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Bar News - October 22, 2004 Opponents Say Amendment Could Allow Legislature to Run the Courts By: Dan Wise CLOSELY CONTESTED PRESIDENTIAL and gubernatorial elections are obscuring attention from another significant contest- a proposed constitutional amendment on legislative vs. court authority appearing on the New Hampshire ballot for the second time in two years. The amendment, wording slightly modified from its 2002 counterpart, would amend Part 2, Article 73-a to give the legislature ultimate authority to approve rules for the court system except in certain circumstances.
The measure garnered slightly less than the two-thirds majority necessary to pass in its last outing. The supporters' cause may receive a major boost, as it did two years ago, from a "Voters' Guide" written by legislative leaders that purports to "explain" the amendment. The guide was printed and distributed, at public expense, to every municipality with instructions to election officials to make them available to voters inside the polling places. Amendment opponents have criticized the Voters' Guide as a one-sided depiction of the reasons for the amendment that understates its potential impact. Supporters of the amendment have been also been speaking to the news media and circulating op-ed commentaries. (See Oct. 8 issue of Bar News for article by amendment supporters Eugene Van Loan and Hon. Robert Lynn) To counter the efforts of proponents, a recently formed political action group, Citizens for Good Courts, chaired by former NHBA President Peter Hutchins, is launching an information campaign opposing the amendment. Also, members of the group plan to file suit (expected to occur before this issue date, but after Bar News deadline) to block distribution of the guide to voters, citing examples of its biased language. The suit also alleges that the guide was produced and approved under the supervision of legislative leaders acting in private in violation of the Right-to-Know law. The NHBA Board of Governors, maintaining the position it took two years ago in opposition to the amendment, has designated NHBA Immediate Past President Russell Hilliard as its lead spokesperson on the issue. Hilliard has spoken to members of the news media, particularly editorial page editors, (In the last election, all but one of New Hampshire's major daily newspapers editorialized against the amendment.) and also is conducting outreach to lawyers and other opinion leaders in community groups such as Rotary clubs. Bar leaders also are urging Bar members to consider the implications of the amendment on the legal system and to encourage their clients, neighbors and friends to vote "no" on the amendment. In the center two pages of this issue, a "Vote No" graphic is published. (Signs are also being produced by the Citizens for Good Courts group. For information on how to obtain a sign, contact Kathy St. Louis at 224-6942 or at kstlouis@nhbar.org.) The Supreme Court also is speaking out; this week, it is releasing a letter to the citizens of New Hampshire explaining its opposition (see page 4), and Justices Broderick and Nadeau have also met with newspaper editorial boards and reporters to discuss the amendment as well as other court developments. Members of the court encourage Bar members to share the letter with others who value their opinions on this amendment. "My colleagues and I are reluctantly speaking out," said Chief Justice John T. Broderick, Jr. and Associate Justice Joseph P. Nadeau, in interviews with Bar News. "We feel compelled to do so," said Broderick. "The amendment will allow the legislature to trump the rules that the court would pass. More significantly, the amendment arguably would allow the legislature to take responsibility for the day-to-day administration of the judicial branch. This is troubling and very ominous -not because it will impede the judges, although it will, but because the identity of the judicial branch is its independence from politics. It would send a signal to litigants that politics is in our building."  "The amendment arguably would allow the legislature to take responsibility for the day-to-day administration of the judicial branch." Broderick said opponents of the amendment have been concentrating on the language in the proposal referring to the language regarding the supremacy of statutes regarding court procedural matters over court-enacted rules. However, the amendment also specifies that the legislature may regulate matters of "administration" by statute -a nuance that Broderick referred to as the "Trojan horse" of the amendment. He said members of the court are concerned that some lawmakers want to exercise greater influence over the judicial branch; the amendment will embolden them to attempt to regulate such administrative matters as court operating hours, the regulation and discipline of lawyers and judges, even perhaps to oversee the administrative office of the courts. The chief justice said that no need has been demonstrated for the amendment and he said the impulse for it threatens to undo progress made by both the courts and legislature to mend the strained relations of the past few years. "In many ways, we have moved ahead a great distance," he said. "This amendment would continue [the strains] of yesterday."
Broderick and his fellow justice believe the amendment, if passed, would spawn litigation to clarify its terminology. For example, the amendment has language that limits the legislature's power to "trump" court rules by stating that the legislature "shall have no authority to abridge the necessary adjudicatory functions for which the courts were created." How will "necessary adjudicatory functions" be defined, if not by litigation that pits the judicial and legislative branches as adversaries, he asked. Nadeau took issue with supporters' contentions that the amendment "corrects" some balance that had been disturbed. "The thrust of the explanation in the Voter's Guide is that the original 73-a amendment took something from the legislature and gave it to the courts. There was nothing taken from the legislature. Rule-making is, and has always been an area of shared responsibility." Nadeau also took issue with the contention that the amendment would bring New Hampshire into conformance with the relations that exist between legislatures and courts in other states and in the federal government, where Congress has the power to review and reverse rules of the federal judiciary. "There is no state in the country where the legislature administers the court system," Nadeau said. "The voters guide casts 'administration' as a policy matter appropriate for the legislature."
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