Carolyn McKinney - The Legislature must reestablish its place above the courts

While many in Concord are clamoring over language for an educational-funding constitutional amendment (CACR 12), what's being lost in the final debate of the 2011-2012 session is a constitutional amendment proposal far more important to the people of New Hampshire as they work to regain control of their government.

CACR 26, a constitutional amendment proposal that would remove the Chief Justice of the Supreme Court's rule-making authority by repealing Part 2, Article 73-a of the constitution, is probably the most important effort still up for consideration this year. By passing CACR 26 and repealing Article 73-a, the Legislature, which is directly elected by the people each biennium, would regain sole authority to write the laws, rules and general policies of the state as our founders intended.

Since 1978, when Article 73-a was adopted under a description of the measure that called it a “housekeeping effort,” the language has given the Supreme Court the power to write court rules that have “the force and effect of law.” This language has severely upset the balance of powers in government to the benefit of the unelected five-member Supreme Court. Since 1978, the court has been using the language of Article 73-a to order the Legislature and the people of this state around, in effect creating the likes of an old-world oligarchy.

Making this analogy far too real is the language in Article 73-a that says the Chief Justice of the N.H. Supreme Court is “the administrative head of all the courts." Because the Legislature is known in the Constitution as the "General Court," some have interpreted Article 73-a as a constitutional change that gives the Supreme Court and the other courts it controls unrestrained authority over the Legislature, and by extension, the people. Such an understanding is intolerable in a free Constitutional Republic and it is also inconsistent with the rest of the N.H. Constitution, which makes CACR 26 that much more important to pass.

The court originally advocated for Article 73-a as a way to control the internal procedures of the courtroom, but it has since used the language to go much further than that.

Article 73-a is the language that has given the court hubris to think that it can 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. CACR 26 would put the court back in its place as an interpreter of law for individual cases—its traditional role—and not as a definer of the constitution and law that must be applied in all situations—a power it has stripped from the Legislature.

The family court has perhaps the longest history of apparent abuses of the constitutional language. The 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 without a finding of abuse or neglect or due process of law. Some parents have been separated from their children for months or even years, and because the courts are the only way to get their children back, they live with the injustice with no recourse.

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 or face the penalty of contempt of court, which would have resulted in jail time. The same judge also ordered the citizens to post his order on a Web site, a violation of their free speech rights.

By passing CACR 26 and repealing the court's rule-making authority, the people of New Hampshire would be restoring the Legislature's authority to pass statutory laws governing court administration. Currently, under RSA 541-A, the Legislature already governs how Executive Branch rules can be made. It should do the same for Judicial Branch rules. This change would restore the balance of powers as well as the independence of the three branches of government. But more important than that, by passing CACR 26, the people would be restoring their own role as self governors through their elected representatives and senators in the Legislature.

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Carolyn McKinney, chairman of the Republican Liberty Caucus of New Hampshire.

Response to Mosca Op-Ed Piece on Redistricting

Rep. Steve Vaillancourt, Hills 15

I disagree with your charge against John Lynch, namely that he won't accept a fair redistricting plan. I'd be willing to bet that he'll sign the reasonable plan the new House and Senate send him.  No matter what I might think of John Lynch overall, I'd hardly call him "viscerally partisan". The problem ten years ago was not really Jeanne Shaheen, IT WAS ONE PETER BURLING who managed to do something unreasonable.  Redistricting is not a major problm.  The main contention ten years ago was over two districts in the smallest counties in the state:  what to do with Northumberland in Coos, and what to do in Sullivan where the feud between Burling and Bev Rodeschin led to a heated controversy.  The other thing was that some wanted 400 single member districts, not constitutionally feasible since only towns and cities can split themselves up into units which would be 400 single districts.  That's never gonna happen.

Having orchestrated the House plan veto, Burling had set in motion the veto for the Senate plan which seemed perfectly acceptable to me....it was Burling playing politics.

You say the Supreme Court "took it upon itself" which isn't exactly the way I'd phrase it.  Instead, I'd say the Supreme Court was forced to step in to fill a void...there was no plan which had passed both Houses and been signed by the Governor.  Since the legislature has traditionally done its redistricing in the form of a law, the Governor's signature has always been required.  I don't buy the argument that the governor should not be able to exercise veto power...practice and tradition is that the governor has signed the redistricing bills.  To malign the court for stepping in is not helpful.  Of course, one can easily malign the plan its high priced numbers cruncher came up with.  Just as a prime example, the way Manchester was split up was absurb!  And I'd contend that the Court actually broke the Constitution with its Senate plan by creating districts (expecially the Nashua area) which defied the one man, one vote principle.  Of course, who's going to say the Surpeme Court acted unconstitutionally?

For sure, a knowledge of history is a good thing.  But we must remember correctly; I thnik you fail to do so.  Blame BURLING for the fiasco ten years ago and without such a bull-headed partisan, I don't expect we'll have similar problems this cycle.

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From: Ed Mosca [mailto:edmosca@comcast.net]
Sent: Thu 10/14/2010 3:05 PM
To: Ed Mosca
Subject: PREVENT THE JUDICIAL GERRYMANDER

YET ANOTHER GOOD REASON WHY EVERY CONSERVATIVE

SHOULD BE WORKING

HIS OR HER BUTT OFF TO ELECT JOHN STEPHEN

            Those who cannot remember the past are condemned to repeat it, so let’s think back to 2001.  Then Governor Jeanne Shaheen vetoed the Legislature’s plan to reapportion the House and Senate, and the State Supreme Court then took it upon itself to redistrict the State. 

            The result was a judicial gerrymander for the ages.  Quoting from the far-left “Blue Hampshire” website: “Ten Senate districts lean Democratic, led by three overwhelmingly Democratic districts: District 5 (Hanover and Lebanon area), District 10 (Keene area), and District 21 (Dover and Durham area). Six districts lean Republican, though none are as heavily partisan as the three Democratic districts.”  And that is even after subsequent legislation that watered down the judicial gerrymander in nine of the 24 senate districts!

            The State Constitution directs the Legislature to reapportion the House and the Senate at its regular session following the federal decennial census.  So the Legislature elected this fall will be in charge of redistricting.  If the national polls are any harbinger, the voters in New Hampshire will turn out most of the horde of hard-left progressives that rode into office in 2006 based on widespread disillusionment with the Iraq war.  But having a reasonable Legislature will be meaningless as far as redistricting goes, if we don’t also have a reasonable Governor.

            You can bet your bottom dollar that the viscerally partisan John Lynch will veto whatever redistricting plan a Republican Legislature comes up with in order to allow the State Supreme Court to again write an electoral map that favors the Democrat Party.  And that will be even more of a disaster than ten years ago because, thanks to Lynch, the Supreme Court is an even more liberal, activist court.

            The only way to protect our right to cast a meaningful vote is to elect John Stephen.

Edward C. Mosca
Mosca Law Office
27 Webster Street, 2nd Floor
Manchester, NH 03104