The Legislature must reestablish its place above the courts

While many in Concord are clamoring over language for an educational-funding constitutional amendment (CACR 12), what’s being lost in the final debate of the 2011-2012 session is a constitutional amendment proposal far more important to the people of New Hampshire as they work to regain control of their government.

CACR 26, a constitutional amendment proposal that would remove the Chief Justice of the Supreme Court’s rule-making authority by repealing Part 2, Article 73-a of the constitution, is probably the most important effort still up for consideration this year. By passing CACR 26 and repealing Article 73-a, the Legislature, which is directly elected by the people each biennium, would regain sole authority to write the laws, rules and general policies of the state as our founders intended.

Since 1978, when Article 73-a was adopted under a description of the measure that called it a “housekeeping effort,” the language has given the Supreme Court the power to write court rules that have “the force and effect of law.” This language has severely upset the balance of powers in government to the benefit of the unelected five-member Supreme Court. Since 1978, the court has been using the language of Article 73-a to order the Legislature and the people of this state around, in effect creating the likes of an old-world oligarchy.

Making this analogy far too real is the language in Article 73-a that says the Chief Justice of the N.H. Supreme Court is “the administrative head of all the courts.” Because the Legislature is known in the Constitution as the “General Court,” some have interpreted Article 73-a as a constitutional change that gives the Supreme Court and the other courts it controls unrestrained authority over the Legislature, and by extension, the people. Such an understanding is intolerable in a free Constitutional Republic and it is also inconsistent with the rest of the N.H. Constitution, which makes CACR 26 that much more important to pass.

The court originally advocated for Article 73-a as a way to control the internal procedures of the courtroom, but it has since used the language to go much further than that.

Article 73-a is the language that has given the court hubris to think that it can legislate from the bench, such as it did with the Claremont decisions in the 1990s when it said that the constitution’s imperative that individual “legislators… cherish … public education” means that the Legislature must define and fund an adequate education. CACR 26 would put the court back in its place as an interpreter of law for individual cases—its traditional role—and not as a definer of the constitution and law that must be applied in all situations—a power it has stripped from the Legislature.

The family court has perhaps the longest history of apparent abuses of the constitutional language. The court has used its rules, including a particular rule that allows all court rules to be waived, in cases where it has ordered children removed from fit parents on mere accusations without a finding of abuse or neglect or due process of law. Some parents have been separated from their children for months or even years, and because the courts are the only way to get their children back, they live with the injustice with no recourse.

District court judges have used court rules to throw citizens in jail for contempt on minor decorum issues, and they have used their office to send journalists to jail for simply asking questions about their decisions.

Just last year, a Superior Court judge used court rules to prevent two innocent citizens who were not accused of any crime from engaging in a legal activity or face the penalty of contempt of court, which would have resulted in jail time. The same judge also ordered the citizens to post his order on a Web site, a violation of their free speech rights.

By passing CACR 26 and repealing the court’s rule-making authority, the people of New Hampshire would be restoring the Legislature’s authority to pass statutory laws governing court administration. Currently, under RSA 541-A, the Legislature already governs how Executive Branch rules can be made. It should do the same for Judicial Branch rules. This change would restore the balance of powers as well as the independence of the three branches of government. But more important than that, by passing CACR 26, the people would be restoring their own role as self governors through their elected representatives and senators in the Legislature.

Carolyn McKinney is the Chairman of the Republican Liberty Caucus of New Hampshire.

Author: Carolyn McKinney

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