A group of Republican lawmakers in New Hampshire have recently proposed state constitutional amendments that have the goal of overhauling aspects of the court system. The bills would give the state legislature the power to dissolve the state's Supreme Court and Superior Court and raise the minimum age to be a state judge to 60. Proponents said these proposals would allow for a check on the courts and for more experienced judges in office.
"Structurally I don't think it was formed well," said state Rep. Josh Davenport (R-Newmarket) of the courts system. "Over time it has gotten progressively worse. It is attempting to usurp the power of the legislative branch."
Davenport is the lead sponsor of a constitutional amendment that would eliminate a 1966 amendment that turned the Supreme and Superior Courts into constitutional courts. Prior to the 1966 amendment, the state's judiciary could be changed by legislative will, including dissolving courts. Under the current structure, the Supreme and Superior Courts can only be changed through constitutional amendment.
Davenport said his amendment would allow for a legislative check on the judiciary that he feels has been absent since 1966. Under the state constitution, the governor nominates judges with approval of the elected Executive Council.
Under Davenport's proposal, the governor and Council would retain appointment powers over whatever courts the legislature first forms.
Davenport's move comes after a series of battles between the Republican-controlled House and the courts. This includes the House trying to overturn a Supreme Court decision and suggestions by lawmakers of impeaching Supreme Court justices. Davenport insisted that his proposal is not connected to the battles, however.
State Rep. George Lambert (R-Litchfield), who is co-sponsoring the amendment, said he believes the courts need legislative direction on certain issues. He cited a 1992 decision by the Supreme Court requiring towns to give half of property tax collections to the state in order to fund state education aid as one example. He said, in his opinion, this is allowing the court to run the state's public schools.
"With certain issues they have not taken direction from the legislature," Lambert said.
Lambert also expressed concern with court rules, including one that he said allows a judge to view evidence without showing it to defendants. He said he questioned a court attorney during a Redress of Grievances Committee hearing, and the attorney noted the court develops it's own rules. Lambert supports legislative input into court rules. Further, Lambert said he has concerns over the courts ruling in cases of legislative redistricting and possibly drawing maps themselves.
State Rep. Bob Kingsbury (R-Laconia) has proposed an amendment, separate from Davenport's, to raise the minimum age to be a judge from 18 to 60 years old. Kingsbury, a libertarian, said he believes this will bring more experience to the state's courts.
"It's important in my opinion for judges to go through several stages of life before they judge others," he said. "It's better for them to be grandparents than not to be parents at all."
Kingsbury said his proposal would also allow for higher turnover for judges, given the mandatory retirement age of 70. He said this could reduce what he considers an arrogance among long-serving judges.
"Ten years in long enough," he said.
Minimum ages for state judges vary nationwide, with many starting at 18 but requiring a certain length of time as a member of the bar. New Mexico currently has the highest minimum age at 35.
Both proposals would need be passed by super majorities in the legislature and win statewide voter approval to be added to the constitution.
Bill Rafferty, an analyst for the National Center for State Courts, said both proposals were unusual. There have been no proposals in recent years to raise the minimum judicial age, but there have been pushes to raise the retirement age for state court judges, he said. Many states require judges to retire at 70.
New Hampshire Democrats oppose the court measures.
"Just like the U.S. Constitution, the New Hampshire Constitution created three equal branches of government, yet irresponsible Republicans in Concord continually attempt to violate the separation of powers. In what world do they believe that will create jobs?" said state Democratic spokesman Harrell Kirstein. "House Republicans need to stop wasting taxpayer time and money with reckless bills that force their out of touch Tea Party ideology on New Hampshire."