138 N.H. 425 | N.H. | 1994
To the Honorable House of Representatives:
The undersigned justices of the supreme court now submit the following reply to your question of February 17,1994. Following our receipt of your resolution, we invited interested parties to file memoranda with the court on or before March 18, 1994.
HB 1135 (the bill), as amended, proposes to amend RSA chapter 491 (1983) by inserting after section 23 a new section to read:
“491:23-a Marital Master; Enforcement of Orders.
I. Marital masters shall have the power to enforce orders and decrees in marital matters that have been approved by the superior court by adjudicating a person in civil contempt for:
(a) Failure to appear in response to a notice or summons.
(b) Failure to comply with court orders.
(c) Refusal to answer questions or to produce evidence.
II. The marital master may order the person incarcerated for such contempt, pending review by a justice of the supe*427 rior court, no later than 72 hours from the commencement of said incarceration.”
Your question asks whether the amended bill would vest such power and authority in marital masters that they would be considered judicial officers in violation of the provisions of part II, article 46 of the New Hampshire Constitution. The constitution requires that “[a]ll judicial officers ... be nominated and appointed by the governor and council; and every such nomination shall be made at least three days prior to such appointment; and no appointment shall take place, unless a majority of the council agree thereto.” N.H. Const. pt. II, art. 46. We answer in the affirmative.
The power to punish for contempt of court is an inherent judicial power. See State v. Martina, 135 N.H. 111, 115, 600 A.2d 132, 135 (1991); State v. LaFrance, 124 N.H. 171, 179, 471 A.2d 340, 344 (1983); State v. Moquin, 105 N.H. 9, 11, 191 A.2d 541, 543 (1963); Opinion of the Justices, 86 N.H. 597, 601, 166 A. 640, 646 (1933). Such power “is not set forth in any New Hampshire statute,” State v. LaFrance, 124 N.H. at 179, 471 A.2d at 344, but rather “is a necessary incident to the exercise of judicial power inherent in the functioning of the court system.” Id.
In Opinion of the Justices, 128 N.H. 17, 509 A.2d 746 (1986), we concluded that presently sitting marital masters are not judicial officers within the meaning of part II, article 46 of the State Constitution because they have not been appointed by the Governor and Council and their decisions are not binding. Id. at 19-20, 509 A.2d at 747-48. The legislature had proposed an amendment to RSA chapter 491 which would have empowered marital magistrates to, among other things, make orders and impose penalties for the purpose of enforcing summonses of boards and officials which themselves lacked the power to punish for contempt. We held that such a provision “would purport to provide powers to marital magistrates beyond the traditional authority exercised by marital... masters,” id. at 20, 509 A.2d at 748, and that therefore “[t]here is no question . . . that marital magistrates ... would ostensibly be granted the authority of judicial officers, even though they would not be appointed or tenured as such” in violation of part II, article 46. Id. at 21, 509 A.2d at 748.
The same reasoning applies to the proposed bill before us. The bill, as amended, grants marital masters “the power to enforce
April 15, 1994
Jeffrey R. Howard, attorney general (Daniel J. Mullen, senior assistant attorney general, on the memorandum), filed a memorandum in support of an affirmative answer to the question presented.
Bruce Paul Witte, of Manchester, filed a memorandum in support of an affirmative answer to the question presented.
Tyler P. Harwell, of Berlin, filed a memorandum in support of an affirmative answer to the question presented.
