Constitutional Amendment Arguments:

In the torrent of political advertising and media coverage I don’t want us to lose sight of an important issue: Besides choosing a president and other federal and state officials in the upcoming election, New Hampshire voters will also be casting their ballots on a constitutional amendment relating to court rules.

I encourage everyone to vote “yes” on Question 1. This proposal restores the checks and balances between the judicial and legislative branches that existed before 1978, when a constitutional amendment gave the chief justice of the Supreme Court administrative authority over all state courts. Because part of the language of the amendment did not appear on the ballot that year there is some question about whether the voters intended to limit the Legislature’s traditional power to make laws concerning court rules and administration.

The amendment would allow the Legislature to pass a law to override any court rule, a power enjoyed by the U.S. Congress and most other state legislatures. It expressly prohibits, however, legislative interference with the court’s historic function of resolving disputes and deciding guilt or innocence.

Passage of the amendment would not allow the Legislature to reverse the Claremont education-funding decision or any other decision of the court.

The issue came to a head in the mid-’90s when I was chairman of the House Criminal Justice Committee. The Supreme Court declared in an advisory opinion that its rules barred the Legislature from enacting a law allowing introduction of evidence of “prior bad acts” to establish a pattern of behavior.

Thus, if a defendant had previously been convicted of molesting three slender blond 8-year old girls and was charged with molesting another one, under the court rule, the jury could not be told about his record. Clearly, the fact that an accused person has committed a crime in the past doesn’t prove that he committed it this time, but as a juror, I’d sure like to know.

The issue is more fundamental than any particular court rule, however. The question is how to ensure accountability in an unelected branch of government whose members’ appointments last until age 70. The Constitution provides that each branch will have a check against the other: The governor can veto a bill passed by the Legislature; the Legislature can determine the budget for the judicial and executive branches; the court can find a law or executive action unconstitutional. Legislators and governors can be voted out if they don’t perform well. Executive branch officials must submit their rules for legislative review. The Supreme Court, however, can adopt a rule about evidence or security or judicial conduct and not have to answer to anyone.

This unchecked concentration of power will be remedied by passage of Question 1. A constitutional amendment requires a two-thirds vote of the people. When this question was on the ballot in 2002, it received 63 percent of the vote, a clear majority, but just short of the threshold. Please vote “yes” on Question 1 to assure that our state constitution provides the appropriate checks and balances within our state government.

Donna Sytek of Salem is a former speaker of the New Hampshire House.

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