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Bar News - October 19, 2012

Proposed Amendment on Court Rules Threatens Balance of Powers

Voters will be asked on Nov. 6 to consider Question 2, an amendment to Part 2, Art. 73-a.

Attempts to amend Part 2, Art. 73-a to give the legislature superior authority over rule-making in the courts have been presented to NH voters before, without success. The last time was in 2004.

To pass a constitutional amendment on the ballot,
Text of Question 2
Art.] 73-a. [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. [He] The chief justice shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law. The legislature shall have a concurrent power to regulate the same matters by statute. 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.

Italics and bold indicates amended language.

Reasons to Vote No
• Our nation’s founders provided for the judiciary to be insulated from pressures exerted by elected officials. This amendment attacks the concept of judicial independence; it threatens to sow confusion over where the ultimate authority over the operation of the courts rests.

• If court rules are subject to change in each legislative session, keeping abreast of these changes will become even more burdensome to litigants, lawyers and the courts. Unpredictable and inconsistent procedures and outcomes could result.

• Constitutional amendments should be rare events. Supporters of this amendment have not proven why the allocation of powers between the branches should be changed and the independence of the courts undermined.

Read more.

two-thirds of those voting on the question must approve it. (This year, there are three proposed amendments- Question 1 deals with adding a prohibition on an income tax. Question 3 proposes a constitutional convention.)

The NH Bar Association’s Board of Governors has voted to oppose Question 2, joining other groups, including the League of Women Voters of New Hampshire, and several newspapers in saying that the amendment (which passed the legislature as CACR 26) disturbs the balance of power among the branches of government.

Bar Association leaders are encouraging members to consider the implications of the proposed amendment and reach out beyond the legal community to clients, friends, family, and their neighbors to urge them to vote "No" on this amendment.

"Our message is simple: the courts need to remain independent," said NHBA President Larry Vogelman. "This amendment invites politicians to become involved in the operation of our courts."

"The involvement of individual lawyers is especially important given that the amendment’s supporters have an unfair communications advantage," he added, referring to the one-sided "voter’s guide" written by the amendment’s proponents, printed and distributed, at public expense, INSIDE the polling places – the only such political literature allowed at the polls.

What is different this year is that the NH Supreme Court has endorsed the amendment, following the appearance of Justices Gary Hicks and Robert Lynn at a legislative hearing last spring where they provided the language lawmakers used to amend Pt. 2, Article 73-a.

Bar leaders said the Court has never provided an explanation for its support of the amendment. "We disagree with their position. We believe they are being short-sighted. It is also clear to us that support for the amendment is not uniform throughout the court system," he said. A number of trial judges, on the frontlines of the justice system, have indicated their concern about the ramifications of giving the legislature final say over court administration. Several judges at the NHBA’s Committee on Cooperation with the Courts urged the Bar Association to take an active, vocal role in opposing the amendment.

Vogelman said the Bar Association will advocate its position through a variety of means, and will be encouraging lawyers to undertake their own efforts. The Bar’s website will contain talking points and the PDF of a flyer that lawyers may choose to share or display.

Commentary on Question 2 (CACR 26) 2
Amendment Wouldn’t
 Threaten Independence

"Suffice it to say that there are hundreds, if not thousands, of statutes on the books that prescribe how the executive branch is to be structured and how it is to operate. So when (former NH Governor Steve) Merrill and (former NH Justice Joseph) Nadeau rhetorically ask [readers to] ‘Imagine what would happen if legislators were to seek the same constitutional authority to administer the executive branch,’ the answer is: ‘They already have that authority, and they exercise it every day.’ More importantly, the Supreme Court itself has, on numerous occasions, specifically ruled that statutes regulating the administration of the executive branch are indeed constitutional." Read more
Eugene M. Van Loan, III
Partner with Wadleigh, Starr & Peters in Manchester, author of works on the New Hampshire Constitution
Amendment Does Not
 Serve the People

"This proposed amendment to the New Hampshire Constitution does not clarify the relationship between the legislative branch and the judicial branch; it changes the relationship. No matter how harmless some may try to paint the language, the amendment’s supporters are clear: they intend a legislative takeover of the courts. We trust the citizens of New Hampshire will again reject this extreme proposal by voting ‘No’ on Question 2 on Nov. 6." Read more.

Former NH governor Stephen E. Merrill, Hon. Joseph P. Nadeau, retired senior associate justice, NH Supreme Court
Amendment Restores
 Oversight of Courts

"It is a simple and undeniable fact that a ‘free government’ cannot exist without constant and effective public oversight of ALL branches of government - including the judiciary. It is public oversight that blind allies of the courts always want to stifle, but it is public oversight of court rule-making that must be restored to help restore comity between the legislature and the judiciary." Read more.

Republican State Rep. Paul Mirski of Enfield, sponsor of CACR 26

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