In re N.H. Bar Ass'n

• Decision Date: 14 June 2004
• Docket Number: No. 2003–482.,2003–482.
• Citation: 855 A.2d 450,151 N.H. 112
• Court: New Hampshire Supreme Court
• Parties: PETITION OF NEW HAMPSHIRE BAR ASSOCIATION.

151 N.H. 112

855 A.2d 450

PETITION OF NEW HAMPSHIRE BAR ASSOCIATION.

No. 2003–482.

Supreme Court of New Hampshire.

Argued: March 10, 2004.

Opinion Issued: June 14, 2004.

Upton & Hatfield, LLP, of Concord (Frederic K. Upton and another on the brief, and Mr. Upton orally), for the petitioner.

Peter W. Heed, attorney general (Suzanne M. Gorman, senior assistant attorney general, and Amy B. Mills, assistant attorney general, on the brief, and Ms. Gorman orally), for the State.

Richard J. Lehmann, senate legal counsel, and Betsy B. Miller, house legal counsel, by brief for the President of the New Hampshire Senate and the Speaker of the New Hampshire House of Representatives, as amici curiae.

NADEAU, J.

The petitioner, the New Hampshire Bar Association (Association), invokes the original jurisdiction of this court, Sup.Ct. R. 11, in requesting that Laws 2003, chapter 250, codified at RSA 311:7–g to :7–i (Supp.2003), be declared unconstitutional. We accept jurisdiction because the challenged statute which requires the Association to conduct and be bound by a referendum of its membership on the issue of unification directly conflicts with a decades-old order of this court mandating unification. It is the enactment of the legislation, not the results of the referendum, that makes an immediate resolution of this issue both necessary and prudent.

We directed the Board of Governors of the Association to carry out the referendum requirement set forth in RSA 311:7–g, III, and to retain the ballots, under seal, without counting them. Accordingly, the Association prepared and mailed to its membership in February 2004, ballots which it has now collected and sealed.

It is essential to the proper oversight of the Association that the current impasse be resolved promptly so that the Bar and the public will not share uncertainty as to which branch of government has authority to select the structure of the Association and, therefore, the organization through which it must fulfill its professional and ethical obligations.

The Bar was first unified by this court in 1968 for a three-year trial period. In re Unification of the New Hampshire Bar, 109 N.H. 260, 268, 248 A.2d 709 (1968). Once unified, membership and the payment of dues to the Association were required of all lawyers as a condition to the practice of law in this State. Id. at 262, 248 A.2d 709. In ordering unification, we acted to improve the administration of justice, to foster and maintain high standards of professional conduct, competence, and public service on the part of lawyers, and to ensure the existence of a continuing program of legal education for the legal profession. Id. at 263–64, 248 A.2d 709. We did so on the basis that requiring compulsory enrollment of all members of the Bar of this State into one unit was "an integral part of the inherent power of this court to regulate the practice of law and to supervise" those who were engaged in it. Id. at 264, 248 A.2d 709.

In 1972, this court again examined unification and concluded that the Association had benefited as an organization from its three-year experience, and had made substantial strides in internal organization, member participation, continuing legal education, professional competence, discipline, ethics, and finances. In re Unified New Hampshire Bar, 112 N.H. 204, 205–06, 291 A.2d 600 (1972). Consequently, we ordered the Bar unified on a permanent basis. Id. at 207, 291 A.2d 600.

For thirty-one years thereafter, no legislation affecting the Association's unified status was enacted. However, during the 2003 legislative session, the New Hampshire General Court enacted RSA 311:7–g to :7–i. The Association argues that RSA 311:7–g and :7–h are unconstitutional. We agree that subsection:7–g is unconstitutional because the statute encroaches upon inherent judicial authority.

I. RSA 311:7–g

RSA 311:7–g is entitled "State Bar Association Membership; Vote Required" and provides:

I. The supreme court, pursuant to its power to regulate the practice of law under this chapter and its continuing supervisory authority over attorneys practicing before courts of this state, may assess fees for the purpose of regulating the practice of law and for maintaining a professional conduct committee.

II. The supreme court may require all persons engaged in the practice of law in this state to be members of the New Hampshire Bar Association; provided that the members of the Bar Association have approved the requirement pursuant to paragraph III.

III. The board of governors of the New Hampshire Bar Association shall place on the ballot with the election of officers of the association, the following question: "Shall membership in the New Hampshire Bar Association be required for all attorneys licensed to practice in this state?" An affirmative vote of a majority of those voting on the question, shall allow for the requirement by the supreme court under paragraph II. Approval by the membership under this paragraph shall be valid for a 5–year period beginning on the date of the affirmative vote.

