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Bar News - January 9, 2004 Governor Should Follow CJ Rotation Law By: Peter Hutchins DURING THE 2000-01 legislative session, both the NH House and Senate overwhelmingly approved a law providing for the five-year rotation of the administrative position of chief justice of the Supreme Court. The bill was subject to several public hearings and extensive discussion and revision, and was signed into law by then-Gov. Jeanne Shaheen. The purpose of the bill was essentially to de-politicize the position, allowing each justice to serve as chief for five years in order of seniority on the bench. Not only would this prevent one person from being saddled with the administrative duties of running the court for the entirety of his or her term, but it would allow all members of the court to share these duties in a predictable, orderly and non-political manner, thereby enhancing cooperation and collegiality among the five members of the court. Moreover, if a particular justice did not want administrative responsibilities but preferred to serve only as a jurist, the bill allowed for that justice to "pass" his or her opportunity to serve as chief to the next most senior associate justice. Similar systems are in place in other states, and our elected lawmakers, after fully studying the merits and constitutionality of the bill, enacted it as law effective in June of 2001, one full year before Gov. Craig Benson was elected. Now that Chief Justice Brock has retired, the "rotation" law is ready for implementation. Unfortunately, Gov. Benson has declared his intention to ignore this law and appoint his own chief justice to a life term. Respectfully, I request that the governor reconsider his position. The state constitution is clear that the governor and Executive Council appoint judges. There is no mention in the constitution, however, of the appointment authority for the chief administrative judges of the various courts – in this instance, the chief justice of the Supreme Court. In essence, the constitution is silent. Where the constitution is silent, the Legislature, presumably reflecting the will of the citizenry, is free to act. When the legislature passes a law, it is the duty and obligation of the governor to enforce that law. While it is true that a governor, like any other citizen with standing, can challenge the constitutionality of a law, the prospect of a governor flouting this law is particularly disturbing. Although this law became effective in June of 2001, there was no challenge to the wisdom or constitutionality of the law raised during the gubernatorial campaign of 2002. If this law in the governor’s view was truly repugnant to the state constitution and interfered with the constitutional duties and responsibilities of the governor and Council, why didn’t he propose a bill repealing the law during this current legislative session, or alternatively a constitutional amendment clearly providing the governor and Council with the authority to appoint the chief justice as a defined "judicial officer?" It was inevitable that Chief Justice Brock would eventually retire, and that the "rotation" law would come into play. Why wait until now to ask the court to provide an advisory opinion on the law’s constitutionality knowing full well that the court would be presented with a conflict and be unable to render a decision? Why is the governor potentially exposing all three branches of government to an unnecessary, disruptive and preventable constitutional crisis? I would respectfully ask the governor to reconsider, appoint a new associate justice, and allow the chief justice rotation law to be implemented in accordance with the will of the people. There are many issues of immediate pressing importance to the citizens of New Hampshire that demand the time, resources and efforts of our government officials from all three branches of government. The governor has worked hard on many of these issues, and deserves credit. He should not now "create" a dispute on an issue where the people, through their elected officials, have already spoken. Peter E. Hutchins is a Manchester trial attorney who served as president of the New Hampshire Bar Association in 2001-2002. 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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