In re Judicial Conduct Comm.

• Decision Date: 15 May 2000
• Docket Number: No. SMA-2000-003.,SMA-2000-003.
• Citation: 751 A.2d 514,145 N.H. 108
• Court: New Hampshire Supreme Court
• Parties: Petition of the JUDICIAL CONDUCT COMMITTEE.

145 N.H. 108

751 A.2d 514

Petition of the JUDICIAL CONDUCT COMMITTEE.

No. SMA-2000-003.

Supreme Court of New Hampshire.

May 15, 2000.

Nelson, Kinder, Mosseau & Saturley, PC, of Manchester (William C. Saturley on the brief and orally), for the committee on judicial conduct.

Boynton, Waldron, Doleac, Woodman & Scott, PA, of Portsmouth (Charles B. Doleac on the brief and orally), for Howard J. Zibel.

Hill & Barlow, PC, of Boston, Massachusetts (Joseph D. Steinfield on the brief and orally, and Peter E. Ball on the brief), for the house judiciary committee.

Betsy B. Miller, of Concord, for the New Hampshire House of Representatives.

PER CURIAM.

The New Hampshire House of Representatives has authorized the House Judiciary Committee ("HJC") to conduct an impeachment investigation into matters said to involve the conduct of Chief Justice David A. Brock and/or other justices of the New Hampshire Supreme Court, and to adopt rules governing its investigation. H.R. Res. 50 (Apr. 9, 2000). The New Hampshire Supreme Court Committee on Judicial Conduct ("JCC") is conducting a concurrent investigation. Operating under rules it adopted on April 25, 2000, the HJC subpoenaed Howard J. Zibel, executive secretary of the JCC, Donna Craig, assistant executive secretary of the JCC, and David Peck, acting executive secretary of the JCC. Each subpoena required the production of documents and the taking of a deposition. The JCC filed a motion invoking this court's original jurisdiction, seeking an order requiring the HJC to allow the JCC special counsel to attend any HJC deposition of any JCC member, or employee, in order to protect the confidentiality of ongoing JCC investigations. The JCC's motion is denied.

The JCC's motion raises issues of jurisdiction and justiciability which arise within the principle of separation of powers. We address each of these issues in turn.

I. SEPARATION OF POWERS

According to Part I, Article 37 of the New Hampshire Constitution :

In the government of this state, the three essential powers thereof, to wit, the legislative, executive, and judicial, ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.

The purpose of the "[s]eparation of the three co-equal branches of government is ... to protect against a seizure of control by one branch that would threaten the ability of our citizens to remain a free and sovereign people." Petition of Mone , 143 N.H. 128, 134, 719 A.2d 626, 631 (1998) (citing State v. LaFrance , 124 N.H. 171, 176, 471 A.2d 340, 342 (1983) ). The separation of powers clause prohibits each branch of government from "encroaching on the powers and functions of another branch," Petition of Mone, 143 N.H. at 134, 719 A.2d at 631 (citing Opinion of the Justices , 116 N.H. 406, 413, 360 A.2d 116, 122 (1976) ), and is "violated when one branch usurps an essential power of another," Petition of Mone , 143 N.H. at 134, 719 A.2d at 631 (citing Opinion of the Justices , 121 N.H. 552, 556, 431 A.2d 783, 786 (1981) ; Opinion of the Justices , 110 N.H. 359, 363, 266 A.2d 823, 826 (1970) ). The legislative and judicial powers presently at issue are the power of the House of Representatives as "the grand inquest of the state," under Part II, Article 17 of the New Hampshire Constitution and the power of the supreme court to make, promulgate, and enforce court rules that have the force and effect of law under Part II, Article 73-a of the New Hampshire Constitution and RSA 490:4 (1997).

The HJC argues that the separation of powers doctrine enunciated by the New Hampshire Constitution bars this court from asserting jurisdiction over the JCC's request, or, if jurisdiction is proper, that this particular case is nonjusticiable. The JCC submits both that jurisdiction is proper and that this case is justiciable. We conclude that this court has jurisdiction to hear the JCC's motion, but on the facts of this case, the question presented is nonjusticiable.

II. JURISDICTION

The HJC first argues that the judicial branch lacks jurisdiction over any matter related to a legislative impeachment investigation. We disagree.

The investigative power of the Legislature, however penetrating and persuasive its scope, is not an absolute right but, like any right, is "limited by the neighborhood of principles of policy which are other than those on which [that] right is founded, and which become strong enough to hold their own when a certain point is reached." United States v. Rumely , 345 U.S. 41, 44 [73 S.Ct. 543, 97 L.Ed. 770]; Hudson Water Co. v. McCarter , 209 U.S. 349, 355 [28 S.Ct. 529, 52 L.Ed. 828]. The contending principles involved here are those underlying the power of the Legislature to investigate on the one hand and those upon which are based certain individual rights guaranteed to our citizens by the State and National Constitutions.

Nelson v. Wyman , 99 N.H. 33, 41, 105 A.2d 756, 764 (1954). The Court has reviewed these principles in a more recent case, in which it was said that:

The defendants argue that this matter should not be before the court because it is beyond the scope of our jurisdiction. See RSA 490:4 (Supp.1979). On the other hand, our fundamental charter states that the "judicial power of the state shall be vested in the supreme court...." N.H. Const. pt. II, art. 72-a ; see also id. pt. II, art. 74. This controversy arises under our Constitution. As we observed in an earlier dispute between a speaker of the house and a Governor:

"[The] solution involves an interpretation of our State constitution ... relative to the executive and legislative branches of our government. This is a traditional function conferred on the judiciary for which it is responsible. It is not within the competence of the other two branches and consequently does not fall within the bar against confiding political questions to the courts. N.H. Const. pt. I, art. 37, pt. II, art. 72-a ; Cloutier v. State Milk Control Bd ., 92 N.H. 199, 201-02, 28 A.2d 554, 556 (1942) ; see Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)."

Monier v. Gallen, 122 N.H. 474, 475-476, 446 A.2d 454, 455 (1982) (quoting O'Neil v. Thomson , 114 N.H. 155, 159, 316 A.2d 168, 170 (1974) ).

According to RSA 490:4,

[t]he supreme court ... may issue writs of certiorari, prohibition, habeas corpus, and all other writs and processes to other courts, to corporations and to individuals, and shall do and perform all the duties reasonably requisite and necessary to be done by a court of final jurisdiction of questions of law and general superintendence of inferior courts.

The court system is available for adjudication of issues of constitutional or other fundamental rights. For example, as was acknowledged by the HJC, the judicial branch would have jurisdiction to hear issues concerning matters of constitutional privilege. In such circumstances, Part I, Article 17 of the New Hampshire Constitution does not deprive persons whose rights are violated from seeking judicial redress simply because the violation occurs in the course of an impeachment investigation.

III. JUSTICIABILITY

While the judicial branch is not divested of jurisdiction over matters that may arise during a legislative impeachment investigation, the range of the matters subject to judicial review is limited by the concept of justiciability. "A controversy is nonjusticiable-i.e ., involves a political question-where there is ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it....’ " Nixon v. United States , 506 U.S. 224, 228, 113 S.Ct. 732, ...