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Bar Journal - June 1, 2002

CACR 5: Reform Linchpin or Mischief-Maker?
CACR 5: Reform Linchpin or Mischief-Maker

A Bar Journal Roundtable Discussion

Editor's Note: Attorneys Van Loan, McNamara and Upton have written additional commentaries on this subject. Read their comments under News Releases and share your views.


On November 5 of this year, voters in New Hampshire will be asked whether they favor the following amendment to Part 2, Article 73-a of the N.H. Constitution, known during legislative debate as Concurrent Resolution (CACR) 5:

[Art.] 73-a. [Supreme Court Administration.] 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.

On May 3, 2002, a discussion was held and tape-recorded at the Bar Center on this proposed constitutional amendment. Participating were Bar leaders and members of the bench and bar who have written or commented on this proposal as it has made its way through the legislature. (See accompanying list of participants.) Several key legislators invited to the event unfortunately were unable to attend due to scheduling conflicts. The following condensation of that lively conversation explores in detail the issues underlying this proposal. Given that the language of the amendment has changed considerably during its progress through the General Court, this dialogue provides a timely update since these issues were first introduced in the writing of Hon. Robert J. Lynn1 (New Hampshire Bar Journal, March 2001) and Richard B. McNamara.2 

The 90-minute discussion, moderated by NHBA President-Elect Martha Van Oot, was edited by Bar Association Communications Director Dan Wise.


Hon. Walter L. Murphy, Chief Justice, NH Superior Court, Concord.

Hon. Robert J. Lynn, Associate Justice, NH Superior Court, Hillsborough County - North, Manchester.

Russell F. Hilliard, Vice President, New Hampshire Bar Association, Upton & Hatfield, Concord

Richard B. McNamara, Wiggin & Nourie, Manchester.

John MacIntosh, legislative representative for the New Hampshire Bar Association; MacIntosh Law Office, Concord.

Frederic K. Upton, of counsel, Upton & Hatfield, Concord.

Eugene Van Loan, Wadleigh, Starr & Peters, Manchester.

Martha Van Oot, President-Elect, New Hampshire Bar Association; Orr & Reno, Concord.

CACR 5, ballot proposal:

[Art.] 73-a. [Supreme Court Administration.] 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.

Current language of Part 2, article 73-a.

[Art.] 73-1. [Supreme Court , Administration.] 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 practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

House Version of CACR 5:

Art. 73-a. [Supreme Court Administration.] 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.

Separation of Powers Clause

The following is the article from the NH Constitution mentioned in the House version of CACR 5:

Part I, Article 37: In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to 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.

MARTHA VAN OOT: I am going to turn to you first, John [MacIntosh], to explain how this particular version of CACR 5 has evolved during the last legislative session.

JOHN MACINTOSH: Efforts to amend, appeal or otherwise change Part 2, article 73-a have been ongoing in the legislature for at least the past eight years. The issue has been studied and restudied, and at the conclusion of the impeachment process, House Judiciary Chair Henry Mock made clear that he did not believe there could be meaningful judicial reform without a change in Part 2, article 73-a. In his words, it is the "linchpin" of judicial reform. An effort began in the House where a lot of discussion took place. The House version was different from what has ultimately passed in one substantial respect. It had a sentence that said, ""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." It passed the House overwhelmingly and it went to the Senate.

In the Senate two concerns arose. One had to do with the definition and concern over the term "administration," and, second, with the "notwithstanding" language that would have abrogated the supreme court's right to consider whether certain proposals or rules or regulations of the legislature were offensive to the separation of powers clause. The final floor amendment left in the "administration" language, but took out the "notwithstanding" language. It passed by a substantial margin and the House later concurred. That's what you have today.

VAN OOT: Gene Van Loan, What was the problem the legislature perceived in the existing article 73-a and how does the amendment in CACR 5 address that problem?

EUGENE VAN LOAN: Article 73-a became the vehicle to address what was perceived as a problem arising from some of the decisions of the supreme court where the supreme court had basically said categories of things related to the judiciary were off-limits to the legislature. Article 73-was the most appropriate vehicle to address that because it talked about how the Chief Justice, with the concurrence of a majority of the supreme court justices, had certain authority over the administration of the courts, et. cetera. Therefore this issue fit in with Article 73-a. It wasn't a problem with 73-a itself.

