For the third time in a decade, New Hampshire voters are being asked to approve a constitutional amendment that would give the legislature more power to regulate the Granite State's court system.
Question 2 on the Nov. 6 ballot would give lawmakers "concurrent power" with the state Supreme Court to establish judicial procedures, from how to file a lawsuit, to which cases are heard on appeal, to what evidence is admissible at trial.
According to the measure, known as CACR 26, legislative statutes would prevail over the courts' rules, unless the legislation was clearly prohibited by other provisions of the constitution. The proposed amendment requires a "Yes" vote from two-thirds of voters to pass.
Compared to Question 1 on this year's ballot, which would ban a tax on personal income, CACR 26 may seem arcane. After all, it's been more than 30 years since Part 2, Article 73-a, which authorizes the Supreme Court to govern its own affairs, was added to the constitution in 1978. And previous ballot measures that proposed to give lawmakers more authority to oversee the courts, in 2002 and 2004, were rejected by voters.
But Eugene Van Loan III, an attorney who specializes in constitutional law, says the amendment is needed to assure the "appropriate structure of government." The judiciary, he argues, has used the '78 amendment to claim "exclusive power" to decide how the courts will function.
"There was nothing wrong with that amendment as far as it went," he says. "It was the fact that the court thereafter took that ball and ran with it a little too far. That is why we need to clarify and restore things to the way they were and should be."
A Battle of Wills
But this year's court question comes at time when the relationship between the judiciary and the legislature is especially tense.
In June 2011, a coalition of conservative lawmakers was incensed when the Supreme Court ruled that HB 89, which would have forced Attorney General Michael Delaney to join other states in a lawsuit opposing the federal Patient Protection and Affordable Care Act, was unconstitutional.
In a resolution "repudiating" the decision, House Speaker Bill O'Brien said the ruling was "a further manifestation of the court’s demonstrated hostility to representative government and its propensity unconstitutionally to interfere with the political process...."
Not long after that dust-up, the newly created House Redress of Grievances Committee held a series of hearings dominated by long, angry testimonials from unhappy litigants in divorce and child-custody cases. The proceedings led the committee to recommend that several judges in the Superior Court's Family Division be investigated for impeachment.
One of the most vocal supporters of CACR 26 is Rep. Dan Itse, a Republican from Fremont, who has sponsored at least a half-dozen petitions heard by the redress committee, all of which were related to complaints with the Family Division.
At an Oct. 24 forum at Thomas Moore College, Itse, chair of the House Constitutional Review and Statutory Recodification Committee, argued that unelected judges are not only interpreting the law these days, but making it.
"They perceive their power to control their courts as beyond the reach of the people, and that is inherently dangerous to you," he said. "The proposed question on the ballot ... restores your power to control how your power is executed in the courts through your elected legislature."
Critics of CACR 26 — including the New Hampshire Bar Association, former Gov. Steve Merrill and two former Supreme Court Justices, Joseph Nadeau and John Broderick, now dean of the UNH School of Law — have seized on the rhetoric to accuse lawmakers of attempting to impose their political will on a co-equal branch of government.
They argue that CACR 26 would violate Part 1, Article 37 of the New Hampshire Constitution, which states that the legislative, executive and judicial branches "ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit...."
"Some members of the legislature truly believe the constitution makes the legislature supreme," says Bar President Lawrence A. Vogelman, a trial lawyer. "I disagree with them, but that's what some people think."
Opponents say that because the political balance of the legislature is subject to change every two years, granting lawmakers more power to oversee the courts could create confusion for lawyers, judges and citizens. Even small changes in established court practices and procedures could effect how the wheels of justice turn in New Hampshire, they argue.
Jaye Rancourt, a Manchester attorney who specializes in family law, says much of the anger with the courts, especially the Family Division, revolves around rules of appeal.
In divorce cases, for instance, judges sometimes waive rules of evidence and other procedures to accommodate litigants who represent themselves. While waiving a few rules makes the process easier and moves the proceedings along, it's often cited as grounds for an appeal.
The Supreme Court, the state's only appellate court, has a policy of mandatory appeal for many cases. But, under the court rules, post-divorces cases are not automatically accepted. Non-custodial parents, in particular, may find that unfair, Rancourt says, but mandatory review of every case would bring the Supreme Court to "a screaming halt."
