Court budget suit barking up the wrong tree

After much (self-generated) fanfare, a group of New Hampshire lawyers led by attorney Chuck Douglas of Concord last week filed a class action in the Merrimack Superior Court alleging that the recent cuts in the budget of the judiciary are unconstitutionally depriving civil litigants of their rights to speedy justice.The plaintiffs are four persons who allege that they have been unable to secure a prompt determination of their legal claims – which range from a case of lead paint exposure, to a child custody dispute, to a medical malpractice case, to a slip and fall case.Reciting the well-known aphorism that justice delayed is justice denied, the plaintiffs assert that the state has a constitutional obligation to “adequately” fund the judicial branch of government so as to permit a prompt resolution of their legal claims.As a remedy, the plaintiffs seek a court order directing the state treasurer to cut a $4 million check payable to the New Hampshire judiciary.Sound familiar? It should, because it is the same kind of nonsense that led to the Supreme Court’s decision in the Claremont case that the state has a constitutional obligation to “adequately” fund our educational system. In the words of that great philosopher Yogi Berra, it is déjà vu all over again.What this case (and the Claremont case) reflects is the unfortunately widespread, but profound, lack of public understanding of the nature of our constitution and the structure of our government.Let us begin at the beginning – with the New Hampshire Constitution. Contrary to the assumptions of many people (including many lawyers and judges), not everything in the Constitution is meant to be judicially enforceable. Some things in the Constitution are merely aspirational, i.e., intended to be taken as goals we should work towards achieving, not as rules to be obeyed. The duty imposed on the Legislature and all magistrates to “cherish” education (as well as honesty, punctuality, sobriety, etc.) falls into this category.Another category of constitutional provisions which are not intended for judicial enforcement are those which state general principles underlying our republican form of government.For example, Part I, Article 10, of our constitution memorializes a citizen’s right of revolution as an accepted means of effecting political change. Suffice it to say that enforcement of this right is not consigned to the judiciary.The plaintiffs point to Part II, Article 1, of the Constitution that establishes the judiciary as a separate branch of government. Although one would think that this would be self-evident, I suggest that this provision provides no authority for the judiciary to define its own structure, staffing level or budget.More particularly, the plaintiffs rely upon Part I, Article 14, which proclaims that every citizen is entitled to “a certain remedy, by having recourse to the laws, for all injuries” and that he is entitled to “obtain right and justice freely … completely, and without any denial, promptly, and without delay ….”Note, however, the aspirational quality to the adverbs which dominate this provision – “freely”, “completely”, “promptly.” More important, note their inherent indeterminacy. The plaintiffs claim that the cuts in the judiciary’s budget have denied them a “prompt” resolution of their claims. But what is the constitutional measure of promptness?Even worse, the plaintiffs read into this clause a requirement that, in order to assure that citizens get prompt justice, the Legislature and the executive must give the judiciary “adequate” funds. I respectfully suggest that there is no objective standard by which to determine how much money is “adequate” to run a court system (even assuming we could agree on what the essential elements of a court system are.More than anything else, the fact that “adequacy” is in the eye of the beholder establishes that it is not a matter fit for judicial resolution, but is instead the typical fare of the democratically elected branches of government who (quite properly) represent the often conflicting and competing views of the citizenry.Finally, there is the question of remedies. One of the things that renders a dispute non-justiciable is the lack of a judicial remedy. Under our system of separated powers, only the Legislature has the power to appropriate money and to determine how to raise the revenue to satisfy the appropriation.Despite the plaintiffs’ quotation of Alexander Hamilton’s famous characterization of the judiciary as having neither the power of the sword nor the power of the purse, they specifically ask the court to exercise the latter.This lawsuit truly borders on the frivolous. But don’t place any bets on it being broomed out of court anytime soon. Guess who gets to decide if the judiciary’s funding is adequate or if the judiciary has the power to order the other branches to give it money? The judiciary.Alexander Hamilton had something to say about that too. As he wrote in The Federalist Papers, no man should be judge in his own cause.Eugene M. Van Loan, an attorney with the firm of Wadleigh, Starr & Peters, is chairman of the Josiah Bartlett Center.