VAN OOT: How does this language address what you characterize as the problem with the courts?

VAN LOAN: It replaces what the supreme court had done on a categorical basis with a rule that provides that the court must investigate on a case-by-case basis where legislative acts having to do with the judicial process in fact infringe upon and restrict the adjudicatory function of the courts.

What the court had done up to that point, most notoriously in the Prior Sexual Assault Evidence3  case (subsequently referred to as PSAE) and the Mone4  case and in a number of other cases, is basically just carve out an area - whether it be rules of procedure, or rules of evidence court security - and said this is not within the legislature's purview, this is our exclusive prerogative and the legislature does not have any authority in this area. In the opinion of some, including Judge Lynn whose persuasive Bar Journal article started the ball rolling on this, that was inappropriate. It is not based in the constitution and, frankly, it's inappropriate in a democratic society. A lot of the rules we are talking about have very important policy considerations and are appropriate for the legislature to make - unless they impinge upon the adjudicatory function of the court.

CACR 5 acknowledges that the legislature has concurrent power to make policy decisions in many areas-administration, security, rules of evidence, procedure- but the court still has the authority to declare them unconstitutional if, in fact, on a case-by-case basis the court determines that they really do infect the process and somehow restrict the court's ability to do its adjudicatory functions.

VAN OOT: Judge Lynn, you testified in favor of CACR 5. Do you agree with Gene's view of what the constitutional amendment does?

HON. ROBERT LYNN: I do, and there is a bit more. The addition of the word "security" in the functions over which there is concurrent authority- a change Gene suggested- was intended to say that the court has the authority to deal with security, but the next sentence says that the legislature has the same authority to deal with these matters. This is intended to signal that unlike the Mone case, for example-which seems to say that this is our exclusive bailiwick-this is intended to make it clear that this is not the Supreme Court's exclusive bailiwick. In fact, both branches have the authority to regulate in this area, and in fact if there is a conflict, the legislature's decision in the matter will prevail unless there is some interference with the adjudicatory functions of the court. That's a very different method of analysis than the Mone case.

HON. WALTER MURPHY: I didn't testify against CACR 5, although one reason I am here is to address an issue that was raised by others as to whether Judge Lynn's opinion on CACR 5 is shared by the other justices of the superior court. I think he has made it clear that he speaks for himself. I didn't want our absence from the debate to be interpreted as the superior court just adopting what Judge Lynn has posed.

I believe the present amendment goes beyond what Judge Lynn and Gene suggest. The language says in the event of a conflict between a statute and a rule, the statute shall supercede the rule. I don't think there is any question that this is an effort by the legislature to dominate the court, to intrude upon the separation of powers and I am a fierce defender of the independence of the judiciary. I think this is a blatant attempt by the legislature to run the courts. They are unhappy with the courts; it's because of decisions the court has made that are unpopular with certain people.

VAN LOAN: I am sure there are members of the legislature who feel exactly the way Judge Murphy has said. It is a mistake to assume by any means that it is the majority opinion or that a lot of the people who were involved in the process, including me, feel that way. the role of the judiciary to adjudicate cases, not its authority by virtue of its wearing black robes.

I think the real significance of this constitutional amendment is that it takes away the meat-ax approach the court has adopted to this point of simply lopping off a category and saying, for example, the rules of evidence are ours. We all know that the legislature has crafted rules of evidence since 1784 and the dead man statute 5  is a perfect example.

It is an unfortunate mischaracterization of the rationale of those who are in favor of CACR 5 to suggest that it is court bashing.

RICHARD MCNAMARA: I testified against CACR 5 in the Senate but what I testified against isn't what's going to the voters. The original proposal [see sidebar] clearly was court-bashing.

