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Bar Journal - June 1, 2001

The New Hampshire Bar Association's Legislative Activities, 2000-2001

By:

The New Hampshire Bar Association's constitution contemplates a definite but limited role for the Bar's activities before the legislature. Article I states:

The Association shall confine its activities before the General Court to those matters which are directly related to the administration of justice; the composition and operation of the courts; the practice of law and the legal profession.

With this limited mandate, the Bar's normal practice has been essentially reactive: wait to see what the legislature comes up with for proposals and then determine if the Bar should get involved and if so, how. Following last summer's impeachment proceedings, however, it became obvious that the 2001 legislative session would be anything but normal in the areas of judicial and legal reform.

Beginning in the summer, the Board of Governors started meeting to assess whether a different legislative approach was needed. Most of the reform measures being discussed were clearly within the parameters set out in our constitution for our proper involvement. Whether one agrees or disagrees with these reforms, it was clear that we bring a valid and important perspective to the debate. Although change to the judicial system would affect everyone, those who would be the most immediately and directly affected would be the litigants - our clients. As officers of the court, we are a part of the system itself. It would be inexcusable for the Bar to remain silent at a time of such historic importance to our system of justice.

So we decided to act.

The Bar's Traditional Legislative Role

There is nothing unique about the bar involving itself in the legislative process. Every year the New Hampshire Bar Association devotes a substantial amount of time and effort dealing with new proposals for legislation. One of the Bar's hardest working committees, the Legislation Committee, reviews yearly all such proposals, pulls out those that may be of interest or concern to members of the bar and our justice system, and makes recommendations to the Board of Governors. The committee's recommendations come in four categories: to support, oppose, take no position, or provide information.

Traditionally the committee begins meeting near the end of the calendar year as proposed legislation (LSR's) and proposals for amendments to the New Hampshire Constitution (CACRs) become available. A representative of the committee, usually the chair or the Bar's lobbyist, John MacIntosh, comes to the Board meetings to discuss the committee's rationale for its recommendations. The Board then discusses the recommendations and votes on them. In my five years on the Board, I would estimate that over 90 percent of the time the Legislation Committee's recommendations are adopted.

When the Board has voted to take a position or to provide information, a representative, usually the president or president-elect, may testify before the house or senate committee to which the proposal has been referred. It is often when testifying in an informational role that the Bar can be of most assistance to the legislature. The Bar's input on technical issues can clarify matters that may have been overlooked, such as possible constitutional implications or potential inter-relationships between various pending reform proposals.

Because the New Hampshire Bar Association is a unified bar, its lobbying efforts are constrained not only by our constitution but also by the First Amendment. The United States Supreme Court in Keller v. State of California, 496 U.S. 1 (1990), and our own Supreme Court in Petition of Chapman, 128 N.H. 24 (1986), defined the limits of proper legislative advocacy by a unified bar. These decisions, particularly Chapman are always considered by the Legislation Committee as a part of its review process. Similarly, copies of the decisions are given out to each Board member as a part of the package of information given to them at their first Board meeting and are discussed as a part of the Board orientation process. The Board is cognizant of these cases as it reviews legislation, and Chapman issues are often raised and debated by the Board before deciding whether to take a position.

The Bar's Legislative Activities, 2000-2001

The Board of Governors closely monitored the impeachment process, beginning with a special meeting within days of the Attorney General's press conference at the end of March. In September, the Board took its first formal actions. First, we voted to adopt a set of guiding principles for vetting judicial reform measures:

  • to oppose measures that adversely impact judicial decisional independence;
  • to support measures that enhance judicial accountability based on valid criteria including competence, work ethic, and judicial temperament;
  • to oppose measures that erode the constitutional separation of powers.

The Board also voted to authorize the officers in the presidential line (immediate past president, George Moore, president (the author), president-elect, Peter Hutchins, and vice president, Marty Van Oot), the executive director, Jeannine McCoy and the legislative representative/lobbyist, John MacIntosh, to work with the legislature on these reform measures within the above guidelines. Added to this group, which became known as the Legislative Steering Committee, were Peter Beeson, Chair of the Committee on Cooperation with the Courts, Douglas Chamberlain from the Legislation Committee, Kevin Dugan from the New Hampshire Trial Lawyers Association, Prof. Richard Hesse from the Franklin Pierce Law Center, Atty. Charles Grau, and Dan Wise, the Bar's communications director.

