Talking Points

The amendment currently reads:

Voters will be asked to vote on this proposed amendment:

The Bar Association, by vote of its elected Board of Governors, opposes this amendment. The following points summarize the Association's objections to the proposed amendment:

1. The amendment does not correct the balance of powers between the branches. It establishes legislative supremacy over the rule-making authority of the court. The language of the amendment, allows, or at least encourages, the legislature to become involved with all aspects of the administration of the courts. Preserving the independence of judges to make fair decisions becomes more difficult if the judicial branch of government lacks the authority to administer itself.
2. This amendment is not necessary. Proponents of this change to the constitution assert that the court has exceeded or abused its rule-making authority, basing it on a handful of decisions. During the 25-year history of Part 2, Article 73-a (the amendment establishing administrative authority for the judicial branch), hundreds of rules have been considered and adopted by the Court. The proponents of this amendment cite only two examples where they believe the court has exceeded its authority. Constitutional experts differ on the significance of those decisions (see September 2002 Bar Journal article by Harvard Law School instructor Lawrence Friedman, "On the Justifications for Constitutional Amendment Concurrent Resolution 5" who analyzes the decisions cited by the proponents. He concludes that the proposal to give the legislature the authority to supersede the court in its administrative and rule-making authority is "nothing more than a solution in search of a problem."
3. The amendment gives the legislature greater authority than simply the power to negate court rules. It could be construed to giving the legislature the power to decide, among other things, where judges are assigned, the hiring and firing of court personnel (including judges' clerks) and how the courts are run day-to-day. The past few legislative sessions have demonstrated that concerns about legislative meddling in the courts are well-founded. Between 1998-2002, the legislature has considered proposals that would have fundamentally affected the operation of the courts: requiring judges to give "nullification" instructions in all jury cases; giving litigants a preemptory (free, without cause) challenge to the judge assigned to their cases; transferring control of the Administrative Office of the Courts to the Legislature. There was even a bill that sought to control the color of robes that judges or marital masters wear.
4. If passed, this amendment would generate additional conflicts and litigation. The proposed amendment would establish conflicting constitutional provisions governing the operation and independence of the courts. If the question passes, Part 2, Article 73-a would establish legislative supremacy over the rules and administration of the courts, while part 1, Article 37 (adopted over 200 years ago) would continue to stand for the proposition that the three branches of government should be maintained as separately as possible.
   Given the activist nature of the legislature in recent years, it is anticipated that litigation would be required to determine the meaning of the language "essential adjudicatory functions" that is added to the proposed amendment.
5. The legislature is ill-equipped to handle the responsibilities this amendment entails. Some proponents say this amendment should be approved because it will bring NH in line with the federal system, where the Congress has the ability to approve or reject administrative rules developed by the federal courts. But NH's 424-member, part-time legislature lacks the expertise, institutional memory, support staff and other resources that Congress has at its disposal.
6. Why is a NO vote important? A two-thirds majority of those voting is required to pass this amendment. This amendment poses a threat to the ability of the courts to act independently and decide cases fairly by introducing new sources of pressure from the legislative branch.

Countering the Voters' Guide

To be distributed at polling places on election day, the state legislature has published a "Voters' Guide Explaining a Proposed Amendment to the State Constitution." This guide was produced without outside or impartial input and the NH Bar Association is concerned about the oversimplifications and misstatements it contains. Read the guide at http://www.sos.nh.gov/voters%20guide.pdf.

THE 'VOTERS' GUIDE' SAYS:

"...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. ... 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."

THE FACTS ARE:

The above assertion is incorrect. The article of the constitution being proposed for amendment has allowed the Court primarily to fill gaps in procedure. Far from the Court claiming "exclusive or nearly exclusive authority", the proponents of this amendment can cite only two examples where they believe the court has exceeded its authority, and constitutional experts differ on the significance of even those decisions.

Tinkering with the Constitution as a result of disagreement with Court decisions on court administration and procedures challenges the Court's ability to function as an independent, third branch of government - exactly the role it was created to fulfill.

THE 'VOTERS' GUIDE' SAYS:

"The amendment will make it clear that both the supreme court and the legislature have full concurrent powers to regulate such matters." The phrase "such matters" is referenced as "matters of court administration".

THE FACTS ARE:

Concurrent powers is the status quo; the proposed amendment would change that, establishing legislative supremacy over the court's rule-making authority. The language of the amendment encourages the legislature to become involved with all aspects of the administration of the courts. Preserving the independence of judges to make fair decisions becomes more difficult if the judicial branch of government lacks the authority to administer itself.

THE AMENDMENT CLAIMS TO:

"...clarify that both the judiciary and the legislature have the authority to regulate court practices and procedures...

THE CONCERN IS:

Rather than "clarifying" anything, this amendment would establish conflicting constitutional provisions governing the operation and independence of the courts. If the question passes, Part II, Article 73-a would establish legislative supremacy over the rules and administration of the courts, while Part I, Article 37 (adopted over 200 years ago) would continue to stand for the proposition that the three branches of government should be maintained as separately as possible.

THE 'VOTERS' GUIDE' SAYS:

"...the amendment also contains a provision that prevents the legislature from enacting laws that would abridge the necessary adjudicatory functions of the courts."

THE FACT IS:

Given the activist nature of the legislature in recent years, it is anticipated that litigation would be required to determine the meaning of the language "necessary adjudicatory functions" included as a "safeguard" in the proposed amendment.

"If the amendment is adopted: The New Hampshire Constitution will be consistent with...the federal level."

THE FACT IS:

NH's 424-member, part-time legislature lacks the expertise, institutional memory, support staff and other resources that the United States Congress has at its disposal when it considers administrative rules developed by the federal courts. This is one of many instances when "the New Hampshire difference" makes sense over the federal system.

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