From Docket No. 2003-482. Petition of New Hampshire Bar Association, Argued March 10, 2004; Opinion issued June 14, 2004.

"It is essential to the proper oversight of the Association that the current impasse be resolved promptly so that the Bar and the public will not share uncertainty as to which branch of government has authority to select the structure of the Association and, therefore, the organization through which it must fulfill its professional and ethical obligations."

On the issue of whether the regulation of legal practice is a shared responsibility, the majority opinion found:

"Because we conclude that RSA 311:7g is in clear conflict with Part I, Article 37 of the New Hampshire Constitution, we declare it to be unconstitutional.

Part I, Article 37 of the New Hampshire Constitution provides, in pertinent part: '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.' We have recognized, however, that the three branches of government, while distinct, often must 'move in concert,' whenever possible, as the practical and efficient operation of government is not served by the erection of 'impenetrable barriers between the branches.' (Op. of the Justices, 113 N>H> 287, 290 (1973).

...We conclude consistent with our prior decision, that the judicial branch of government retains ultimate authority to regulate the practice of law, and that in the exercise of that authority it is necessarily permitted to determine whether unification of the Bar is advantageous."

Because inherent constitutional authority allows the judicial branch to determine the most effective way to regulate the practice of law, however, we must remain free to structure the organized Bar as we deem necessary. The means by which the judicial branch chooses to organize the Bar, which it is charged with supervising, cannot be restricted by the other branches of government."

Special concurrence by Justice Linda Dalianis:

"Although I wholeheartedly agree with the majority that the power to regulate the legal profession is part of this court’s inherent power, I do not believe that deciding whether to unify the Bar is part of that inherent power. The court, however, has ruled upon this issue before. In In re Unification of the New Hampshire Bar, 109 N.H. 260, 264 (1968), the court held that determining whether unification is appropriate ‘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.’ The court specifically declined to overrule this holding in Petition of Tocci, 137 N.H. 131, 135 (1993). While I may disagree with these prior rulings, I choose to follow them because of stare decisis. See Jacobs v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504-05 (2003). Accordingly, I concur in the result."

Dissent by Justice James Duggan:

"Because I believe that we should decide constitutional issues only when necessary and that the issue of the constitutionality of RSA 311:7-g is not ripe for judicial review, I respectfully dissent. In my view, the better course is to refrain from determining the constitutionality of RSA 311:7-g until we know the results of the unification vote.

.... The Association will suffer no hardship unless and until the ballots have been counted and it is determined that a majority of the members of the Association have voted to de-unify. Because, at this point, the Association has suffered no direct and immediate hardship merely by conducting the election, the court should not confront the legislative directive that the Association be de-unified.

Furthermore, I disagree that our prior cases have decided the precise issue presented by this petition. While we have held that this court has the inherent power to determine whether the administration of justice is best served by a unified Bar, see In re Unification of the New Hampshire Bar, 109 N.H. 260, 264 (1968), we have not decided whether a statute like RSA 311:7-g, which requires the Association to hold a binding referendum vote on unification, is a violation of Part I, Article 37 of the New Hampshire Constitution. The power of this court to order unification is clear and, as the majority points out, consistent with all state appellate courts that have addressed the issue. See Petition of Tennessee Bar Ass’n, 532 S.W.2d 224, 229 (Tenn. 1975). This court has not, however, previously considered what role, if any, the legislature has in unification of the Bar."

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