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Bar News - September 14, 2012


Opinion: The Legislature Should Not Run the Courts

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Voters Asked to Amend the NH Constitution

If someone in our justice system makes a constitutional mistake, the New Hampshire Supreme Court can correct it. If the Supreme Court makes a constitutional mistake, only the people can correct it. This year, as a gesture to legislative leaders, the Supreme Court decided to accept language in a proposed amendment to the New Hampshire Constitution that would give the legislature ultimate authority to regulate by statute "the administration of all courts in the state and the practice and procedure to be followed in all such courts." Respectfully, we believe that decision was a mistake.


Hon. Joseph P. Nadeau

Stephen E. Merrill
In 2004, the same basic amendment was opposed by the Supreme Court and rejected by the people. Two similar amendments failed before that: one was killed by legislators in 2001; another was turned down by voters in 2002. This year, even after the court’s gesture, the amendment cleared the New Hampshire House by only seven votes. As they have done before, the people should reject this legislative attempt to run the courts, by going to the polls on November 6 and voting "No" on CACR 26.

What makes this legislative proposal troublesome and extreme is it violates a fundamental principle of constitutional democracy; the three branches of government ought to be separate and independent. As Justice Sandra Day O’Connor noted, "The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation." We agree.

Some legislators supporting the amendment say openly that they want to "control" the courts. What does that mean? It means a legislative takeover of the judiciary. We are compelled to speak out and say, "No."

The court is not a state agency. It is a branch of government. By the language of the New Hampshire Constitution, the legislative branch is political; the judicial branch is not. We value an independent political branch, and we value an independent judicial branch. Everyone, nevertheless, should be concerned about a legislative takeover of the courts, because political control of the judiciary is just not in the public interest.

Part 1, Article 37 of the New Hampshire Constitution provides the branches "ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or is as consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." CACR 26 would end that separation, erode that independence, and weaken that connection.

This amendment does not restore some lost balance between the legislature and the court; it destroys the balance. For more than 100 years, the NH Supreme Court has adopted the rules that govern courts and the practice of law. Occasionally, the legislature as well has enacted routine rules by statute. So, by tradition, some shared rule-making already exists. But CACR 26 is not about the enactment of routine rules. It is about one branch of government imposing its will on another branch.

Historically, each of the three branches of government has had the constitutional authority to control its own administration. Ignoring history, the legislature now seeks to replace judicial branch authority with legislative supremacy. Imagine what would happen if legislators were to seek the same constitutional authority to administer the executive branch.

Not only is this amendment extreme, unnecessary, and contrary to the basic principle of separation of powers, it is unique. The National Center for State Courts, which researches, studies, and reports on judicial systems in the 50 states, has informed us that no other state in the nation has a constitutional provision giving the legislature ultimate authority over administration of the courts.

We should preserve the constitutional framework of the Live Free or Die state. The people of New Hampshire have rejected this overreaching proposal before. We can do it again on November 6, by voting "No" on CACR 26.

Stephen E. Merrill was governor of NH from 1993 to 1997 and is a former NH Attorney General. Merrill now chairs Bingham Consulting Group. Hon. Joseph P. Nadeau retired as senior associate justice of the NH Supreme Court in 2005, after 37 years as a judge and having served on all three levels of the courts.He is now a judicial consultant for international Rule of Law projects.

Editor’s Note: The NH Legislature, in conjunction with the Secretary of State’s office, will release information about the two ballot questions, including CACR 26, soon.
Bar News welcomes commentary on these questions for the Oct. 19 issue of  Bar News. Deadline is Oct. 5.

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