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Bar News - November 19, 2010

Attorney Douglas Replies to "Court Funding Suit Was ‘Son of Claremont’"


Judges Should Decide Court Delay Case

Editor’s note: The ‘Son of Claremont’ article by Eugene Van Loan and this reply were written before the Superior Court ruled to dismiss the case.

My good friend, Eugene Van Loan, apparently thinks that all litigation arising under the Constitution somehow creates another Claremont case. I agree with Gene that mere constitutional goals like “cherish education,” that are not in the Bill of Rights, but were relied upon in the Claremont decision, resulted in judicial creativity at its apex. But it is not true that all acts of the legislature are walled off from judicial review.

Part II, Article 5, of the Constitution of New Hampshire says that the legislature passes laws but they are subject to one powerful restriction, that “the same be not repugnant or contrary to this constitution.” In other words, the founders intended to create a government that would be checked by a higher law, not just pure majority rule by the legislature.

That higher law is our Constitution and it is the function of the judicial branch to adjudicate the rights of citizens who assert that a legislative act is constitutionally void either on its face or as applied to a particular set of facts. We assume the governor and legislature will enact laws in good faith but they do occasionally err and if the error rises to a constitutional dimension, then the judiciary is the branch that decides the question in its role as the ultimate law interpreters of our constitution.

Any legislative act violating the Constitution or infringing on the Bill of Rights is void because the legislature, when it steps beyond its bounds, acts without authority. The courts have no choice but from time to time to declare an act of the legislature inconsistent with the Constitution.

Part I of the Constitution is composed of the 37 articles constituting our Bill of Rights. In fact, a review of the volume of the RSAs entitled “Constitutions” reveals 522 pages of cases involving our Bill of Rights. Every year another case gets decided concerning speedy trial, confessions, searches and seizures, land taking, equal protection of the law, etc.

These 522 pages of case summaries only (not the full decisions) show how involved on a day-to-day basis judges are in cases involving constitutional rights. As far back as the first volume of the New Hampshire Reports in the 1818 case of Merrill v. Sherburne, our high court recognized that if the legislature passes an unconstitutional act it is the right and duty of the court is to pronounce it void. That has been our law for almost two centuries.

There are times when a dispute is not subject to court review if it is a question that the constitution solely commits to one branch of government. That is why the court, in reviewing a request for attorney’s fees by impeached Chief Justice Brock, found the question to solely be a legislative one because impeachment is solely a legislative matter.

It is very different, however, to say that the question of whether cases in the judicial branch are prompt or delayed is not up to the judicial branch to decide. The cases in the judiciary are in the courts. They are not before the governor. They are not before the legislature.

If the courts are judicial eunuchs and unable to decided whether cases before them are being promptly handled, there is no other branch to make that decision.

In our current suit brought by folks who have been delayed or denied justice there is a solution even easier than the one that we initially proposed. The easiest solution is to strike down Section 2 of Chapter 4 of the 2010 Session laws, which requires the court system to give back 3.1 million dollars by July 1.

Such a temporary ruling would not require an order to anyone to do anything but merely would void a requirement that is causing undue delay and case cancellation in the courts. Because the funds are already appropriated there would not need to be action by any executive branch officials currently sitting on a $70,000,000 surplus.

Chuck Douglas is a former Superior and Supreme Court justice who is now an attorney practicing law in Concord.

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

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