NH Supreme Court
Unaccountable to the People

This two-part series is used with the permission of the original author,
State Representative Steven J. Winter (Merrimack County District 2).
State Representative Winter may be reached at: PO Box 1097, New London, NH 03257-1097.
He is currently serving on the House Education Committee.

"The ‘balance of powers’ is supposed to allow any of the three branches to block an unconstitutional order from another — otherwise we would only need one branch of government: the courts. You seem...to consider the judges as the ultimate arbiters of all Constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy." — Thomas Jefferson 

Once again, the New Hampshire legislature finds itself confronting the state’s Supreme Court. The most recent display of arrogance by the court is seen as a desperate attempt to further distance the court from any semblance of accountability.

Legislators who have been attempting to bring this run amuck court system to bay have merely had to sit back and watch as the court continues to swirl down a black hole of head spinning pomposity and self-importance.

The list of abuses goes all the way back to the Fairbanks case where a District Court Judge, while simultaneously acting in private practice as a lawyer, absconded with client money. Complaints and evidence were kept secret from the public. It has continued through the conflict of interest exhibited in the Supreme Court Justice Thayer divorce case, the flawed recusal policy that came to light in that investigation, the existence of secret trial dockets, the inappropriate lobbying by Associate Justices in the aftermath of the Chief Justice’s impeachment trial, etc., etc.

The chief justice has stated that, although the legislature is charged with appropriating money for the operation of the court, it could only set the bottom line. He claims the authority to spend it however he wants. Purportedly in the interest of saving $250,000, Superior Court Chief Judge Walter Murphy has suspended jury trials for five of the next fifteen months -- ignoring the Bill of Rights of both the federal constitution which guarantees a "speedy and public" trial and the state constitution which guarantees a trial "promptly and without delay". The court has also overlooked the old admonishment that "justice delayed is justice denied".

Since the legislature did, in fact, increase the appropriation to the courts in the last budget rather than decrease it, it has decided to continue with a performance audit which had commenced before the start of last year’s impeachment proceedings. The audit had been suspended as a courtesy during that dark blight on our history.

The supreme court has now rejected the right of the legislature to audit the administrative workings of the court system. An October 11, 2001 letter from Chief Justice Brock misuses the separation of powers language of Article 37, Part I of the state constitution in an effort to escape public oversight of the court system which he administers. 

But with a separation of powers goes a right of the people, through their elected representatives, to exercise prudent checks and balances. The state constitution, again in Part I, the Bill or Rights, establishes the Accountability of Magistrates and Officers in Article 8. In Part II of that constitution, which is the Form of Government, Article 73 states that the judiciary shall "hold their offices during good behavior". How can the legislature determine accountability or "good behavior" without the check of an administrative performance audit? 

Next week's column will take a closer look at the legislature's attempt to audit the court and the court's refusal to permit it.