Seperation of Powers: A Complicated Issue

posted by Judge_Burke @ 16:00 PM
May 10, 2012

Separation of powers and the ability of the judicial branch to govern itself seem like such simple or elementary principles of constitutional law. And yet after nearly two centuries, states and occasionally the federal courts continue to struggle with the issue. That struggle continues in New Hampshire. How Appealing recently reported that the New Hampshire Supreme Court has offered a proposed rule-making constitutional amendment plan.


Tuesday, May 8, 2012

Last Friday’s edition of The Manchester (N.H.) Union Leader contained an article that begins, “Faced with the possibility of losing the exclusive rule-making authority it has had for three decades, the state Supreme Court on Wednesday offered a compromise plan that would give lawmakers ‘concurrent’ power to regulate court administrative and procedural matters by statute.” The article says in part:” Associate Justice Robert Lynn told the Senate Judiciary Committee the alternative constitutional amendment resolution he and Senior Associate Justice Gary Hicks presented “would specifically recognize that, just as the courts have rule-making authority, which is absolutely essential, the Legislature should also have the power to make statutes that affect court procedure. And if there’s a conflict between a statute and a court rule, the statute should win unless the statute violates some other provision of the Constitution.”

A resolution to amend the state constitution that passed by the House in March would, if approved by voters, repeal outright a 1978 constitutional amendment giving the Chief Justice of the Supreme Court unilateral authority to make rules governing the administration of all state courts and the “practice and procedure” to be followed in the courts.

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