In re Mone

• Decision Date: 04 November 1998
• Docket Number: No. 98–536.,98–536.
• Citation: 143 N.H. 128,719 A.2d 626
• Court: New Hampshire Supreme Court
• Parties: Petition of Michael MONE and others.

143 N.H. 128

719 A.2d 626

Petition of Michael MONE and others.

No. 98–536.

Supreme Court of New Hampshire.

Nov. 4, 1998.

Nixon, Raiche, Manning & Casinghino, P.A., Manchester (David L. Nixon, on the brief and orally, and Leslie C. Nixon, on the brief), for petitioners.

Administrative Office of the Courts filed no brief.

Philip T. McLaughlin, Attorney General (Daniel J. Mullen, Senior Assistant Attorney General, on the brief and orally, and Ann F. Larney, Senior Assistant Attorney General, on the brief), as amicus curiae.

Wadleigh, Starr & Peters, Manchester (Eugene M. Van Loan, III, on the brief and orally), for New Hampshire Sheriff's Association, as amicus curiae.

Judy E. Reardon, Concord, by brief, for Governor Jeanne Shaheen, as amicus curiae.

Betsy B. Miller and Loretta S. Platt, Concord, by brief, for Donna Sytek, Speaker of the House of Representatives; Joseph Delahunty, President of the Senate; and certain other members of the New Hampshire General Court, as amici curiae.

Joseph S. Haas, Jr., Ashland, by brief, pro se, as amicus curiae.

JOHNSON, Justice.

The petitioners, fifty-one court security officers, filed a petition for a writ of prohibition, see RSA 490:4 (1997), requesting that we prevent the respondent, the administrative office of the courts, from enforcing the provisions of Laws 1998, chapter 297, mandating, inter alia, effective January 1, 1999, see Laws 1998, 297:12:(1) that county sheriff departments will be responsible for providing security in all State courts except the supreme court, see Laws 1998, 297:1–:7; and (2) that all judicial branch employee positions associated with the security function in those courts be abolished, see Laws 1998, 297:8. We hold that chapter 297 violates the Separation of Powers Clause of the New Hampshire Constitution, N.H. CONST. pt. I, art. 37. Accordingly, we hold that portions of chapter 297 are invalid insofar as it requires that all court security shall be provided by county sheriffs and their deputies.

Chapter 297 was enacted on June 26, 1998, and provides, in pertinent part:

297:1 Statement of Intent.

I. It is the intent of the legislature in adopting this act to provide for the protection of staff, members of the public, and officers of the court while conducting their affairs and business in the state's courts.

II. The legislature intends this act to be in accordance with part I, article 37 of the New Hampshire constitution, regarding separation of powers, to keep law enforcement functions and custody issues separate from the judicial functions of the court. The legislature intends to remain within its constitutional authority pursuant to part I, article 37 in requiring that the sheriff, through the sheriff's deputies and bailiffs, be responsible for courtroom security and the custody and control of detained defendants during the time they are within the state's courts.

III. The legislature does not intend the provisions of this act to infringe upon the ability of the judiciary to establish rules governing the administration of all courts in the state and the practice and procedure which shall have the force and effect of law pursuant to part II, article 73–a of the New Hampshire constitution. The legislature distinguishes the judiciary's authority over practice and procedure from the legislature's authority to designate the sheriff's duties of custody and control of detained defendants and courtroom security. The legislature believes that law enforcement and custody issues are an executive branch function and the conduct of trials is clearly the function and responsibility of the judiciary.

IV. By adopting this act, the legislature does not intend for sheriffs to provide security in the supreme court. It would not be outside the intent of the legislature for the judiciary to hire personnel to protect supreme court justices. The legislature also intends that the judiciary should have the power to influence the certification and training of bailiffs.

....

297:3 Duties of Sheriff. RSA 104:5 is repealed and reenacted to read as follows:

104:5 Duties.

....

III. The sheriff's bailiffs shall provide adequate security in all state courts, except the supreme court.

....

297:5 Bailiffs. Amend RSA 594:1–a to read as follows:

594:1–a Bailiffs and Court Security Officers.

....

II. The sheriff, through the sheriff's deputies and bailiffs, shall be responsible for court security and shall be responsible for the conduct and control of detained defendants and prisoners during the time period that such defendants and prisoners are in all state courts, except for the supreme court.

....

297:8 Positions Abolished. Except for the court security officer positions at the supreme court, all judicial branch employee positions directly associated with courthouse security are hereby abolished.

Laws 1998, ch. 297 (bold italics omitted).

