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Bar News - November 19, 2010


Court Funding Suit Was ‘Son of Claremont’

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Editor’s note: This article and the reply by Chuck Douglas were written before the Superior Court ruled to dismiss the case.

After much (self-generated) fanfare, a group of New Hampshire lawyers led by Chuck Douglas of Concord recently filed a class action in the Merrimack Superior Court alleging that the cuts in the budget of the Judiciary are unconstitutionally depriving civil litigants of their rights to speedy justice.

The plaintiffs are four persons who allege that they have been unable to secure a prompt determination of their legal claims – which range from a case of lead paint exposure, to a child custody dispute, to a medical malpractice case, to a slip and fall case. Reciting the well-known aphorism that justice delayed is justice denied, the plaintiffs assert that the State has a constitutional obligation to "adequately" fund the Judicial Branch of government so as to permit a prompt resolution of their legal claims. As a remedy, the plaintiffs seek a court order directing the State Treasurer to cut a $4,000,000 check payable to the New Hampshire Judiciary.

Sound familiar? It should because it is the same kind of nonsense that led to the Supreme Court’s decision in the Claremont case that the State has a constitutional obligation to "adequately" fund our educational system. In the words of that great philosopher, Yogi Berra, it is déjà vu all over again.

What this case (and Claremont) reflect is the unfortunately widespread, but profound, lack of public understanding of the nature of our constitution and the structure of our government.

Let us begin at the beginning – with the New Hampshire Constitution. Contrary to the assumptions of many people (unfortunately including many lawyers and judges), not everything in the Constitution is meant to be judicially enforceable. Some things in the Constitution – like the power of the House of Representatives to fashion their internal procedural rules - are expressly consigned to one of the political branches. Other provisions are merely aspirational, i.e., intended to be taken as goals we should work towards achieving, not as rules to be obeyed. The duty imposed by Part II, Article 83, upon the Legislature and all Magistrates to "cherish" education (as well as honesty, punctuality, sobriety, etc.) falls into this category.

Another category of constitutional provisions which are not intended for judicial enforcement are those which state general principles underlying our republican form of government. For example, Part I, Article 10, of our constitution memorializes a citizen’s right of revolution as an accepted means of effecting political change. Suffice it to say that enforcement of this right is not consigned to any branch of government; as such, it is the quintessential "political question".

The plaintiffs point to Part II, Article 1, of the Constitution which establishes the Judiciary as a separate branch of government. Although one would think that this would be self-evident, it is apparently necessary to point out that this provision provides no authority for the Judiciary to define its own structure, staffing level or budget.

More particularly, the plaintiffs rely upon Part I, Article 14, which proclaims that every citizen is entitled to "a certain remedy, by having recourse to the laws, for all injuries" and that he is entitled to "obtain right and justice freely . . . completely, and without any denial, promptly, and without delay…."

Note the aspirational quality to the adverbs which dominate this provision – "freely", "completely", "promptly". More important, note their inherent indeterminacy. The plaintiffs claim that the cuts in the Judiciary’s budget have denied them a "prompt" resolution of their claims. But what is the constitutional measure of promptness?

Even worse, the plaintiffs read into this clause a requirement that, in order to assure that citizens get prompt justice, the Legislature and the Executive must give the Judiciary "adequate" funds. Besides the fact that the Constitution says nothing of the kind, I respectfully suggest that there is no objective standard by which to determine how much money is "adequate" to run a court system (even assuming we could agree on what the essential elements of a court system are). More than anything else, the fact that "adequacy" is in the eye of the beholder establishes that it is not a matter which is fit for judicial resolution, but is instead the typical fare of the democratically elected branches of government who (quite properly) represent the often conflicting and competing views of the citizenry.

Finally, there is the question of remedies. One of the things that renders a dispute non-justiciable is the lack of a judicial remedy. Under our system of separated powers, only the Legislature has the power to appropriate money and to determine how to raise the revenue to satisfy the appropriation. Despite the plaintiffs’ quotation of Alexander Hamilton’s famous characterization of the Judiciary as having neither the power of the sword nor the power of the purse, they specifically ask the court to exercise the latter. Without so much as even a nod to the doctrine of separation of powers, the plaintiffs boldly ask the Merrimack Superior Court to order the State Treasurer to "pay over to the judicial branch" $4,000,000 in funds that the Legislature never appropriated for it.

By the way, the plaintiffs’ suggestion that the Judiciary is somehow authorized to remedy their alleged denial of their right to a "prompt" civil trial by, in essence, determining its own budget is what distinguishes this right from the companion right to a "prompt" (or speedy) criminal trial. Although the right to a speedy criminal trial suffers from the same indeterminacy that afflicts the right to a prompt civil trial, the real factor that affects their respective justiciabilities is the availability of a judicial remedy. The remedy that the courts grant for a violation of the right to speedy criminal trial is that the defendant is set free (or, to put it a different way, the courts say that since the executive branch, the prosecutors, violated a defendant's right to speedy trial, we - the courts - won't try him). What the courts don't do is order the Legislature and the Executive to pay more money into the judicial system so that criminal trials will move faster.

Another indication that this case is an inappropriate appeal to the courts for a judicial remedy for what is really a political question is the fact that the remedy which the plaintiffs seek has no necessary relationship to their claimed injuries. For although they seek a sum certain, the nice round figure of $4,000,000, they nowhere demand assurance that the money will be spent in a way which would get them earlier trials. Indeed, they are essentially asking that the Judiciary be handed a blank check to do with the $4,000,000 whatsoever it wishes.

Finally, pity the poor State Treasurer. Not only do the plaintiffs request that that she be ordered to violate her constitutional duty to expend money only in accordance with a legislative appropriation, but if she complies and depletes the treasury by $4,000,000, she has to again violate her constitutional obligations by deciding which things for which the Legislature has appropriated money she will not spend money on.

This lawsuit truly borders on the frivolous. Despite the obvious temptation to the organized Bar to support the suit out of self-interest, we should take a principled stand against it. Remember the saying about bad cases making bad law. If we think that the judicial branch of government is underfunded, the remedy is not to abuse the system we are trying to protect. The appropriate remedy is the exercise of our constitutionally protected right of free speech and assembly and the exercise of our constitutionally protected right to vote.

Eugene Van Loan, of the Wadleigh Starr & Peters law firm, frequently writes on constitutional law.

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