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Turning Toward the Courts in New Hampshire

By: Lawrence Friedman

The 2018 mid-term elections marked the highest voter turnout in decades. The number of citizens who voted is evidence of a resounding commitment to the democratic process. In perhaps no state is the connection between the people and their lawmakers more revered than New Hampshire. No state’s citizenry enjoys more access to its elected leaders: the Granite State boasts the fourth-largest legislature in the English-speaking world, and the first largest among the states. And, with a population of a little more than 1.3 million, approximately every 3,300 residents are represented in the legislature. 

And yet, even in New Hampshire, citizen confidence in representative democracy is not unqualified: this past election day, voters overwhelmingly approved two state constitutional amendments that will effectively diminish state legislative power in favor of judicial power.

At first glance, it may not be clear how the two amendments relate to New Hampshire’s commitment to representative democracy. The “New Hampshire Right to Live Free from Governmental Intrusion in Private and Personal Information Amendment,” for example, constitutionalizes “[a]n individual’s right to live free from governmental intrusion in private or personal information.” One of the proposal’s authors, Representative Neal Kurk, saw the amendment as necessary “to prevent the creation of dossiers on individuals who have done nothing illegal and are not accused of doing anything wrong.”

The second amendment, the “New Hampshire Taxpayer Standing to Bring Legal Actions Against Government Amendment,” gives taxpayers “standing to petition the Superior Court to declare whether the State or political subdivision in which the taxpayer resides has spent, or has approved spending, public funds in violation of a law, ordinance, or constitutional provision,” without the taxpayer having to to show “that his or her personal rights were impaired or prejudiced.” The amendment expands the “standing doctrine”—the jurisprudential rule that requires individuals who seek to challenge the validity of government action in court to have suffered some harm. 

In the modern era and across the nation, voter initiatives regarding the judiciary have tended to propose amendments intended to cabin judicial power—for example, by seeking to reverse particular state constitutional decisions, or by modifying the structure of the state’s judiciary. What New Hampshire voters approved represents a different kind of change. Consider the information privacy amendment, which, by its terms, provides no guidance as to when or how the right it creates should be applied, or even whether that right has any meaningful limits. It will accordingly fall to the state courts, in challenges to any governmental action that involves the collection of personal information, to define the right’s contours. No matter how the courts construe the amendment, unless and until the legislature supplies some guidance, the judiciary will be responsible for determining its reach.

Similarly, the taxpayer standing amendment effectively mandates that the courts will resolve disputes about public spending at every level of government. The state supreme court has in the past suggested that the exercise of this kind of authority is beyond the judiciary’s institutional capacity. When government action essentially affects all taxpayers, as opposed to particular individuals, the court has taken the position that accountability should be enforced through the political process. The standing doctrine, in other words, has stood as an obstacle to the judicial resolution of essentially political disagreements.

Perhaps voter approval of these constitutional amendments signals some disenchantment with the ordinary political process—a view that would not be unique to New Hampshire. Regardless, it will now be up to New Hampshire’s courts to resolve numerous issues about which reasonable legislators – and citizens – might differ. Some of these issues, ironically, are matters that the state supreme court itself has viewed as best addressed through the mechanisms of democracy. Preferring policymaking through litigation rather than public deliberation may not in the end be a bad choice, but it will alter the balance of legislative and judicial power in New Hampshire, putting the courts in the middle of political disputes they would just as soon avoid. 

 

Lawrence Friedman teaches constitutional law at New England Law | Boston, serves as the Series Editor of the Oxford Commentaries on the State Constitutions of the United States, and is the author of the most recent edition of the Oxford Commentary on the New Hampshire State Constitution.