2011 Winter, Pg. 10. THE NEW HAMPSHIRE SUPREME COURT: A HISTORY OF CHANGE.

Author:By: Charles G. Douglas, III and Jay Surdukowski
 
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New Hampshire Bar Journal

2011.

2011 Winter, Pg. 10.

THE NEW HAMPSHIRE SUPREME COURT: A HISTORY OF CHANGE

New Hampshire Bar JournalVolume 51, No. 2Winter 2011THE NEW HAMPSHIRE SUPREME COURT: A HISTORY OF CHANGEBy: Charles G. Douglas, III and Jay SurdukowskiINTRODUCTION

The New Hampshire Supreme Court's history has been marked by much change, more than one might think. A visitor to its current home, built in 1970 but seemingly timeless, will find its walls lined with sedate portraits that belies a history that is far from sedate. This article offers a general outline of the court's evolution, and introduces some of the characters, incidents, and cases that have shaped it.

Part i is an overview of the court, including its general history, composition, and home. Part ii delves more into the history of the court. Part iii explores the relationship between the court and the State Constitution. Part iV examines the waves of mostly politically-motivated judicial restructuring in the 1800s. Part V details mechanisms for removal of justices. Part Vi introduces three justices who were signers of the Declaration of independence. Part Vii presents a gallery of biographical portraits of several major chief justices who have shaped New Hampshire legal history. Part Viii sketches two justices who later served on the United States Supreme Court. Finally, Part iX takes a brief look at the court today which is marked by a dramatic increase in case load and the challenge of meeting an egalitarian commitment to guarantee New Hampshire litigants one level of appellate review. The Court has also made history at the time of this writing with the elevation of its first female Chief Justice, Linda Stewart Dalianis.

I. OVERVIEW OF THE SUPREME COURT

The Supreme Court of New Hampshire consists of the Chief Justice and four Associate Justices, the most senior of whom is designated the Senior Associate Justice. Members of the Supreme Court are nominated by the Governor and confirmed by the Executive Council for terms ending upon age 70. There have been 106 justices on the court since 1776 (including chiefs).

The Supreme Court building, located at One Charles Doe Drive in Concord, was dedicated in September 1970 at a ceremony attended by the late fourteenth Chief Justice of the United States, Earl Warren. Frank Rowe Kenison was the Chief Justice of the court at the time, but illness forced his absence from the dedication(fn1) The new building enabled the court to move from its previous quarters in the State Library building next to the State House.(fn2)

Modeled in the colonial Williamsburg style, the building houses the chambers of the members of the Supreme Court, staff offices, the clerk's office, the state law library, and the courtroom where the justices hear oral arguments. The building is said to be modeled on the Commons at Holderness School in Plymouth, New Hampshire.(fn3)

Portraits of prior Chief Justices hang in the courtroom, which has a working fireplace. The red brick building, faced with New Hampshire granite, was named for Frank Rowe Kenison, who served as Chief Justice for 25 years from 1952 to 1978. The Supreme Court building was a labor of love of Governor John W. King who himself became a Chief Justice for a time in the 1980s. A Democratic governor in the 1960s, King reached across the aisle and worked with Republican leaders such as Walter Peterson to secure the necessary appropriation to make the building a reality.(fn4) in 2007, the New Hampshire Law Library was renamed the John w. King new Hampshire law library in his memory.(fn5)

The history of the courts in new Hampshire begins in 1776 shortly after the colony of new Hampshire adopted a temporary constitution, the first such constitution adopted by any of the states. the newly formed legislature abolished the court of appeals, which was made up of the Governor and Council, and established the "Superior Court of Judicature" as the appellate court, with four justices.

What is now the modern trial and appellate court system in New Hampshire took shape in 1901 when the legislature established two courts to take the place of the existing court. Jurisdiction over "law terms" during which court decisions were appealed, was given to the Supreme Court, made up of a chief justice and four associates. Matters formerly handled at "trial terms" were assigned to what was called the "Superior Court."

