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Bar News - October 4, 2002 Bar To Urge 'No' Vote On 73-a Amendment Poses Threat to Courts' Independence THE NHBA BOARD of Governors has voted to take a public stance in opposition to the constitutional amendment proposed on the Nov. 5 ballot. After discussions occurring during a couple of board meetings, the board on Sept. 19 voted to oppose the measure and to take steps to make the public aware of the potential harm the amendment could cause to the orderly operation of government by fomenting continuing conflicts between the branches. The amendment must be passed by a two-thirds majority of the voters to be effective. Bar leaders said the amendment is unneeded and poses a threat to judicial independence. As passed by the House and Senate, the proposed constitutional amendment would revise Part II, Article 73-a to read as (added or changed passages are in bold): 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. Some legislators have sought a change to Part 2, Article 73-a for several years, but the effort gained momentum in the last year after House Judiciary Committee Chair Henry Mock labeled the proposed amendment a "linchpin" for judicial reform. However, while constitutional experts debate whether the proposed amendment represents a substantive change in the balance of power between the branches of government, it is clear that its legislative proponents believe that it does, said NHBA President Marty Van Oot. As a result, the amendment's passage could lead to more attempts by the Legislature to encroach on the administrative operations of the courts, and could produce greater friction between the branches. Although a number of lawyers, including those in the Legislature, have supported an amendment to Part 2, Article 73-a as a means of redressing Supreme Court decisions that they believe too broadly interpret the court's rule- making authority, the Bar has opposed the proposed amendment, known in the Legislature as CACR 5, from the beginning. During the course of the last legislative session, the proposal was revised to moderate its impact, but the essence of the amendment - giving the Legislature the ability to override court rules - remained intact. Proponents and opponents debated the current version of the amendment in a June 2002 Bar Journal roundtable discussion that is posted on this site under Publications/News Releases, along with several follow-up letters, under the heading of LEGISLATION & REFORM. In the September 2002 issue of Bar Journal, Harvard law professor Lawrence Friedman specifically addresses the issue of whether the Supreme Court has overstepped its authority in several oft-cited rulings. More information about this ballot question will appear on the Bar's Web site and in the next issue of Bar News.
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