What a year it has been. For the first time in over 200 years, a Supreme Court justice, Chief Justice David Brock, was impeached — and two associates justices, Broderick and Horton — nearly were. Since that time, the entire judiciary and indeed the legal profession have been the subject of intense scrutiny. The tenor of public debate and media commentary have often been sharp and even inflammatory.

The Legislature has undertaken a comprehensive review of the justice system and many reform measures, some quite sweeping, were proposed. Several of them have passed one chamber or the other and the momentum for change has been much greater than at any time in memory.

In its role as representative of the state’s legal profession, the New Hampshire Bar Association has devoted a great deal of time and effort in participating in both the public debate and the legislative process. Because we are a unified bar, however, any time we do so we face a dilemma: We must weigh our responsibilities to the system against the knowledge that virtually any time we take a position, it will conflict with the beliefs of at least some of our members.

In fact, in Petition of Chapman, 128 N.H 24 (1986), the court held that in its lobbying role the Bar must limit its activities so as to protect the First Amendment rights of its members.

As in prior years, the Bar has taken the Chapman obligation seriously. Inevitably, however, some — and on occasion, many — members have expressed opposition to the positions we have taken. A number of legislators have remarked that this supports their belief that for the most part, the Bar is a just a spokesperson for the Court, and doesn’t represent the Bar membership.

At the same time, some of the Bar’s public statements have been critical of actions of the Court and some of its members. This has led a number of Bar members to criticize the Bar. Why, at a time when the system itself is under attack, is the Bar adding fuel to the fire?

The answer to these criticisms is to be found in our Bar’s constitution, and it goes to the heart of the reasons for the unification of the Bar. Article I of our constitution states, in part:

The purposes of this Association are to improve the administration of justice; to foster and maintain high standards of conduct, integrity, competence and public service on the part of those engaged in the practice of law; . . . to provide a forum for the discussion of subjects pertaining to the law. . . and the relations of the Bar to the public; to carry on a continuing program of legal research and education; and to encourage cordial relations among members of the Bar; . . . to the end that the public responsibility of the legal profession may be more effectively discharged. (emphasis added).

Thus our constitution imposes on the bar the responsibility to act to protect the system of justice itself because that system, like any other public institution, does not exist to serve the judges, nor to serve our profession. It exists to serve the public.

In order for the Bar to carry out that responsibility it cannot confuse the role of defender of the system with that of defender of the court or those who sit on the bench. If and when misconduct occurs and becomes a matter of public debate, the Bar must acknowledge it or tacitly suggest that such misconduct does not harm the system. By the same token, the Bar has a responsibility to speak out against unjustified criticism of the bench, whose members are not in a position to defend themselves. What credibility would such defenses have if the Bar were silent when judicial misconduct has occurred?

Nor does the constitution mute the Bar when the judicial system itself is under attack, even when there may not be substantial unanimity among the members on precisely what role the Bar should play. Both the constitution and the Chapman decision allow, and indeed require, the Bar to participate in the legislative process dealing directly with the administration of justice.

The issues before the Legislature now go directly to the heart of how justice is administered. Constitutional amendments have been proposed that deal with the appointment and retention of judges, and the separation of powers between the legislative and judicial branches of government. Contrary to what some have said, the Bar has weighed in on these issues not because they are important to judges, but because they go directly to a judge’s ability to dispassionately rule on the rights of the public – the individual litigants that come before them.

At the risk of preaching to the choir, it has seemed to me that the debate and commentary on this particular issue has always stopped short of the punch line. That commentary usually ends with an acknowledgment that judicial independence is important to allow the judge to rule on the facts and the law before him or her. Fine. But why is that so important? It is important because it is the mission of the justice system, alone among the three branches of government, to preserve the rights of the individual. The other two branches, elected by majority vote, serve primarily to represent the will of the majority. Particularly in a state whose motto is "Live Free or Die," the importance of a truly independent judiciary ought not to be lost.

So this year, perhaps more than any other year, the Bar has engaged itself in both the public debate and the legislative debate. However, to state that the Bar has an obligation to do so begs the question of what that participation ought to be. When should the Bar support the bench, and when should it be critical? What should the Bar’s position on these momentous constitutional issues be? These are not easy questions and certainly do not have easy answers.

Since I am about to finish my year as president, how well we succeeded in answering these questions is a matter that should perhaps be best left to be judged by others. Hopefully, however, by using the needs of the justice system itself as our guideline, we have not steered too far from the mark.

It has been a long year for me as well. There were more than a few nights I spent wondering just what I had done to deserve drawing this year to serve as president. Despite the challenges, it was an enormous honor and a great privilege and I thank you all for giving me the opportunity.

Oh ... and good luck, Hutch — you’re going to need it!

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