THE NH SENATE in early June was poised to vote on CACR 5, a proposed constitutional amendment already passed in the House that Bar Association leaders believe could significantly tilt the balance of powers among the separate branches of state government.

CACR 5 adds language that transfers the ultimate authority for court rule-making and administration from the Supreme Court to the Legislature. Included is a prefatory clause that eliminates consideration of the "separation of powers clause" of the constitution in determining whether court rules adopted by the Legislature impinge upon the rule-making powers of the judicial branch.

Both proponents and opponents agree the measure is pivotal. Supporters of CACR 5 contend it restores balance among the branches and is essential for the Legislature to accomplish meaningful reform. Those opposed contend the language of the proposed amendment would eliminate any objection that a legislative action affecting the courts violates the "separation of powers" clause of the constitution.

The bill, which originated in the House Judiciary Committee, easily passed the House last month (290-48) with little debate on the floor. On May 23, the Senate Judiciary Committee heard testimony on the proposed rules amendment from many witnesses. The committee was expected to deliberate on the bill in the first week of June and possibly put it to vote as early as June 7. Bar News went to press before deliberations began.

NHBA President-Elect Peter Hutchins said the Bar leadership has been proactively speaking out against CACR 5, and will continue to do so even if the measure passes the Senate. "We believe that the debate so far has understated its significance and potential long-term effect," said Hutchins.

In an article written for the June issue of New Hampshire Bar Journal, House Judiciary Chair Henry P. Mock downplayed the significance of the measure, saying that "many House members see this as not a change at all."

"This resolution restores the Constitution to its meaning before the Court began claiming an exception for itself to the Constitution's fundamental system of checks and balances," Mock wrote.

Attorney Richard B. McNamara also addresses court powers in this month's Bar Journal article "The Separation of Powers Principle and the Role of the Courts in New Hampshire." McNamara, the author of two New Hampshire law treatises and the chair of a Bar Committee on Rules of Criminal Procedure, offers a historical analysis of the exercise of the court's powers in relation to the other branches of government. His examination shows that the various branches' rule-making powers are meant to overlap. Providing one branch with an ultimate right "profoundly shifts the balance of power towards the legislative branch," McNamara testified before the Senate Judiciary Committee.

"Granting the Legislature the right to enact all rules, notwithstanding Part I, Article 37 of the constitution, strikes at the authority of the court to act as one of the 'judicatories and courts of record' defined in Part II, Article 4 of the constitution. Most importantly, by limiting the impact of the separation of powers clause, an express right of the people, it diminishes the protection afforded by the New Hampshire Constitution," McNamara testified.

Also testifying before the Senate Judiciary Committee, NHBA President Gregory D. Robbins cited some examples of areas where the Legislature could control or direct court operations if CACR 5 were passed. Included are:

• Whether certain judges or marital masters could sit in specific counties;
• The ability of the court to restrict the possession of firearms in courtrooms or court facilities of law enforcement officials, litigants and members of the public;
• Altering the contempt powers of the judiciary, thereby eroding the court's authority to enforce orders;
• Whether litigants and lawyers are required to follow rules of procedure and evidence.

Robbins also differed with CACR proponents' assertions that the Legislature currently lacks authority to pass substantial rules or procedures by statute. He cited last year's enactment of a system of judicial evaluations and the passage this year of SB 35, which creates a five-year rotating term for the Supreme Court chief justice.

"The Legislature has regularly and without objection from the court passed laws ranging from motion practice before the courts (e.g. summary judgment - RSA 491:8-a) to actions taken by the Judicial Conduct Committee (RSA 490:30, passed in 1988 and amended in 2000)," Robbins said in written testimony presented to the Senate committee.

"Historically the administration and procedures of the court, whether established by court rule or legislation, are a shared responsibility. In some areas responsibilities overlap. As such, the Bar Association has advocated an approach where the Legislature and the judiciary work cooperatively, rather than in a confrontational fashion," Robbins wrote, citing the Bar's support for SCR 1, which advocates the inclusion of legislative members on the court's rule-making advisory committee, as an example of how cooperation between the branches could be furthered.

The Legislature and the Supreme Court have also continued work on other issues. Among the measures enacted or passed in recent weeks:

• The Senate on May 9 passed SB 197, creating an independent Judicial Conduct Committee, similar to that proposed by a Supreme Court task force earlier this year.
• On May 24, the Senate passed a constitutional amendment (CACR 16) that establishes a Judicial Selection Commission that would institutionalize a merit-based judicial selection process. The bill, as amended on the floor, removed a provision giving the commission the power to remove judges following an evaluation process. The version passed by the Senate (19-5) provides for reviews of judges every 10 years, with the findings reported to the governor, Senate and House.
• On May 25, the Supreme Court established an Advisory Committee on Judicial Ethics to provide guidance to judges on professional conduct and ethics. The court's task force had recommended this advisory committee.
• Also on May 25, the court appointed-effective only to the end of the fiscal year-Anthony McManus as executive secretary of the Judicial Conduct Committee. This move further insulates the committee from the Supreme Court by moving ongoing administration of the committee from a court staff attorney to an independent attorney. McManus, a Dover attorney and former chair of the New Hampshire Bar Foundation, has served on the Professional Conduct Committee. However, the newly created position is currently not funded in the pending judicial branch budget for the fiscal year that begins July 1.
• On May 21, the Supreme Court (actually a substitute panel headed by retired Superior Court Judge George Manias) named a substitute panel to serve in place of Judicial Conduct Committee members who recused themselves from the investigation of the role played by justices John Broderick and James Duggan in the deliberations regarding the discipline of Chief Justice David Brock. Serving on the panel are: attorney (and longtime Rye Municipal Court Judge) Gerald F. Giles, attorney Timothy Vaughan, Superior Court Judge Bruce Mohl, and non-lawyers George Hamilton and Brenda Tibbetts. The group is expected to begin its work this month.

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