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Bait and Switch-Judicial Magic:
Now You Don't See It, Now You Do
The chief justice of the Supreme Court shall be the administrative head of all the courts. He shall, with the concurrence
of a majority of the Supreme Court justices, make rules governing the administration of all the 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.
-- New Hampshire Constitution, Part II, Article 73(a)
The above amendment was approved by the voters of New Hampshire in 1978. At least, the voters thought this was
the amendment they approved. In fact, the last sentence of the amendment did not appear on the ballot.
How then did it become part of the Constitution? No one knows for certain. It just appeared, magically, like a
rabbit popping out of a top hat. At some point after the secretary of state certified the results of the election,
and before the official enrollment of the amended Constitution (Part II, Article 100), the extra sentence mysteriously
appeared. Who ordered this change and by what authority?
There is no provision in the Constitution for a word, sentence or paragraph to be added except by the approval
of the voters through the amendment process. Period. Nothing in the Constitution permits the courts, the chief
justice, the secretary of state, the governor or anyone else simply to add things.
A committee of the Legislature is trying to find out how this appendage was clandestinely slipped into the Constitution.
So far its work is not encouraging. This week the committee heard testimony from the chief clerk of the Supreme
Court, Howard Zibel. Mr. Zibel was something less than enlightening.
The courts, Mr. Zibel said, added the language, which he advised was "merely rhetorical." Nothing Machiavellian,
he assured legislators, was intended.
We would ask Mr. Zibel to cite the specific article or amendment to the Constitution that empowers the court to
add "rhetorical" flourishes to the document. He cannot, for no such article exists. And it matters not
a tinker's dam whether the court's intention was Machiavellian or purely benign; it plainly has no authority to
meddle with the text of the Constitution. Only the people have that authority.
Why is this important? Because the addition to Article 73a grants to the court the power to make laws, a power
reserved elsewhere in the Constitution (Part II, Articles 2, 5) to the people's elected representatives, the Legislature.
Here again Mr. Zibel's testimony was unhelpful. He claimed that the addition was merely "rhetorical"
because all rules promulgated by the court automatically have the force of law.
Again, he is wrong.
If the court's rule-making authority implicitly carries the force of law, then why was the additional language
required? Moreover, in many states the legislatures make the rules for the courts. In others, legislatures retain
the power to review and repeal rules. The addition of the extra, non-voter approved language to Article 73(a) looks
suspiciously like an attempt by the court to usurp the Legislature's exclusive law-making power under the Constitution.
Next week Chief Justice David Brock is scheduled to testify before the House committee. Perhaps he can shed some
light on this bizarre bait-and-switch. But given Justice Brock's imperial notions of judicial power, we are not
optimistic that the committee will get far.
The counterfeit addition to Article 73(a), never having been approved by the people, simply is not part of the
Constitution-regardless how much the courts pretend otherwise.
Credits: Manchester Union Leader:
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