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CACR 26: We need to keep those ‘Checks and Balances’

On election day, Granite Staters will not only choose who will lead us for the next few years, we will also vote on proposed changes to the New Hampshire Constitution.

One of those constitutional amendments, CACR 26, would give the Legislature direct control over all operations of the Judicial Branch.  Think about that for a minute. Remember all the horse-trading and last-minute surprises that happen every budget season.  Do we really want the Legislature writing the Court’s Rules?

  • Do we want the Legislature deciding what to tell juries about the burden of proof, and what constitutes “reasonable doubt”?
  • Do we want the Legislature to decide Rules of Evidence such as whether the jury can rely on hearsay; whether the jury can hear testimony that is irrelevant but prejudicial; whether a lawyer, spouse or ordained minister can be compelled to testify?
  • Do we want the Legislature involved in the process of setting bail?
  • Do we want the Legislature telling courts how to treat victims of child abuse?

CACR 26 would take New Hampshire on a voyage to a strange new world, where the Legislature has direct control of the Judiciary.  Where Court Rules would likely change every two years, depending on who is elected House Speaker and Senate President, and who gets named to the Judiciary Committee.  Where the branch of government that is supposed to protect our rights – supposed to protect us from Legislative excesses – would be run by the very politicians that we need to be protected against.

It would be the fox guarding the hen house.

Except in this case, New Hampshire citizens would be the hens.  Do we really want to trust the Legislature to protect us from laws that trample on our constitutional rights?

This brainstorm may have come from Bill O’Brien’s leadership team, but that doesn’t mean it’s actually a “conservative” idea.  Pick whatever politician you hate – Democrat or Republican – and then imagine that politician is in charge of the New Hampshire court system.  Now, imagine that you are a prisoner awaiting trial, or a divorced parent waiting for a custody decision, or a small business owner who is being sued by a customer, or an injured worker trying to get your employer to pay your medical bills.  If that politician you hate has control of the Judicial Branch, how many different ways could he (or she) keep you from getting the justice you deserve?

There is no limit to the different ways the Legislature could muck up New Hampshire’s court system, if we give them that power through CACR 26.

And then two years and another election later, the other political party could take control of the Legislature and ramrod through a set of changes in exactly the opposite direction.

As John Broderick, the former Chief Justice of the New Hampshire Supreme Court, told the Union Leader,

[the original framers of the Constitution] 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.

[J]udicial 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.

As former Governor Steve Merrill and former New Hampshire Supreme Court Justice Joseph Nadeau told the NH Bar Association,

oversight of [Court] rules is oversight of administrative activities. And there is no place in a constitutional democracy for legislative intervention of the judicial branch. Political oversight of courts existed in dictatorships of Eastern Europe, Southeast Asia, and the former Russian Republics before they embraced democracy. We all know that resulted in judicial systems without independence, and without equal access or impartial justice.

If you’re a Democrat, imagine that the Republicans would be deciding Court Rules.

If you’re a Republican, imagine that the Democrats would be deciding Court Rules.

Either way, it’s probably not a very comfortable picture – especially if you end up looking to the court system for justice or to protect your rights.

In the case of CACR 26, the “conservative” vote is to keep our Constitution just the way it is.  The system of checks and balances between the Legislature and the Court system has worked for the past two centuries.  It’s protected our rights through Republican-led Legislatures – and sessions when the Democrats were in control.

Giving the Legislature control of the Court system wouldn’t work.  Maintaining the “balance of power” between branches of the government does.


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