CACR 28, relating to the allocation of authority between the legislative and judicial branches. Providing that the supreme court shall determine the constitutionality of judicial acts and the legislature shall determine the constitutionality of legislative acts. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Barry J Palmer for the Majority of Judiciary: This constitutional amendment would overturn the system of checks and balances between the legislative and judicial branches of government as they have existed in New Hampshire for two hundred years. Part I, Article 37 of the New Hampshire constitution has provided for the separation of powers between the three branches of government since 1784. Merrell v. Sherburne,the case articulating the power of the state supreme court to rule on the constitutionality of legislative acts, has stood the test of time since the early 1800s. The judiciary rules on the constitutionality of legislative acts under the federal constitution and in all 49 other states. Under this amendment, the legislature could pass a bill that was clearly unconstitutional, and citizens aggrieved by the unconstitutional statute would have no recourse other than that afforded by the next election. The majority understands the concerns raised about certain specific rulings by our supreme court, but believe this amendment goes too far in the attempt to address those few specific rulings. Under our system of checks and balances, the legislature can overrule a court ruling on a statute simply by enacting a new statute. A court ruling on a constitutional issue must be changed by the adoption of a constitutional amendment. To require less would be to hand too much power to the unfettered authority of the legislature, and would defeat the court’s role as the protector of the constitutional rights of minority interests against the tyranny of the majority. Vote 10-6.
Rep. Gregory M Sorg for the Minority of Judiciary: CACR 28 would bring the supreme court back to constitutional legitimacy by writing into the New Hampshire constitution the distinction between adjudicatory and legislative acts drawn by Justice Levi Woodbury in the 1818 case of Merrill v. Sherburne, the first case to come before the state’s highest court under the constitution’s separation of powers provision, Article 37 of Part 1. By so doing, it would restore the original understanding of the boundaries of the separation of powers, reflected in that case, whereby the judiciary was the final authority of the constitutionality of adjudicatory acts and the Legislature was the final authority on the constitutionality of legislative acts. It has only been in recent times, since its 1983 decision in State v. LaFrance, that the supreme court of New Hampshire has laid claim to final, unreviewable authority, binding on the legislative and executive branches, to refuse to enforce on constitutional grounds acts of a purely legislative character. By reason that the court has an inherent institutional bias in favor of resolving separation of powers issues to the benefit of judicial power at the expense of legislative, this sweeping, anti-historical assertion of authority has resulted in judicial intrusions into the legislature’s exclusively granted constitutional authority to establish state policy to such an extent that the court acts today as a virtual third chamber of the legislature, with veto power over the other two, exercisable by whichever three persons happen to comprise a majority of the court at any given time. One can only hope that the legislative branch will eventually tire of having its maturely considered and hard fought-for policy choices repeatedly subordinated to those imposed by the judicial branch, and will take the action called for in CACR 28 to restore the constitutional separation of powers and system of checks and balances among the three branches of our government.
HB 1135, establishing a civil action for certain disruptions of funerals of members or former members of the armed forces. MAJORITY: INEXPEDIENT TO LEGISLATE. MINORITY: OUGHT TO PASS.
Rep. Lenette M. Peterson for the Majority of Judiciary: The current law already protects the right of all funerals and does not single out one funeral over another. Since current law was enacted in 2007, there have been no disruptions to any funeral; therefore no changes to the statute are necessary. Vote 10-7.
Rep. Barry J. Palmer for the Minority of Judiciary: There are few things neither more dignified nor poignant than a military funeral, with its honor guard, a trumpeter playing taps and presentation of the American flag to a surviving family member, and disruption of such a funeral by misguided protesters would compound a family’s grief. When a person is laid to final rest and goes to his or her maker, it’s a sacred moment. And because the person is an American hero who served this country, it is hallowed ground. This bill simply enhances the current funeral disruption law (a misdemeanor) by providing an opportunity for a civil action to mitigate their grief because of a disruption. This bill simply tells those who are considering such a sacrilegious disruption that in New Hampshire “Don’t even think about it!”
HB 1298, relative to the definition of "public use" under the eminent domain procedure act. OUGHT TO PASS WITH AMENDMENT.
Rep. Robert H Rowe for Judiciary: When property is taken by eminent domain for public use, public use shall not include the public benefits resulting from private economic development and private commercial enterprise, including increased tax revenues and increased employment opportunities; nor shall “public use” include use by a for-profit, private, participant funded transmission line or facility or other uses not needed for system reliability. Vote 15-2.
HB 1395, revoking amendments to supreme court rules 50 and 50-A. MAJORITY: OUGHT TO PASS. MINORITY: INEXPEDIENT TO LEGISLATE.
Rep. Gregory M Sorg for the Majority of Judiciary: The rulemaking authority of the supreme court under Part 2, Article 73-a of the New Hampshire constitution is limited to “rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts.” Notwithstanding this express limitation, the supreme court on December 29, 2010, ostensibly under authority of Article 73-a, issued a rule, to take effect on March 1, 2011, requiring attorneys to create or maintain a pooled interest-bearing trust account for clients’ funds nominal in amount or to be held for a short period of time, and to remit the interest earned to the New Hampshire Bar Foundation. The court was thus requiring attorneys to generate money to send to an organization founded by the court and administered by trustees appointed by the court, in order to support charitable activities approved by the court. The separation of powers enshrined in Part 2, Article 37 forbids the creation by the judicial branch of a parallel welfare state in which the supreme court is judiciary, legislature and executive all rolled into one, while the Thirteenth Amendment to the federal constitution forbids slavery or involuntary servitude, even of lawyers. Part 2, Article 73-a creates no exception to either proscription. Vote 13-4.
Rep. Lucy M Weber for the Minority of Judiciary: Attorneys maintain trust accounts to hold funds belonging to clients separate from funds belonging to the attorney or the law firm. When a significant sum belonging to one client is held for more than a few days, that client’s money is put into a separate bank account, and the interest on that bank account goes to the client when the account is closed, just as it would if the funds were held by a real estate agent or other agent. A trust account for pooled client funds is used only for small amounts of client money, or larger sums held for a very short period of time. Because the interest on this account does not belong to the attorney, lawyer’s trust funds accounts used to be put into non-interest bearing accounts. Obviously, the entity benefitting from the accrued interest on a non-interest bearing trust account is the bank. Some years ago, the supreme court created the IOLTA program—Interest On Lawyers’ Trust Accounts. Rather than being retained by the banks, the interest on IOLTA accounts is remitted by the bank holding the account to the Bar Association to be used for the provision of legal services to those in need, and for legal education programs.
Proponents of this bill argue that the accrued interest belongs to the client, and that the supreme court has no power to require the payment of the accrued interest to the Bar Foundation. The minority notes that this bill does not return this interest to any client. It would be impractical, in any case, to try to compute how much of each day’s interest has accrued to each client with funds in the lawyer’s trust account. Passage of HB 1395 simply reverts to the old standard of allowing the bank to keep any interest that would otherwise accrue on the lawyer’s trust account. The minority believes that the inherent power of the supreme court to regulate the practice of law includes the power to require attorneys to participate in the IOLTA program.
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