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Sunday, October 14, 2012

Broderick/Friedman: Lawmakers infringing upon courts with CACR 26

Guest Commentary

New Hampshire may claim the first written constitution in the United States, adopted in 1776. That constitution was designed for the needs of the time and contained none of the elements one would expect to find in a modern constitution – no independent executive branch, no bill of rights, and no provision for an independent judiciary or separation of powers.

The constitution adopted in 1784 corrected these deficiencies. When the people ratified that constitution, they committed themselves to a republican form of government, with authority separated and divided among three branches of government. The constitution of 1784 has proved a model of stability among the constitutions of the United States. ...

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New Hampshire may claim the first written constitution in the United States, adopted in 1776. That constitution was designed for the needs of the time and contained none of the elements one would expect to find in a modern constitution – no independent executive branch, no bill of rights, and no provision for an independent judiciary or separation of powers.

The constitution adopted in 1784 corrected these deficiencies. When the people ratified that constitution, they committed themselves to a republican form of government, with authority separated and divided among three branches of government. The constitution of 1784 has proved a model of stability among the constitutions of the United States.

The framers of the 1784 constitution created a permanent and independent judicial branch, for they recognized that the preservation of individual rights could only be secured, as stated in Part I, Article 35, by the “impartial interpretation of the laws, and administration of justice.”

This protection is in stark contrast to the original 1776 constitution, under which the Legislature had the authority to appoint judges and to remove them at will. Indeed, the Legislature often would fill vacancies from among its own members, who would then serve as both legislators and judges.

Despite the textual promise of judicial independence, the relationship between the Legislature and the judiciary was still fraught. The Legislature continued to take an active role in regulating the court system, from adjoining court sessions to voiding the judgments of the state’s highest court.

For example, as the historian John Phillip Reid has noted, “of the six statutes published as Sessions Laws for June 1797, five had to do with regulating the courts.” It was not until 1818 – a generation after the American Revolution – that popular and political attitudes toward the judiciary began to change.

In that year, the Supreme Court decided Merrill v. Sherburne, in which it concluded the Legislature had exceeded its authority when it granted a new trial to an unhappy litigant in a probate dispute. The court affirmed the importance of an independent judiciary, “distinct from the legislative department,” which could “operate as a check upon the latter, and as a safeguard to the people against its mistakes or encroachments.”

Merrill signaled a turn in the relationship between the courts and the Legislature in New Hampshire, one that honored the framers’ desire to establish an independent judiciary.

A century and a half later, in 1978, the independence of the judicial branch was confirmed with the adoption of Part 2, Article 73-a. That amendment authorizes the Supreme Court to regulate practice and procedure in the state’s courts.

This year, another constitutional amendment has been proposed – CACR 26 – which would modify Part 2, Article 73-a to give the Legislature concurrent power to regulate practice and procedure in the courts, with the statute prevailing over the court’s rule in the event of a conflict between the two.

This proposed amendment represents a step backward. The framers sought to protect the separation of governmental powers because they had lived under regimes that respected no dividing lines, when the Legislature could invade the province of the judiciary for purely partisan reasons or, perhaps, without any reason at all.

While the amendment proposed in CACR 26 would not return New Hampshire to the days before Merrill, it would undermine the constitutional promise in Part I, Article 37 that the legislative, executive and judicial powers should “be kept as separate from, and independent of, each other, as the nature of a free government will admit.”

It is good to remember, after all, that judicial independence is not just about keeping the Legislature in check, as important as that is. It is also about fulfilling the constitutional guarantee to each citizen that the courts will act impartially and free from the influence of political interests.

Politics is essential and important in American life, as it should be. But it should have no role inside our courthouses. History shows how the Legislature has undermined the ability of the courts to that in the past and why the people of New Hampshire should vote “No” on CACR 26.

John T. Broderick was chief justice of the New Hampshire Supreme Court from 2004-10. Lawrence Friedman is a professor of constitutional law at New England School of Law and at work on a book about the New Hampshire Constitution.