Chief Justice Brock explains below that the wording of constitutional amendments are sometimes modified when placed upon the ballot for the voter. The critical question is -- were the New Hampshire voters mislead as to the meaning of these amendments?

For example, was the ballot question presented to the voters in 1968 when amending Art. 6, Pt.I incomplete and misleading? Voters were asked to amend the Art. 6 "to remove obsolete sectarian references." Was that all that was being amended?

The original article had 280 words; the amended article has 134 words. The only sectarian language was the term "protestant" which was used once. What about the 145 other words that were eliminated without so much as a mention?

Was the public mislead into complacency thinking that only "obsolete language" was being removed? In fact, Article 6, Pt.I contains the basis of home rule for towns and parishes with respect to the hiring/firing of teachers, contracts with those teachers and the determination of the cost of education. Hardly an insignificant issue. This was so important to our founders that it was the reason many were willing to leave the security of Europe and venture into unknown and ultimately settle in New Hampshire. This article is at the very center of the Claremont controversy, yet few are willing to even discuss it.

I appreciate the opportunity to be here this morning to discuss the adoption of Part 2, Articles 72-a and 73-a of the New Hampshire Constitution.

This committee was established to examine the adoption of these amendments, and specifically to determine why the language of the amendments, which appears in the constitution, differs from the language of the ballot questions submitted to the voters.

This morning, I will discuss the procedures followed by the 1964 and 1974 Constitutional Conventions in adopting these amendments, and I will explain why the ballot questions placed before the voters differed from the constitutional provisions. I will also discuss the process followed by the Supreme Court in adopting rules, and the role of the Supreme Court's Advisory Committee on Rules. Finally, I will discuss the role of the legislature in court rulemaking.

Process of Amending the Constitution

For almost two hundred years, the only way to propose an amendment to the constitution was through a constitutional convention made up of delegates from throughout the state. It was not until 1964, that the constitution was amended to allow the legislature to propose amendments to the constitution. See N.H. Constitution, Part 2, Article 100.

The constitutional provisions that are being examined by this committee are the products of the 1964 and 1974 constitutional conventions. Journals of the 1964 and 1974 constitutional conventions, which record the daily activities of the convention and set forth the process followed by the conventions, are readily available. The journals show that the process followed by these conventions in proposing amendments to the constitution is quite similar to the process followed by the legislature today in considering a bill. A resolution proposing a specific change to the Constitution was introduced by an individual delegate. The resolution is then assigned to the appropriate committee for consideration, which makes a recommendation to the convention as to whether the amendment should be adopted. The entire convention then votes upon the committee's report. If the resolution is adopted by the convention, it is sent to the committees on Form and Style and Time and Mode, which makes recommendations as to the phrasing of the ballot question and the year in which the amendment should be voted on by our citizens. The entire convention votes on the recommendations of these committees as to the phrasing of the ballot question and the timing of the vote.

I understand that Secretary of State Gardner testified last week about the 1964 and 1974 conventions. I assume that he explained that at both conventions, the delegates to the convention voted upon both the specific language of the proposed constitutional changes and the specific language of the plain English questions to be presented to the voters. Although in some instances the ballot question may include the actual language of the proposed constitutional change, in many instances, it does not. The ballot question is intended to be a plain language summary of the proposed constitutional amendment. If you review the journal of the 1964 and 1974 conventions you will find numerous instances in which the language of the ballot question differs from the constitutional language.

An editorial in the Manchester Union Leader last week, while misrepresenting the testimony given before this committee by our Clerk of Court, irresponsibly suggests that the Supreme Court itself added language to Article 73-a after its adoption by the people. Nothing could be further from the truth. Nor is there any "mystery" to the process that was employed by the Constitutional Convention of 1974.

I will now discuss briefly the adoption of Part 2, Articles 72-a and 73-a, which relate to the judicial branch and I will leave any discussion about the adoption of Article 41, which relates to the power of the governor, to others.

Part 2, Article 72-a

Part 2, Article 72-a was recommended by the 1964 Constitutional Convention. It establishes the Supreme Court and Superior Court, as constitutional courts and authorizes the legislature to establish other lower courts in accordance with its authority under Part 2, Article 4 of the constitution.