"If every one of those cases had a mandatory appeal to that court, people may not get their appeals heard for years," she says. "If you're sitting in prison, you're not going to get your appeal heard. If you're appealing your final decree in a divorce case, you might have to wait years for resolution because there are too many appeals waiting."
But the biggest concern for opponents of CACR 26 is that legislators might use it to discipline or remove judges, who are appointed by the governor and have lifetime tenure, solely because of their decisions.
Legislators have the power to impeach judges or remove judges through a process called a Bill of Address, but only for judicial misconduct, such as bribery, corruption and malpractice.
In 2000, the House Judiciary Committee recommended the impeachment of Chief Justice David Brock for inappropriately intervening in two cases and for allowing other justices to comment on cases in which they had recused themselves. The House voted to impeach Brock, but he was acquitted by the Senate.
In 2006, House members, using a Bill of Address, tried to remove Superior Court Justice Kenneth R. McHugh for his ruling in a 1999 divorce case. The legislature's Joint Committee of Address rejected the effort, saying the process "should not be used as a means by which aggrieved litigants can express their disagreement or dissatisfaction with a single ruling in an isolated case."
The House again tried to use a Bill of Address, in 2010, to remove District Court Judge Lucinda Sadler for her decisions in a half dozen child support and custody cases. The joint committee again rejected the bill, concluding that Sadler's decisions were not "reasonable cause for removal” and more appropriately challenged through appeal.
Vogelman and other critics of CACR 26 say the House Redress of Grievances Committee, which had laid dormant for more than 100 years, gives lawmakers another path to removing judges because of unpopular rulings.
Indeed, the majority of the 28 petitions the committee considered were brought by individual litigants who were unhappy with the judges' decisions. Testimony was one-sided — none of the judges felt compelled to attend the hearings — and the rules of evidence fell somewhat short of accepted standards for fairness.
While none of the impeachment efforts succeeded, Vogelman says that's not the point.
"We're very lucky in New Hampshire in that absent very unusual circumstances, judges don't have to look over their shoulders and be accountable to the legislature for what they do," he says. "But any time time you inject politics into the court system, it can have an effect on cases."
A Balance of Power
But Eugene Van Loan III says the issue of who disciplines judges is a "red herring." The redress committee can hold as many hearings as it wants, he says, but they can't sanction judges because of their decisions.
"There are probably lots of legislators that would love to have that power," says Van Loan, a longtime proponent of restoring legislative oversight of the courts, "but this amendment is not going to give it to them."
He says opponents of CACR 26 are ignoring an important clause in the amendment's language: that legislative statute would only prevail over the court's rules when it doesn't conflict with other provisions of the constitution.
"That is critical," Van Loan says, "and the reason is, the court has very explicitly held that the judiciary has its own judicial conduct committee and the legislature cannot interfere with judicial discipline. Not because of any issue of rules, but because it is inherent in being a judge under our system of jurisprudence that you cannot be held to account for your decisions."
Van Loan, who characterizes the debate over CACR 26 as a "turf war," also rejects the idea that the amendment would have an effect on the outcome of individual cases. Rather, he says, there are legitimate public-policy considerations that justify giving the legislature more say in how the courts conduct their business.
Should the Supreme Court hear all appeals, or only those it considers worthy? Should the courts be open on weekends? Should the judicial branch be allowed to establish its own hiring and compensation policies, which for other government operations are determined by the legislature?
Van Loan says following the lead of elected officials in answering such questions would in no way effect the course of justice in New Hampshire or change how judges reach their decisions.
"I could come up with lots of good reasons for a Supreme Court rule, but the point is not a question of whether a particular rule is good or bad," he says. "It's who should decide what the rule should be."
But Jaye Rancourt and other critics of CACR 26 say the rancor from some House members over recent decisions makes them wary of giving lawmakers more power over the courts.
"Is the court system perfect? No," she says. "Are there things in the court system that could be changed and maybe could help the system work better for everyone. Yeah. But there are ways for us all to work together and make the changes that are necessary without the legislature taking over and trying to control it."