Why Vote Yes on Question 2 (CACR26)
By Representatives Dan Itse, Paul Ingbretson and Greg Sorg*
We, the people of New Hampshire, have an important question before us on November 6th: Do we believe that court rules should be beyond control of "we the people” or do we believe that court rules should be under our control? If you believe that the authority of government legitimately comes only from "we the people,” you should vote “yes” on Question 2.
During the colonial period of our state’s history, the judiciary made administrative rules for the courts under the authority and control of the King. This authority ended with the ratification of our Constitution. We know this because in 1791, the Legislature passed "An Act Establishing Courts of Law for the Administration of Justice." By that Act the courts were "empowered to make necessary rules for the more orderly practicing in their respective courts, provided said rules be not repugnant to the Constitution and the Laws of this State." However, there is no evidence of any actual compilation of rules promulgated by the courts until 1834. Moreover, the Legislature reserved for itself the more weighty issues, such as rules governing contempt and evidence and the compensation of attorneys.
For two centuries, the courts customarily made administrative rules with the consent of the Legislature. Popular discontent with court rules could be addressed through the Legislature. However, by 1974 it was evident that there was a problem with the court rules made in this manner, in that each county’s superior court was proposing its own rules, resulting in a confusing lack of uniformity. The Constitutional Convention of 1974 proposed Article 73-a to remedy this problem by giving the Supreme Court authority to create a uniform set of rules for all the state’s courts. Article 73-a was not intended to deprive the Legislature of its ultimate authority over the content of court rules. Witness the following exchange memorialized in the Convention Journal:
Delegate Gross: "Is my understanding correct that this amendment (Article 73-a), if adopted, would not deprive the Legislature of its right that it presently has, to regulate the procedure of the courts?"
Delegate Nighswander: "I would think any power they now have, they would still have."
The Supreme Court, however, has advanced a differing opinion. For example, when in 1995 the Legislature was considering a bill that would suspend the salary and benefits of judges whom the Supreme Court had suspended for misconduct, the Supreme Court found that this would be unconstitutional, not for violating the Part 1, Article 35 regarding “permanent and honorable salaries” for judges, but for violating Part 2, Article 73-a regarding “practice and procedure in the courts.” When in 2003, in the aftermath of the impeachment proceedings against Chief Justice David Brock, the Legislature created a legislative Judicial Conduct Commission, the Supreme Court determined this was unconstitutional because it would enable the Legislature to impose a code of judicial conduct, in supposed violation of Part 2, Article 73-a.
The Supreme Court has repeatedly suggested that Article 73-a stripped the Legislature of any of its previous
rulemaking authority. In defending a claim of exclusive authority to make court rules, the Supreme Court, citing Article 73-a , repeatedly makes reference to what it calls “inherent authority” to do whatever it finds it convenient to do. But how can a power originally confided by the Constitution to the Legislature be “inherent” in the judiciary? Our Constitution proclaims in Part 1, Article 8 that all power resided originally in and is derived from the people. Accordingly, the power to make court rules is really a power of the people. The Supreme Court's tortured claim that its independence frees it from any form of popular oversight is akin to a claim of divine right. Every Fourth of July, the American people celebrate the rejection of that theory in 1776.
We must remember the admonishment of Part 1, Article 37: 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 as is consistent with that chain of connection that binds the whole fabric of the Constitution in one indissoluble bond of union and amity. In order to maintain freedom, the three powers must overlap to some extent, but the parameters of that overlap are defined in Part 2. Our founders knew that the people had to be the final judges of justice. That is why we have juries, and that is why the Legislature has always had the authority to establish court rules by statute. Article 73-a was never intended to remove that authority from the Legislature.
It is time for the people of New Hampshire to make a decision: Are we satisfied with the administration of our constitutional rights solely by courts over which we have no control other than the Legislature’s "nuclear options" of Bill of Address or Impeachment? On November 6 th, we have the opportunity to ensure that "we the people" maintain our power to protect our rights, by voting “yes” on Question 2.
*Rep. Paul Ingbretson, of Haverhill, is Chairman of the New Hampshire House of Representatives Redress of Grievances Committee. Rep. Daniel Itse, of Fremont, is Chairman of the New Hampshire House of Representatives Constitutional Review and Statutory Recodification Committee. Rep. Gregory Sorg is Vice-Chairman of the New Hampshire House of Representatives Constitutional Review and Statutory Recodification Committee.