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Reasons to Vote No

Reasons for Voting 'NO' on Question 1
Proposed Amendment to Part 2, Article 73-a of the NH Constitution

The amendment currently reads:

The chief justice of the supreme court shall be the administrative head of all the courts. He 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 procedures to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

2004 Question:

Are you in favor of repealing and reenacting part II, article 73-a of the constitution in order to clarify that both the judiciary and legislature have the authority to regulate court practices and procedures and to resolve potential conflicts that may arise so that it reads as follows:

[Art.] 73-a. [Court Practices and Procedures.] 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 the same matters by statutes of general application, except that such legislative enactments may not abridge the judiciary's necessary adjudicatory 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.
(Emphasis supplied)

The Bar Association, by vote of its elected Board of Governors, opposes this amendment. The following points summarize the Association's objections to the proposed amendment:

  1. The amendment opens the door to legislative involvement in the administration of the courts by establishing legislative supremacy over the court's rule-making authority.
  2. While experts differ over whether the amendment actually allows it, the language of the amendment encourages the legislature to become involved with all aspects of the administration of the courts. Preserving the independence of judges to make fair decisions becomes more difficult if the judicial branch of government lacks the authority to administer itself.

  3. Relations between the branches are in balance; this amendment is a "solution in search of a problem."

Proponents of this amendment assert that the court has exceeded or abused its rule-making authority, basing it on a handful of decisions. During the 25-year history of Part 2, Article 73-a (the amendment establishing administrative authority for the judicial branch), hundreds of rules have been considered and adopted by the Court. The proponents of this amendment cite only two examples where they believe the court has exceeded its authority. Constitutional experts differ on the significance of those decisions (see September 2002 Bar Journal article by Harvard Law School instructor Lawrence Friedman, "On the Justifications for Constitutional Amendment Concurrent Resolution 5" who analyzes the decisions cited by the proponents. He concludes that the proposal to give the legislature the authority to supercede the court's in its administrative and rule-making authority is "nothing more than a solution in search of a problem."

  • This amendment does not "clarify" anything. If passed, it would generate additional conflicts and litigation.
  • The proposed amendment would establish conflicting constitutional provisions governing the operation and independence of the courts. If the question passes, Part 2, Article 73-a would establish legislative supremacy over the rules and administration of the courts, while part 1, Article 37 (adopted over 200 years ago) would continue to stand for the proposition that the three branches of government should be maintained as separately as possible.

    Given the activist nature of the legislature in recent years, it is anticipated that litigation would be required to determine the meaning of the language "necessary adjudicatory functions" included to the proposed amendment.

  • This legislature has demonstrated a tendency to involve itself improperly in court operations.
  • The past few legislative sessions have demonstrated that concerns about legislative meddling in the courts are real. Between 1998-2002, the legislature has considered proposals that would have fundamentally affected the operation of the courts: requiring judges to give "nullification" instructions in all jury cases; giving litigants a preemptory (free, without cause) challenge to the judge assigned to their case; transferring control of the Administrative Office of the Courts to the Legislature. There was even a bill introduced last year that sought to control the color of marital masters' robes (pink).

  • The legislature is ill-equipped to handle the responsibilities this amendment entails.
  • Some proponents say this amendment should be approved because it will bring NH in line with the federal system, where the Congress has the ability to approve or reject administrative rules developed by the federal courts. But NH's 424-member, part-time legislature lacks the expertise, institutional memory, support staff and other resources that Congress has at its disposal.

  • Why should the average citizen care who controls court rules?
  • Our system of government is based on checks and balances; the Founders of our nation provided for the judiciary to be insulated from the whims and pressures exerted by elected officials. This amendment is not a frontal attack on judicial independence; instead, it poses a more subtle threat of sowing confusion over where the ultimate authority over the operation of the courts rests. No one who stands before the bench with a controversial case at issue wants to have a judge who is looking over his or her shoulder.

    Vote NO on this unnecessary and dangerous amendment.

    A two-thirds vote of the people is required to pass this amendment. This amendment is not necessary, and poses a threat to the ability of the courts to act independently and decide cases fairly by introducing a new source of pressure from the legislative branch of government.



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