In response to the enactment of chapter 297, the petitioners sought a writ of prohibition to prevent the administrative office of the courts from implementing a plan to terminate their positions pursuant to Laws 1998, 297:8. We accepted the petition for briefing and argument and invited any amicus curiae to file briefs on the issue. The petitioners assert that chapter 297 violates the Separation of Powers Clause because it encroaches on the judiciary's ability to supervise its own personnel and perform its essential adjudicatory functions. Accordingly, the petitioners request that we find chapter 297 invalid.

We agree with the sheriff's association that a writ of prohibition is not historically the appropriate vehicle under our traditional concepts of pleadings in which to bring this case. Prohibition is proper "to prevent a tribunal possessing judicial or quasi-judicial powers from exercising jurisdiction over matters not within its cognizance or exceeding its jurisdiction in matters of which it has cognizance." 63C Am.Jur.2d Prohibition § 1, at 6 (1997). "Prohibition is an extraordinary remedy which, although within the discretion of this court, is used with caution and forbearance and only when the right to relief is clear." State v. Superior Ct. , 116 N.H. 1, 2, 350 A.2d 626, 627 (1976) ; see Manchester Education Ass'n v. Superior Court , 109 N.H. 513, 514, 257 A.2d 23, 24 (1969). The administrative office of the courts, although an administrative arm of this court, is not itself a court of law or equity, and therefore, a writ of prohibition traditionally would not issue against it.

It is well settled, however, that we will exercise our original jurisdiction, see RSA 490:4 (1997), in circumstances where the parties desire, and public need requires, a speedy determination of the important issues in controversy. Monier v. Gallen , 122 N.H. 474, 476, 446 A.2d 454, 455 (1982). This is one of those cases. "For more than half a century pleading and procedure in this jurisdiction has been a means to an end and it should never become more important than the purpose which it seeks to accomplish." Levitt v. Maynard , 104 N.H. 243, 244, 182 A.2d 897, 898 (1962) (quotation omitted); see, e.g ., State ex rel Regan v. Superior Court , 102 N.H. 224, 226, 153 A.2d 403, 404 (1959). Accordingly, we treat this as a petition to exercise our unquestioned power to supervise the administrative office of the courts. See RSA 490:4,:26–b (1997). Such treatment is appropriate given the extreme circumstances of this case; namely, the need for expeditious resolution because the petitioners will otherwise be terminated on January 1, 1999, see Nelson v. Morse , 91 N.H. 177, 178, 16 A.2d 61, 62 (1940) (exercising original jurisdiction where delay would cause undue hardship); cf. Petition of Chapman , 128 N.H. 24, 26, 509 A.2d 753, 755 (1986), and the need to quickly resolve an important constitutional issue, see Monier , 122 N.H. at 475–76, 446 A.2d at 455 (exercise of original jurisdiction appropriate where interbranch dispute threatens political order). Regardless of the terminology employed, "parties are entitled under the established practice in this State to the most convenient procedure for the settlement of their controversy." New Hampshire Retail Grocers Ass'n v. State Tax Comm'n , 113 N.H. 511, 513, 309 A.2d 890, 891 (1973).

The sheriff's association argues that this case is not justiciable because the petitioners have invoked this court's original jurisdiction and therefore there are no factual findings and no record to review. We reject that argument. The relevant facts are readily apparent from the face of the statute, and a facial attack on a statute is justiciable. See Delude v. Town of Amherst , 137 N.H. 361, 364, 628 A.2d 251, 254 (1993). The General Court has directed the judicial branch to terminate the court security officers, to be replaced by the county sheriffs, effective January 1, 1999. Court security will be provided as directed by the legislature, rather than by the judicial branch.

The sheriff's association further argues that because the respondent has not contested this petition, there is no adversity between the parties. Therefore, the court should not adjudicate this dispute. Chapter 297 provides absolutely no discretion for the court to retain any of the petitioners as court security officers. Pursuant to this directive, Donald Goodnow, the director of the administrative office of the courts, has informed the petitioners that their employment as court security officers will be terminated effective January 1, 1999. As such, the petitioners will suffer direct and immediate injuries as of January 1, 1999. This is sufficient to provide standing. See Appeal of Campaign for Ratepayers Rights , 142 N.H. 629, 632, 706 A.2d 675, 678 (1998). The amicus briefs filed by the sheriff's association, the Governor, and several members of the General Court effectively represented viewpoints adverse to the petitioners. Further, failure by the administrative office of the courts to defend the suit cannot deprive the petitioners of the right to a remedy. Cf. Super. Ct. R ....