State v. LaFrance

• Court: New Hampshire Supreme Court
• Writing for the Court: PER CURIAM; BATCHELDER; FLYNN
• Citation: State v. LaFrance, 124 N.H. 171, 471 A.2d 340 (N.H. 1983)
• Decision Date: 23 November 1983
• Docket Number: No. 83-292,83-292
• Parties: The STATE of New Hampshire v. Arnold LaFRANCE.

Page 340

471 A.2d 340

124 N.H. 171

The STATE of New Hampshire v. Arnold LaFRANCE.

No. 83-292.

Supreme Court of New Hampshire.

Nov. 23, 1983.

Gregory H. Smith, Atty. Gen. (orally) (Brian T. Tucker, Asst. Atty. Gen., on brief), for the State.

Murphy, McLaughlin & Hemeon P.A., Laconia (Philip T. McLaughlin, Laconia, on brief and orally), for defendant.

Christiano, Kromphold, Green, McMahon & Heed, Keene (Peter H. Heed, Keene, on brief and orally), on behalf of the New Hampshire Association of Chiefs of Police, Inc., The New Hampshire Police Association, the Americans for Effective Law Enforcement, Inc., and The International Association of Chiefs of Police, Inc., as amici curiae.

George E. Gordon, III, Suncook, by brief, as amicus curiae.

Bell, Falk & Norton P.A., Keene (Ernest L. Bell, III, Keene, on brief and orally), on behalf of Ernest L. Bell, Esq., Stanley M. Brown, Esq., Donald R. Bryant, Esq., Robert L. Chiesa, Esq., Richard E. Galway, Jr., Esq., Fred W. Hall, Jr., Esq., Arnold P. Hanson, Esq., Joseph M. Kerrigan, Esq., Paul McEachern, Esq., Jack B. Middleton, Esq., Joseph A. Millimet, Esq., Arthur H. Nighswander, Esq., David L. Nixon, Esq., and N. Michael Plaut, Esq., as amicus curiae.

Richard F. Upton, Concord, by brief and orally, as amicus curiae.

PER CURIAM.

This case presents the question which branch of government controls the actual conduct of trials in our courts. More specifically, we must determine who controls the wearing of firearms in our courtrooms--the judiciary or the legislature.

I. The Factual Background

On June 15, 1983, Laconia Chief of Police Bruce Cheney was scheduled to testify in the Belknap County Superior Court trial of State v. Timothy S. Clifton, S-82-0186. Relying upon RSA 490:4-a, Cheney refused to enter the courtroom without his sidearm. RSA 490:4-a provides that "[n]otwithstanding any other rule, regulation or order to the contrary, law enforcement officers shall be permitted to wear firearms in any courtroom in the state." RSA 490:4-a (Supp.1979) (emphasis added). The Trial Judge (Cann, J.), citing the long-standing Belknap County Superior Court's local policy, prohibited Cheney from entering the courtroom with a firearm. The Belknap County Attorney decided that he had to drop the criminal charge because Cheney refused to testify without his handgun.

On July 12, 1983, the instant defendant, Arnold LaFrance, came before the Belknap County Superior Court and moved that law enforcement officials be barred from wearing firearms in the courtroom during his trial. The State objected, citing RSA 490:4-a. The trial court then transferred the following questions to this court, due to the recurring nature of the issue:

"1. Is RSA 490:4-a constitutional under the doctrine of separation of powers, N.H. Constitution Pt. 1, Art. 37, inasmuch as that statute attempts to restrict the ability of a presiding justice to control the proceedings and regulate security in his courtroom?

2. Does a justice of the New Hampshire court system have the inherent authority to control the wearing of firearms in the courtroom in which he or she is sitting, notwithstanding a statute to the contrary?

3. Is a criminal defendant's constitutional right to a fair trial infringed upon by virtue of the presence, as witnesses testifying against him, of law enforcement officers who are permitted to appear fully armed?"

II. The Constitutional Background

American history and the logic of American constitutional federalism have made certain that the rule of law does not mean the supremacy of the laws enacted by the legislature, but the supremacy of the Federal and State Constitutions. Our New Hampshire Constitution was created by the people, who are sovereign, and it, being an expression of their will, is the fundamental and supreme law of the State. No branch of State government can lawfully perform any act which violates the State Constitution.

