TWO CONSTITUTIONAL AMENDMENTS regarding the state’s judiciary appear headed for a public referendum next fall, and several other measures aimed at increasing scrutiny of the judiciary or affecting regulation of the profession await further action by the Legislature. March 7 was to have been the crucial "cross-over" date when legislation must be acted on and referred from one legislative chamber to the other.

CACR 5. Court-rulemaking amendment. Late last month, the Senate voted 16-7 to approve an amended version of CACR 5. The amendment clarifies that the Legislature would have ultimate authority to veto court operating rules approved by the Supreme Court. The Senate approved a change, proposed by Senate Judiciary Committee Chair Edward M. Gordon, that deletes controversial wording that would have negated Part 1, Article 37, the "separation of powers" clause of the NH Constitution, in allocating to the Legislature the ability to override court rules. (See below for language of the amended version of CACR 5.)

Richard McNamara, a Manchester attorney who had written and testified regarding CACR 5, said the Senate’s version, by deleting reference to Part 1, Article 37, made a crucial change. The House language, he said, would have diminished the role of the judiciary and "diluted an enumerated right" of the citizenry contained in the state constitution.

The Senate’s version will have to be reconciled with the House-passed bill, and the governor must concur before the measure can be slated for a public vote in November. The Bar Association had opposed the House version of the bill, but it had not taken a position on the Senate-passed version at press time.

Article 73-a. [Supreme Court Administration.] 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 security and administration of, and the practice, procedure, and rules of evidence in, all courts in the state. The rules so adopted shall have the force and effect of law. The general court may also regulate these matters by statute provided that the general court shall have no authority to abridge the necessary adjudicatory functions for which the courts were created. In the event of a conflict between a statute and a rule, the statute shall supersede the rule, if not contrary to the provisions of the constitution.

Art. 73-a. [Supreme Court Administration.] 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 in 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.

The following is the article from the NH Constitution mentioned in the House version of CACR 5.

Part I, Article 37: In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to 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 on one indissoluble bond of union and amity.

CACR 33. Judicial Selection Commission. By a 23-0 vote, the Senate overwhelmingly passed CACR 33, which would institutionalize a Judicial Nomination Commission that would screen applicants and recommend a list of judicial candidates from which the governor would be required to choose nominees. A Judicial Selection Commission, created by executive order by Governor Shaheen, now performs this function. The House must approve CACR 33. Under current language, the commission would be wholly appointed by the governor, and no elected state or county officials may serve on it.

In a statement released by her office, Governor Shaheen expressed support for the concept of making permanent a merit selection process for judicial nominees. "I established a Judicial Selection Commission by executive order because I strongly believed it was time to reform the way judges were nominated in New Hampshire. It is a significant reform that should stay in place permanently," her statement said. "Amending the constitution to require a judicial selection commission process would guarantee that."

HB 1100. Judicial Evaluations by Judicial Conduct Commission. House Bill 1100 would give the legislatively created Judicial Conduct Commission, formed last year, the additional task of performing reviews of all sitting judges every seven years, with the ability to recommend the removal of judges by legislative action. The JCC’s chair, former House Speaker Donna Sytek, and members of the commission have opposed adding this task to their workload.

HB 465. Bar Deunification. Still pending a hearing and action by the Senate is a House-passed measure, HB 465, that would require the Bar to conduct a membership referendum on continued unification of the Bar, and, if the Bar remains unified, would drastically limit legislative advocacy by the Association. The Bar has opposed this bill.

Pending action by the entire House, the following bills were approved by the House Judiciary Committee:

HB 1420. Non-lawyer representation. Allows non-lawyers to represent others in New Hampshire courts so long as they represent no more than six clients per year. Editor’s Note: On page 4, a letter by legislators critical of the Bar’s opposition to this bill is reprinted, along with a comment by NHBA President Hutchins.

HB 1360. Limits on Marital Masters. Requires Superior Court marital masters to wear "distinctive," but not black, robes; provides that the governor and Executive Council confirm marital master appointments and reappointments; and allows for appeals of masters’ support/alimony orders to a Superior Court judge in most cases. (See page 5 for commentary by Superior Court Chief Justice Murphy regarding the marital masters program.)

Click here for updates on these bills and for information on advocacy positions taken by the Bar Association.

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