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Bar News - October 1, 2000 Recent Letters to Bar News The following is a compilation of recent letters published in Bar News, published chronologically, with the most recent letters appearing first. The views expressed are not necessarily those of the Bar Association, its officers, or staff. Click here for guidelines on submitting a letter or article to the Bar News. Send any responses to the following letters, or comment on any other subject to dwise@nhbar.org. A Dissenting 'Pocket Brief' on Judicial Independence -Published October 20, 2000 There can be no "full and fair" debate of any controversial issue unless and until someone is willing to take the "controversial" side. Within the New Hampshire Bar Association, the controversial "side" of court reform is the election of judges or term limits. Having watched and waited patiently in vain for someone much more learned and intelligent than myself to present this side to the Bar membership in the New Hampshire Bar News, I am concerned that it may never occur. Thus, I have taken up the challenge and at least put some thoughts and analysis out there. Hopefully, whatever the result, at least "the other side" will have been presented and argued within the Bar itself, and not just on the outside. In this "pocket brief,” I would like to set forth two aspects of this issue: first, the constitutional provision of what is meant by the much-misapplied term "independence of the judiciary," and second, to review how someone in New Hampshire becomes a judge. Part 1 Article 35 and Part 11 Article 73 of the New Hampshire Constitution provide that justices of the Supreme Court and other justices "…should/shall hold their offices so long as they behave well/during good behavior…" However, in neither of these provisions did the framers of the New Hampshire Constitution invoke the principle of "independence of the judiciary" as a guiding principle for these provisions, despite the New Hampshire Supreme Court's unsupported "finding" to this effect in State vs. LaFrance, (124,NR 171 [1983]). In LaFrance, supra, in so finding the court failed to quote – i.e. left off what is probably the most important language of Part 1 Article 35: That is the third sentence thereof. When the third sentence is added to the first two, it is clear that what concerned the framers of the constitution most in drafting Part 1 Article 35 (in what is commonly referred to as the Citizen's Rights) was not the independence of the judiciary, but that Supreme Court judges be impartial and that to ensure impartiality, Supreme Court justices should hold their office so long as they “behave well" – i.e. stay impartial. That is the thrust of Part 1 Article 35. "[Art.] 35th [The Judiciary; Tenure of Office, etc.] It is essential to the preservation of the rights of every individual, his life, liberty, property and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit. It is therefore not only the best policy but for the security of the fights of the people, that the judges of the supreme judicial court should hold their offices so long as they behave well; subject, however, to such limitations, on account of age, as may be provided by the constitution of the state; and that they should have honorable salaries, ascertained and established by standing laws. (Emphasis in the third sentence added.) The second applicable constitutional provision related to this argument and the one that does use the term "independence" is Part 1 Article 37, which reads as follows: “[Art.] 37th. [Separation of Powers.] In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity…" (Emphasis added.) Taking these two provisions together, a basic, two-pronged tenet emerges. Firstly, Part 1, Article 35 makes it the right of the state's citizens to an impartial judiciary, not the "right" of the judiciary to be “independent" from – i.e. unaccountable to – the citizens of the state. Secondly, and most importantly, the "independence of the judiciary" as a principle of constitutional law, means and is limited to the independence of the judiciary from the other two branches of government, not from the citizens of the state, not from the voters. Thus, while an intelligent argument can be made that a constitutional amendment providing for electing judges might impair their impartiality under Part 1, Article 35, to argue that term limits violates the principle of maintaining an "independent judiciary," cannot be supported on constitutional grounds. Certainly, every branch of a democratic government must be accountable and answerable to its citizens. I fail to see how term limits would affect either the impartiality or the independence of the judiciary from the legislative or executive branches of government. On the other hand, a life appointment does make the judiciary "independent" from - and thus unaccountable to - the citizens of the state. By definition, a New Hampshire judge is a lawyer with political connections to the sitting governor at the time of appointment. Judges in New Hampshire are not chosen from among applicants for the position based on their performance on a rigorous civil service-type examination.Candidates for judgeships do not have to have practiced law for a significant, minimum term or have qualified for and then completed a rigorous course of study in judging. In fact, we have had several judges recently appointed with less or not much more than five years of practice in very limited fields. Judicial applicants are not required to pass a stiff ethics test, either. Why, then, should political appointees to high positions in one branch of government not be accountable to the citizens of New Hampshire by either standing for election at least once during their tenure, or serve for a known (at the time of their appointment), fixed term? They could be subject to reappointment, for those concerned about keeping a "more experienced" judiciary at the expense of a theoretical "loss" of impartiality.Some argue that if a judge is elected, or must be re-appointed, he or she will be too "timid" to make tough, controversial decisions, particularly in the time leading up to elections; that he or she will put being reelected or re-appointed before moral and professional integrity. My answer to that is simple. Do we want, in the first place, judges who do not have the kind of intestinal fortitude necessary to put the good of the state above their own interests when judging the important issues of our citizens and of our state? Given the way judges become judges (versus the re-election requirements imposed on high level members of the other branches), perhaps it is time to insure accountability of the judiciary to the citizens of the state by either providing for at least one election during an otherwise life appointment, or by establishing a limited term for any appointment. Finally, why are those most involved in the day-to-day protection of the rights of the citizens so fearful of the democratic process? In my opinion, staunchly defending life appointments to positions of high authority without elections, term limits or citizen recall evidences a strong fear or lack of belief in the democratic process, the wisdom of the state's citizens and their ability to govern themselves.
JUSTICE BRODERICK IN his recent testimony before our state Senate made comments on underlying issues affecting our justice system. He had made similar comments previously before the House Judiciary Committee. The justice stated that "if you have honorable people doing the job, you don't have to worry, but if you have dishonorable people, it doesn't matter how high you build the wall, they will find a way to get around it." It was precisely this philosophy that has produced what we are now seeing. Men of honor must be confined by clearly articulated law as much as men of dishonor. Indeed, far more damage is done to a society by honorable men acting without restraint than by men who are obviously dishonorable. The standard set forth by Justice Broderick is not the standard that has been applied to attorneys in this state in our own professional dealings. A lawyer brought before the Professional Conduct Committee is never asked if he is a person of honor. Nor has this ever been accepted by that body as a defense. Instead the proceedings before the PCC go something like this: It will be unfortunate if, regardless of the outcome of these political proceedings, justices of our Supreme Court still don't "get it." The standards that they apply to themselves are not the standards that they have applied to everyone else. That is painfully obvious to everyone -- with the possible exception of the justices. I would like nothing better than to see our chief justice acquitted of all charges. But I would also like to see the quality of mercy extended more democratically, as I would equally like to see the rule of law in our high court replace the rule of "men of honor." Name submitted Editor's Note: In accordance with the Bar News editorial policy, the author of this letter identified himself in his submission, but requested anonymity.
A note to say thank you to all of you who have supported me in my state Senate races in the past 10 years. I have worked to bring a reasonable voice to the table on the many issues that have affected the bench, Bar and clerks, not to mention the people we serve in this great state. Many of you have been more than kind to me in understanding the difficulty of trying to run a busy law practice and serve in the state Senate. It has made me proud to be a member of this honorable and learned profession. I believe the next two years will be extraordinarily difficult not just for our state, but for the entire judicial system, as there are those in Concord who would blame all the state’s woes on the courts, judges and lawyers. But, we are a hardy bunch, and I am confident cooler heads will prevail in the long run. I have not decided what the future holds for me politically, except at this point to work hard at my law practice. I am humbled and eternally grateful to be one of you. Attorney Rick Russman, Exeter |
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