The primary focus of this group was to compile materials from various sources in the areas where reforms were being proposed, such as judicial term limits, rulemaking authority, judicial and lawyer discipline, etc. These materials included summaries of legislation from other jurisdictions, model acts, case law, and related materials. They were then made available as resources for the Board and legislature in reviewing the many reform bills and constitutional amendments that have been introduced.

The committee also put together a few specific proposals of its own and has sought sponsors for them:

  • a permanent merit based judicial selection system;
  • a joint resolution calling for the Supreme Court to appoint one member designated by the Senate President and one member designated by the Speaker of the House to the Court's rule-making committee;
  • a bill proposing that the Chief Justice position be rotated among the members of the Court.

It also recommended support for a more independent Judicial Conduct Commission.

We also tried to get input from those directly involved with or likely to be directly impacted by judicial reform. Officers met with key legislative leaders to determine their concerns and how the Bar's resources could best be used to help them in shaping positive reform efforts. We also met with judges from all levels of our court system to get their own unique perspective of the system and how the various reform proposals might affect their ability to dispense justice.

Finally, the Steering Committee and the Board of Governors made a special effort to get input from and provide more information to our members regarding the Bar's proposed legislative activities. These outreach efforts have included a number of articles in Bar News, personal responses to inquiries and concerns expressed by members, an overview given at the Developments in the Law Seminar, discussions at least one county bar meeting, a forum devoted to the topic at the Mid-Year Meeting on January 26th, and a poll included in Bar News and on the Bar's web site.

Contrary to what some people have suggested, one thing that has not changed this year is the Board's concern about adherence to the principles of Chapman. In fact, in addition to the discussion of this case as a part of the Board's normal legislative review process, the Board conducted a debate as to the import and interpretation of the case as it applied to judicial and professional reform measures. Some Board members felt that it gave the Bar a broader scope of authority than others in lobbying on matters that relate to the administration of justice. Certainly, Chapman does seem to state that the Bar can take positions on such matters even in the absence of substantial unanimity among its members. A general consensus was reached, however, that where a significant difference of opinion in our membership existed the Board should generally not take a position supporting or opposing a measure, but should rather take an informational position or perhaps no position at all.

Conclusion

As this edition of Bar Journal goes to press, the legislature is studying and debating the merits of the many reform measures before it. We have tried to be a resource for it, understanding that it is a true citizen legislature with relatively limited resources of its own. We hope to continue to work with it in the coming months to craft the best possible solutions where it (or we) perceive the need for change. We likewise hope to continue - and expand - our efforts to seek input from our members on these issues.

The decision-making process on the Bar's legislative activities this year has required a delicate balancing act for the Board. As the elected representatives of the 5000 members of this association, we could not sit idly by with the legislature seriously considering proposals about how judges are selected and whether they will lose life tenure, whether the court or legislature will have the final word on court rules, how lawyers and judges will be disciplined for alleged misconduct, and whether the Bar itself will remain unified. These are measures that fundamentally impact the justice system and the profession. By the same token, we recognized that many of these issues are controversial and that there are significant differences of opinion among our members. We have tried to steer a responsible course reflecting these potentially conflicting considerations.

Time alone may tell whether we have done so, and how successful our efforts have been. For my part, I would simply like to thank all the people who have been involved in the process: the legislators and judges who took the time from their remarkably busy schedules to meet with us; the members who cared enough to contact us with their opinions; the non-attorneys who called, e-mailed or wrote to me with their thoughts; and to the people from the ABA and other bar associations who provided us with information that helped to focus our efforts. Most especially, though, I would like to thank the members of the Bar staff, the Legislation Committee, the Legislative Steering Committee and the Board of Governors who put in countless hours in this effort over the past year. In particular, president-elect Peter Hutchins spent a great deal of time, and did an excellent job, assembling the materials that we have all relied on in putting these reform measures into perspective.

If we don't accomplish all that we might have hoped, it will not have been for want of thought and effort. It has been my privilege to work with you.

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