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Bar News - June 15, 2012


Opinion: Court Invents Power of ĎInherent Judicial Authorityí

By:

The lead article of the May 18 issue of the Bar News stated that HB 1395, recommended "inexpedient to legislate" by the Senate Judiciary Committee on May 8 (and killed by the full Senate on May 16), would have eliminated the IOLTA program. This is not true. HB 1395, of which I was the prime sponsor, did not undertake to disturb IOLTA as it had functioned since 1982 as a voluntary program. Rather, it would only have revoked as unconstitutional the amendments to Supreme Court Rules 50 and 50A issued on December 29, 2010, to take effect on March 1, 2011, making participation in IOLTA mandatory.

The Courtís preamble to the 2010 amendments stated that they were being issued pursuant to Pt 2, Art 73-a of the New Hampshire Constitution. But that article expressly limits the Courtís rulemaking authority to "rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts." Review of RSA 311 ("Attorneys and Counselors") also reveals no grant to the judicial branch of authority to enlist attorneys as revenue farmers to generate money to support charitable activities approved by the court.

HB 1395 passed the House of Representatives on Feb. 15 by 250-94, following a 13-4 recommendation by the Judiciary Committee, and again on March 28 by 235-99, following a 10-5 recommendation by the Constitutional Review Committee. In the May 3 public hearing before the Senate Judiciary Committee, the Court redeployed, successfully this time, its tried and true defense of last resort, asserting on separation of powers grounds and with no apparent appreciation of the irony, a claim of limitless undefined judicial discretion to regulate lawyers under the court-invented power of "inherent judicial authority."

"Some paradox of our nature leads us, when once we have made our fellow men the objects of our enlightened interest, to go on to make them the objects of our pity, then of our wisdom, ultimately of our coercion," said Lionel Trilling.

By killing this bill, thereby acquiescing in the Courtís assertion, the Senate has legitimized a form of government entirely foreign to the authors of our constitutions, state and federal, one in which each self-proclaimed expansion of judicial power is self-justifying and beyond the competence of the representative branches to check or even to question, in this case not only over the lives of lawyers, but more generally the establishment of a parallel state within the state, with the Supreme Court as legislature and executive as well as judiciary.

Do I exaggerate? Consider how the Courtís view of its authority works in the context of HB 1395: As asserted by the Court and its acolytes in the leadership of the Bar Association, the Courtís "inherent judicial authority" trumps the Legislatureís exclusive authority to tax (Pt I, Art 28); establish state policy (Pt 2, Art 5); and appropriate funds to enable execution of that policy (Pt 2, Art 56).

If we are truly a nation of laws and not men, it must be recognized that unless supplemented by enactments of the peopleís elected representatives, judicial authority by its very nature extends no further than presiding over trials. This is what Hamilton meant when he wrote (in retrospect naively) in The Federalist #78 that "the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution, because it will be least in a capacity to annoy or injure them."

"The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." Id.

The only legitimate source of judicial authority extending beyond conducting trials and rendering judgments always has been and always must be legislative, whether it be the establishment of specific rules of procedure (RSA Title LIII), a general delegation of rulemaking authority (Pt 2, Art 73-a), or authority to regulate the practice of law (RSA 311). Whenever the Supreme Court finds legislative enactments and constitutional provisions inadequate to the needs of the judicial branch in carrying out its adjudicatory function, the constitutional solution is to approach the legislative branch with proposals for further legislation, and not unilaterally to do whatever it wants and proclaim a pretended right to do so.

Editorís note: The NH Bar Association testified before the House Judiciary and Senate Judiciary committees in opposition to HB1395, not on the merits of the 2010 rule amendment to make IOLTA participation mandatory, but in support of the Judicial Branchís authority to regulate the legal profession.


Gregory M. Sorg


Gregory M. Sorg is a member of the NH House of Representatives and Vice-Chair of the Constitutional Review and Statutory Recodification Committee. He is a member of the Bar Association with an office in Franconia.


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