RSA 311:7–g, I–III.

The Association contends, among other things, that this statute "infringes on the authority of the judicial branch to regulate the Bar in violation of the New Hampshire Constitution." (Emphasis omitted.) Specifically, the Association argues that "unification [is] the sole business of the Court," because the court retains "constitutionally-conferred authority to regulate the Bar." The Association further argues that the legislative enactment constitutes "an impermissible and affronting intrusion under the Separation of Powers Clause" and should be struck down as unconstitutional.

The State disagrees, contending that "the regulation of the ... [A]ssociation and the practice of law in New Hampshire has historically been shared between the legislative and judicial branches of government." Because both branches have overlapping authority, the State argues that "either branch can act absent the initiative of the other." Moreover, the State argues that "assuming that regulation of the practice of law is, at least in part, an essential judicial function," nothing in RSA 311:7–g prevents the court from carrying out that function by, for example, prescribing ethical and educational standards for lawyers, as well as requiring them to make payments into public protection funds.

It is axiomatic that "the constitutionality of a legislative act is to be presumed." Petition of Governor and Executive Council, 151 N.H. 1, 4, 846 A.2d 1148, 1151 (2004) (quotation and brackets omitted). "However, if upon examination of [a] statute, there is a clear conflict with the Constitution [,] the court must declare the statute inoperative because the Constitution, and not the statute, is the paramount law." Hynes v. Hale, 146 N.H. 533, 535, 776 A.2d 722 (2001) (quotation omitted). Because we conclude that RSA 311:7–g is in clear conflict with Part I, Article 37 of the New Hampshire Constitution, we declare it to be unconstitutional.

Part I, Article 37 of the New Hampshire Constitution provides, in pertinent part: "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." We have recognized, however, that the three branches of government, while distinct, often must "move in concert," whenever possible, as the practical and efficient operation of government is not served by the erection of "impenetrable barriers between the branches." Opinion of the Justices, 113 N.H. 287, 290, 306 A.2d 55 (1973) ; see also Hynes, 146 N.H. at 537, 776 A.2d 722.

Ideally, then, there should exist "a cooperative accommodation among the three branches of government." McKay v. N.H. Compensation Appeals Bd., 143 N.H. 722, 726, 732 A.2d 1025 (1999) (quotation omitted). Indeed, a spirit of comity encourages cooperation between the branches in furtherance of mutual goals. See Petition of Mone, 143 N.H. 128, 135–36, 719 A.2d 626 (1998). But comity has limits. It does not constitutionally permit one branch to usurp the essential power of another. See Petition of Governor, 151 N.H. at 9, 846 A.2d at 1155; see also State v. Lindsey, 632 N.W.2d 652, 659 (Minn.2001). To do so would violate the separation of powers doctrine. Petition of Governor, 151 N.H. at 9, 846 A.2d at 1155; see also N.H. CONST. pt. I, art. 37. When the actions of one branch of government defeat or materially impair the inherent functions of another branch, such actions are not constitutionally acceptable. In re Rosenkrantz, 29 Cal.4th 616, 128 Cal.Rptr.2d 104, 59 P.3d 174, 208 (2002), cert. denied, 538 U.S. 980, 123 S.Ct. 1808, 155 L.Ed.2d 669 (2003).

We conclude, consistent with our prior decisions, that the judicial branch of government retains ultimate authority to regulate the practice of law, and that in the exercise of that authority it is necessarily permitted to determine whether unification of the Bar is advantageous. The authority of the judicial branch is not the result of legislative inaction as suggested by the State, but is derived from its inherent authority to regulate the practice of law. Petition of N.H. Bar Ass'n, 110 N.H. 356, 357, 266 A.2d 853 (1970) ("The power and authority of the supreme court to supervise and regulate the practice of law has been recognized and acknowledged from an early date by custom, practice, judicial decision and statute."). In so holding, we conform to our precedent and share the view of other jurisdictions. Petition of Tocci, 137 N.H. 131, 136, 624 A.2d 548 (1993) ; Washington State Bar Ass'n v. State, 125 Wash.2d 901, 890 P.2d 1047, 1050–52 (1995) ; Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604, 618–19 (1943) ; In re Integration of State Bar of Oklahoma, 185 Okla. 505, 95 P.2d 113, 114 (1939). Indeed, "[n]o court has held that the highest court of any state is without authority to unify its...