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Bar Journal - September 1, 2002

On the Justifications for Constitutional Amendment Concurrent Resolution 5

On the Justifications for


Constitutional Amendment Concurrent Resolution (CACR) 5 amends Article 73-a of the New Hampshire Constitution to provide that the legislature and the Supreme Court shall have concurrent authority to regulate "the security and administration of, and the practice, procedure, and rules of evidence in, all courts in the state," except to the extent that such regulation "abridge[s] the necessary functions for which the courts were created." According to one proponent of CACR 5, New Hampshire Superior Court Justice Robert Lynn, the amendment is necessary because the New Hampshire Supreme Court has assigned "to itself virtually exclusive authority to make rules of practice, procedure and evidence for the state's courts," and in so doing "has seriously skewed the balance of power among the branches of government."1 

Let us assume 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. Entertaining that assumption, the question would remain whether the court had, in fact, aggregated for itself exclusive rulemaking authority. In support of their contention that the New Hampshire Supreme Court has done just that, the proponents of CACR 5 point to the court's opinions in two cases: Opinion of the Justices (Prior Sexual Assault Evidence),2  and Petition of Mone.3  In this essay, I examine these cases to determine whether they evidence the Supreme Court exceeding its legitimate rulemaking authority.


In Opinion of the Justices, a 1997 decision, the New Hampshire Senate requested that the Supreme Court render an opinion as to the constitutionality of a proposed law creating a presumption of admissibility for evidence of other sexual assaults in certain civil and criminal sexual assault cases.4  The Senate asked whether the law's enactment would violate Part I, Article 37 of the New Hampshire Constitution, which provides:

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.5 

In addition, the Senate asked whether the law's enactment would violate Part II, Article 73-a of the New Hampshire Constitution, which as written granted to the Supreme Court "the power to make rules regulating the administration of all courts of the State."6 

The court advised the New Hampshire Senate that the proposed legislation would violate the state constitution's separation of powers requirement.7  As an initial matter, the court discussed the importance of separation of powers principles to New Hampshire's constitutional system of checks and balances and the institutionalization of "a self-executing safeguard against the encroachment or aggrandizement of one branch [of government] at the expense of another."8  The court also recognized that, notwithstanding "the explicit constitutional language concerning the separation of powers," the constitution requires "a cooperative accommodation among the three branches of government" rather than "an absolute division of powers."9 

As to rulemaking, the court noted that the judiciary, as a separate and coequal branch of government, has the constitutional authority to "promulgate its own rules."10  The court described its rulemaking authority as encompassing procedural rules, and endorsed the distinction between substantive and procedural rules "on the basis that the former relate[] to rights and duties, while the latter refer[] to the means and methods by which those rights and duties are to be protected and enforced through the courts."11  Even in respect to matters of procedure, however, the legislature has authority to act: "The location of a matter of substance within a scheme of rules does not immunize it from legislative change."12  Nonetheless, the court concluded that rules of evidence are, on the whole, procedural, and that the proposed law governing the admission of prior sexual assault evidence violated the separation of powers by impermissibly interfering with the judiciary's "constitutional function to independently decide controversies."13 

In Petition of Mone, a 1998 decision, the court addressed the constitutionality of a statute, RSA 297, providing that "sheriff's bailiffs shall provide adequate security in all state courts."14  Court security officers challenged the law, arguing that it violated Part I, Article 37 of the New Hampshire Constitution because it encroached "on the judiciary's ability to supervise its own personnel and perform essential adjudicatory functions."15  In response, the sheriff's association asserted that court security is not an essential judicial function.16 

The court held the statute invalid, as a violation of separation of powers, insofar as it mandated that county sheriffs departments provide security in those areas of state courthouses where adjudicatory functions take place.17  As the court explained, "[a]n integral part of any court's duty to administer justice and fairly adjudicate disputes is to ensure that all parties have the opportunity to advance their cause in an atmosphere of safety, decorum, and fairness."18  In reaching this conclusion, the court was particularly concerned with the law's potential to undermine the judiciary's ability to ensure the impartial administration of justice.19  By requiring that sheriff's bailiffs provide court security, the law removed from ultimate judicial control the responsibility for such judicial functions as communication with jurors.20 


