I’ve mentioned at length the series of efforts lodged by the New Hampshire legislature against that state’s judiciary in general, and its Supreme Court in particular, including impeachment for decisions, efforts to unilaterally declare void or “repudiate” state Supreme Court decisions, etc . Now comes the latest proposal, this one an effort to eliminate the state’s Supreme Court and main trial court, the Superior Court.
Under the constitutional amendment (CACR 25) the two courts would no longer be specifically established by the state’s constitution, allowing them to be disbanded and reestablished (with new judges) based on passage of a simple statute. As a technical matter, it would repeal Article 72-a, a 1966 amendment to the state’s 1784 constitution that added the following:
The judicial power of the state shall be vested in the supreme court, a trial court of general jurisdiction known as the superior court, and such lower courts as the legislature may establish under Article 4th of Part 2.
One co-sponsor argues to the Huffington Post this amendment would allow for a legislative check on the judiciary that he feels has been absent since the 1966 amendment. Another proponent cites prior state Supreme Court rulings on education funding saying “With certain issues they have not taken direction from the legislature.” He argues the ability to disband the courts is necessary to give them “legislative direction on certain issues”.
Full disclosure: I am cited in the Huffington Post article as follows:
Bill Rafferty [sic], 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.
Unusual indeed. If adopted, New Hampshire would be the sole state without a court of last resort specified in its state constitution.
Moreover, when states have either adopted new constitutions or created new courts of last resort, they have rarely simply disbanded the court and ejected the existing judges/justices. Much more typical is what occurred in the spate of new constitutions adopted in the 1970s and early 1980s: justices of the pre-existing court of last resort were carried over onto the new court and/or allowed to serve out their existing term and then be elected/appointed to the new court.
- Georgia (1983 Constitution) Each judge holding office on the effective date of this article shall continue in office until the expiration of the term of office, as a judge of the court having the same or similar jurisdiction.
- Louisiana (1974 Constitution) A judge serving on the effective date of this constitution shall serve through December thirty-first of the last year of his term or, if the last year of his term is not in the year of a regular congressional election, then through December thirty-first of the following year. The election for the next term shall be held in the year in which the term expires, as provided above.
- Montana (1973 Constitution) Supreme court justices, district court judges, and justices of the peace holding office when this Constitution becomes effective shall serve the terms for which they were elected or appointed.
- North Carolina (1971 Constitution) Except as otherwise specifically provided, the adoption of this Constitution shall not have the effect of vacating any office or term of office now filled or held by virtue of any election or appointment made under the prior Constitution of North Carolina and the laws of the State enacted pursuant thereto.
- Virginia (1971 Constitution) Unless otherwise provided herein or by law, nothing in this revised Constitution shall affect the oath, tenure, term, status, or compensation of any person holding any public office, position, or employment in the Commonwealth, nor affect the date of filling any State or local office, elective or appointive, which shall be filled on the date on which it would otherwise have been filled…The requirement of Article VI, Section 7, that justices of the Supreme Court and judges of courts of record shall, at least five years prior to their election or appointment, have been members of the bar of the Commonwealth, shall not preclude justices or judges who were elected or appointed prior to the effective date of this revised Constitution, and who are otherwise qualified, from completing the term for which they were elected or appointed and from being reelected for one additional term.
- Illinois (1970 Constitution) All officers filling any office by election or appointment shall continue to exercise the duties thereof, until their offices shall have been abolished or their successors selected and qualified in accordance with this Constitution or laws enacted pursuant thereto.
The last time I can find of a state disbanding its court of last resort and, in effect, firing all the existing justices was New York in 1869 and then the court was disbanded only because a) it was grossly behind in its docket and b) since half its membership was trial judges, it meant that trial judges were sitting on appeals from their own decisions below (See page 13 of this history of the New York courts). Even then the judges of the older court were not simply shown the door; the 4 members of the pre-existing court elected statewide were established as a “Commission on Appeals” to finish up the cases on their docket.
