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NH Bar Policy Statement on Constitutional Question

Constitutional Amendment Concurrent Resolution 5 (CACR 5) was adopted by the Legislature during its 2004 session. It will be presented to the voters of New Hampshire for ratification on November 2, 2004. A similar CACR 5 failed to pass the Legislature in 2001; a very similar CACR 5 passed the Legislature in 2002 only to be rejected by the voters at the polls. The Bar believes that this version of CACR-5 should, like its predecessor, be rejected by the voters.

The sponsors of the original version of the proposed amendment in 2001 described it as the "linchpin of judicial reform." The 2001 version of CACR 5 was introduced in the wake of the resignation of Justice Thayer and the impeachment trial of Chief Justice Brock, who is now retired.

As proposed, CACR 5 would establish the supremacy of the Legislature over court rules, except for necessary adjudicatory functions, and perhaps most importantly, establishes the supremacy of the legislature over court "administration", which is undefined.

Although constitutional scholars debate whether or not the proposed amendment effects any real change in the balance of power between the branches of government, executive, legislative, and judicial, it is clear that its proponents believe that it does. The Bar believes that adoption of CACR 5 by the voters would foster a real or perceived assault on the independence of the judiciary, a right guaranteed to New Hampshire citizens by two different provisions of the Bill of Rights of the New Hampshire Constitution.


The independence of the judiciary, and the separation of powers of the branches of government, are core principles of American government, embodied in the federal constitution and Part 1 of the New Hampshire Constitution, The Bill of Rights. Part 1, Article 35 provides in relevant part:

[The Judiciary; Tenure of Office, etc.] It is essential to the preservation of the rights of every individual, his life, property, and character, that there be an impartial interpretation of the laws, and administration of justice.

Part 1, Article 37 provides:

[Separation of Powers] In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

The provisions of Part 1, Article 37 of the New Hampshire Bill of Rights have not been altered since 1784. The drafters of the first version of CACR 5 in 2001, which was rejected by the Legislature, proposed to carve out a specific exception to Part 1, Article 37 for the legislature.

The separation of powers - the system of checks and balances so that one branch of government does not obtain too much power - has been the cornerstone of the individual liberties guarded by American courts. In fact, over 100 years ago, in 1879, New Hampshire's most famous jurist, Chief Justice Charles Doe, referred to the importance of the separation of powers principle as a safeguard of individual rights by stating that the New Hampshire Constitution of 1784:

[t]erminated the era of unlimited power and introduced an era of liberty and equality secured by a supreme written law and an organic division of government into three parts. Gould v. Raymond, 59 N.H. 260, 275 (1879).

In 1978, as part of an effort to allow the New Hampshire Supreme Court to make rules for all courts within the State, the voters adopted a new article, Part 2, Article 73-a, which provides:

[Supreme Court, Administration] The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of the 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 rules created by the Court under this article have been used primarily to fill gaps in procedure. The New Hampshire Supreme Court has never that held Part 2, Article 73-a gives it power to make rules which supercede any rule made by the Legislature.


The 2004 voters' guide with respect to CACR 5 states:

"The law is uncertain as to the authority of the legislative and judicial branches of the state government to regulate matters pertaining to the administration of the courts and practice, procedure, and rules of evidence under which court business is carried out. Historically, these two branches of government exercised concurrent authority to regulate these matters, with legislative enactments taking precedence over the court rules in the event of a conflict between the two. However, because there was nothing in the Constitution, which expressly stated that the judiciary had this authority, the Constitution was amended in 1978 to add article 73-a. This article explicitly recognized the authority of the Supreme Court to make rules governing the administration of all the courts in the state and the practice and procedure to be followed in such courts.

The 1978 amendment was no intended to diminish the power of the legislature to enact laws governing these matters. Nevertheless, in recent years, decisions of the New Hampshire Supreme Court have indicated that the judicial branch has exclusive or nearly exclusive power over these areas and that the legislature has little or no power to enact legislation dealing with these subjects. The decisions also indicated that, in the event of a conflict between an administrative, procedural, or evidentiary rule adopted by the court and a statute addressing the same subject, the court rule will prevail over the statute. (emphasis supplied).

This statement that the New Hampshire Supreme Court has exclusive authority over all court rules is simply incorrect. As noted in 2003 by Attorney Lawrence Friedman, a lecturer of law at Harvard Law School and an adjunct Professor at Boston College Law School, the decisions cited by proponents of CACR 5 in support of this proposition do not do so:

Opinion of the Justices(PSAE), 141 N.H. 563 (1997) and Petition of Mone, 143 N.H. 128 (1998) in many respects reflect a minimalist jurisprudential approach, resolving no more than the questions presented and those on reasoning that carefully circumscribes the precedential value of the cases - thus accomplishing, ironically, the very end of proponents of CACR 5 seek: clear notice of those few areas in which the political branches of government must yield to judicial authority in respect to practice and procedure lest the judiciary be stripped of its essential self. In this light, it would appear that CACR 5, however well intentioned, represents nothing more than a solution in search of a problem." New Hampshire Bar Journal, September 2002 at 48.