The language referring to Part 1, art. 37 [text of separation of powers clause appears in sidebar] - thank heavens, it's gone. When you look at what was on the table one year ago, it was very different from the amendment proposed by Judge Lynn in his article. His amendment didn't include the notwithstanding Part 1, art. 37 language. And the whole debate over CACR 5 is a great example of just how dangerous it can be to the constitution and the public at large to rush into something in anger, and I think that was the basis of CACR 5 and I think that is reflected in the original text. The original version of CACR 5, in my view, would have radically altered the balance of power between the court and the legislature.

The new amendment going to the voters expresses what has always been the rule in New Hampshire- that the legislature passes statutes, and the courts make rules, and in most cases- unless those rules go to the ability of the court to act as a court- contempt power, perhaps-the statute controls. There are rules that go the very essence of the court's ability to act as a court, and in those circumstances, the rules must control, otherwise the court can't act as a court. And if you change that, then you dramatically change the balance of power.

I think it's a good thing we now have an amendment that neither has the potential to damage the judiciary, nor does it have the potential to damage the state, which the original draft did. It will be interesting to see what the voters do with this. It may be that this amendment is just a safety valve, although I've never felt that it was really necessary based on the cases as decided over the last 20, 30 or 50 years.

FREDERIC UPTON: I think the final version of the concurrent resolution is a great improvement over the House version that would have negated separation of powers, as Rich has said. But I still oppose CACR 5.

First, it gives supremacy to one party in an overlapping twilight zone that, historically, has been shared by the judiciary and the legislature. Rule-making for the courts partakes of both legislating and adjudicating. The boundaries are imprecise. There isn't any bright line here between legislating and adjudicating. I think article 37 - our separation of powers clause - contemplates these overlaps. That's why we have that wonderful felicitous language - that we require separation, but only to the extent that it is "consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity." That language requires an overlapping in the functions of the two branches, and that they exercise concurrent authority in a spirit of amity with disputes to be settled in a spirit of negotiation and cooperation, and not by confrontation. CACR 5 carries compartmentalization to an absolute extreme. It's contrary to the whole spirit of our separation of powers clause. It gives one party supremacy, it makes it omnipotent.

Just as unfortunate, this resolution is bad policy. Rule-making ought not to be a turf battle with departments jealously guarding their prerogatives and fiefdoms. Shouldn't the inquiry be which department is better situated by training, personnel and experience to make rules governing practice and procedure in the courts? Is the legislature better qualified than the court to tell the judicial department how to conduct its business? Just to put that question is to answer it.

Lastly, the language of this resolution as finally adopted will spawn a lot of litigation over the interpretation of the term "adjudicatory function." For example, would a statute authorizing law officers to bring guns to court while testifying - would that abridge a necessary adjudicatory function? Would adoption by the people of CACR 5 allow the legislature to override the LaFrance 6  case? It depends on whether you give the term an expansive or narrow reading. Is a judge's ability to control the courtroom, to punish contempt and the like -is that ability integral to a judge's decision making? I think we are going to be litigating this forever.

VAN OOT: Isn't Fred correct? It is going to be up to the court, as you put it, Gene, on a case by case basis, to decide what is a necessary adjudicatory function? It is going to have to define that term every time an issue is presented with respect to a conflict between a statute and a rule that has anything to do with the administration of justice.

VAN LOAN: I don't know why there should be any fear that the court should be put in a position to make those decisions. First, the reference to adjudicatory function has the greatest heritage of any phrase that we could have used. It comes from Merrill v. Sherburne 7  which is the seminal New Hampshire case establishing the power of judicial review and it is that case which talks about the essence of the judicial power relating to the adjudicatory function.

Secondly, the court will make the final decision. This does not remove the power of judicial review. It doesn't give the legislature the power to decide whether it infringes upon the adjudicatory function; it is still the court that will have to make that decision. If one is concerned about the independence of the judiciary, or the power of judicial review, this constitutional amendment does not detract from it. It simply makes the court focus upon what the real issues are and not simply say that category by category, the legislature can do this or can't do that.

