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May 03. 2012 6:55PM

Separation-of-powers

NH Supreme Court offers compromise on rule-making constitutional amendment plan

(UPDATE: The Senate Judiciary Committee voted 4-1 to recommend that the constitutional resolution pass the Senate with the change offered by the Supreme Court justices, described below, a committee spokesman said. The Senate is expected to take up the measure next week.)

CONCORD - Faced with the possibility of losing the exclusive rule-making authority it has had for three decades, the state Supreme Court on Wednesday offered a compromise plan that would give lawmakers “concurrent” power to regulate court administrative and procedural matters by statute.

Associate Justice Robert Lynn told the Senate Judiciary Committee the alternative constitutional amendment resolution he and Senior Associate Justice Gary Hicks presented “would specifically recognize that, just as the courts have rule-making authority, which is absolutely essential, the Legislature should also have the power to make statutes that affect court procedure. And if there's a conflict between a statute and a court rule, the statute should win unless the statute violates some other provision of the Constitution.”

A resolution to amend the state constitution that passed by the House in March would, if approved by voters, repeal outright a 1978 constitutional amendment giving the Chief Justice of the Supreme Court unilateral authority to make rules governing the administration of all state courts and the “practice and procedure” to be followed in the courts.

Before it can get on the November ballot, however, it must first pass the state Senate by a three-fifths majority, or 15 votes in the 24-member body.

At a public hearing Wednesday, prime sponsor Rep. Paul Mirski, R-Enfield, told the committee the court system has over-stepped the power it was granted in 1978.

Mirski said testimony from the constitutional convention that produced the language in Part 2 Article 73-a shows “no one ever expected that the grant of this authority would extend beyond simply the processing of cases. They never imagined the institution would grow into an entity that is really pretty much completely outside of the Legislature's purview and operates pretty much entirely on its own.”

Attempts to water-down the authority given the court in 1978 made it to the ballots in 2002 and 2004 but narrowly failed to gain the required two-thirds majorities of the voters.

Mirski noted that in 2004, the court blocked the Attorney General's Office from issuing a voters' guide explaining the constitutional question.

This year, Mirski said, “The only remedy to finding someway to get the court under legislative oversight would be to repeal the entire amendment.”

He said that the court and its supporters in the past have cited the separation-of-powers doctrine of the constitution to bolster its argument against changing Article 73-a, but he said that doctrine actually limits the autonomy of the branches “as the nature of a free government will admit.”

“You can only have a free government when you have public oversight,” said Mirski, “and the only way the Legislature ultimately restores public oversight and ultimately gets a handle on the expenses and activities that the court generates is to basically get rid of Article 73-a.”

Justice Lynn said the current House-passed proposal “would be really devastating to the judicial branch” because it would “remove the unified court system by saying the judicial branch does not get to have a leader, unlike the other branches of government. And it would say the court has no rule-making authority.”

He said courts made their own rules prior to the passage of Article 73-a, but each level of court made its own rules. He said the 1978 amendment simply “consolidated rule-making within the Supreme Court, which is the way it seems to me it should be.”

Lynn and Hicks asked the committee to recommend the Senate kill the Mirski proposal outright, but as a compromise, offered an alternative proposed resolution similar to the one proposed in 2004, which gives the Legislature “concurrent power” to regulate court issues by statute.

The compromise resolution clarifies: “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.

“The majority practice around the country is in essence what we've proposed,” said Lynn.

Hicks said, “All branches of government need a leader. They need a point where the buck stops and the chief justice needs the responsibility or the authority to make rules.

“The legislature has always made procedural rules,” Hicks said. “The entire body of landlord-tenant law is purely a creature of statute. The entire body of land use, zoning board procedure and appeals, is entirely a creature of statute, and evidentiary privileges are largely a creature of statute.

“There may have been misunderstanding historically” about the limits of judicial rule-making, said Hicks, “but it was before my time, and I don't think there is any misunderstanding now. We are obligated by the constitution to work together, to avoid constitutional crises and to effectively represent the people and do our jobs.”

Lynn supported the “analogous” 2004 proposal, while then-Chief Justice John Broderick and then-Justice Joseph Nadeau, both now retired, opposed it.

But this year, court spokesman Laura Kiernan said this week, the Supreme Court reached “a unified position” and, “There is no conflict on the court.”

Attorney David Nixon opposed both the original plan and the court-offered compromise.

“Both are dangerous because it puts the foot in the door of the Legislature running the court system,” he said.

Nixon pointed to Part 1 Article 35 of the constitution, which, he said, “was designed specifically to provide that the judges of the Supreme Court do not have to be and should not be unduly influenced by any outside forces, political, legislative or executive.”

Nixon said if either proposed constitutional change passes, “we will be on a downhill slide and there will be an insidious and dangerous erosion of the power and independence of the judiciary.”

Rep. Gary Richardson, D-Hopkinton, opposed the Mirski plan, saying that the Legislature already passes laws that overturn court rules. He said the issue “should be dealt with on a case-by-case basis. To simply pass a constitutional amendment to eliminate the authority of the court to adopt court rules is the wrong way to go.”

House Judiciary Committee Chairman Robert Rowe, R-Amherst, supported the Mirski proposal because “all three branches should be equal and to give constitutional authority to the judicial branch to make rules takes it out of an equal plane.”

But he offered an alternative amendment that mirrors federal procedure, in which, Rowe said, “The court makes rules but they have to be approved by” Congress.

Here is the existing Part 2, Article 73-a of the New Hampshire Constitution as adopted by voters in 1978:

“The chief justice of the supreme court shall be the administrative head of all of 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.”

Constitutional Amendment Concurrent Resolution (CACR) 26, as passed by the House, would repeal that article.

A compromise proposed CACR 26 offered by the Supreme Court on Wednesday would add the following to the existing Part 2 Article 73-a:

“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.”


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