Constitutional Amendment Concurrent Resolution 5 (CACR 5), adopted by the Legislature during its 2004 session, will be presented to New Hampshire voters for ratification on November 2, 2004. An almost-identical constitutional amendment passed the Legislature in 2002 only to be rejected by the voters at the polls. The New Hampshire Bar Association has taken the position that this version of CACR 5 should, like its predecessor, be rejected by the voters.

A sponsor of the original version of the proposed amendment, which was introduced in the legislature in 2001 but never passed, described it as the "linchpin of judicial reform." The 2001 version of CACR 5 was introduced in the wake of the resignation of Justice Thayer and the impeachment trial of Chief Justice Brock, who is now retired. Although there have been slight changes in the wording over the years, the intent of this proposed amendment has never changed: it would establish the supremacy of the legislature over court rules, except for necessary adjudicatory functions, and perhaps most importantly, establish the supremacy of the legislature over court "administration," which is undefined.

There is some question among students of the constitution as to whether the proposed amendment effects an actual change in the balance of power between the executive, legislative and judicial branches of government, but it is clear that its proponents believe that it does. The Bar believes that if the language of CACR 5 were added to the constitution, it would foster a real or perceived assault on the independence of the judiciary, a protection guaranteed to New Hampshire citizens by two different provisions of the Bill of Rights of the New Hampshire Constitution.

In 1978, as part of an effort to allow the New Hampshire Supreme Court to make rules for all courts within the state, the voters adopted a new article, Part 2, Article 73-a, which provides:

The rules created by the Court under this article have been used primarily to fill gaps in procedure. The New Hampshire Supreme Court has never held that Part 2, Article 73-a gives it power to make rules which supercede any rule made by the legislature.

In 2002, the legislative leadership, at taxpayer's expense, distributed to all polling places a voters' guide that provided information regarding a similar constitutional amendment on the ballot that year. The voters' guide stated:

The law is unclear as to the authority of the legislative and judicial branches of state government to regulate matters pertaining to the administration and security of the Courts and the practice and procedure and rules of evidence under which Court business is carried out. Historically these two branches of government exercised concurrent authority to regulate these matters, with legislative enactments taking precedent over Court rules in the event of a conflict between the two... Nevertheless, in recent years, decisions of the New Hampshire Supreme Court have indicated that the judicial branch may have exclusive or nearly exclusive authority over these areas. These decisions also indicate that, in the event of a conflict between a court procedural or evidentiary rule or statute addressing the same subject, the Court rule will prevail over the statute." (emphasis supplied)

This statement is simply incorrect. As noted in 2003 by Lawrence Friedman, an attorney, a Harvard Law School lecturer and an adjunct professor at Boston College Law School, the decisions cited by proponents of CACR 5 in support of this proposition do not do so:

Opinion of the Justices (PSAE), 141 N.H. 563 (1997) and Petition of Mone, 143 N.H. 128 (1998) in many respects reflect a minimalist jurisprudential approach, resolving no more than the questions presented and those on reasoning that carefully circumscribes the precedential value of the cases - thus accomplishing, ironically, the very end proponents of CACR 5 seek: clear notice of those few areas in which the political branches of government must yield to judicial authority in respect to practice and procedure lest the judiciary be stripped of its essential self. In this light, it would appear that CACR 5, however well intentioned, represents nothing more than a solution in search of a problem." New Hampshire Bar Journal, September 2002 at 48.

The Bar believes that it is increasingly clear that this proposed constitutional amendment, which is not needed, may in fact be used to challenge the independence of the judiciary.

The proposed version of CACR 5 provides:

The Chief Justice of the Supreme Court shall be the administrative head of all the Courts in the State. The Chief Justice shall have the power, with the concurrence of a majority of the other Supreme Court Justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence in all Courts in the State. The Legislature shall have a concurrent power to regulate such matters by statutes of general application, except that such legislative enactments shall not abridge the judiciary's necessary adjudicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the Legislature the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

There should be little doubt that this proposal does not change the judiciary's rulemaking authority, since the legislature already has the right to make rules which trump the judiciary's rules, unless the legislature's rules would limit the judiciary's ability to act as courts, as defined in the Constitution. But it is by no means clear just what the legislature intends by giving itself final authority over court "administration."

The public statements of CACR 5 proponents indicate that the amendment would be used to sustain measures that would water down the separation of powers principle, and allow the legislature to exert greater authority over the judiciary. A principal supporter of CACR 5 has stated that he believes that rules on what constitutes inappropriate conduct by judges and lawyers, now made by the judiciary, could, if CACR 5 is approved, be made by the legislature.

The Bar believes that giving the legislature the power to punish judges is flatly inconsistent with the concept of an independent and impartial judiciary, and inimical to our system of justice. The legislature, of course, already possesses the constitutional power to remove judges, by impeachment, and with the consent of the Governor, by a constitutional procedure called "address."

In a June 2004 decision, the court ruled that the legislature lacked the authority to create a judicial discipline body. The court said that the separation of powers principle, Part 1, Article 37 of the Constitution, prohibits the legislature from attempting to punish judges for what the legislature perceives is wrongful conduct. Petition of the Judicial Conduct Committee (NH Supreme Court, June 14, 2004). In that case, the Court noted that the framers of the New Hampshire Constitution provided a specific limit on the authority of both the judiciary and on the legislature to regulate actions of judges:

... the Legislature has the power, expressly granted by the Constitution to remove a Judge from office by impeachment, or, together with the Executive, by address. New Hampshire Constitution Part II (Articles 17, 73). The Legislature may also undertake those ancillary activities, such as investigation, that "give efficiency to" impeachment or address proceedings. Opinion of the Justices, 85 N.H. 567; cf. Petition of Judicial Conduct Committee, 145 N.H. 108, 112 (2000). The Legislature may, correspondingly, choose a commission or other vehicle to effectuate these pur poses.

As discussed above, however the power to regulate the conduct of judges, including the authority to take disciplinary actions short of removal, is a judicial power. See Mussman 112 at 103. That power is neither expressly granted to the Legislature by the State Constitution nor is it necessary to conduct efficient impeachment or address proceedings. Thus, it is not an "overlapping" power that is shared by the Legislature but rather, is exclusive to the Judiciary. See Opinion of the Justices, (Judicial Salary Suspension), 140 NH at 301.

The proponents of CACR 5 believe that passage of CACR 5 will change this decision, resulting in a radical change of our system of separate branches of government. If legislators can punish judges who make decisions they disagree with, the risk to judicial independence is clear and obvious.

Because of the central position of the separation of powers principle in American constitutional jurisprudence, it is unclear that the proponents of CACR 5 will be able to effect the sort of radical change they seek by enactment of this amendment. But the Bar believes that CACR 5 may be used by the Legislature to challenge the authority of the judiciary to decide cases independently.

No good public purpose is served by encouraging expansion of the legislative power in the operation of our courts. Indeed, to do so is inconsistent with over 230 years of New Hampshire and American history. Every year the New Hampshire justice system handles more than 200,000 cases-the simple, the complex, and the extraordinary. Most cases are resolved successfully, fairly and impartially. Our courts are an institution that transcends any individual judge or transient episode. The courts of our country-the defenders of our most precious freedoms, the protectors of the individual against big government-are held up as examples for the rest of the world. The system is working well, and no good cause has been shown for the adoption of CACR 5.

Accordingly, the New Hampshire Bar Association encourages all citizens to seriously consider whether this amendment is truly needed, and to Vote NO on the Constitutional Amendment Question.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer