New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch

Keep your contact information up-to-date.

Order with big business buying power.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
Member Login
Member Portal

Bar News - October 8, 2004

Opinions ~ Legislature Entitled to Make Procedural Law


For CACR 5:

AGAIN THIS YEAR, we write in support of CACR 5, which will be voted on as Question #1 in the November election. This proposed constitutional amendment dealing with court rule-making will be the only question on the election ballot this year. We emphasize at the outset that the views expressed herein are solely our personal opinions and we do not purport to speak for any other members of the bench or bar.

If adopted, CACR 5 will amend part II, article 73-a of the New Hampshire Constitution so that it will read as follows:

The chief justice of the supreme court shall be the administrative head of all the courts in the state. The chief justice shall have the power, with the concurrence of a majority of the other supreme court justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence, in all courts in the state. The legislature shall have a concurrent power to regulate the same matters by statutes of general application, except that such legislative enactments may not abridge the judiciary's necessary adjudicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the legislature, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

Although the primary function of courts is the resolution of discrete cases and controversies, another traditional and accepted activity of the judicial branch is to make rules and regulations governing the manner in which courts will operate and the practices, procedures and rules of evidence they will follow in deciding cases. When courts engage in this rule-making activity they act very much like the legislature acts when it considers whether to enact a statute. That is, unlike what happens when a court adjudicates a case - which can occur only if parties bring a dispute before the court - when a court functions in its rule-making capacity, the court may take action on its own initiative and even though no one has asked it to adopt a rule or regulation.

Similar to legislative committees, the NH Supreme Court has a rules committee composed of judges and lawyers, as well as one member each appointed by the governor, the president of the senate and the speaker of the house. Like the legislature, the court rules committee will often give notice and hold a public hearing on proposed rules. It will then make a recommendation to the supreme court, but the court alone has the ultimate power to decide whether a rule should be adopted. Once a rule is adopted, it has the same force and effect as if the legislature had passed the rule as a statute.

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. Because rule-making is really just another form of law making, however, it had always been understood that the courts' power to make rules was subject to the overriding power of the legislature to change the rules by enacting statutory law. (Indeed, it is a characteristic feature of the law-making authority of common law courts that judge-made law is always subject to legislative revision.)

The current version of article 73-a was added to the New Hampshire constitution in 1978. It was designed to do two things: (1) give explicit constitutional recognition to the rule making power of the courts (because, although courts had always exercised this power, prior to 73-a no provision of the constitution explicitly conferred this power); and (2) consolidate the rule-making power in the supreme court, rather than allowing each level of court to make its own rules, as had been the case before article 73-a was adopted. However, what article 73-a was specifically not intended to do was remove the power of the legislature to pass laws regulating court administration and practice and procedure. In fact, in the debates of the constitutional convention which proposed article 73-a there is a specific dialogue indicating that the adoption of 73-a was not intended to deprive the legislature of its power to regulate court procedure by statute.

Unfortunately, in a series of decisions over the last 20 years, the NH Supreme Court has fundamentally changed the law in this area by holding that, with very minor exceptions, only the court has the power to make rules governing court administration, practice and procedure, and evidence. (In apparent recognition of the fact that if its decisions were taken to their logical conclusion, the result would be to wipe out whole chapters of the RSAs, the supreme court also fashioned a novel application of the doctrine of "comity." Under this regime, the court would acquiesce in the legislature's trespasses into the forbidden area of court procedure so long as no one challenged a given statute and, even if someone does, the court would nevertheless allow the legislature to do what it supposedly had no authority to do so long as the court agrees with the legislature's rule.)

You may be tempted to say, "What's the big deal? The court only took control over procedural law. How does this have any practical consequences for me or other citizens?" The answer is that the distinction between procedural law and substantive law is far from clear, and procedural matters often reflect very important public policy choices. For example, courts have held that such matters as whether the prosecution as well as a criminal defendant should have the right to a jury trial, whether news gatherers should have a privilege not to reveal their sources, and whether litigants should have the right to a "free" (i.e., without cause) challenge to the judge assigned to their case, are all matters of procedure.

Moreover, some courts have held that the law of evidence is entirely procedural and, therefore, rules of evidence can only be enacted by the courts, not the legislature. As you might imagine, the ability to decide what types of evidence can or cannot be used to prove or disprove something can have a very significant, sometimes conclusive, effect on the outcome of cases to which the rules apply.

Some people who opposed the 2002 version of CACR 5 suggested that, while the court may have used some overly broad language in cases such as Opinion of the Justices (Prior Sexual Assault Evidence) (PSAE), 141 N.H. 562 (1997) and Petition of Mone, 143 N.H. 128 (1998), the court did not really mean to assert "judicial supremacy" on matters affecting court procedure and administration. Two very recent decisions of the supreme court should dispel any notions that the court meant other than what it plainly said in PSAE and Mone.

