Court mum on justice decision
CONCORD – A defiant Gov. Craig Benson said Friday that he will nominate the next chief justice of the New Hampshire Supreme Court even after the same court acted to uphold a state law that took this power away from him.
The justices declined, 4-0, to offer an advisory opinion to Benson and the Executive Council when they questioned the constitutionality of a 2001 law that gives the role of chief justice in such cases to the next most senior judge.
This clears the way for Associate Justice John Broderick of Manchester to replace Chief Justice David Brock of Hopkinton when he retires Dec. 31.
Broderick did not participate in Friday’s decision.
But Benson said in a statement he intends to interview Broderick, along with other potential applicants before making nominations for Brock’s replacement and who is to serve as chief justice to the council on Jan. 7.
“They have chosen to abdicate their decision-making authority and declined to answer our questions,’’ Benson said.
“In the absence of Court guidance, I will therefore proceed under the authority of the New Hampshire Constitution.’’
Benson contends the chief justice is a “judicial officer’’ and that the constitution gives only the governor and council the authority to name someone to that post.
The justices asked to be excused from giving an opinion because they all have a personal stake in this question of succession, and the matter could become the subject of a lawsuit.
They conceded it was rare for the court to decline to issue such an opinion, but it was done after a “careful reading’’ of their constitutional duties and prior decisions.
“For these reasons, we respectfully request to be excused from answering the questions posed,’’ the four justices said.
In a separate opinion, Brock wrote they couldn’t simply disqualify themselves and turn this matter over to a temporary replacement panel of lower court judges.
Lower court judges often sit on case appeals when a Supreme Court judge has a conflict of interest with a case.
Brock said giving advisory opinions to either lawmakers or the governor and council is a special role reserved only for those permanently on the court.
“Only sitting Supreme Court justices may act as constitutional advisors to co-equal branches of the government,’’ Brock wrote.
“Justices appointed to replace sitting members of the court . . . are not ‘justices of the supreme court.’ ’’
The governor called on the Legislature next year to approve a bill written by Rep. Robert Rowe, R-Amherst, to return authority to name the chief justice to the governor and council.
“It is my hope that the state Legislature will take action to mitigate the constitutional conflict,’’ Benson said.
Lawmakers begin the 2004 session on Jan. 7.
Benson press secretary Wendell Packard said the governor has no “present plans’’ to seek a council vote before year’s end to prevent Broderick from taking the reins of power under the existing law.
“The governor has said and he continues to believe Justice Broderick may be the best candidate, but he’s determined that the constitutional process should go forward and it will,’’ Packard said.
House Democratic Leader Peter Burling said Benson’s reading of the constitution is wrong. The chief justice plays an administrative role on the court, he said, and the state law is not in conflict.
“There’s nothing in the constitution that says the governor and council should choose the chief justice,” Burling said.
Councilor Peter Spaulding, R-Hopkinton, said Concord lawyer Bryan Gould is reviewing legal options for the council.
“It’s disappointing the constitution says they should render opinions and they are trying to get out of having to do that,’’ Spaulding said, declining further comment because the council could become a party to litigation on this matter.
Apart from this constitutional dispute, Spaulding said, Broderick is the right person for this job.
“I have no problem with him being chief justice. It’s really more of a separation of powers argument than a personal matter,” he said.
“I think John Broderick would be an excellent chief justice, and I would be very supportive of him.’’