Regarding Fred's concern that this constitutional amendment somehow breaks those chains of amity described in article 37: It is inevitable that if you are going to grant concurrent powers over the same subject that you need to have a rule as to who the winner is when you have a conflict. The court recently determined that its power in certain areas -Mone and PSAE being examples- was exclusive. The court took it upon itself to break that tie, if you will. This amendment breaks the tie in the other direction. But to suggest that we don't need a tiebreaker is to me a disaster.

We must have a way of resolving conflicts when we acknowledge concurrent power over the same subject. And to say that conflicts between court rules and statutes should be resolved by negotiation is a straw man. I would ask rhetorically, how does that work, what is the forum, where does this negotiation take place? The forum simply does not exist. Courts decide in the context of a case or controversy. That is where they make their decisions about what rule takes precedence.

A perfect example of this is the court's view of the doctrine of comity, as expressed in some of these cases. What the court said, for example, in the Mone case, is that court security is an essential function of the judiciary and that therefore, the legislature cannot be legislating about court security. On the other hand, when faced with the fact that the superior court security officers are hired and fired by the sheriffs (from the executive branch), the court said, "Oh well, we allowed that to happen through our exercise of the doctrine of comity." In other words, though it is our exclusive function, we allow the legislature to do that. That seems doctrinally totally inconsistent. And, if it is so critical to the court's function that only the court can deal with court security, I can't understand how the court can say that the legislature or the executive can do it with respect to the sheriffs through the doctrine of comity.

More importantly, it is a concept that is totally anti-judicial. It has no neutral principle that the court can exercise to determine when it allows something within its so-called exclusive purview to be done by the legislature and when it doesn't. It is apparently a matter of pure grace on the part of the court. That to me is a doctrine of men, not of laws.

The court itself, in the petition of Breau,8  where it does talk about the doctrine of comity -where it came from-typically in divorces, where the court has the power to reject or accept some of the decisions of other jurisdictions that have concurrent jurisdiction over the parties in the doctrine of comity- the court noted the "substantive vacuity" of the concept. The doctrine of comity has no intrinsic meaning, it means simply that the court decides when and if it wants to do something. To suggest that separation of powers issues can be determined and governed by the doctrine of comity is not a rule of law.

To the extent that Fred talks about how these conflicts between a court rule and a legislative rule should be resolved through negotiation and amity, et cetera- to me that has nothing to do with the system we live under. It has to do with private conduct of private parties who can back out of an agreement if they wish to, can make their own private agreements, but it doesn't have anything to do with the role of the court. To me, a side benefit of CACR 5 is that it eliminates the doctrine of comity from this entire area, and establishes a very clear rule of law.

McNAMARA: The idea that there are bright lines in Part 1, Article 37 is inconsistent with 200 years of New Hampshire history. Case after case that points out that the opposite is true. I might even be able to quote from memory the phrase that begins to appear in cases in the 1920s and 30s which say that "there are areas of authority the boundaries of which are fixed by no precise rule." There is a concept in New Hampshire constitutional jurisprudence, much like the concept in federal constitutional jurisprudence, of areas of fluctuating power.

The concept of power in New Hampshire seems to be concurrent power. The crown jewel of our jurisprudence has been the flexibility of New Hampshire courts to create rules of procedure which enable lawyers to get cases decided on the merits. We've had three or four different systems of procedure, all created wholesale by the courts. On the other hand, the legislature has felt free and the courts have never questioned their authority to pass procedural statutes like the summary judgement statute. But there has always been this area of ambiguity - just as Oliver Wendell Holmes talked about the play in the joints making a constitutional system work. We've had that in New Hampshire and to suggest that CACR 5 takes away that "play in the joints" is inaccurate. The statute itself says that the statute shall supercede the rule if not contrary to the provisions of the constitution - that leaves the play in the joints. Secondly, the last thing we want to do is take this elastic constitution that has managed to survive - 137 amendments since 1784- and try to ossify it.

VAN OOT: I want to go back to something you said, Gene - that the language about "necessary adjudicatory function,"- because it was established in the Sherburne case in 1818 - is appropriate. As a practical matter, though, would you concede that the change in the way courts operate might lead to a broader definition of "necessary adjudicatory function" today? Can the courts regulate the technology used within the courtroom in order to ensure that it is able to carry out its judicial function, or the function of a jury?