The Bar believes that it is increasingly clear that this proposed constitutional amendment, which is not needed, may in fact be used to challenge the independence of the judiciary.


The proposed version of CACR 5 provides:

The Chief Justice of the Supreme Court shall be the administrative head of all the Courts in the State. The Chief Justice shall have the power, with the concurrence of a majority of the other Supreme Court Justices, to make rules of general application regulating court administration and the practice, procedure, and admissibility of evidence in all Courts in the State. The Legislature shall have a concurrent power to regulate such matters by statutes of general application, except that such legislative enactments shall not abridge the judiciary's necessary adjuicatory functions. In the event of a conflict between a rule promulgated by the judiciary and a statute enacted by the Legislature the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

There is little doubt that this proposal should not change the judiciary's rulemaking authority, since the legislature already has the right to make rules which trump the judiciary's rules, unless the legislature's rules would limit the judiciary's ability to act as courts, as defined in the Constitution. But it is by no means clear just what the legislature intends by giving itself final authority over court "administration."

The public statements of CACR 5 proponents indicate that it would water down the separation of powers principle, and give the legislature greater power over the judiciary. A principal proponent of CACR 5 has stated that he believes that rules on what constitutes inappropriate conduct by judges and lawyers, now made by the judiciary, could, if CACR 5 is approved, be made by the legislature.

The Bar believes that giving the legislature the power to punish judges is flatly inconsistent with the concept of an independent and impartial judiciary, and inimical to our system of justice. The legislature, of course, already possesses the constitutional power to remove judges, by impeachment, and with the consent of the Governor, by a constitutional procedure called address. The legislature passed a bill creating a legislative judicial conduct committee with the power to censure or reprimand judges several years ago.

The New Hampshire Supreme Court held in June 2004 that the separation of powers principle, Part 1, Article 37 of the Constitution, prohibits the legislature from attempting to punish judges for what the Legislature perceives is wrongful conduct. Petition of the Judicial Conduct Committee (NH Supreme Court, June 14, 2004). In that case, the Court noted that the framers of the New Hampshire Constitution provided a specific limit on the authority of both the Judiciary and on the Legislature to regulate actions of judges:

... the Legislature has the power, expressly granted by the Constitution to remove a Judge from office by impeachment, or, together with the Executive, by address. New Hampshire Constitution Part II, Articles 17, 73, The Legislature may also undertake those ancillary activities, such as investigation, that "give efficiency to" impeachment or address proceedings. Opinion of the Justices, 85 N.H. 567; cf. Petition of Judicial Conduct Committee, 145 N.H. 108, 112 (2000). The Legislature may, correspondingly, choose a commission or other vehicle to effectuate these purposes.

As discussed above, however the power to regulate the conduct of judges, including the authority to take disciplinary actions short of removal, is a judicial power. See Mussman 112 at 103. That power is neither expressly granted to the legislature by the State Constitution nor is it necessary to conduct efficient impeachment or address proceedings. Thus, it is not an "overlapping" power that is shared by the legislature but rather, is exclusive to the judiciary. See Opinion of the Justices, (Judicial Salary Suspension) 140 NH at 301.

The proponents of CACR-5 believe that passage of CACR 5 will change this decision, resulting in a radical change of our system of separate branches of government. If legislators can punish judges who make decisions they disagree with, the risk to judicial independence is clear and obvious.


Because of the central position of the separation of powers principle in American constitutional jurisprudence, it is unclear that the proponents of CACR 5 will be able to effect the sort of radical change they seek by enactment of this amendment. But the Bar believes that CACR 5 may be used by the legislature to challenge the authority of the judiciary to decide cases independently. If enacted, it will likely lead to further confrontations and disputes between those two branches of government. Such contentiousness may well dangerously intrude on the institutional independence of the judiciary, and will inevitably lead to further attempts to impair the decisional independence of the judiciary.

No good public purpose is served by encouraging expansion of the legislative power at the expense of the judiciary. Indeed, to do so is inconsistent with over 230 years of New Hampshire and American history. Every year the New Hampshire justice system handles more than 200,000 cases, the simple, the complex, and the extraordinary. Most cases are resolved successfully, fairly, and impartially. The Judiciary as an institution transcends any particular judge or transient episode.

The courts of our country - the defenders of our most precious freedoms, the protectors of the individual against big government - are held up as examples for the rest of the world. The system is working well, and no good cause has been shown for the adoption of CACR 5. Accordingly, the New Hampshire Bar Association opposes it.



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