The resolution to add Article 72-a was recommended by the 1963 Commission to Study the State Constitution. This commission was established before the Constitutional Convention to prepare for the convention and to recommend amendments to the constitution. The commission noted that historically the Supreme and Superior Courts had been subjected to numerous partisan political attacks, and recommended that the constitution be amended to provide that the judicial power of the state be specifically vested in the Supreme and Superior Courts and "such inferior courts as the legislature may establish."

After it was introduced, the resolution was referred to the Judicial Department Committee which recommended that the resolution be adopted with a minor change. Delegate William Craig of Manchester explained the resolution as follows:

The purpose of the resolution is to provide that the Supreme Court and the Superior Court systems as they now exist will become constitutional courts. In other words, the Supreme and Superior Courts, if this resolution becomes part of our Constitution, will no longer be able to be changed at the will or the whim of the General Court. This actually happened five times, I think, in the last century, when the Legislature saw fit, because of political reasons or other reasons that are less than desirable, to change the whole makeup of these courts and thereby legislate from office the judges who were members of the courts then in existence. . . . This is the feeling of the committee -- incidentally there were no opponents to this -- the proponents thought it was something that ought to be favorably received, because it is in keeping with the constitutional doctrine of separation of powers that exists in many state constitutions already and just insures and guarantees the integrity of the judiciary. . . .

See Journal of 1964 Constitutional Convention at 76.

The convention adopted the resolution, as amended, and referred it to the Joint Committee on Form and Style and Time and Mode. The Committee on Form and Style recommended a minor change to the proposed language. The convention then voted to recommend that the following amendment be added to the constitution:

[Art.] 72-a. [Supreme and Superior Courts.] The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2.

The Joint Committee then recommended that the proposed amendment be submitted to the voters in November 1966, and recommended the question to be put on the ballot be framed as follows:

Are you in favor of protecting the Supreme Court and the Superior Courts from possible political interference by establishing them as constitutional courts?

See Journal of 1964 Constitutional Convention at 308. The timing of the vote and the framing of the question were approved by the convention.

In November 1964, the voters approved the amendment by a vote of 84.69%.

Part 2, Article 73-a

Part 2, Article 73-a was a product of the 1974 Constitutional Convention. Article 73-a makes the Chief Justice of the Supreme Court the administrative head of the state courts. It authorizes the Chief Justice, with the concurrence of a majority of the Supreme Court justices, to make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts, and states that the rules so promulgated shall have the force and effect of law.

The resolution that eventually became Article 73-a (resolution no. 141) was introduced by delegate Maurice Geiger of Carroll County. After introduction, the resolution was sent to the Judicial Department Committee, which recommended an amendment to the resolution. (The committee believed that the original resolution, which stated that the chief justice was authorized to assign judges to temporary duty, and to appoint an administrative director was unnecessarily specific.)

When the Judicial Department Committee's report was considered by the convention, there was a discussion between Arthur Nighswander of the Judicial Department Committee and two delegates, one of whom was Martin Gross. Mr. Gross asked how the last sentence --"The rules so promulgated shall have the force and effect of law." -- affected the legislature's ability to provide by statute for court procedures. Mr. Nighswander responded:

It is my understanding that the courts now have rule-making power. The rules which they make for the orderly procedure within the courts are within the jurisdiction of the judiciary. All this does is to unify the place where the rules are promulgated; that is, in the Supreme Court. At the present time, for example, the Superior Court makes rules for themselves and then they submit them to the Supreme Court for approval. But I don't think it changes the general principle that the rules of court, as far as procedure is concerned, have the effect of law.

Del. Gross: Is my understanding correct that this amendment, if adopted, would not deprive the Legislature of its right that it presently has, to regulate court procedure by statute?

Del. Nighswander: I would think any power that they now have, they would still have.

See Journal of 1974 Constitutional Convention at 261-62. The convention voted to approve the resolution, as amended, which also included the specific language of the ballot question.

The ballot question was later amended at the recommendation of the Committee on Form and Style, and this amendment was approved by the convention. The Committee on Time and Mode recommended that the proposed amendment be submitted to the voters in November 1978.

Before the November 1978 election, a voters' guide was prepared, which summarized the effect of the proposed constitutional amendments. Resolution 141 was question number 4 on the ballot. It was described as follows:

IF THE AMENDMENT IS ADOPTED:

The chief justice of the supreme court shall be the administrative head of all the courts but not be able to make rules to improve the efficiency and administration of the courts unless the majority of the supreme court approves such rules. This amendment would make it clear that there is a unified court system in this State and that someone should be responsible for its efficiency and impartial administration of justice.

