NH: Legislator seeks to declare void state supreme court decisions from the 1800s

It is relatively common for state legislatures to, effectively, overturn court decisions which relate to statutory interpretation by either changing the wording of the statute or repealing it outright. This even extends to efforts to overturn state supreme court interpretations of the state constitution by adopting state constitutional amendments.

What is uncommon is New Hampshire’s attempts to achieve the same effect by targeting certain decisions and retroactively declaring them void.

For example, HCR 17 of 2011 declares the 1868 case of Copp v. Henniker (55 NH 179) and the opinions which subsequently relied upon Copp “void and of no force.” In Copp, the state’s supreme court (then known as the Superior Court of Judicature), referencing a similar Wisconsin case (Meade v. Walker 17 Wis. 189 (1863)) held that the state constitutional right to a trial by jury applied if that was the case when the state constitution was ratified. The reference to the Wisconsin case is specifically criticized by HCR 17. The concurrent resolution ends with a two part declaration that the opinion in Copp “is repugnant to the Constitution of New Hampshire” and that “the opinions which subsequently rely upon Copp versus Henniker to deny the right to trial by jury in new types of civil cases are utterly void and of no force.”

HCR 18 declares an even older case (Merrill v. Sherburne, 1 NH 199 (1819)) void as well. There, Merrill (as executor for the estate of a man named Ward) had lost at trial and on appeal a probate case against Ward’s heirs that would have granted Merill the entire estate. In 1817 Merrill petitioned the legislature for another trial and the legislature adopted a special law for him to that effect later in the year. The heirs moved to quash the proceedings. The state’s Superior Court of Judicature did quash, citing the U.S. Constitution, “The Spirit of Laws” by Montesquieu, several of the Federal Papers, Thomas Jefferson’s “Virginia Papers”, and similar documents. Specifically, the court held that the state legislature had exceeded its constitutional authority and, in effect, exercised judicial powers.

HCR 18, on the other hand, declares the listed documents were deliberately edited to mislead readers. Moreover, referencing a state constitutional provision that “the Legislature shall assemble for the redress of public grievances and for making such laws as the public good may require”, the resolution declares Merrill and subsequent decisions relying on it “repugnant to the Constitution of New Hampshire…utterly void and of no force.”

The author’s writings on the subject of these cases can be read more fully here.