A close examination of Opinion of the Justices and Petition of Mone reveals that neither case supports the position that the court has awarded itself the "unchecked power both to make and apply the law"21  through court-made rules governing practice, procedure and evidence. Consider, first, Opinion of the Justices, as viewed from an advocate's perspective in a hypothetical case - that is, from the perspective of a litigant seeking to argue that, as the proponents of CACR 5 maintain, the decision stands for the proposition that any legislative effort to regulate evidentiary matters in the state's trial courts violates the New Hampshire Constitution's separation of powers requirement by intruding upon the judiciary's authority. In this hypothetical case, a criminal defendant seeks to persuade the court that RSA 632-A:6, III-a, the statute providing that evidence of a victim's dress is inadmissible to prove consent in a sexual assault case, is unconstitutional because it was enacted by the legislature.

At the outset, counsel for the defendant would be disappointed to learn that Opinion of the Justices contains no blanket statement that the rules of evidence - or any other set of procedural rules, for that matter - are simply beyond the legislature's reach. Rather, the opinion establishes an analytical framework to determine whether legislative action encroaches upon the judiciary's authority as a co-equal branch of government. The court in Opinion of the Justices reasoned that substantive rules, which relate to rights and duties, should be distinguished from procedural rules, which relate to "the means and methods by which ...rights and duties are to be protected and enforced."22  The legislature is unquestionably responsible for crafting substantive rules, while the courts have responsibility for rules that relate to practice and procedure.

But the mere fact that a rule may, under this rubric, be categorized as "procedural" is not sufficient to render it immune from legislative attention; it must in addition interfere with a core judicial function, such as a judge's discretion to make particularized determinations on evidentiary matters based upon the facts presented in the case at hand. The proposed legislation at issue in Opinion of the Justices concerned character evidence that, depending upon the circumstances of the case in which it is proffered, might or might not be relevant.23  The court correctly concluded that to allow the legislature to make relevancy determinations prescriptively would effectively undermine the judiciary's intrinsic authority to undertake a case-by-case assessment of the ultimate admissibility of character evidence in a given sexual assault case - in other words, to make the kind of individualized findings that mark the quintessence of the judicial function.24 

It is not difficult to extract from Opinion of the Justices a distinct limiting principle: not only must a rule be nominally procedural in orientation to be exempt from legislative review, it must also so undermine a core judicial function as to render independent judicial performance of that function essentially impossible. This is why a separation of powers challenge to the statute precluding evidence of a victim's dress to prove consent would fail. For even though that statutory rule is arguably procedural - in the sense that it relates to the means by which rights are protected - it does not interfere with any judge's discretion to determine whether evidence of dress is relevant in a particular case, for the reason that such evidence will never be relevant to prove consent: a victim's dress, as opposed to her physical and verbal conduct, is simply immaterial to the issue of consent.25  Given the inherent irrelevancy of evidence of dress as it relates to consent, the statutory rule is likely unnecessary; yet a statement by the legislature confirming the irrelevancy of such evidence undermines no judicial function and therefore implicates no separation of powers violation. Opinion of the Justices does not support a contrary result.

Petition of Mone notably provides equally little backing for the notion that the Supreme Court has assumed exclusive authority over practice and procedure in the state courts. In that case, the court concluded that a statute mandating that sheriff's bailiffs are ultimately responsible for security in state courts interfered with the judiciary's authority "to ensure that all parties have the opportunity to advance their cause in an atmosphere of safety, decorum, and fairness."26  The court's primary concern was the unequivocal language of the statute providing that security personnel would not be under the direct supervision of the presiding justices of the trial courts in respect to such judicial functions as communicating with jurors.27  The court's ruling was narrow: Petition of Mone held invalid as a violation of separation of powers only the legislative attempt "to control the hiring and supervision of court security in those areas of New Hampshire courthouses where trials or other adjudicatory functions of the court are undertaken."28 

