February 14, 2001


Honorable James W. Craig
House Judiciary Committee
Room 208, LOB
Concord, New Hampshire 03301

Honorable Phyllis L. Woods
House Judiciary Committee
Room 208, LOB
Concord, New Hampshire 03301

RE:     CACR 4, relating to the administrative head of the courts

CACR 5, the rule-making authority of the Supreme Court

Dear Representatives Craig and Woods:

We understand that CACR 4, to repeal part II, article 73-a of the New Hampshire Constitution, and CACR 5, to amend the same provision, have been referred to your subcommittee. We appreciate your invitation to express our views prior to your work session.

As you know, a decision to amend the state constitution is a serious one. A constitutional amendment alters fundamental principles of self-government and should be undertaken when it is the only available solution to a clearly identified problem. As justices, we believe that it is unwise and unnecessary to repeal or amend 73-a.

It should be noted that part II, article 73-a was recommended by the 1974 Constitutional Convention and then overwhelmingly approved by almost 70 percent of the voters in 1978. The purpose of that amendment was to make it clear that the chief justice of the Supreme Court was the administrative head of the judicial branch and to authorize the chief justice, with the concurrence of a majority of Supreme Court justices, to make rules regarding the administration of the courts and the practice and procedure to be followed in the courts.

The plain language of 73-a limits the court’s authority to these areas. Almost 20 years later, in 1997, the justices addressed the issue when the legislature asked the court about the constitutionality of a proposed statute to allow evidence of a defendant’s prior sexual offenses at trial. In its response to the Senate, the court recognized that the creation of substantive law - the rights and duties that people live by - is the job of the legislature. Procedural rule-making, including that which is intended to protect and enforce those rights, lies with the court. As the justices made clear in their opinion, part II, article 73-a preserves this important distinction.

Those separate roles do not in any way diminish the law-making power of the people’s elected representatives in the legislature. Rule-making, as defined in part II, article 73-a, relates to regulating the practice and procedure in the courts. The court is not in the business of using its constitutional rule-making power to make substantive law. It is, however, a fundamental principle of the separation of powers that when called upon, the court must determine the constitutionality of statutes.

But neither that principle, nor the court’s rule-making authority under 73-a, precludes the legislature from enacting statutes which may in some way affect the administrative operation of the courts. Nor does it mean that the court has granted itself the unrestrained authority to "trump" any action the legislature takes.

One suggestion that has been made, and which we support, would be to increase legislative involvement in court rule-making by adding members from the House and Senate to the Advisory Committee on Rules. Under the current rules, there are existing provisions designed to provide public and legislative input into the rule-making process. There are already two non-lawyers on the committee, copies of proposed rules changes are sent to Senate and House leadership and public comment is solicited. We believe, however, that legislative membership on the committee would be a valuable addition that would promote cooperation between the branches, in the best interests of the people of New Hampshire.

In the more than two decades since the adoption of part II, article 73-a, there have been few instances in which a law adopted by the legislature conflicted with a rule adopted by the Supreme Court. In those instances where there is a disagreement between the branches on an issue affecting the court's procedure, we believe the best path is to make every effort to work cooperatively to resolve our differences.

Thank you for the opportunity to express our concerns about these proposals.

Respectfully submitted,

New Hampshire Supreme Court