THE NEW HAMPSHIRE House of Representatives appears determined, even obsessed, to acquire for the Legislature the power to override the judiciary in making rules governing internal practice and procedure in the courts. It recklessly proposes to bypass the doctrine of separation of powers embodied in Article 37 of Part I of the New Hampshire Constitution, if such constitutional avoidance is necessary in any case to enable the Legislature to achieve control of court rules.

CACR 5, a concurrent resolution that passed the House by a wide margin at the 2001 session, would submit to the people for approval a constitutional amendment that would not only enable the Legislature to trump the Supreme Court in making rules governing the conduct of litigation in the courts, but would do so "Notwithstanding Part I, Article 37." Under this proposal, if the Legislature were to enact a court procedural rule that encroached upon an exclusive judicial function, such as a rule undertaking to regulate the discretion or judgment vested in the courts in adjudicating cases, this otherwise palpable violation of separation of powers would be disregarded. The proponents of CACR 5 display a temperament all too often seen in reformers: They are so absolutely certain that they are right, that history is on their side, that they have become indifferent to the means.

Fortunately, the Senate deferred action on CACR 5 until the next session, which begins this month, affording more time to examine the consequences of this improvident proposal.

If there is anything sacred in our constitution, it is the principle of separation of powers. This concept is perhaps the most important single political science innovation conceived by our founding fathers. Article 37 of Part I was adopted in 1784 primarily to protect the judicial and executive departments from legislative encroachment. Under Article 37, each of the three departments – legislative, executive and judicial – "...is to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."

Under Article 37, each branch acts as a check upon the other, resisting any encroachment upon its constitutional functions. The framers were especially intent on preventing the Legislature from exercising judicial functions. A core judicial function is the protection of our constitutional rights and freedoms – such as protection of our right to receive due process of law when the Legislature or the executive branch attempts to take away our liberty or property. A great early New Hampshire jurist, Jeremiah Smith, while acting as counsel in the Dartmouth College Case (1819), wrote perceptively about the evils of legislative encroachment upon the judicial function, as follows: "While I entertain the highest respect for the Legislature as a legislature, I have no hesitation in saying that as judges they are as bad as the lot of humanity can possibly admit – that private property and character would be altogether unsafe in such hands."

Smith added the following: "If there is anything established in our constitution, it is that the legislative department of our government should abstain from the exercise of judicial power, as every way incompetent to the task. It is not merely the 37th article of the bill of rights which prohibits it – the whole constitution forbids it." 65 NH 473, 555.

In the opinion of several widely respected scholars, based upon their analysis of New Hampshire history and practice, the province or area of making rules governing practice and procedure in our courts is one that is shared by the judiciary and the Legislature (provided that no invasion of an acknowledged exclusive function of either branch is involved). Under this view, each of the two branches has responsibility in this twilight zone and neither is entitled to superiority. This is in keeping with the felicitous language of Article 37 (quoted above), which recognizes that the three branches of government cannot in the nature of things always be completely compartmentalized and that in some areas overlapping will occur. In the area of court rule making, according to these authorities, the courts and the Legislature are to exercise concurrent authority in a spirit of "amity" and in recognition that the state is, after all, a single government. This view contemplates that disputes will be resolved by negotiation, coordination and accommodation. But CACR 5 claims supremacy for the Legislature as though it possesses omni-competence in this field. It would fundamentally alter the balance of power in this area so sensitive to the judiciary and which has heretofore been shared. Worse still, as noted above, it would allow legislative override to occur with respect to exclusive judicial functions, in spite of separation of powers.

The proponents of CACR 5 tell us that we have "nothing to fear" from this proposed erosion of our constitutional protections, citing the "collective wisdom" of the 400-member House as a suitable guaranty against irresponsible legislative action. I believe that we have a good deal to fear from CACR 5, judging by the past performance of the Legislature in this sphere. Here are two examples, among several available, of attempted legislative rule making that gives cause for apprehension.

As recently as 1996, the Legislature proposed legislation in sexual assault cases that would have given evidence of prior sexual assaults by the accused a rebuttable presumption of relevance and admissibility. This proposal would have altered a cardinal rule of criminal jurisprudence that prevents prosecutors from offering evidence of prior bad acts to show a person acted in a certain way as charged simply because he had a propensity or inclination to act that way, or because he was a person of bad character.

The Supreme Court in an advisory opinion held that the proposed legislation would violate Article 37 of Part I, the separation of powers clause. Opinion of the Justices (Prior Sexual Assault Evidence) 141 NH 562 (1997). As the Court saw it, the proposed legislation would interfere with a trial judge’s discretion in handling evidence or prior bad acts and had the potential of depriving an accused person of due process of law. The Court acted to invalidate the bill because it would impair a judge’s ability to protect a constitutional right (due process of law).

Although some language of this opinion may have overstated the Court’s reach in rule making, that language was not necessary to the result, and the result itself is sound. Surely society’s zeal to convict sexual offenders should never be allowed to override the imperative of giving such persons a fair trial. Yet legislative leaders seem determined to reverse this decision. If CACR 5 is adopted, we may again expect to see similar legislation and then the separation of powers clause will no longer be a bar.

In 1998, the Legislature undertook by legislation to remove control of court security in the district courts (the employment and direction of court bailiffs) from the judicial branch and place it in the hands of the Legislature. This rather naked power play by one branch into the inherent and internal affairs of another was struck down as a violation of the separation of powers clause in Petition of Mone, 143 NH 128. The Court reasoned that in order for courts to carry out their adjudicatory function, they must have the ability to provide a secure forum for litigants. Even now, the Legislature, by severely cutting the judiciary’s budgeted amount for court security for the fiscal year 2001-2002, is trying to accomplish what it could not by unconstitutional legislation. It is apparent that if CACR 5 is adopted, the way will be open for the Legislature to take charge of court security.

If in rule making for the courts the choice is between relying upon the protection afforded by the separation of powers clause or upon the dubious judgement of our Legislature, choosing should not be difficult.

The wisdom of CACR 5 is open to grave question. Let us hope the Senate will use extreme care in acting upon this resolution.

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