On November 2nd this year, New Hampshire voters will be asked to vote on whether to give the power of administration of the Courts to the legislature. Here is the language from the proposed statute: “The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.”
The New Hampshire Bar Association has come out in complete opposition to the rule, as noted on their website here. There is a significant danger of giving the power of administration over to the Courts to a legislature that does not have the wherewithal nor the knowledge to administer it. Stephen Merrill and Honorable Joseph P. Nadeau wrote an article that demonstrates the risks this rule poses to the New Hampshire Court system and the citizens that have to navigate that system every day. They write: “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. As Justice Sandra Day O’Connor noted, “The framers of the Constitution were so clear in the federalist papers and elsewhere that they felt an independent judiciary was critical to the success of the nation.” We agree.”
They go on to address what the legislature has said they truly want to do, which is to control the Courts. They write: “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. We are compelled to speak out and say, “No”.” Stephen Merrill was Governor of New Hampshire from 1993 to 1997 and is a former New Hampshire Attorney General. Honorable Joseph Nadeau is a retired justice of the New Hampshire Supreme Court. These are people that understand the issues facing our Court system in New Hampshire as they have spent their lives actively participating in it.
Over the past few years, our clients here at Parnell & McKay continue to be frustrated by the time they have to wait to get their case heard, and the difficulty in getting an efficient resolution. Allowing the legislature to wrest control of the Court system in New Hampshire away from the courts themselves is an extremely risky proposition, as former Chief Justice of the New Hampshire Supreme Court, and current Dean of the UNH Law School, states in this article opposing the statute. In fact, former Chief Justice Broderick calls it a “very dangerous thing.”