LARRY FRIEDMAN'S ARTICLE in the most recent edition of New Hampshire Bar Journal (Vol. 43, No. 3, September 2002) titled "On the Justifications for Constitutional Amendment Concurrent Resolution 5" virtually cries out for a response. In particular, his contention that the Supreme Court's decisions in the two cases that sparked CACR 5, Opinion of the Justices (Prior Sexual Assault Evidence [PSAE] and Petition of Mone, "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" can only be described as wishful thinking.

Mr. Friedman accepts the proposition that "a constitutional amendment addressing the state Supreme Court's assertion of power would be appropriate if the court actually were to declare for itself sole rulemaking authority over practice, procedure and evidence in the state's courts" -- but he says that isn't what happened. Here, however, is what PSAE says: "[T]he Legislature has a limited appropriate role to act on court rules; the basic analysis applied to determine whether legislative action is appropriate on judicial rules involves the distinction between substance and procedure ....[T]he distinction between procedure, a subject under the exclusive jurisdiction of the courts, and substance, a legitimate subject of legislative action, is not always well understood .... "(Emphasis supplied). And here is what Mone says: "Any legislative attempt to control the hiring and supervision of court security [in specified areas in the courthouse] is invalid under [the Separation of Powers clause] of the New Hampshire Constitution." (Italicized emphasis supplied).

So, has the Supreme Court arrogated unto itself the exclusive authority to control courtroom practice and procedure? If it walks like a duck, if it looks like a duck, and if it quacks like a duck, I say it is a duck.

Other critics of CACR 5, notably my colleagues Fred Upton and Rich McNamara, at least claim that the Court's assertions in PSAE and Mone of the judiciary's exclusive authority in these areas are "mere dictum." Mr. Friedman, however, doesn't even acknowledge that the Court said what it said. Instead, he suggests that these two cases were decided on narrow, fact-specific grounds wherein the Court concluded that the particular statutes involved so interfered with the core adjudicatory functions of the judiciary that they violated the doctrine of separation of powers.

With all due respect, that is not at all how the Court reached its decisions in these two cases. PSAE and Mone cannot be understood without an appreciation of the Court's created-from-thin-air doctrine of comity (another critical element of these cases that Mr. Friedman apparently wishes away by failing to even mention it). Here it is:

(1) Unless otherwise excepted in the Constitution, courtroom practice, procedure, evidence, security and the like are the exclusive province of the judiciary.

(2) Nevertheless, the judiciary can allow the Legislature to invade its exclusive province as a matter of "comity" whenever a legislative act in question is "consistent with judicial functions and policies and when no constitutional challenge is made to them." (This quotation appears in both PSAE and Mone.)

In plain English, this means that the Court can wink at a supposed constitutional violation so long as (a) it likes the Legislature's rule and (b) no one complains.

The real holding in both PSAE and Mone, therefore, was that (a) the Court had its own rule governing the issue, which - surprise, surprise - the Court preferred over the Legislature's rule and (b) someone was complaining.

The absolute, unequivocal, clear, certain and obvious proof that what I am saying is true is the Court's acceptance in Mone of the fact that bailiffs in superior court are hired and supervised by the county sheriffs, yet it declared unconstitutional a statute assigning that very same function to the sheriffs with respect to the district courts. Despite all the fluff in the Court's opinion about how court security was "an integral part of the essential adjudicatory function of the courts" that would be infringed by "any legislative attempt to control the hiring and supervision of court security," the bottom line was that the district court judges wanted to hire their own court security officers, and since they and their bailiffs were complaining, no comity would be extended to the Legislature in this instance.

Accordingly, comity is like a papal indulgence, to be granted or withheld as a matter of discretion by the Supreme Court. Apparently unconstrained by anything in the Constitution, the Court can decide whether or not to allow the Legislature to regulate judicial procedure purely as a matter of grace.

Mr. Friedman suggests that CACR 5 is "a solution in search of a problem." As noted above, the problem exists, but Mr. Friedman chooses to ignore it. Ironically, the Court itself recognizes the problem; even the Court understands that the notion that only it can regulate courtroom practice and procedure not only flies in the face of 200 years of history, but is also completely unworkable. That is precisely why the Court came up with the doctrine of comity as the perfect way to assert its right of total control, yet still toss a bone to the Legislature whenever it was expedient to do so. The real problem, however, is that the Court's cure is worse than the disease; the Rule of Law is hardly served by a doctrine completely dependent upon the whim of the Court.

The good news is that CACR 5 addresses this problem head-on. It eliminates the doctrine of comity. It says that legislative rules take precedence over conflicting court rules. The only exception is for legislative rules that genuinely do interfere with the adjudicatory functions of the Court.

Accordingly, if CACR 5 passes, the Court will no longer be able to take the meat-axe approach of PSAE and Mone of simply saying that procedure or security are generically related to its adjudicatory functions and, thus, categorically off-limits to the Legislature (unless, under the doctrine of comity, the right hand deigns to give back what the left has taken away). The Court will instead have to engage in the very same focused, case-specific inquiry that Mr. Friedman would like to have us believe it is doing now.

Finally, I note that the NHBA Board of Governors recently voted to take a public stance in opposition to CACR 5 (see page 1). Although I suspect that this may backfire out there in the real world (the conventional wisdom is that if the lawyers oppose a thing, there must be some good in it), I am more concerned about the union mentality within some segments of our profession that this action may reflect. As lawyers, we don't have a horse in this race; this is a battle between the judiciary and the Legislature. We have no obligation to take up arms on behalf of the Court just because it is the Court. On the contrary, if the Court is wrong, we who supposedly know something about such things as the doctrine of separation of powers have an obligation to speak up. Suffice it to say that on this issue, I, for one, think that the Court is wrong.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer