Editor’s Note: On Jan. 24, the Senate delayed action on CACR 5 after debating other amended versions of the measure. It was not known at press time when the Senate would take up CACR 5 again or in what form.

FRED UPTON’S EDITORIAL (Jan. 4, 2002 issue of Bar News) attacking Constitutional Amendment Concurrent Resolution (CACR) 5 is correct in noting that the separation of powers doctrine embodied in Part I, Article 37 of the New Hampshire Constitution is of fundamental importance to preserving the freedoms and liberty we all hold dear. What Mr. Upton fails to recognize, however, is that it is not CACR 5, but rather the NH Supreme Court’s expansive view of the reach of judicial authority that poses the real threat to the system of checks and balances among the branches of government, which is the cornerstone of our constitutional democracy.

CACR 5, which was passed with overwhelming bipartisan support by the New Hampshire House of Representatives, and which has been endorsed by Governor Shaheen, would amend Part II, Article 73-a of the state constitution so that it would read as follows:

The chief justice of the supreme court shall be the administrative head of all the courts. The chief justice shall, with the concurrence of a majority of the supreme court justices, have the power by rule to regulate the administration of, and the practice, procedure, and rules of evidence in, all courts of the state. The rules so adopted shall have the force and effect of law. Notwithstanding part I, article 37, the general court may regulate these matters by statute and may accept or reject any rule adopted by the supreme court. In the event of a conflict between a statute and a rule, the statute, if otherwise valid, shall supersede the rule.

On Jan. 9, 2002, the Senate Judiciary Committee passed the proposal, changing only the phrase "if otherwise valid" to "if not contrary to the provisions of the constitution." The amended version then went to the full senate for debate and possible vote. [See editor’s note, above.]

Throughout our state’s history, New Hampshire courts have always exercised the power to make procedural, evidentiary and administrative rules to govern the workings of the judicial branch. But until relatively recently, there was never any question that the judiciary’s rule-making authority was subject to legislative override. Thus, for example, in Richer’s Petition, 66 N.H. 207, 211 (1890), Chief Justice Doe wrote: "Independently of any statute, every court of record may make such rules for the transaction of its business as do not contravene the laws of the land." This historical allocation of power between the courts and the Legislature was not altered when the current version of Part II, Article 73-a was added to the constitution in 1974. Indeed, the published debates on Article 73-a at the 1974 Constitutional Convention contains a colloquy between two distinguished members of the New Hampshire Bar, Arthur Nighswander and Martin Gross, who served as delegates to the Convention, which clearly demonstrates that the drafters of Article 73-a never intended that amendment to diminish the Legislature’s power to regulate court procedure by statute.

The first time the Supreme Court even hinted that a statute regulating court procedure might run afoul of the separation of powers doctrine was in 1983, in the infamous "guns-in-the-courtroom case," State v. Lafrance, 124 N.H. 171. To be sure, the Lafrance case contained some fairly broad language regarding the judiciary’s "exclusive authority" to control what occurs in the courtroom. But the uniquely offensive nature of the statute at issue in that case, as well as the Court’s reliance on well-established precedent dealing with the judiciary’s inherent contempt powers, gave reason to hope that Lafrance was a decision of limited import that reached no further than its own particular facts. Such hopes were dashed, however, by the Supreme Court’s more recent decision in Opinion of the Justices (Prior Sexual Assault Evidence) (hereinafter PSAE), 141 N.H. 562 (1997).

Notwithstanding the attempt by Mr. Upton and others to suggest that the case does not really mean what it plainly says, PSAE cannot be explained away as a narrow ruling that simply invalidated proposed legislation which would have violated the due process rights of criminal defendants. If the Court’s real concern with the legislation was the due process issue, the Court could easily have upheld the legislation against a separation of powers challenge, but included language in its decision signaling the Legislature that the statute raised potential due process problems. Alternatively, the Court could have upheld the legislation on separation of powers grounds, waited for the due process issue to be raised in the context of a "real" criminal case, and then struck down the statute if the Court found that it violated due process.

Instead, the PSAE Court issued a broad separation of powers ruling, which, by adopting the position that the judiciary not only has "supremacy over procedure" (i.e., that where there is a conflict between a statute and a judicial rule, the judicial rule takes precedence), but also that rules of procedure and evidence are "under the exclusive jurisdiction of the court" (emphasis added), effectively overruled 200 years of prior New Hampshire practice. And while the Court also acknowledged that it might be willing to uphold certain legislative enactments affecting evidence and procedure as a matter of comity, the Court made it clear that it had no obligation to do so.