The people of New Hampshire adopted the constitutional principle of separation of powers in the Constitution of 1784, and this principle has governed the three branches of our State government to the present day:

"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."

N.H. CONST. pt. I, art. 37.

With reference to the purpose of this provision of our Bill of Rights, it should be remembered that during the American Revolution, many executive and judicial powers were exercised by the legislature, and this practice resulted in great dissatisfaction. Hence, article 37 was adopted to protect the executive and judicial branches of the State government from legislative encroachment. Attorney-General v. Morin, 93 N.H. 40, 46, 35 A.2d 513, 516 (1943).

Separation of powers prevents usurpation of controlling authority by one branch. "Each branch acts as a check on the other, protecting the sovereignty and freedom of those governed by preventing the tyranny of any one branch of the government being supreme." Opinion of the Justices, 110 N.H. 359, 362, 266 A.2d 823, 825-26 (1970). If the people are to remain free and retain their sovereignty, then government must be limited; the separation of powers is essential to this end.

The separation of powers requirement of the constitution is violated by an improper imposition upon one branch of constitutional duties belonging to another or an encroachment by one branch upon a constitutional function of another. Opinion of the Justices, 121 N.H. 552, 556, 431 A.2d 783, 785-86 (1981); Opinion of the Justices, 116 N.H. 406, 413, 360 A.2d 116, 122 (1976).

Each of the three branches of government has limited authority to exercise action on behalf of the sovereign people. Part II, article 5 of the Constitution of New Hampshire provides that the "general court" or legislature may pass all reasonable laws, subject to one powerful proviso--that "the same be not repugnant or contrary to this constitution." N.H. CONST. pt. II, art. 5 (emphasis added). Thus, our voters and founding fathers intended to create a government which would be checked by a higher law. That higher law is our State Constitution. It is the constitution that all officials take an oath to uphold, and that governs all of our actions.

A function of the judicial branch is to adjudicate the rights of citizens who may assert that a legislative action is constitutionally void either on its face or as applied to a particular set of facts. Although the legislature and the governor may enact laws in good faith, they may occasionally err. Under the fundamental charter of our State government, those errors and constitutional challenges usually evolve into lawsuits that come before the judiciary for resolution.

Any legislative act violating the constitution or infringing on its provisions must be void because the legislature, when it steps beyond its bounds, acts without authority. The judiciary, whose duty it is to expound what the law is, simply compares the legislative act with the constitution; since the constitution clearly cannot be adjudged void, the courts have no choice but to declare any act which is inconsistent with it to be of no effect. For judges to do otherwise would violate their oaths.

For example, only last year, a law passed by a majority of our popularly elected legislators and approved by the governor was challenged as being patently unconstitutional. The $250 minimum business profits tax was struck down by this court as violating part I, article 12, and part II, articles 5 and 6, of the New Hampshire Constitution. Johnson & Porter Realty Co. v. Comm'r. of Rev. Admin., 122 N.H. 696, 698, 448 A.2d 435, 436 (1982).

The courts have the duty to interpret constitutional provisions. This duty may result in decisions that run counter to the present desires of the voters or their elected representatives. This is so because the constitutions of our States and of the nation are intended to be restraining documents so that exercise of power by the majority does not go unchecked. We do not have unqualified majority rule; we have majority rule with protection for minority and individual rights. Without this limitation we would have a tyranny of the majority and we would lose our liberty.

In New Hampshire, this reasoning was carried over to part I of our constitution, which contains the Bill of Rights for all New Hampshire citizens. In addition to addressing freedom of speech, freedom of the press, and the right to a jury trial, the New Hampshire Bill of Rights specifically recognizes the need for an independent judiciary:

"It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit."

N.H. CONST. pt. I, art. 35.

Judicial review is the exercise by courts of their responsibility to determine whether acts of the other two branches are illegal and void because those acts violate the constitution. The doctrine authorizes courts to determine whether a law is constitutional, not whether it is necessary or useful. In other words, judicial review is the power to say what the constitution means and not whether such a law reflects a wise policy. Adherence to the doctrine of judicial review is essential to achieving balance in our government. Without it, legislation such as that providing for the minimum business profits tax would still be in effect. Judicial review, coupled with the specified constitutional provisions which keep the judicial branch separate and independent of the other branches of...