VAN LOAN: Clearly, CACR 5, as well as the present article 73-a, allows the court to regulate the administrative things you just talked about.

MURPHY: Exclusively?

VAN LOAN: No, because it's very clear that CACR 5 allows the legislature also to regulate that. Let's assume that legislature passes a bill that says everybody is going to use DOS as their base, and that is what the state is going to purchase. But the Administrative Office of the Courts says, we want Macintosh. Well, unless someone can prove how that affects the adjudicatory function of the court -which is the job of deciding disputes-then it's a slam-dunk resolution in the legislature's favor.

That reference to the adjudicatory function came out of the concerns that Upton, McNamara and others expressed that it was too draconian to have language that that we are going to ignore the separation of powers. The question is: how are you going to deal with the issue of drawing the proper line between the court and the legislature when they have concurrent powers? The notion of the court's adjudicatory function as being the place to draw that line was the resolution of that problem.

LYNN: I am willing to concede there are some court rules that do affect the adjudicative functions of the court, but it seems to me that it is a pretty small universe. Let's take a draconian example- let's say the legislature says in every criminal case the defendant will testify. That is blatantly unconstitutional, but I don't think you could say that it affects the court's ability to operate as a court. Calling the opposing party occurs in civil cases. It is hard for me to say there are very many rules that really do affect the necessary adjudicative function.

One area that comes close to that might be time limits. Suppose the legislature said that parties have only 24 hours to respond to motions, and I could easily see that the courts would say: "We can't do our business that way." People would not have a fair shot. If someone files a 50 page motion for summary judgement, and you have only 24 hours to respond- well, that infringes on our ability to adjudicate cases.

Regarding the La France case, that's probably a good example of why CACR 5 is needed. Do you remember all of the editorials, everybody flexing their muscles on both sides of this issue, over whether police officers should have guns in the courtroom? Now I think it was a stupid statute. And because it was a stupid statute, the Supreme Court's decision probably can be justified, although there is some unfortunate language in it.

But stop and think what's happened since then - has it ever been an issue? Police officers walk into courtrooms wearing guns every day in every superior court in this state and have since, as far as I know, the day after the La France decision was issued. Nobody has ever raised a question about it. So one has to ask - was this such a monumental issue that it required the Supreme Court to make this decision?

The other thing that is very important and that most people would forget about the La France decision-this was the impetus for the trial judge's decision - does it somehow infringe upon the criminal defendant's due process rights if a policeman is walking around the courtroom carrying a gun? The Supreme Court said, no, we don't make that determination. So I ask, if this is such an important constitutional issue, why, when it didn't infringe upon any defendants' rights, and since then it has gone on exactly as before La France, why did we have to go through that agony for that decision?

The last point I would make-if giving the legislature the final say in this conflict between court rules and statutes is somehow a major disruption, then why haven't other states and the federal government, that have exactly that- the legislature wins if there is a conflict, unless the statute violates some constitutional right -had a problem with it?

VAN OOT: I think Fred wanted to answer your rhetorical question about La France.

UPTON: We had to have the La France decision, just as Judge Lynn said, because the legislature adopted a stupid statute. Fortunately the court has taken care of it-we don't have the problem any more.

I want to talk about how you break a tie, seeing as we have to have some mechanism for breaking the tie. When two parties are having a dispute, and they are at loggerheads, how do they break the tie? Do we submit to a neutral party, or do we give one party the power to override the other? I think the answer is obvious. When we have a situation where we have concurrent authority, it's reasonable to ask the parties to adjust, to accommodate, and to find a reasonable answer for both.

As far as the adjudicatory function is concerned, it's never been limited in practice to simply deciding cases. It's always encompassed anything that facilitates or accommodates deciding cases, and that can be a whole raft of things. Far from knowing what the adjudicatory function is, CACR 5 opens it up to all kinds of interpretation.

VAN OOT: I think anyone who sat through this legislative session saw some examples of efforts to enact statutes that would affect things that go on in the courtroom. Bills were discussed that concerned such monumental issues as what color robes the masters should wear, and the pilot program where you get a pre-emptory strike of a judge assigned to a case. How much of our limited judicial resources should we be required to waste in breaking those kinds of ties?

