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Bar News - October 22, 2004 Opinions ~ Legislature Seeks Control Through Amendment The New Hampshire legislature is once again attempting to gain control of the state court system by presenting a constitutional amendment to the voters. The same amendment was defeated in the 2002 election. Voters are now again being asked to amend our basic governing document so as to give the legislature the final say on the administration of our entire court system. In November, voters will be asked on the ballot's Question 1 to approve or disapprove a proposed amendment to Part 2, Article 73-a of the New Hampshire Constitution. At the present time, this article allows the Supreme Court to make the rules governing the administration, practices and procedures of all the courts in the state. These rules have the force and effect of law. This particular provision was adopted by a citizen Constitutional Convention, not by the legislature, and it was approved overwhelmingly by the voters in 1978. The present ballot question is a second attempt by the other two branches of government to discipline our court system for the Claremont decision, and also for the court's efforts to enforce the constitutional demand that every child in New Hampshire receive an equal education. Our government is based on the doctrine of separation of powers under New Hampshire's Constitution, Part 1, the Bill of Rights, Article 35, which provides in part: ...It is essential to the preservation of the rights of every individual, his life, property, and character, that there be an impartial interpretation of laws, and the administration of justice. Article 37, Part 1, also provides that the three branches of government -legislative, executive and judicial-shall be kept separate and independent from each other. The separation of powers-the system of checks and balances set up so that one branch of government does not obtain too much power-is and has been since the founding of our republic, the cornerstone of our individual liberties guarded by American courts. Over 100 years ago, New Hampshire's most famous jurist, Chief Justice Charles Doe, said that our 1784 Constitution-by embracing the separation of powers doctrine-introduced an era of liberty and equality which has continued until this day. This was further emphasized when a citizens' Constitutional Convention strove to isolate the courts from legislative control and interference. It should be understood that the proposed amendment does not "clarify" anything. If passed, it would generate additional conflicts and litigation, leading to more tensions and misunderstandings. As an example, the term "necessary adjudicatory" is included in the proposed amendment. This phrase alone would be the subject of suits and countersuits for years. Today the relations between the three branches are in good order and could be said to be "in balance." This amendment is a "solution in search of a problem." Please, on Election Day, vote NO on ballot Question 1, Proposed Amendment to Part 2, Article 73-a of the New Hampshire Constitution. Your "No" vote will guard against an overreaching of legislative powers and protect your individual liberties. Respectfully,
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