My "Yes, CACR 26 will do great harm" commentary

Additional commentary by Timothy Horrigan; November 2, 2012

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On October 31st, 2012, my local newspaper, the (Dover NH) Foster's Daily Democrat, published the following "Editorial Reponse" from me. I discuss 2 proposed constitutional amendments, CACR 26 & CACR 13, as well as a third constitutional question calling for a constitutional convention: It only appeared on the web site, not in the dead-tree edition. CACR 13 (which forbids any new taxes on personal income) has attracted the most attention, but CACR 26 is the one I am mostly worried about:

Original URL:

Yes, CACR 26 will do great harm

Wednesday, October 31, 2012

I don't often agree with your editorials, but I agree with your October 30, 2012 editorial "CACR 26 will do great harm." I have been a member of the House Redress of Grievance Committee during the past legislative session, and this experience taught me the importance of an independent and impartial judiciary. The legislature has no business meddling in the internal workings of the court system.

Currently, the state constitution states that court rules "shall have the force and effect of law." This basically means that if you refuse to follow court rules, you can be found guilty of contempt of court. This seems like simple commonsense to me. The amendment would give the legislature the power to override the court rules by statute. We could theoretically have a court rule which says one thing and a statute which says something totally different, which would create massive confusion. Even when the court rules and the statutes aren't actually in conflict, pro se litigants (and even actual lawyers, for that matter) have a habit of misapplying one chapter of the lawbooks to a related but different area of the law. To name one simple example of laws being misapplied, one House petitioner wanted us to reprimand two judges for disregarding a long list of certain state laws regarding health and life insurance policies. It turned out that the insurance policies in question weren't even covered by New Hampshire law: her exhusband got them from his job in Massachusetts.

The committee heard 28 petitions in 2011 and 2012: by my count, 24 of those petitions were related to individual cases, and were filed in the hopes of overturning specific decisions. Only 4 petitions were about legitimate public-policy questions. Many of the 24 aggrieved petitioners believed that their cases had turned out wrong because the court rules were wrong. There certainly are some court rules which need to be changed, but it is unclear to me if any of those 24 particular cases could have turned out differently if the court rules had been different.

The prime sponsor of CACR 26 is Rep. Paul Mirski (R-Enfield) who is very close to Speaker O'Brien. Mirski claims that CACR 26 was the judiciary's idea. That is not exactly true: the language which will appear on the November 6th ballot was a compromise put together by the Senate Judiciary Committee, with some input from the judicial branch. Mirski and O'Brien originally wanted to eliminate the courts' rule-making power altogether.

I urge the people of New Hampshire to vote NO on CACR 26, which will appear on the November 6 ballot as Question #2.

I also urge the people to vote NO on the other two constitutional questions. Question #1 (also known as CACR 13) would create permanent fiscal chaos in the interests of preventing the legislature from passing something (i.e., a broad-based income tax) which currently has no chance of passing. The most recent income tax bill failed in 2010 to get even a majority of a relatively liberal House Democratic caucus: HB 642 lost 242-74. Even without a constitutional amendment, an income tax bill still has to pass the full House and the full Senate before being signed into law by the Governor. Maggie Hassan and Ovide LaMontagne have both pledged to veto such a bill.

Question #3 would call for a state constitutional convention. Such a convention would cost roughly the same amount as the State House of Representatives, whose operating budget is about $4 million per year. A "con-con" would serve no obvious purpose: the legislature already considers many proposed amendments every year.

Rep. Timothy Horrigan

Here is the editorial I was responding to:

Original URL:

CACR 26 will do great harm

Tuesday, October 30, 2012

On Nov. 6 voters will be asked to decide the fate of CACR 26, an amendment to the New Hampshire Constitution that allows the Legislature to meddle in court affairs — a bad idea.

Constitutional Amendment Concurrent Resolution 26 reads, in part, "the legislature and the chief justice of the supreme court shall have concurrent power to make rules governing the administration of all the courts of the state." In the event of conflict, however, CACR 26 gives the final say to the Legislature.

Make no mistake, CACR 26 is an attempt by House Speaker Bill O'Brien's wing of the state Legislature to put a hand in the justice system's cookie jar. CACR 26 follows on the heels of the establishment of a House Committee on the Redress of Grievances which was set up to do an end run around the courts. This was pointed out in a recent community commentary by former governor Steve Merrill and former New Hampshire high court justice Joseph Nadeau:

"We do not have to guess why some legislators want to change the Constitution. At a recent Strafford County forum, supporters told us. They said they intend oversight of court rules and decisions so they can change results they do not like. In fact they have already shown that intention. After 150 years, the legislature in 2011 revived the Redress of Grievances Committee. That committee is not required to obey rules of law and evidence, and was used by legislators to intrude into private disputes, especially family law cases — even ones already decided in the courts."

The pretext for CACR 26 can also found in a recent community commentary by state Reps. Daniel Itse and Paul Ingbretson, the latter of whom happens to be chairman of the Redress of Grievances Committee.

Itse and Ingbretson argue the courts should be under the control of "we the people." And if Ingbretson's Redress of Grievance Committee is any indication of what that means, CACR 26 would bring chaos to the court system. CACR 26 would allow the Legislature to establish court rules and to use those rules to punish judges for seemingly errant decisions as the redress committee seeks to do.

Former Chief Justice John Broderick, now University of N.H. Law School dean, addressed this issue in a recent community commentary:

"This proposed amendment represents a step backward. The framers sought to protect the separation of governmental powers because they had lived under regimes that respected no dividing lines, when the legislature could invade the province of the judiciary for purely partisan reasons or, perhaps, without any reason at all." (Foster's Sunday Citizen, Oct. 21)

The core mission of the court system is to stand as an independent branch of government, to serve in a system of checks and balances with the executive and legislative branches. Thankfully, New Hampshire is a state were judges are appointed, not elected. Here, judicial nominees go through a rigorous, non-political vetting process. This is not to say the editorial board here at Foster's Daily Democrat or voters should be expected to agree with every decision coming from the bench. But it is to argue those who hand down those decisions are well qualified to do so, with rare exception.

As for "we the people," proponents of CACR 26 forget that "we the people" live under a representative republic. As such, "we the people" elect others to make decisions on our behalf. If, come election time, we don't like those decision the choice is to oust those previously elected, not to unseat judges through back door manipulation.

The proposed amendment reads as follows. The bold italic text is material being added to Part Second Article 73-a of the state constitution. This version of the amendment was a compromise drafted by the Senate: Rep. Mirski and his cosponsors originally wanted to eliminate "73-a" altogether.

[Art.] 73-a. [Supreme Court, Administration.] The chief justice of the supreme court shall be the administrative head of all the courts. [He] The chief justice 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. The legislature shall have a concurrent power to regulate the same matters by statute. In the event of a conflict between a statute and a court rule, the statute, if not otherwise contrary to this constitution, shall prevail over the rule.

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