NH High Court Hears Dispute Over Chief Justice

By David Darman on Monday, March 1, 2004.

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New Hampshire?s Supreme Court today heard arguments in a dispute over which branch of government gets to pick the Chief Justice.

New Hampshire Public Radio?s David Darman has more.

Because the case involves the Supreme Court itself, five substitute justices heard the arguments, which pitted executive privilege against a law passed in 2001.

The law provides that the most senior member of the state?s highest court become chief justice, for a period of 5 years.

Assistant Attorney General Wynn Arnold argued the case for the Legislature.

He says the 3 year old law simply filled a void left by the constitution.
The position of chief justice is not expressly created or defined in the constitution, which would leave it to the legislature under its article 4 powers to define.

But Governor Craig Benson and members of the Executive Council assert that only they have the power to appoint the chief justice.

The Executive branch argues it has the right to appoint the chief justice because the chief has a separate role from the associate justices.

Concord attorney Brian Gould argued the case for the Governor and Council.

He said the separate role is spelled out in article 73a of the constitution, adopted in 1978.

The article, Gould says, makes the chief head of administration for all the state?s courts.
Had article 73a not been adopted, it would have been a more difficult argument from a textural standpoint. But I think with the adoption of article 73a and the explicit delegation of administrative authority to the chief justice, it made it very clear that this is a separate, constitutional office.
Gould also argued that the law limiting the chief?s tenure gave too much power to the legislature at the expense of the courts.

But one of the key architects of the law governing chief justice succession says the governor?s concerns are overblown.

Former Senator Ned Gordon of Bristol said the executive branch has lost very little authority over the courts.

And he says he believes the legislature has a role in shaping how the courts run.
03 101 ?clearly, the governor has the power to appoint judicial officers, and to appoint all the members of the supreme court, but as far as administrative powers are concerned, I certainly believe the legislature has the right to set limits on terms, and in particular, of the chief justice. 03 124

The special justices who heard the case now enter deliberations over it.

They will likely hold their discussions over several weeks, before issuing an opinion.