By the way, media as diverse as the Union Leader and Sunday News and Concord Monitor endorsed passage of the amendment, which they characterized as a housekeeping measure. See Sunday News, Sunday November 5, 1978 and Union Leader, Monday, November 6, 1978.

The proposed amendment was approved by the voters by a 69.25% vote (155,920 yes, 69244 no).

In summary, the public records relating to the 1964 and 1974 Constitutional Conventions confirm that the convention delegates approved both the language of the proposed constitutional amendments and the plain language ballot questions which described the proposed changes to the voters. The language of Articles 72-a and 73-a, which appears in the constitution today, is the language voted on by the delegates to the 1964 and 1974 conventions. No language has been added to the articles by the Supreme Court, or others.

Court's Rulemaking Authority

To aid the Supreme Court in its rule-making authority under Part 2, Article 73-a, the court adopted Supreme Court Rule 51 in 1984. That rule spells out the court's rule-making procedures. Pursuant to it the court appoints a nine-member advisory committee on rules. The committee consists of four judges, one each from the supreme, superior, district, and probate courts; two attorneys; two public members; and a clerk of court. The judges on the committee are Justice Horton from the Supreme Court, who is also chair of the committee; Chief Justice Nadeau from the superior court; Judge Robert Cullinane from the district court; and Administrative Judge John Maher from the probate court. The two lawyers are Jack Middleton and Emily Rice. Currently, there is only one public member, Alice Guay of Concord. Henry Goode, former director of the legislative budget office, who like Alice Guay was a charter member of the committee, died earlier this year. A new lay member has yet to be appointed. Finally, the court clerk on the committee is Ray Taylor from the Rockingham County Superior Court.

The advisory committee is charged with receiving suggestions and proposed rules from courts, judges, the bar, and the public. It must ensure that the public, the bench, and the bar have an opportunity to comment upon matters before it. It does this by holding public hearings. Following public hearings, the committee submits proposed rules to the Supreme Court. At that point, there is further chance for public comment since the court gives notice of the proposed rules and asks for comment before acting on the proposals. In most circumstances, no public hearing is held before the court; however, in matters of unusual importance, such as occurred in the proposed rules of civil procedure, oral argument before the full court does take place.

Examples of rules that have recently been before the court include rules governing written interrogatories in the district court, the procedure for filing motions for summary judgment, what occurs after a court enters a final default, and how many copies of briefs must be filed in the Supreme Court. As you can see all of the above examples deal with the procedure governing a case in our court system. That is the heart of the court's rule-making authority. As stated in Part 2, Article 73-a, the court's authority is to "make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts."

The court's best discussion of the extent of its authority to adopt rules under Part 2, Article 73-a, occurred last year in an Opinion of the Justices dealing with prior sexual assault evidence. I believe Mr. Zibel referred the committee to this opinion last week. In its opinion, the court first discusses the doctrine of separation of powers. The court stated:

Despite the explicit constitutional language concerning separation of powers in our State, we have always recognized that the doctrine does not require an absolute division of powers, but a cooperative accommodation among the three branches of government.

Moving on to the question of authority over court rules, the court wrote:

Under the separation of powers doctrine, the legislature has a limited appropriate role to act on court rules; the basic analysis applied to determine whether legislative action is appropriate on judicial rules involves the distinction between substance and procedure.

We then went on to adopt a test to determine what is substantive law, which is within the domain of the legislature, and what is procedural, which is within the court's rule-making authority. The test which the court adopted "defines the rights and duties which people live by as substantive, whereas procedure defines the method by which those rights are enforced." Defining this dichotomy even further, the court noted:

Substantive laws are those laws which have for their purpose to determine the rights and duties of the individual and to regulate his conduct and relation with the government and other individuals. Procedural laws are those laws which have for their purpose to prescribe machinery and methods to be employed in enforcing these positive provisions.

Court Challenges to Plain English Questions

There have been a number of cases in which a constitutional amendment was challenged on the basis that the question did not fairly summarize the proposed change.

