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Tuesday, October 2, 2012

Amendment risks separation of powers

Telegraph Editorial

Speaker Bill O’Brien and the N.H. House Republican leadership fashion themselves as intrepid apostles of conservative ideals, but sometimes, it’s difficult to make sense of what they truly believe in.

Case in point is the proposed amendment to the New Hampshire Constitution that would grant the Legislature final say over establishing rules and procedures for state courts. CACR 26 is a bald-faced legislative power grab that supplants a fundamental tenet on which this nation was founded – the separation of governmental powers. ...

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Speaker Bill O’Brien and the N.H. House Republican leadership fashion themselves as intrepid apostles of conservative ideals, but sometimes, it’s difficult to make sense of what they truly believe in.

Case in point is the proposed amendment to the New Hampshire Constitution that would grant the Legislature final say over establishing rules and procedures for state courts. CACR 26 is a bald-faced legislative power grab that supplants a fundamental tenet on which this nation was founded – the separation of governmental powers.

Here’s a short history refresher course. The framers of the U.S. Constitution were heavily influence by Age of Enlightenment philosophers who advocated strict separation of the executive, judicial and legislative branches of government to protect against the abuse of power of any one branch.

The notion that each branch of government should serve as a check and balance against the other two is as rooted in the DNA of the Constitution as is the belief in private property or freedom of speech or the right to bear arms.

Usually those who adhere to conservatives values ardently defend the Founding Fathers’ original intent. But apparently for backers of CACR 26, that’s an irrelevant consistency not to get in the way of more narrow-minded objectives.

CACR 26 was one of O‘Brien’s precious legislative projects of the 2012 session – one of several to seek to enhance the Legislature’s ability to bully those who dare challenge his quest to reshape state government.

It says that while the Supreme Court can create rules and procedures for the judicial branch of government, as it has always done, “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.” In other words, the Legislature would be the boss of the New Hampshire’s court system.

Opponents of the amendment make many strong arguments why it should be defeated by voters in this November’s election.

“Can you imagine how outraged the Legislature would be if the New Hampshire Supreme Court could make rules of procedure for the Legislature?,” Rep. Lucy Weber, D-Walpole, asked in a statement after the House vote.

“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,” wrote former New Hampshire Supreme Court justice Joseph Nadeau and former Gov. Steve Merril in a commentary published by The Telegraph in February. “Everyone, nevertheless, should be concerned about a legislative takeover of the courts, because political control of the judiciary is just not in the public interest.”

O’Brien was quick to pounce on a recent court ruling striking down a new voter registration law he pushed and now hopes will block out-of-state college students from ruining New Hampshire. Although for 40 years, courts have issued similar rulings, O’Brien dismissed the long record of legal precedence and accused the court of committing “judicial activism of the worst sort.”

It would be more accurate to describe CACR 26 as legislative activism of the worst sort.