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Court Rules and the Constitution
Amendment Does Not Threaten ‘Decisional' Independence
By Eugene M. Van Loan, III

At the upcoming November election, New Hampshire citizens will not only be given the opportunity to vote for a President, a United States Senator, a United States Congressman, a Governor and various other state and local officials, but we will also have the chance to make some very important changes to our Constitution. Among these is an amendment to Part II, Article 73-a.

Article 73-a presently reads as follows:
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 procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.
The proposed amendment would add the following two sentences to the end of Article 73-a:
The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.
This amendment, known as CACR 26, will appear on the ballot as Question 2. "CACR" stands for "Constitutional Amendment Concurrent Resolution", which means that in order for it to even get on the ballot, it had to have been approved by a 3/5 majority of the total number of members of each of our two legislative bodies, the House of Representatives and the Senate.

Although a proposed constitutional amendment does not need the endorsement of either of the other branches of government, i.e., the executive branch or the judicial branch, if the amendment affects another branch of government, it would certainly make sense for voters to want to know how representatives of that branch felt about the proposed amendment does, of course, affect the Judiciary, especially the Supreme Court. Accordingly, it is important that New Hampshire voters know that CACR 26 is not only supported by the Supreme Court, but that it was actually PROPOSED by the Court.

Here is what happened. As originally drafted, CACR 26 would have repealed Article 73-a and, thus, completely stripped the Court of its power to make administrative and procedural rules. On May 3, 2012, the Court sent two of its members, Justices Lynn and Hicks, to appear before the Senate Judiciary Committee to oppose the amendment. However, that is not all that Justices Lynn and Hicks were authorized to do; they were also commissioned by the Supreme Court to offer the Legislature an alternative. The alternative that Justices Lynn and Hicks proposed, with the unanimous support of their fellow Supreme Court justices, is the very language which both houses of the Legislature adopted as CACR 26 and which will appear on the ballot in November.

So, is that the end of the matter? Does the fact that the proposed amendment was authored by the Supreme Court and endorsed by a super-majority of the Legislature mean that it is necessarily a good thing? Of course not. The real question is whether the amendment deserves the support of New Hampshire's voters on its own merits. I respectfully suggest that it does.

Courts in England and, after the revolution, in the United States have historically exercised the power to make rules and regulations governing court procedures and the way courts operate. However, because rule-making is really just another form of law-making[1], it had always been understood that courts' powers to make rules were subject to the overriding power of the legislature to make such rules on its own or to change the rules made by the courts, in either case by enacting ordinary statutory law.[2]

The principle that the Judiciary does have a legitimate role in determining how it is to be operated is memorialized in the present wording of Part II, Article 73-a. Unfortunately, however, in a series of decisions extending over the last 20 years, the New Hampshire Supreme Court has completely muddled the relationship between the Judiciary and the Legislature in this area. In particular, in the advisory opinion known as Prior Sexual Assault Evidence[3] and in a case entitled Petition of Mone[4], the Court intimated that only the Judiciary has the power to make rules governing court administration, judicial practice and procedure, and the admissibility of evidence. If that is what Article 73-a means, the Judiciary, in this area, has both the power to make the law and, when someone challenges its rules, to interpret the law.

Some suggest that the Court has back-tracked from this extreme position. For example, in the case of Associated Press v. State[5], the Court – without citing or distinguishing PSAE or Mone - held that a statute affecting the public's right of access to court records in domestic cases was not unconstitutional on separation of powers grounds because it left the decision as to whether access would be granted in a particular case to the presiding justice. However, the problem with reading the case as one which recognizes a concurrent power in the Legislature to make rules governing court procedures is that the Court had previously (in the Mone case) invented the curious doctrine of "comity" by which rules passed by the Legislature, if acceptable to the Court, could effectively be deemed rules issued by the Judiciary. Moreover, regardless of what the Court was doing in the Associated Press case when it allowed the statute to stand, it clearly did hold that the statute could only survive constitutional scrutiny if it did not conflict with a rule promulgated by the Court itself. At a minimum, therefore, the Court has determined that in the event of a conflict between its rules and the Legislature's rules, the Court's rules prevail.

One problem with this is that court practices and procedures frequently implicate important public policy choices. For example, whether you can represent yourself rather than hiring a lawyer, whether appeals should be allowed in all cases or only in cases deemed worthy by some selection committee, or whether courts should be open on Saturdays or just during the week, are all matters of judicial practice and procedure – but they are also matters over which the public should rightly have some say. And, of course, the primary branch of government through which the people exercise their right to have a say is the Legislature.

What this amendment does is to recognize that issues of judicial administration, practice and procedure are not either-or issues. In other words, they are not the concern of only the judicial or only the legislative branch; there is an area of overlap here. Consequently, the amendment allows each branch to adopt rules affecting judicial administration, practice and procedure. However, it provides that where there is a conflict, the presumption is in favor of the democratically elected branch of government, i.e., the Legislature, and that its rules/laws generally prevail.

On the other hand, the presumption only applies if – in the words of the amendment – the Legislature's rules are "not otherwise contrary to this constitution". So what does this mean? Everyone recognizes that the judicial branch of government has certain core functions. The Court has had numerous occasions to define these functions. Among other things, they include the power to interpret the law, the power to make findings of fact in contested cases, and the power to exercise judicial review over the acts of the other two branches of government when they are challenged as being in violation of the Constitution. By providing that legislative rules/laws are only valid if they do are not "otherwise contrary to this constitution", CACR 26 does not threaten these or any other core functions of the Court; on the contrary, it expressly preserves them.[6]

In a recent op-ed by former Justice Nadeau and former Governor Merrill which was reprinted in the last edition of Bar News, the authors focus upon the fact that CACR 26 includes within its recognition of the Legislature's concurrent powers over the operations of the courts the power to make rules governing the "administration" of the courts. In so doing, they suggest that this would be as inappropriate as recognizing such a power in the Legislature to make rules governing the administration of the executive branch. With all due respect to my colleagues, their analogy should lead one to the opposite conclusion about the propriety of CACR 26.