In Petition of the Judicial Conduct Committee, No. 2003-798 (June 14, 2004), the court held that, except with regard to conduct that might constitute an offense for which impeachment or address would be appropriate, only the court has the authority to establish a code of conduct for judges or to discipline judges. The court's decision in this case would be understandable if the legislature had attempted to impose upon the judiciary some particular standard of conduct that the court found inconsistent with a judge's adjudicatory responsibilities (for example, if the legislature had said it was generally acceptable for judges to have ex parte communications with only one side of a case, or had enacted a statute purporting to allow a judge to preside over cases in which his friends or family members were parties). But, the statute which the court struck down as violative of the separation of powers clause simply established an independent Judicial Conduct Commission, which then adopted virtually the same code of judicial conduct that the supreme court had been using before the statute was enacted.

What the decision means is that it does not matter whether particular standards of conduct that the legislature might adopt are good or bad, or whether they are consistent or inconsistent with a judge's duty to decide cases fairly and impartially - the legislature simply has no power to adopt any standards at all.

One may legitimately ask how permitting the public, through its elected representatives, to establish a code of ethical standards for judges infringes upon the independence of the courts in carrying out their adjudicatory responsibilities. By a parity of reasoning, the court's decision would seem to mean that the legislature also would have no power to establish standards of ethical conduct for employees of the executive branch, such as police officers or DCYF workers.

In another case decided the same day, Petition of the New Hampshire Bar Association, No. 2003-482 (June 14, 2004), the court held that the legislature did not have the power to require the bar association to conduct a referendum of its members on whether, as is presently the case, New Hampshire should have an integrated bar.

Although both authors of this letter believe that, on balance, integration of the bar has been a good thing for both lawyers and the citizens of New Hampshire, we find it hard to understand why the constitution should require that the supreme court have the final say on whether the bar is integrated.

The decision used the rationale that regulation of the bar is an inherent function of the judiciary. Yet, in a report released only a few months before this decision the supreme court reported that people are appearing in court without attorneys with increasing frequency - to the point that in some courts more than half the cases have at least one pro se party. With such a high percentage of the courts' work involving cases where there is no lawyer, it becomes increasingly difficult to justify the assertion that regulation of lawyers is indispensable to the ability of courts to carry out their adjudicatory responsibilities. Moreover, among the ranks of lawyers there are a substantial number, perhaps a majority, who never see the inside of a courtroom and have no desire to do so. Again, this fact sharply undercuts the court's reasoning that the power to regulate lawyers must rest exclusively, or nearly exclusively, with the judicial branch.

CACR 5 will restore the equilibrium among the three branches of government by returning to the legislature its authority to enact procedural law. In only seven states has the judiciary gone as far as the NH Supreme Court has gone in restricting the authority of the legislature to make laws governing court practice and procedure and the rules of evidence. If the proposed amendment is adopted, it will put New Hampshire law back to where it was before these court decisions and it will make New Hampshire law consistent with the laws in the majority of other states and in the federal system.

The proposed amendment continues to allow the supreme court to make rules governing court administration and practice and procedure. However, it also explicitly grants the legislature concurrent power to pass laws dealing with the same subjects. It also provides that, in the event there is a conflict between a court rule and a statute, the statute will prevail as long as the statute does not violate some other provision of the constitution.

Two years ago, the bar association and the spokespersons for the judicial branch objected to the version of CACR 5 which was then up for a vote on the grounds that it permitted the legislature to regulate the "administration" of the courts. The claim was that this would permit the legislature to get involved in the day-to-day operations of the judicial branch. The current version of CACR 5 was specifically drafted to address this concern - by limiting the legislature's power over administration to the passage of statutes "of general application."

In other words, the legislature can get involved in the structure of the judicial branch by setting up systems for such things as pay and personnel classifications (as it does for the executive branch), but it cannot interfere with the judiciary's authority to operate those systems, such as by deciding which persons will be hired and how they shall go about performing their duties. Although this change may still not satisfy the natural inclinations of some to protect the judiciary's turf, it is our opinion that the way in which justice is rendered is as much a proper concern of the legislature as is the content of the rules that the courts apply.

On this point, it also is worth noting that nothing in the proposed amendment removes the supreme court's ultimate mechanism for protecting judicial independence - the power of judicial review. The supreme court will always have the final say on whether any particular statute "goes too far," such that it constitutes an improper legislative effort to micro-manage the judicial branch.

Finally, CACR 5 also contains an important limitation on legislative power. It specifically states that the legislature cannot enact a statute that abridges the necessary adjudicatory functions of the courts. Thus, 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.

We believe that Question #1 deserves a "Yes" vote on November 2.

Eugene M. Van Loan is an attorney with the Manchester law firm of Wadleigh, Starr & Peters. Robert J. Lynn is Chief Justice of the NH Superior Court. The authors emphasize that the opinions expressed in this letter represent their personal views only and they do not purport to speak for any other members of the bench or bar.



Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
© NH Bar Association Disclaimer