Law school dean pans amendment

Last modified: 10/8/2012 12:00:00 AM
Lawmakers will be able to force the state's courts to do their bidding under a proposed constitutional amendment that would let the Legislature regulate the court system's operations, said University of New Hampshire School of Law Dean John Broderick.

'They will politicize that branch of government,' Broderick, the former chief justice of the state Supreme Court, said in an interview with the Monitor's editorial board.

The proposal, which will be on the ballot next month, passed the Legislature this year with the consent of the state Supreme Court. Broderick, who stepped down as chief justice in 2010 before becoming dean of the law school, spoke at length last week against the measure, which he described as 'a very dangerous thing.'

'Courts are designed not to be places where majorities rule,' Broderick said. 'But the state house is based on majority rule. We need a safe place, as Justice Souter would say, where you can be assured that politics does not influence the end result.

'I'm not sure that would be true if the political branch of government is writing the rules,' he said.

The Legislature shouldn't have power to make rules for the court's administrative operations because it would violate the separation of powers between the two branches of government, Broderick said.

But not only shouldn't lawmakers be given rulemaking authority, they also don't need it, Broderick said. He noted that the Legislature has representation on the court's judicial conduct committee, which oversees the disciplinary process against judges, and the advisory committee that considers changes to court rules.

The Legislature also controls the court system's budget, and 'there's huge power in that,' Broderick said. 'If they don't like what you're doing, trust me, they're not shy.'

Broderick said he doesn't know what problem the amendment is aiming to address. 'No one's told me what it is that we need to fix yet,' he said.

While some lawmakers take issue with language in the state Constitution that says rules established by the courts will have the force of law, Broderick said the phrase has been misinterpreted.

'What it means is they're enforceable,' he said. 'We're not over there passing laws in the classic sense.'

Broderick said lawmakers think the courts have too much power. If the Legislature gained control of court procedures, it would be able to appoint administrative judges and place them in specific counties, or eliminate them entirely, Broderick said.

It could also take over the duties of the judicial conduct committee. Broderick said he fears lawmakers would shift the committee's authority to the House Redress of Grievances Committee revived by House Speaker Bill O'Brien, allowing judges to be 'tortured for their views or their opinions.'

Under those circumstances, Broderick said, 'the people who serve on the judicial branch will not be the people you want.'

The proposed amendment, which was revised to use language suggested by the state Supreme Court, gives the Legislature 'a concurrent power' to regulate the administration of the court system and says that if a law conflicts with a court rule, the law prevails, unless it contradicts the state constitution.

Since the proposal requires amending the Constitution, two-thirds of voters must approve it. Broderick, who noted a similar measure won 62 percent of the vote in 2004, said he's concerned voters won't recognize its repercussions.

A voters' guide approved by lawmakers gives an explanation for the amendment that is 'decidedly misleading,' Broderick said.

Broderick said he's aware of only one other state - Florida - considering a similar measure. But if lawmakers in Florida decided they didn't like a court rule, he said, they would need a two-thirds vote to override it - a higher threshold than required by the New Hampshire amendment, which would automatically give precedent to the law.

'I think if that were to pass, it would be unique to America,' Broderick said.

Broderick said he's enjoying his new role leading the law school. 'I love the challenge, and I can be my own person again,' he said.

However, 'I wasn't expecting that it would be the work that it is,' Broderick said. He said the challenges facing legal education - 'it costs a lot of money, it takes more time than people think it should, and the job market isn't stellar' - mean the school has to do more to attract prospective students.

Broderick said he wants to explore online learning options to cater to international students interested in the school's intellectual property program. He also hopes to offer a master's degree in intellectual property for non-lawyers and a two-year patent law program geared toward engineers.

Formerly Franklin Pierce Law Center, the school has benefited from its recent merger with the University of New Hampshire, Broderick said. Law students can get joint master's degrees in business and social work, and faculty from the law school are teaching classes at the university, Broderick said.

'My goal would be eventually to have more crosspollination with the university,' he said.

(Maddie Hanna can be reached at 369-3321 or or on Twitter @maddiehanna.)


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