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Bar News - October 18, 2002 Amendment on Ballot Puts Judicial Independence in Jeopardy Bar Position Statement The NHBA Board of Governors approved the following position paper as an explanation of its opposition to Question 1 appearing on the Nov. 5 ballot. CONSTITUTIONAL AMENDMENT Concurrent Resolution 5 ("CACR 5"), adopted by the Legislature during its 2002 session, will be presented to the voters of New Hampshire on Nov. 5, 2002. Its original sponsors described the proposed amendment as the "linchpin" for judicial reform. As proposed, it would establish the supremacy of the Legislature over Supreme Court rules (excepting the "necessary adjudicatory functions"). Although constitutional experts are still debating whether the proposed amendment effects any real change in the balance of power, it is clear that some of its proponents believe that it does. As such, adoption of the amendment by the voters would foster a real or perceived assault on the institutional independence of the judiciary. Such an assault would ultimately and necessarily impair the decisional independence of the judiciary, and thus the proposed constitutional amendment has a clear impact on the administration of justice, the operation of the courts, and the practice of law. The independence of the judicial branch (both decisional and institutional) is rooted in the New Hampshire Constitution: It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. Pt. 1, Art. 35 (emphasis added). In 1978, as part of an effort to unify the courts within the state, the voters adopted a new article, Part II, Article 73-a: The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedures to be followed in all such courts. The rules so promulgated shall have the force and effect of law. There have been numerous attempts over the last several years to repeal or alter Article 73-a, and the Bar has opposed all such efforts. The impeachment inquiry, the Senate acquittal and the subsequent legislative focus on judicial matters have contributed to an atmosphere of hostility on the part of the Legislature to the bench and Bar, culminating in the introduction of CACR 5. Its proponents claim that the New Hampshire Supreme Court has, in recent years, abrogated to itself exclusive authority with respect to the rules for the state's courts. (See article by Henry P. Mock, "Concurrent Resolution 5, The Linchpin of Judicial Reform," New Hampshire Bar Journal, June 2001, page 23, in which House Judiciary Chair Mock argues that "[o]ver the past 20 years, the Supreme Court has claimed for itself the sole power to control judicial administration and procedure.") However, as noted recently by attorney Lawrence Freedman, a lecturer on law at Harvard Law School and adjunct professor at Boston College Law School, the decisions often cited in support of this position hardly do so: Opinion of the Justices [(prior sexual assault evidence), 141 N.H. 562 (1997)] and Petition of Mone [143 N.H. 128 (1998)] in many respects reflect a minimalist jurisprudential approach, resolving no more than the questions presented and those on reasoning that carefully circumscribes the precedential value of the cases - thus accomplishing, ironically, the very end that the proponents of CACR 5 seek: clear notice of those few areas in which the political branches of government must yield to judicial authority in respect to practice and procedure, lest the judiciary be stripped of its essential self. In this light it would appear that CACR 5, however well intentioned, represents nothing more than a solution in search of a problem. New Hampshire Bar Journal, September 2002, at 48. Amendment Revisions As originally proposed by the House, CACR 5 would amend Article 73-a to 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 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. (Bold-faced portions of the amendment represent the altered language.) Initially, the most troubling aspect of the proposed constitutional amendment was the "notwithstanding" sentence, which would have eliminated the separation of powers found in Part I, Article 37 from the article on Supreme Court administration. The Bar vigorously opposed inclusion of that provision, and it was ultimately removed. As passed by the House and Senate, and to be submitted to the voters, the proposed constitutional amendment now reads 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 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. (The new, revised provisions are in bold.) The significant changes from the prior version include the reference to "security" and the exception to legislative power over "necessary adjudicatory functions." Even after being revised, and as now proposed to the voters, the amendment creates significant concerns for the preservation of the independence of the judiciary. 'A Solution in Search of a Problem' As noted above, constitutional experts continue to debate whether the amendment, as proposed, really effects any change in the constitutional jurisprudence of this state. (See "CACR 5 Roundtable," in the June 2002 issue of New Hampshire Bar Journal). Professor Friedman, after reviewing the relevant cases, has concluded, "CACR 5 is a solution in search of a problem." If the proposed amendment in fact would not effect any such change, then its adoption is unnecessary. If it does change the delicate balance of power between and among the branches of government, its effect may dangerously intrude on the institutional independence of the judiciary, and will inevitably lead to further efforts to impair the decisional independence of the courts. Preservation of that judicial independence has been an historical mission of the Bar, whether through organized or individual efforts, and our own recent political history demonstrates that such an independent judiciary is necessary to make the tough decisions addressing issues left unresolved by the other branches of government, e.g., education funding, freedom of the press, property rights and legislative redistricting. No good public purpose is served by permitting such legislative encroachment into the judiciary. In addition, even if the proposed amendment effects no change, there is little doubt that it will be perceived by some as having done so, as indicated in this excerpt from an initial draft of a "Voters' Guide" prepared by the Legislature: "... Matters of court administration and security, practice and procedure, and rules of evidence often involve important public policy considerations. Accordingly, final authority over such matters is properly placed in the legislative branch of government..." These perceptions will lead to continued and expanded "mischief," as has been seen in the last several sessions. There have been proposals in the Legislature to regulate the color of judicial robes, the assignment of judges, and the internal governance of the Bar Association. The conflict and controversy created by such proposals distract and drain precious and scarce resources that should instead be devoted to the efficient administration of the truly significant issues facing the state. No momentum should be added to such efforts. Each year, the New Hampshire justice system handles more than 200,000 cases - simple, complex, routine, extraordinary. We cannot lose the forest for the trees - most cases are resolved successfully, fairly and impartially. The judiciary, as an institution, transcends any particular judge or transient episode. The courts of our country - the defenders of our most precious freedoms, the protectors of the individual against big government - are held up as examples for the rest of the world. The system is working well, and no good cause has been shown for the adoption of CACR 5. Accordingly, the New Hampshire Bar Association opposes this measure. Visit News Releases for more discussion of this amendment, including articles from Bar Journal and related commentaries.
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