Judicial Censure

(Resolution 141) As it appeared on the voter ballot in 1978:

Are you in favor of amending the Constitution to provide that 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.

Ballot results:
YES	NO		Percentage		Position
155,920	69,244		69.25%		Adopted

The resulting article in the NH constitution:

Art. 73-a. Pt. II [Supreme Court, Administration.] 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.

November 22, 1978

Do you notice the discrepancy between the measure that people voted upon and the resulting article? This is an entirely new article in 1978, not an amended article.

No one has bothered to tell the people who actually wrote the last sentence of their constitutional article. To whom does the credit go?

Coincidentally, did you ever wonder why there has been no public outcry over the Claremont decisions by the lawyers of New Hampshire? Shouldn't they be our first line of defense as they are supposed to understand the language of the court better than the average lay person?

Could it be that the lawyers are afraid of the censure of the Court? Could that be the explanation for the Rasputin letters? Could it be that the Court could remove their license to practice law in this State, or even worse?

Justice Brock scolded the lawyers in his "State of the Judiciary" speech this January, saying that they should defend the Court's decisions.

Justice David Brock:

"Recent public commentary describes judges of the New Hampshire Supreme Court as tyrannical and at least one of their decisions as illegitimate.

"Such criticism is dangerous in a free society for it will erode public respect for and confidence in the judicial system and the rule of law, which are the foundation of our society.

"When the court is interpreting our Constitution ... it is performing the essence of the judicial function interpreting the law. Criticizing that interpretation is healthy for, and a part of, a democratic society. What is not appropriate ... is miscasting the judicial role as tyrannical or illegitimate.

"I would encourage you to explain the role of the courts and the importance of the rule of law whenever you believe that the courts are being unfairly criticized."

Yet legislators still are deferring to the wisdom of these censored lawyers. They are asking the Attorney General's office and constitutional "experts" whether or not the proposals meet the requirements of the Court.

Anectodally, I spoke with two lawyers this week: one a practicing lawyer, one not. There was a world of difference in their candor on the subject. The practicing lawyer would volunteer no statement one way or the other on the constitutionality of the Court's action. The non-practicing one was blunt: an unequivocable violation of separation of powers.

Seems to me that asking the typical practicing lawyer's opinion may be a complete waste of time. There may be some atypical ones out there, but it takes more than ordinary fortitude to risk one's livelihood for any cause.

New Hampshire Politics

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