.

The attorney general's brief, submitted by Suzanne M. Gorman, assistant attorney general, supports the constitutionality of the law passed in the last session (RSA 311:7 g and h, originally HB 175), contending that it does not "impermissibly encroach on an essential function of the judicial branch.

"Regulation of the practice of law in New Hampshire is an area of shared responsibility between the legislative and judicial branches," the brief notes. "Simply permitting the members of the bar to vote on whether membership in the New Hampshire Bar Association should be mandatory does not unconstitutionally interfere with any authority of the judicial branch to regulate the practice of law or to administer the courts."

The state also contends that "it is well-established that restrictions may be imposed on legislative lobbying activities of mandatory organizations" and that the legislation "merely codifies existing case law..."

In an amicus brief filed by the speaker of the House and Senate president, lawmakers added, "This case is appropriate to application of the ripeness doctrine, as the case is not presently fit for adjudication and the petitioner [the Bar] will not suffer significant harm if the Court defers judgment."

Lawmakers also filed a motion for recusal of the members of the Supreme Court, making essentially two arguments:

• First, that the Court and the Bar "are so inextricably intertwined that a reasonable observer would doubt that the Court could fairly judge a case in which the Bar is a party."
• Second, that "the Court's own commentary during legislative proceedings on HB 175 suggest that the Court has already formed an opinion concerning the issues raised in this matter..." That claim is based on a statement made by Howard J. Zibel, general counsel to the Supreme Court, who testified during consideration of HB 175 that he believed that if HB 175 were to pass, there would be "a confrontation between the branches." In a prepared statement, Zibel had also asked the Legislature, "in the spirit of comity," not to pass the bill.

In an objection filed Oct. 27, 2003, the Bar objected to the recusal motion. It termed the lawmakers' accusations of "symbiosis" between the Bar and Court as being "without foundation" and asserted that Zibel's remarks did not exhibit bias or reflect a pre-decision by the Court. The Bar contended that the Court's prior decisions regarding unification "recognized the inherent authority of the judiciary to regulate the Bar. Attorney Zibel specifically indicated that this Court had not yet determined the questions likely to be presented by the passage of the bill, but it obviously would lead to this controversy," wrote Russell Hilliard, on behalf of the Bar Association.

The Bar's objection to recusal also noted that the Legislature's arguments in favor of recusal, "if they had any merit, would apply sweepingly to all judges, and thus this disqualification is neither necessary nor appropriate."

All of these motions, as well as the original petition filed by the Bar, are posted in their entirety under News Releases. The case is docketed as 2003-482. At press time, the Court had not acted on any of the motions nor had it scheduled argument.

Excerpts of RSA 311:7-g, h
(Originally HB 175)

... II. The supreme court may require all persons engaged in the practice of law in this state to be members of the New Hampshire Bar Association; provided that the members of the Bar Association have approved the requirement pursuant to paragraph III.

III. The board of governors of the New Hampshire Bar Association shall place on the ballot with the election of officers of the association, the following question: "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?" An affirmative vote of a majority of those voting on the question, shall allow for the requirement by the supreme court under paragraph II. Approval by the membership under this paragraph shall be valid for a five-year period beginning on the date of the affirmative vote.

311:7-h

... III. the Bar Association may use a part of dues paid by its members, and may engage a person to lobby or influence the legislature on its behalf provided the Association:

1. Limits its activities before the general court to those matters which are directly related to the regulation of the legal profession and improving the quality of legal services available to the people of the state. The scope of such permissible activities shall be narrowly defined; and
2. has determined that substantial unanimity exists within the bar as a whole in agreement with the position taken on a matter.

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