LYNN: We -lawyers and judges- have to recognize that we are an interested group. The idea that marital masters would have to wear military green robes -that's the most ridiculous thing I've ever heard of in my life. I think that a statute that says you can get a strike on a judge is not a good thing. But are either of those things unconstitutional? I think we have to draw a distinction between what we may not like and what we think is a bad idea and we should be able to go to the legislature and say this is crazy for all of these different reasons.

But if the legislature nonetheless decides that marital masters should wear military pink robes- I may think that's crazy- but how does that really affect the adjudicatory functions of the court? There are probably a whole bunch of statutes dealing with a whole bunch of things that we have never heard of that people would say lawmakers shouldn't be wasting their time on. We have to draw the line between what we like or don't like and what truly interferes with our ability to do our jobs.

HILLIARD: I think you have answered your question as to why there isn't an uproar in other jurisdictions or at the federal level, and there is in New Hampshire.

McNAMARA: I'm not so sure that we are a special interest group as we are a group with an obligation. We are officers of the court; we have an obligation to use our best efforts to see that justice is done. And we have the obligation to make sure the system that we have is the best that we can have.

What has come out of the CACR 5 debate is a proposal that doesn't really change the law all that much. Judge Lynn asked a minute ago, why is it such a radical idea that the legislature should have the last word in rules or statutes. It's not a radical idea, it's the law, it's always been the law. There might be one or two cases that have some dicta, this Mone case and the PSAE case, that might have been wrongly decided. But I can't imagine that the law has ever been any different in New Hampshire than anywhere else.

However, I think the public needs to sit back and think - what's the motivation? Why have the lawyers and the judges stepped into the breach, taking an unpopular position in opposing what Mr. Mock called the linchpin of judicial reform? It would have been a disaster if the public had enacted CACR 5 as it had been proposed.

VAN OOT: This is a constitutional amendment that is going on the ballot in the fall. If am a voter, Joe Voter in Colebrook, what are you going to tell me about why it is necessary to change the constitution? How is it going to make a difference to me?

VAN LOAN: It's about democracy. Rules having to do with people's conduct, whether they be rules for you and me, as to whether we have to walk on the sidewalk or in the street, or rules about how the courts are conducted, which are very important to all of us, or whether they are rules about whether contracts are enforceable and how those contracts are enforced. These rules affect our daily lives, and it is the legislature that should set these rules. It is the legislature and the governor who comprise the elected, political branches -it is not the judiciary- that should set those rules.

The only time the judiciary should be involved in striking down these rules is if the rule somehow prevents the judiciary from doing the job it is supposed to do. This is all about restoring the power to the appropriate political branches to make these policy decisions.

HILLIARD: Can I ask whether or not adoption of this would authorize the legislature to adopt a statute that in order for me to remain licensed to practice law, every five years I would have to appear before the House Judiciary Committee and be interviewed and have them determine whether or not I remain fit to practice law?

VAN LOAN: I don't have any question that if CACR 5 passed, the legislature could, as it already does in some respects, regulate the practice of law. And that this would acknowledge the existing state of affairs that the legislature and the courts have concurrent power over the practice of law. The question might be whether the specific example you gave violated a constitutional provision.

MURPHY: What if the legislature passes a law that nobody practices law unless he or she passes legislative review?

LYNN: Suppose the legislature is going to administer the bar exam and adopts exactly the same rules that the Supreme Court uses now. Everything else is the same. What's wrong with that?

What you're really concerned about is that the legislature will act in bad faith. Why are you so willing to assume that the legislature, upon which you have some influence as a voting citizen, will act in bad faith, but not the court? Suppose that 10 years from now the court decides it only wants Republicans practicing law, and it manipulates how the bar exam is evaluated. If you are a Democrat, you're in trouble.

HILLIARD: I am part of the judicial branch of government, and I would rather have --

VAN LOAN: You are not. You are no different than a cosmetologist. This hubris, that somehow we are members of the judicial branch and we are immune from all of the rules and regulations that apply to the common citizens out there does us a terrible disservice. I think it's inaccurate and it's a very unfortunate face to show to the world. I just don't understand why we as lawyers are any different.