Suffice it to say that there are hundreds, if not thousands, of statutes on the books which prescribe how the executive branch is to be structured and how it is to operate.[7] So when Messrs. Merrill and Nadeau rhetorically ask, "Imagine what would happen if legislators were to seek the same constitutional authority to administer the executive branch", the answer is: "They already have that authority and they exercise it every day."[8] More importantly, the Supreme Court itself has on numerous occasions specifically ruled that statutes which regulate the administration of the executive branch are indeed constitutional.[9]

As much as opponents of CACR 26 try to wave the flag of "Independence of the Judiciary", the opposition to this constitutional amendment appears to be little more than a turf battle. Opponents of CACR 26 cannot avoid the fact that the Judiciary's decisional independence is not at all threatened by this amendment. If CACR 26 passes, the Legislature will have no power to dictate to the courts how particular cases must be decided, nor will it have the power to interfere with or abridge existing court judgments. And, of course, nothing in the proposed amendment removes the Supreme Court's ultimate mechanism for protecting judicial independence – the power to be the final interpreter of the meaning of the Constitution (including Article 73-a itself).

Is the Judiciary's independence to run its own show threatened? Yes, it is - but immunity from the democratic process that one may do whatever one wants to do is not what Independence of the Judiciary is all about. Moreover, if judicially-promulgated court rules are not subject to legislative revision, this is Independence of the Judiciary times two. Since judges are appointed for life (subject only to impeachment or a bill of address), the public is already denied the right to remove our judicial rule-makers. If they are also to be denied the opportunity to change the rules which our judges make, the Judiciary is more than just independent; it is imperial.

Eugene M. Van Loan ,III, is a partner with Wadleigh, Starr & Peters in Manchester. He has written extensively on issues involving the New Hampshire Constitution.

[1] This proposition is expressly recognized by Article 73-a, which declares that the Judiciary's rules "shall have the force and effect of law".

[2] E.g., Rich v. Flanders, 39 N.H. 304, 360-361 (1860) ( "It was always considered the undoubted prerogative of the British parliament to enact general laws, establishing and changing the tribunals in which rights were to be established or maintained, and wrongs redressed, and to regulate the course and method of procedure, and to modify and change the rules of evidence therein; and no instance can be found, so far as our examination has extended, in which the power of parliament to designate the kind and character of evidence to be received, to determine what should or should not constitute a disqualification of witnesses, or render them competent or incompetent to testify in courts of law, was ever questioned. Changes have been constantly occurring, both in England and in this country, in relation to all these subjects; as, for example, in this State, the laws authorizing courts to appoint auditors and commissioners, and making their reports competent evidence of the trial before the jury; the law making protests of bills of exchange, notes or orders, competent evidence of the facts stated therein and of the notice given to the drawers or indorsers; and that authorizing the taking of depositions to be used for a great variety of causes unknown before; but we have sought in vain for any case wherein the question of the constitutionality or validity of any such statute, in its operation upon existing suits or causes of action, has ever been raised and decided against the statute. On the contrary, all the decisions we have been able to examine on that subject, distinctly recognize the full power and authority of the legislature to regulate, control and modify every thing in relation to remedies an the proceedings therein, in including the evidence to be received on trial. " (emphasis supplied).

[3] 141 N.H. 562 (1997).

[4] 143 N.H. 128 (1998).

[5] 153 N.H. 120 (2005).

[6] And, of course, it goes without saying that it is the Court itself which gets to say what its core functions are and whether a legislative rule unreasonably impinges upon them.

[7] To verify this, all one needs to do is to thumb through the several volumes of the RSAs containing Title I of our laws ("The State and Its Government").

[8] By the way, an alternative version of this argument is sometimes made by others such as Rep. Lucy Weber, D-Walpole, who asked in a statement before the House vote on CACR 26: "Can you imagine how outraged the Legislature would be in the New Hampshire Supreme Court could make rules of procedure for the Legislature?" Nashua Telegraph Editorial, 10/2/2012. All I can say is that those who would make such an analogy display a profound lack of understanding of the role of the Legislature as the pre-eminent maker of laws versus the role of the Judiciary as the pre-eminent interpreter of laws.

[9]E.g.,O'Neil v. Thomson, 114 N. H. 155 (1974) (statute governing the hiring of new personnel and the purchase of automobiles could not be overridden by an executive order); Opinion of the Justices, 118 N. H. 7 (1978) (statute returning a health planning agency to jurisdiction of the Dept of Health and Welfare superseded an executive order to the contrary); Opinion of the Justices, 118 N. H. 582 (1978) (statute instituting a legislative sunset procedure for state agencies could constitutionally be applied to agencies created by executive order if the statute made such an intent clear) . On the other hand, the Court has ruled that – just like what is required by CACR 26 with respect to statutes affecting judicial administration – a legislative enactment may not constitutionally interfere with a core function of the executive branch. Opinion of the Justices, 129 N.H. 714 (1987) (Legislature could not interfere with the Governor and Council's constitutional authority to approve contracts by requiring that certain contracts be approved by the legislative fiscal committee).

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