## Facts

- The Governor of New Hampshire and the Executive Council requested an advisory opinion from the Justices under the state constitution’s advisory-opinion provision.
- A statutory amendment to RSA 490:1 changed the method of selecting the Chief Justice of the New Hampshire Supreme Court upon the retirement of the sitting Chief Justice.
- Before the amendment, the Chief Justice, like other justices, was appointed by the Governor with the advice and consent of the Executive Council.
- The amendment provided that the justice with the most seniority would be administratively appointed Chief Justice for up to five years, rather than selected through gubernatorial appointment and council consent.
- The request asked whether this seniority-based, automatic selection method comported with the state constitution’s separation of powers, executive appointment authority, and provisions securing judicial independence and court administration.

## Issues

1. Whether the legislature may, by statute, replace the Governor-and-Council appointment process with automatic seniority-based selection for the office of Chief Justice of the state supreme court.
2. Whether the amendment violates separation of powers by reallocating or diminishing the executive’s constitutionally assigned appointment authority.
3. Whether the amendment improperly intrudes on judicial independence and the judiciary’s constitutionally vested authority over court administration.

## Decision

- The Justices opined that RSA 490:1, as amended, was unconstitutional.
- The office of Chief Justice was treated as a constitutional judicial office subject to the constitution’s appointment framework.
- The legislature could not, by ordinary statute, remove the Governor and Executive Council from the constitutionally prescribed appointment role.
- The amendment was also inconsistent with constitutional guarantees of judicial independence and the judiciary’s authority over court administration.
- The Justices advised that the Chief Justice must be selected through constitutionally compliant methods (Governor with advice and consent of the Council, absent a constitutional change).

## Legal Principles

- Where the constitution assigns appointment of judicial officers to the Governor with advice and consent of the Executive Council, the legislature cannot substitute a different appointment mechanism by statute.
- Separation of powers prohibits legislative action that reallocates core executive appointment functions established by the constitution.
- Constitutional provisions securing an independent judiciary and vesting court administration in the supreme court limit legislative control over internal judicial leadership and governance.
- A statute that effectively determines who holds a constitutional office, and how that office is filled, must conform to constitutional appointment requirements rather than operate as a mere administrative detail.

## Conclusion

The Justices advised that the legislature could not mandate automatic, seniority-based selection of the Chief Justice because it conflicted with constitutional appointment provisions and separation-of-powers limits, and it risked legislative intrusion into constitutionally protected judicial independence and court administration.


In re Opinion of the Justices, 842 A.2d 816 (N.H. 2003)