The bottom line is that, in the wake of the PSAE case, there can be no doubt that the Supreme Court regards itself free to strike down as a violation of separation of powers any procedural or evidentiary legislation with which the Court disagrees. Because virtually all courts and commentators agree that the line between procedural law and substantive law is often vague and indistinct, and because procedural law frequently implements important public policy choices, the result of the PSAE case is that a large area of public policy decision-making – involving matters that have nothing at all to do with the protection of individual rights – has been removed from the control of the people’s duly elected representatives and placed in the hands of five unelected and largely unaccountable Supreme Court justices.

The PSAE decision puts New Hampshire among the distinct minority of jurisdictions. Only 18 states have adopted the principle of judicial supremacy over procedural law – all as a result of court decisions – and only seven states have extended this principle to encompass the law of evidence. In the federal system and in 32 of our sister states, courts have rulemaking authority, but the rules so adopted can be modified or repealed by the Legislature. There is no evidence that the courts in these majority jurisdictions are any less independent or any less capable of administering justice fairly, efficiently and impartially than are the courts in states that follow the minority rule of judicial supremacy over procedural law.

Perhaps the strongest evidence that jurisdictions that follow the majority rule – under which courts are granted primary rule-making responsibility while the Legislature retains ultimate supervisory control – achieve the best results is the example set by the federal courts. Utilizing just such a system, Congress and the US Supreme Court have produced the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. These rules are generally held in high regard throughout the country, and they have served as the models for most state court procedural and evidentiary rules.

Under CACR 5, the Supreme Court will continue to have the power to adopt rules of administration, practice and procedure, and evidence for all courts within the state. But by also explicitly empowering the Legislature to regulate such matters by statute, and by providing that in the event of a conflict between a statute and a court rule, the statute, if otherwise valid, supersedes the rule, CACR 5 returns New Hampshire law to where it was before the PSAE case.

The essential flaw in Mr. Upton’s notion of what is at issue in the concept of the "independence of the judiciary" is exemplified by the other case that he cites with approval, Petition of Mone, 143 N.H. 128 (1998). In that case, the Court held that the Legislature could not constitutionally require that district court security officers should be hired by the county sheriffs – despite the fact that all parties acknowledged that such court security officers would nevertheless be under the control of the judges when actually performing their in-court responsibilities. What the Mone case therefore illustrates is not a principled application of the doctrine of separation of powers, but the elevation of a turf battle akin to inter-union disputes over who ought to be assigned what jobs to the level of an issue of constitutional stature.

The Mone Court offered no satisfactory explanation of how it can be unconstitutional for district court security officers to be employees of the county sheriffs, when this is exactly the status held by court officers who provide security for the Superior Court. In fact, the only sensible reading of the Mone decision is that the long-standing practice under which the sheriffs provide security for the Superior Courts remains in place only by the grace of the Supreme Court. Again here, a comparison with the federal court system is revealing. Under federal law, responsibility for providing security for the United States district and circuit courts is committed by statute to the US Marshal Service, an agency that, like the county sheriffs, is part of the executive branch of government. There is no indication that this arrangement has ever interfered in any way with the independence of the federal courts.

No one can seriously dispute that an independent judiciary is a crucial component of a free and democratic society. But the independence to which the judiciary may properly lay claim is limited to that which is necessary for the courts to perform the adjudicative functions for which they were created. Opinion of the Justices, 87 N.H. 492, 493, 495 (1935). That is, the courts must be free from interference by the other branches in determining the facts, applying the existing law to the facts, and rendering judgment in the cases and controversies that come before them. Merrill v. Sherburne, 1 N.H. 199 (1818); Petition of Boston & Maine Corp., 109 N.H. 324 (1969). On the other hand, the establishment of the general rules and regulations by which all or some discrete class of future cases or controversies are to be decided is lawmaking pure and simple, a quintessentially legislative function. And while considerations of expertise, efficiency, and the like make it entirely appropriate for courts to perform this function in the first instance, to place final authority for rule-making in the hands of the judiciary violates a fundamental tenet of the separation of powers doctrine: It effectively gives the Supreme Court unchecked power both to make and to apply the law. This is the situation that currently exists in New Hampshire, and CACR 5 is the mechanism by which equilibrium among the branches of government can be restored. Hopefully, the New Hampshire Senate will follow the lead of the House by adopting CACR 5 and sending it to the voters for their approval.

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