The old configuration meant that there was a potential conflict of interest: a judge would sit on a case during the trial term and then his colleagues would decide any appeal of the matter in the law term. Even the inscrutable Chief Justice Charles Doe has been rumored to have exerted invisible influence on his peers when they were sitting en banc. The case notation "Doe, C.J. did not sit" was not always entirely true.

The present dual system of trial and appellate courts was not set up until 1901 when the Bar finally was able to alter this structural conflict.(fn6) One small hiccup with this creation of a dual system was the reassignment of some justices to the newly inferior Superior Court.(fn7 )One such "demoted" Justice was Robert Peaslee, who would rise to the high court again and ultimately take his seat in the Chief Justice's chair.

in 1966, the State Constitution was amended to establish the Supreme Court and the Superior Court as constitutional courts, which means that they could only be changed or abolished by a constitutional amendment, not by the legislature. Former Justice William Batchelder writes: "This was the most important step taken in two centuries to ensure institutional independence for New Hampshire's courts and their placement as equals among equals with the executive and legislative branches of our government." (fn8) Justice Batchelder observes, "The fact the courts survived until [1966], having been tossed about by the winds and currents of varying degrees of political passion, is a strong statement attesting to the integrity, steadfastness, and vision of the majority of New Hampshire's political leaders and members of the bar."(fn9)

In 1978, the voters amended the Constitution to make the Chief Justice the administrative head of the court as a constitutional matter. That amendment said that rules regarding the administration of the courts, and practice and procedure in the courts, would be approved by the Chief Justice with the concurrence of a majority of the associate justices of the Supreme Court.

In 1983, the legislature consolidated funding for all the courts into the state's biennial budget. Previously the Superior and Probate Courts were funded by the counties, the District Courts by the cities and towns in which they were located and the Supreme Court was funded by the state.

That 1983 legislation also established the Office of Administrative Services (now known as the Administrative Office of the Courts) which consolidated functions such as personnel, accounting, technology and budgeting into one central office for the Judicial Branch's 600-plus employees.

II. HISTORY OF THE SUPREME COURT

The first provincial congress met in Exeter on July 21, 1774, while Governor John Wentworth struggled to maintain royal authority.(fn10 )The last act of the royal governor was taken on the isles of Shoals on September 25, 1775, when Wentworth sent word to adjourn the assembly until the following spring. This action had no effect. As the royal government faded away, there was no official government for New Hampshire. New Hampshire, unlike the other New England colonies, had no royal charter that could serve as a temporary basis for government.

The Continental Congress responded on November 3, 1775, and recommended that New Hampshire call "a full and free representation of the people" which could, if necessary, "establish such a form of government as... will best produce the happiness of the people... during the continuance of the present dispute between Great Britain and the Colonies." it was this newly formed house of representatives in Exeter that adopted the first Constitution of the State of New Hampshire on January 5, 1776, some six months before the Declaration of independence. The people of New Hampshire never voted to accept this Constitution; it was presented to them as a fait accompli by the body they had elected to set up a government.

The brief 1776 Constitution, only 911 words long (about one-third of which consisted of the preamble) was adopted during a time of duress and emergency. A commentator states that the final draft of this Constitution was probably written by Meshech Weare, who had served on important committees in all five provincial congresses and was the president pro tem in two of the congresses. During the Revolution, Weare served simultaneously as chairman of the powerful committee of safety, chief justice of the superior court (which was then the highest state court) and was president of the council, the upper house of the legislature.

All power of government was concentrated in the legislature.

This first Constitution had no bill of rights, no independent executive, no independent judiciary or separation of powers.

In June of 1778, New Hampshire claims the distinction of being the first place in the world where a convention was elected and met for the sole purpose of drawing up a constitution, to be adopted when submitted to and approved by popular referendum. Thus, the convention of 1778 was the first true constitutional convention.

In the spring...

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