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October 13. 2012 10:10PM

Yes on Question 2 They’re the people’s courts

On Nov. 6, Granite Staters will vote on a constitutional amendment that would restore the Legislature’s rightful authority to set administrative rules for the state’s court system. The amendment’s critics say it would unravel the constitutional separation of powers between the Legislature and the courts. It would not.

From 1784 to 1978, New Hampshire legislators had the power to set the rules for the state court system. A constitutional amendment in 1978 moved that power to the Supreme Court. Since then, the chief justice, with the concurrence of the other justices, has had the sole authority to create rules governing the “administration of all courts in the state and the practice and procedure to be followed in all such courts.”

What’s wrong with that? Plenty. Consider the state’s recent budget troubles. The chief justice has closed courts, postponed jury trials, and made other administrative moves to deal with the court system’s reduced budget. Those changes carried serious consequences for the people. The 1978 amendment barred legislators, the representatives of the people, from creating alternative methods of dealing with budget reductions.

Legislators set policy; that is their constitutional role. They set it for all three branches of government. The 1978 amendment stripped that policy-making authority for the day-to-day operations of the court system. That was an overreach.

Question 2 would fix that overreach by leaving the entire 1978 amendment intact, but adding this below it: “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.”

The Legislature’s power would extend only to administrative rules, not to court decisions. The judiciary’s independence to decide cases entirely free from political influence would not be jeopardized.

Not only did New Hampshire’s courts operate with rules set by the people’s elected representatives for 194 years, but the federal court system operates that way now. Administrative rules for federal courts are set by the U.S. Supreme Court and then submitted to Congress for approval. Congress also has the power to set the rules for federal courts entirely on its own. No one argues that the federal judiciary is therefore beholden to the whims of Congress.

As attorney Eugene Van Loan III pointed out on these pages on Friday, Question 2 was written by the justices of the state Supreme Court! They would hardly propose an amendment that would remove their independence. This change is a necessary correction to a previous flawed amendment. The people should pass it without reservation.

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