Bar Journal - June 1, 2001
Concurrent Resolution 5, the Linchpin of Judicial Reform
By: Hon. Henry P. Mock
This legislative session, both houses of the legislature have been working on judicial reform. We are looking at several areas of reform. First, we are reviewing judicial and professional conduct procedures. Second we are looking at the selection and retention of judges. Third, we are examining legislation on the administration of the courts and of the bar. However, the first and most essential step in the judicial reform process will be to restore the checks and balances intended by the framers to judicial administration and procedure. It is for that reason that the House has passed, by an overwhelmingly lopsided margin in committee and on the floor, CACR5, a proposed constitutional amendment that restores the final say over judicial administration and procedure to the legislature.
Over the past twenty years, the Supreme Court has claimed for itself the sole power to control judicial administration and procedure. The Court has claimed for itself the power to reject any statute governing procedure and administration on the sole constitutional ground that such statutes encroach on the Courtís exclusive power to govern judicial administration and procedure. While the Court has acquiesced in many of the procedural and administrative statutes passed by the legislature during this time, the Court has made it clear that it retains the right to reject them. The Court has made this clear not only in its decisional law, but also in the positions it has taken in lobbying the legislature on proposed statutes.
This self-proclaimed freedom from checks and balances is not supported by the intent of the framers of New Hampshireís Constitution or the framers of Article 73-a, which created the unified court system administered by the Supreme Court. The Court systems of most states and of the United States do not claim this power for themselves. This claimed freedom from checks and balances has had several consequences that have been damaging to our judicial branch. First, it has prevented many important reforms. Second it has slowed the progress of reforms that have occurred, such as opening up the judicial conduct process. Third, it has created friction between the Court and the other two branches of government.
Even as the Court now adopts reforms that it had fought in the past, such as the recent reforms of the judicial conduct process, the Court is in a no-win situation. When the Court takes steps that should be seen almost universally as positive, the Court will be criticized for taking those steps only to avoid legislative action and to retain the "unchecked" power it has claimed for itself. On the other hand, the Court might try to beat the legislature to the punch by adopting as a rule some policy contained in a proposed bill. In this event, the Court risks implementing procedures that are not well thought out and which would have been seen as unwise and killed in the legislature had they been subject to the full legislative process.
On those occasions when the Court rejects or threatens to reject an otherwise constitutional statute simply because it encroaches on this Court-claimed area of unchecked power, the Court hurts itself in several ways. The legislature becomes, justifiably, frustrated and angered. The Court loses many opportunities for pursuing its own legislative agenda. And the anger directed at the Court creates a fortress mentality within the Court that can only lead to missteps. In addition, the public views the Court as arrogant and placing its own interests ahead of the interests of justice and of the public. The Court creates an internal culture that, even in matters of administration and procedure, it is not accountable to the people it serves, and is susceptible to having a blind spot when it comes to the behavior of its own members.
Restoring the checks and balances to court administration and procedure will open the door for thoughtful judicial reform, and will help to restore the publicís confidence in the courts.
WHAT CACR5 SAYS
As adopted by the House, CACR5 amends the Constitution by replacing the current Article 73-a with the following:
[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.
CACR5 does not remove the Courtís power to adopt rules governing judicial administration and procedure. In the first instance, the Court should be responsible for adopting rules. The legislature has neither the desire nor the interest in micromanaging the courts. But if the legislature does pass an otherwise constitutional statute in the areas of judicial administration or procedure, then CACR5 would make clear that the Supreme Court cannot supercede that statute by rule.
While proposing an amendment to the Constitution is a serious matter and one that is not undertaken lightly by the House, this resolution passed the House by an overwhelming vote of 290 for and 48 against. The author can remember no proposed constitutional amendment that received this kind of support across the entire political spectrum. Perhaps the reason that the resolution found such overwhelming support despite the hesitance on the part of the House to pass proposed changes to the Constitution is the fact that many House members see this not as a change at all. This resolution restores the Constitution to its meaning before the Court began claiming an exception for itself to the Constitutionís fundamental system of checks and balances.
BAR ASSOCIATION OPPOSITION
There was very little opposition to CACR5 in the House. However, the Bar Association did oppose it on the grounds that it would interfere with the power of the Supreme Court. This opposition does not appear to represent the position of most lawyers, however.