HILLIARD: Because we are officers of the court.

VAN LOAN: We are only officers of the court because we have certain ethical obligations to comply with in the same sense that physicians have ethical obligations that are attendant to their profession, but it is not because we are members of the judicial branch.

McNAMARA: Those ethical obligations that the court imposes on us are imposed on us so that the courts can carry out their adjudicatory functions. You cannot have courts that will function if you do not have attorneys sworn and bound not to do any falsehood.

VAN LOAN: You haven't responded to Judge Lynn's question. Assume the legislature passes exactly the same system and simply says that instead of being administered by a judicial committee, it is now the board of cosmetology/lawyers. What's the problem?

MURPHY: I have to look at the legislative history and how this amendment came to be. When Henry Mock says this is a linchpin to judicial reform, I have an idea that the legislature thinks this is doing something more than what has always been the case. I think it leads to an opportunity for the legislature to do mischief. I am concerned that a lot of this has been inspired to be a vehicle to reform the judiciary for some real or imagined abuses.

This amendment appears very benign, but I know the inspiration behind it, and the license that some people think they will have as a result of the passage of something that doesn't really amount to much.

MACINTOSH: I spend a lot of time over in the legislature. I live in that world, and because of what we have heard in this discussion, because the amendment is so imprecise, it is unclear to me where the line is between administration and necessary adjudicative functions. This concerns me. The legislators that are so enamoured of this proposal see it as an invitation, and with this invitation there are great expectations. And the expectations that they have may produce big disappointments.

In the sense that there is shared responsibility between the branches, I fear this amendment will produce not amity, but enmity between the court and the legislature, even worse than it is now. Because the court either by its plain language or by necessity is going to have to fashion arguments and reasons why certain statutory efforts violate the constitution.

And I am concerned too -because I live in the real world- about the legislative climate. This is not something that is being enacted because of a purist constitutional theory. Understand that in the last two years we have been dealing with legislation that the one chamber or the other has passed- when the courts would operate in terms of the hours, whether non lawyers who charge money can practice in the courts and are not bound by the same rules as we are. Whether you have pre-emptory challenges to judges. There is no question in my mind that this is seen as an invitation to do these kinds of things, and more.

Next, maybe there will be bills to decide in which counties judges will sit. Will legislators be inclined to try and reassign a judge because they have administrative control of the courts?

VAN OOT: That's exactly the point Fred started with an hour and a half ago.

UPTON: if lawyers are essential players in the judicial function, and a trial can hardly take place without them, isn't' regulation of lawyers part of the judicial process? Where does it stop? You asked, how can we simplify this for the voters. It is very simple for me: Bad policy. The legislature, which has trouble doing its own business, is hardly qualified to tell the courts how to manage its business.

VAN OOT: What would you say to the voter, Judge Lynn? Why do we need this?

LYNN: We all learned in high school about the three branches of government-the legislature makes the law, the executive enforces it, and the judiciary interprets it, and each have their little piece of the pie. What has happened in roughly the last 20 years, is that the judiciary has expanded its authority, it has made its third of the pie bigger by carving out a fairly broad area of law and saying the legislature doesn't have the law making authority in that area. The amendment returns us to where we were 20 years ago.

McNAMARA: The constitution has been around since 1784 and if you read about it, you will see that the legislature was the strongest branch of government and the executive was incredibly weak all the way up to the 1960s. The premise that there is a coequal sharing of power in New Hampshire has never been the case. The legislature has always been trying and pushing to be preeminent. I look at this CACR 5 and say we dodged a bullet. But the potential for mischief is here because the legislature is once again trying to take what it historically has tried to take in this state.

VAN OOT: Gene, if this is such an inconsequential change, why do we need to pass a constitutional amendment?