In view of this holding, it is unclear how Petition of Mone, any more than Opinion of the Justices, heralds a subversion by the Supreme Court of the traditional understanding of separation of powers under the New Hampshire Constitution. Given that CACR 5 provides that statutory rules and procedure supersede court rules with which they are in conflict only when they are "not contrary to the provisions of the constitution," even if the amendment were in place when the court considered Opinion of the Justices and Petition of Mone, the outcomes of the two cases would be no different, as the proposed or enacted statutory rule at issue in each violated the constitution's separation of powers requirement by undermining core judicial functions. Importantly, the understanding of core judicial functions that emerges from Opinion of the Justices and Petition of Mone is appropriately discrete: core judicial functions involve discretionary determinations about legal and factual issues that arise in, or concern the conduct and fairness of, particular adjudications.29 

To argue that Opinion of the Justices and Petition of Mone endorse a larger understanding of core judicial functions, such that every rule of procedure and evidence necessarily would be swept within the judiciary's purview, is no small task. Take, for example, a rule governing the time limits for filing and responding to pleadings; even Judge Lynn has suggested that such a rule should be immune from legislative review because its operation would affect the court's "ability to adjudicate cases."30  Under the framework developed in Opinion of the Justices, however, a statutory rule limiting a response period to, say, 24 hours would not impinge upon a core judicial function: though such a rule is nominally procedural, it would not appear to undermine a judge's discretion to determine whether a responding party had in fact complied with the rule's dictates in a particular case. Accordingly, while the rule might be held unconstitutional on due process grounds, it would likely survive a separation of powers challenge.


In the end, the evidence upon which the proponents of CACR 5 rely in asserting that the New Hampshire Supreme Court has seized untoward power is slight. Which is really no surprise: this is not an instance in which a court has, without warrant or reason, expanded its reach at the expense of democratic processes; it is not Bush v. Gore.31  Opinion of the Justices and Petition of Mone 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.


1. Hon. Robert J. Lynn, Judicial Rule-Making and the Separation of Powers in NH: The Need for Constitutional Reform, New Hampshire Bar Journal, March 2001, at 44. See also Henry P. Mock, Concurrent Resolution 5, The Linchpin of Judicial Reform, New Hampshire Bar Journal, June 2001, at 23 (arguing that "[o]ver the past twenty years, the Supreme Court has claimed for itself the sole power to control judicial administration and procedure").
2. 141 N.H. 562 (1997).
3. 143 N.H. 128 (1998).
4. See Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 565.
5. N.H. Const., pt. I., art. 37.
6. State v. LaFrance, 124 N.H. 171, 180 (1983) (discussing Part II, article 73-a of the New Hampshire Constitution).
7. See Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 568.
8. See id.
9. See id. at 569.
10. Id.
11. Id. at 572.
12. Id.
13. Id. at 577.
14. Petition of Mone, 143 N.H. at 131.
15. Id.
16. See id. at 135.
17. See id. at 138.
18. Id. at 135.
19. See id. at 137.
20. See id.
21. Eugene M. Van Loan & Hon. Robert J. Lynn, CACR 5 is Necessary to Restore the Proper Balance of Powers, New Hampshire Bar News, Feb. 8, 2002.
22. Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. at 572 (quotation omitted).
23. See id. at 577.
24 See id.
25. See Opinion of the Justices (Certain Evidence in Sexual Assault Cases), 140 N.H. 22, 26 (1995) (concluding that evidence of dress has "no relevance to the issue of consent").
26. Petition of Mone, 143 N.H. at 136.
27. See id. at 137.
28. Id.
29. As the Massachusetts Supreme Judicial Court has noted, the judiciary's core functions necessarily include "the maintenance of its authority" and the "capacity to decide cases." Gray v. Comm'r of Revenue, 665 N.E.2d 17, 22(Mass. 1996) (quotation omitted).
30. CACR 5: Reform Linchpin or Mischief-Maker?, New Hampshire Bar Journal, June 2002, at 43 (comments of Hon. Robert J. Lynn).
31. 531 U.S. 98 (2000).

The Author

Attorney Lawrence Friedman is a Climenko/Thayer Lecturer on Law at Harvard Law School and an Adjunct Professor of Law at Boston College Law School. He served as a law clerk to New Hampshire Supreme Court Associate Justice John T. Broderick, Jr., from 1995-97. The author thanks Gavin McCarthy, Michael Meltsner and Chrystie Perry for comments on previous versions of this essay.


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