One of the things that one learns very quickly on the House Judiciary Committee is that there is often a gulf between the views expressed to us by the Bar Association and court system representatives on the one hand and by practicing attorneys on the other. That is not to say that the Bar Association has not recently distanced itself from some of the more unpopular actions and positions of the Court. The Bar Association and the Court are not always monolithic in their views, but they are nearly always so. The debate over CACR5 is a good example. The New Hampshire Trial Lawyers and most of the lawyers who testified in Committee favored CACR5. The lawyers and judges who testified or submitted formal or informal opposition to CACR5 were employees, officers or other representatives of the unified Bar or the court system. But other lawyers and judges (and one might say here courageously) offered their support of CACR5 through testimony or through other formal or informal input to the Committee. Not one of these lawyers or judges opposed CACR5. In fact, some of the most persuasive arguments in favor of adoption of CACR5 were given by practicing attorneys such as Martin Gross, who was part of the Constitutional Convention that passed the original Article 73-a, and by Judge Robert Lynn.
Despite heavy lobbying by Bar Association representatives and the Court, every lawyer and former judge on the Judiciary Committee favored CACR5ís passage and not one of the lawyers who sit in the House voted against it. Together with their fellow members, they voted to adopt CACR5 in committee with only one dissenting vote. The vote in the Committee was not along party lines, had nothing to do with how one voted in the earlier impeachment proceedings, and had nothing to do with how one felt about the Claremont decision and other controversial decisions of the Supreme Court. This vote had to do with the desire to restore checks and balances to our Constitution.
SEPARATION OF POWERS
It is important to make it very clear that CACR5 has nothing to do with the substantive decisions of the Supreme Court in cases such as Claremont. CACR5 is designed to solve a problem that has been developing for 20 years, as the Court has gradually adopted the position that with respect to administration and procedure it is not just an equal branch of government, it is the only government. The tension that this has created between the judicial branch and the other branches of government predates Claremont and the impeachment. And nothing in CACR5 would interfere with the decisional independence of the judicial branch.
CACR5 is designed to return the checks and balances to Court administration and procedure. It is designed to reinforce the separation of powers. It has no affect whatsoever on the decisional independence of the judiciary. The power of judicial review of statute is an important check on legislative power. If the legislature passes a statute that violates some litigantís constitutional rights, the courts can still strike that statute down.
An important check on the power of the judicial branch is the supremacy of statutory law. Courts may not supercede a statute by Court rule or decisional law unless that statute is inconsistent with the Constitution. In the area of Court administration and procedure, however, the New Hampshire Supreme Court has claimed the right for itself to either accept or reject statutes based solely on the Courtís preference rather than on some constitutional infirmity. To accomplish this, the Court has used an analysis that amounts to a constitutional cul-de-sac. A statute can be unconstitutional because the Court has decided not to acquiesce in its application to Court procedure.
While the Courtís decisional independence is consistent with the separation of powers, the Courtís total independence in the area of procedure is not. It is important that in its decision-making, the courts be free from political pressure. The courts should be able to protect the rights of individuals without fear of political consequence. But the law governing judicial administration and procedure should be responsive to the needs and desires of the people. If the courts adopt procedures that seem to be designed for the convenience of judges, to the detriment of counsel and litigants, there should be a way for the representatives of the people to change those procedures through statute. And that can be accomplished while maintaining the Courtís power to reject procedures or rules that interfere with minority rights or individual liberty.
NOTHING TO FEAR
There may be those who fear that the legislature will micromanage the judiciary or pass reforms that are irresponsible or fulfill some hidden agenda. These fears might be aggravated by reports in the news media about one bill or another that is heard by the Judiciary Committee or some other legislative committee. But a familiarity with the legislative process and legislative experience should alleviate those fears. We have one of the most representative legislatures in the country. Practically every point of view held by the public finds some representation in the House. That includes views that others would consider irresponsible or uninformed. Every member has the right to introduce bills and every bill is heard in committee. Thus, just paying attention to proposed bills may give one a distorted picture of the views of the House. The collective wisdom of the House has served the people of the State well. And there are checks on our power such as the Senate and the Governor. Even opponents of CACR5 were unable to point to an irresponsible reform measure that has passed both houses and been signed by the Governor.
As a whole, the legislative branch of government respects the independence of the judicial branch and is completely uninterested in micromanaging the courts. CACR5 is consistent with this. What CACR5 demonstrates is a deep respect for the separation of powers and the checks and balances and a desire to restore them to New Hampshireís Constitution.
CACR5 will restore the checks and balances to judicial administration and procedure. In doing so it will help reduce the friction between the branches of government and restore public confidence in the judiciary. It will enable thoughtful judicial reform. Unless CACR5 passes, any reforms passed by the peopleís representatives will be merely suggestions to the Court.
The current situation is not good for the State and it is not good for the Court system. Hopefully, with adoption of CACR5, we will be on the road to restoring public faith in our judicial system.
* The author would like to acknowledge assistance in the preparation of this article by State Representative and New Hampshire Bar Member Christopher P. Reid.