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Bar News - May 18, 2012

Rules Amendment to Voters?

"…In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule."
– Language in amended
version of CACR 26
NOTE: On May 17, 2012, the NH Senate passed the proposed referendum question by a 19-5 vote. The bill awaits reconciliation with the original House version.

The NH Senate may vote this week to ask voters to consider a constitutional amendment giving the legislature the power to "prevail" over the judicial branch in writing rules governing court and legal procedures.

At a packed Senate Judiciary Committee hearing on May 3, the panel heard several hours of testimony on the proposal. Supporters talked about the need for more accountability for the judiciary, while opponents cited practical and philosophical objections to weakening the court’s authority to regulate itself. Two justices, Associate Justice Gary Hicks and Associate Justice Robert Lynn, testified against the original version of the amendment, CACR 26, and endorsed an amended version that resembles language that has been presented to voters in 2002 and 2004. (See inset for the language). Both times, the ballot question fell short of the required two-thirds majority to pass an amendment.

Bar Association President Jennifer L. Parent was among those who testified against CARC 26, saying that the Bar Association believes the issue deserves more study.

If the Senate passes the amended version of CARC 26 by the necessary three-fifths majority (15 votes of the 24-member Senate), the ballot question would then have to be re-voted on by the NH House. Language in the House version merely asked the voters to delete Part 2, Article 73-a from the state Constitution. At the May 3 hearing, the Senate Judiciary Committee recommended against action on two other bills – HB 1395 that would eliminate the IOLTA program (inexpedient to legislate) and HB 1474 that would remove the requirement that attorneys be members of the Bar Association (sent to interim study).

Visit for updates on the Senate’s action.

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