Carolyn McKinney - Restore the people’s oversight over their court system

By Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire
As voters, it’s troubling to watch a Legislature act against the people’s best interest in times of economic distress by raising tax after tax or fee after fee to pay for unrealistic increases to public employees’ salaries or benefits, or to grant special-interest requests without regard to their need or effectiveness. Such was the case during the 2007-2010 period when Democrats controlled the N.H. Legislature and governor’s office.

Yet, in our system of government, the people have control over how the government spends their money, and voters overwhelmingly rejected the Democrat’s spend-then-tax agenda when they elected a Republican Legislature in 2010. Republican representatives and senators, answering the people’s call to create the proper conditions for economic growth, promptly cleaned up as much of the mess as they could within a two-year period by cutting spending, lowering taxes and fees, and saying “no” to those special interests.

Unfortunately, since 1978 when the Legislature and the people were duped into passing Article 73-a to the N.H. Constitution, the people have not had similar oversight over their court system, which now has the autonomy to write its own rules that have “the force and effect of law.” Many people perceive this constitutional language to be minor—affecting only how the courts run their courtrooms—but they are wrong.

The courts have used the 1978 change to control the behavior of the Legislature, the Executive, and innocent, law-abiding citizens, both inside and outside the courtroom. Because of Article 73-a, the courts have assumed a role that the “separation of powers” clause previously reserved for the elected Legislature. As a result, and because of complacent legislative and executive officials, the court has become an unaccountable and arbitrary power unto itself, which is the exact type of government that our constitution was supposed to prevent.

Article 73-a is the language that gave the Supreme Court hubris to think it could legislate from the bench, such as it did with the Claremont decisions in the 1990s when it said that the constitution’s imperative that individual “legislators… cherish … public education” means that the Legislature must define and fund an adequate education.

Under 73-a, the family court has used its rules, including a particular rule that allows all court rules to be waived, in cases where it has ordered children removed from fit parents on mere accusations from third parties. By waiving rules, these courts have admitted hearsay evidence and used it to make a decision without a finding of abuse or neglect or any due process of law.

District court judges have used court rules to throw citizens in jail for contempt on minor decorum issues, and they have used their office to send journalists to jail for simply asking questions about their decisions. Just last year, a Superior Court judge used court rules to prevent two innocent citizens who were not accused of any crime from engaging in a legal activity. He also ordered the citizens to post his ruling on their Web site. Had they disobeyed, the judge threatened to imprison them on charges of contempt of court.

Thankfully, the Republican Legislature that the people elected to correct the wrongs of the previous Democratic Legislature also passed a constitutional fix that will give the people oversight over their court system again. Upon passage of Question Two on the Nov. 6 ballot, the people will restore some checks and balances to their judicial branch.

The change to Article 73-a will make sure that the laws passed by the Legislature are superior to court rules, as they should be. The amendment will put the court back in its place as an interpreter of law for individual cases and not as the policy maker that explains how the law must be applied in all situations—that is a power reserved for the people’s Legislature alone.

When the powers of government are balanced and held in check by one another, there is a greater chance that no branch of government will grow too strong or powerful, and that the people will remain free.

Article 73-a made the courts untouchable, and the people lost control of their government as a result. Question Two on the Nov. 6 ballot will restore the balance of powers by making the court accountable to the laws passed by the Legislature. The people, who elect their legislators, will once more have necessary oversight over all three branches of their government.