NH passes CACR26 granting legislature concurrent power over state court administration
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June 14, 2012
Concord, New Hampshire: On Wednesday, June 6, the New Hampshire House of Representatives passed CACR 26 with a 7 vote difference. The bill would alter the wording of the state constitution with regard to the separation of powers between the legislature and the courts. The current constitution states:
"The chief justice of the Supreme Court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the Supreme Court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law."[1]
The proposed change would also include:
"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."[1]
The current formulation was adopted in 1978 to rest power in the New Hampshire Supreme Court and eliminate the problems associated with judges across the state establishing independent administrative procedures. However, sponsors of CACR 26 argue that the amendment in 1978 shifted the balance of power overwhelmingly in the courts favor and away from where it was meant to reside, in the legislature. However, critics of the bill argue that it would fundamentally destroy the autonomy of the courts and violate the original admonition of the constitution which states:
"In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."[1]
The Resolution must still pass the state senate and be approved by the governor.
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