THE NH HOUSE on Jan. 17 passed a strongly worded – but non-binding – resolution denouncing the NH Supreme Court’s rulings ordering the state to pay for education and declaring invalid certain property tax schemes. The resolution passed 188-152, a 55 percent majority, which falls below the 60 percent majority needed to endorse a constitutional amendment.

The following week – on the same day that Justice Broderick addressed the Bar (see text of his speech on page 12) – the NH Senate considered amendments to CACR 5, the House-passed constitutional amendment that would establish that statutes passed by the Legislature would take precedence over rules issued by the court. Both proponents and opponents believe that such an amendment could significantly alter the current balance of powers between the branches. Supporters say CACR 5 would right the balance that court rulings have tipped too far in favor of the court, while opponents contend that such an amendment would grant the Legislature veto power over the court’s legitimate exercise of its powers in judicial review and in governing court operations. Senators deferred action to take more time to consider different amendments to the bill, which would potentially reduce its scope.

The Legislature is also considering several constitutional amendments that would specifically limit the court’s jurisdiction in school-financing issues. For example, one amendment (CACR 7) would specify the standard of review in Claremont-type cases that the court would use. Instead of applying a comprehensive, "strict scrutiny" standard, the proposed amendment would require the court to use only a review standard that considers whether the education financing legislation is "rational."

How seriously should Bar members take bills that propose significant changes in court structure or operations? Several lawyers who are members of the Legislature spoke about Legislature-court tensions during a recent program called "Building Bridges" conducted by the Rockingham County Inns of Court. Rep. Christopher Reid (R-Dover), an attorney in Concord, and Rep. John Pratt (D-Walpole), a retired attorney who did not practice in NH, urged caution by Bar members in reacting to bills that propose what some might consider extreme solutions.

"The Legislature has 400-plus members. Any bill that someone introduces still has to be passed by both houses and have the governor sign it," said Reid. "There are a lot of ideas that don’t survive the process – a lot of bad ideas are washed out."

Pratt, a Judiciary Committee member along with Reid, said he supports CACR 5, but does not believe that it poses as significant a change as others in the Legislature believe. Pratt, who supported the Claremont decisions, expressed impatience at the Legislature’s inability to resolve the school-financing problem and added that he does not believe anti-court rhetoric will subside soon. "Court reform will remain front and center – until the Legislature no longer has a whipping boy to blame for its own failures," Pratt said.

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