VAN LOAN: It is not inconsequential. It is a big change. Just as Judge Lynn says, it rights the balance that had been upset in the last 20 years. Only Rich McNamara thinks it's not a big change, because he reads Mone and PSAE as saying what they don't really say. All of that language about the court saying that the rules of evidence are the exclusive province of the court, he says that's all dicta. But that's the holding of the case. If he's right, then there's no change, if he 's wrong, then there's a big change.

VAN OOT: Is the appropriate response to two cases to change the constitution?

VAN LOAN: Those are only the two most egregious cases.

LYNN: It's pretty clear those two cases changed the law. That's like saying that if the United States Supreme Court tomorrow decided we were going to go back to Plessy v. Ferguson, and we said, "Well, it's only one case-there's Brown v. Board of Education and all those other cases, they just decided this one case, why bother? I really think that's disingenuous.

McNAMARA: I think Gene should answer Marty's question. Mone and PSAE are two cases with some dicta in them that really are anomalies, if you look at the body of law. I don't see them as consistent with the rest of the cases, before and after them.

VAN LOAN: One of the points that Richard Upton makes in Separation of Powers in New Hampshire (an unpublished thesis from Harvard Law School, 1938) is that the courts in colonial times had no equity powers and the courts themselves in the early to mid 19th century, by judicial fiat, said they did have equity powers. They have since expanded their powers gradually until we reach where we are today-where the court has fairly drastic equity powers.

Mone and PSAE are not standing out there completely by themselves. There is no question that the court has over the years taken this progression. The first thing we hear about an issue is that the court has inherent power to do something. Well, the inherent power means it can't be found in the constitution, and it can't be found in the statute, but by the nature of our institution, the court says it must have it. That's the first step and the court has done that in a number of areas. The second step is actually the real problem- the court says it not only has the inherent power, it has the exclusive power - and that's what Mone and PSAE did. And that is why they are so problematical.

VAN OOT: You said that you believe this constitutional amendment will send a signal to the court that it has overstepped its bounds, that it has grabbed more power than it should. Don't you think as a practical matter, as a political matter, that signal has been sent to the court?

LYNN: Oh no, not at all. Let me give you a perfect example. Not three months ago in a decision that three justices sat on, the NH supreme court, specifically saying this is not constitutionally required, has now adopted a rule that in order for a recorded confession to be admitted in a criminal case, the whole conversation has to have been recorded. State v. Barnett.9  (Note that it is one of two states in the country that has done this in the absence of legislative authorization, and it was done under the "supervisory powers" of the court.)

Again, I'm not arguing whether it's a good or a bad idea, but that ruling makes it very hard for me to accept that the court has now taken it to heart that it needs to be very circumspect before reaching out- particularly since this is a case where only three judges sat.

VAN LOAN: This was an exercise of the rule-making power outside of the rule-making framework which they have established as to how rules of procedure are to be created. They took the opportunity in a case to issue a prospective rule applicable to all future cases instead of exercising their rule-making power by passing a rule which is subject to comment by the Bar, et cetera.

UPTON: Let me just read two sentences from the PSAE decision: "Rule 404-b is a prime example of an internal procedural rule designed to effectuate a constitutional right. The purpose of Rule 404-b is to increase the probability of a just verdict. The protection of constitutional rights is a core function of the judiciary." Nothing could be plainer than that. Everything else is dicta.

VAN OOT: That might be a good place to end on because we are not going to resolve our differing interpretations of the PSAE or the Mone case. Thank you to all of you.


1. Robert J. Lynn, Judicial Rule-Making and the Separation of Powers in New Hampshire: The Need for Constitutional Reform, New Hampshire Bar Journal, March 2001, p. 44.
2. Richard B. McNamara, The Separation of Powers Principle and the Role of the Courts in New Hampshire, New Hampshire Bar Journal, June 2001, p. 66.
3. Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997).
4 . Petition of Mone, 143 N.H. (1998)
5. RSA 516:25, repealed and replaced by NH Rules of Evidence, Rule 804 (b) (5)
6. State v. La France, 124 N.H. 171 (1983).
7. Merrill v. Sherburne, N.H. 199 (1818).
8. Petition of Breau, 132 N.H. 351 (1989).
9. State v. Barnett, ___, N.H.____ (December 21, 2001.)



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