In Concrete, Inc. v. Rheaume Builders, 101 N.H. 59 (1957), a question arose as to whether a 1956 amendment to the constitution, which abolished the right to a trial by jury except when the amount in controversy exceeded $500, was valid. Prior to the amendment, Part 1, Article 20 guaranteed the right to a jury trial when the amount in controversy exceeded $100. The plaintiff claimed that the 1956 amendment was invalid because the question presented to the voters was misleading. The question put to the voters was:

"Are you in favor of preserving the right of trial by jury in civil causes in which the value of the controversy exceeds five hundred dollars?"

The Supreme Court said that, in determining the validity of the amendment, "every reasonable presumption, both of law and fact, is to be indulged in favor of the validity of an amendment to the Constitution when it is attacked after its ratification by the people, and that its unconstitutionality should not be declared except upon 'inescapable grounds.'" 101 N.H. at 60-61. The question presented to the voters need not inform them of the details or full import of the proposed amendment. "It is sufficient if it gives the ordinary person a clear idea of what he is voting for or against." Id. Although amicus curiae argued, based on evidence of the circumstances surrounding the vote, that the electorate understood that it was abolishing the right to a jury trial in cases where the amount in controversy was between $100 and $500, the court said that it would not "give to a vote of the people a meaning not expressed nor reasonably to be implied from its terms." The court concluded that the question presented to the voters could not be construed to mean that the electorate amended the constitution to abolish the right to trial by jury in civil causes in which the value in controversy exceeded $100 but was less than $500, and ruled that the constitution was not lawfully amended by the vote.

In contrast, in Opinion of the Justices, 101 N.H. 541 (1957), the court concluded that an amendment to Part 2, Article 49, which gave the governor authority to transact business while absent from the state on official business, was validly adopted. The ballot question was: "Are you in favor of permitting the Governor, while absent from the state on official business, to have the power and authority to transact such business?" The court ruled that the ballot question was clearly presented to the voters, and, therefore, that the amendment was validly adopted.

In Gerber v. King, 107 N.H. 495 (1967), a voter challenged amendments to several constitutional provisions relating to legislative sessions and mileage payments. The voter contended that the question submitted to the voters incorrectly stated the effect of the proposed amendments and failed to give the voters an accurate idea of the question to be voted on. The question presented to the voters was: "Do you favor having the legislature meet in two annual sessions with a total limit of ninety days but no limit on time of adjournment?" The court concluded that the question was misleading in two respects: it failed to disclose that the limit referred to was a limit of ninety legislative days, and it conveyed the idea that a new limit would be imposed on the length of two annual sessions when, in fact, the limit would apply to mileage payments only. Accordingly, the court held that the proposed amendments were not effectively approved by the voters. (The court ruled that the portion of the question dealing with the time of adjournment was effective, however.)

Court Challenges to Part 2, Article 73-a

In fact, Part 2, Article 73-a, has been challenged in court on the ground that the question submitted to voters on November 7, 1978, did not make reference to or include the final sentence, which states, "The rules so promulgated shall have the force and effect of law." The case is Richard P. Bosa, Karen Artzt, and Charles Johnson v. Stephen Merrill, Governor, and William M. Gardner and was brought in 1993 in the Coos County Superior Court. Mr. Zibel gave the committee a copy of Judge Fauver's opinion last week. Judge Fauver found that a court had the power to make rules governing practice and procedure under the "administration of justice" provision of Part 1, Article 35, which was a part of the original 1784 constitution. Therefore, he concluded that Part 2, Article 73-a does not add to the powers of the judicial branch -- it merely reapportions power within the judiciary. In other words, before 73-a each court had rule-making authority. Part 2, Article 73-a merely moved that power to the supreme court. Finally, Judge Fauver stated that court rules "have always had the `force and effect of law.'" As a result, he found the last sentence of Article 73-a to be "merely rhetorical." The plaintiffs' suit was dismissed.

The plaintiffs appealed Judge Fauver's determination. Judge Fauver's decision was summarily affirmed in accordance with our Rule 25(1)(a), which means that no substantial question of law is presented by the appeal, and the court does not disagree with the result. In accordance with our screening process for appeals, all five justices had to review the appeal and agree with the Rule 25(1)(a) summary affirmance. In addition, the plaintiffs filed a motion for reconsideration. Such motions are reviewed by the full court at a court conference. The motion was denied.