Legislature has no business running the courts

CACR 26 is troublesome, extreme and a violation of a fundamental principle of constitutional democracy

This year, as a gesture to legislative leaders, the Supreme Court decided to accept language in a proposed amendment to the New Hampshire Constitution that would give the Legislature ultimate authority to regulate by statute “the administration of all courts in the state and the practice and procedure to be followed in all such courts.”

Respectfully, we believe that decision was a mistake.

In 2004, the same basic amendment was opposed by the Supreme Court and rejected by the people. Two similar amendments failed before that: one was killed by legislators in 2001; another was turned down by voters in 2002.

This year, even after the court’s gesture, the amendment cleared the House by only seven votes. As they have done before, the people should reject this legislative attempt to run the courts by going to the polls Nov. 6 and voting “No” on CACR 26.

What makes this legislative proposal troublesome and extreme is it violates a fundamental principle of constitutional democracy: The three branches of government ought to be separate and independent.

Some legislators supporting the amendment say openly that they want to “control” the courts. What does that mean? It means a legislative takeover of the judiciary.

The court is not a state agency. It is a branch of government. By the language of the New Hampshire Constitution, the legislative branch is political, the judicial branch is not. We value an independent political branch, and we value an independent judicial branch.

CACR 26 would end that separation, erode that independence and weaken that connection. This amendment does not restore some lost balance between the Legislature and the court; it destroys the balance.

Historically, each of the three branches of government has had the constitutional authority to control its own administration. Ignoring history, the Legislature now seeks to replace judicial branch authority with legislative supremacy. Imagine what would happen if legislators were to seek the same constitutional authority to administer the executive branch.

Not only is this amendment extreme, unnecessary and contrary to the basic principle of separation of powers, it is unique.

The National Center for State Courts – which researches, studies and reports on judicial systems in the 50 states – has informed us that no other state in the nation has a constitutional provision giving a legislature ultimate authority over administration of the courts.

We should preserve the constitutional framework of the Live Free or Die state. The people of New Hampshire have rejected this overreaching proposal before. We can do it again Nov. 6 by voting “No” on CACR 26.

Stephen E. Merrill, a former New Hampshire governor and attorney general, is chairman of the Bingham Consulting Group. Joseph P. Nadeau, a former New Hampshire Supreme Court chief justice, is now a judicial consultant for international rule of law projects.

Categories: Opinion