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Bar News - January 3, 2003 Behind the Scenes at the NH Supreme Court - Part 1 By: Dan Wise The work of the Supreme Court will be the focus of a special Supreme Court Forum CLE at the NHBA Midyear Membership Meeting on Friday, Jan. 24, from 10:30 to 12:30 p.m. Three justices - John T. Broderick, Jr., Joseph P. Nadeau and James E. Duggan - will engage in a dialogue with Bar members on the work of the court, and offer their perspectives on effective advocacy. See page 16 for more information. The following is Part 1 of a two-part series on the less-visible aspects of the work of the state's appellate court. ON DEC. 10, 2002, the five justices of the NH Supreme Court meet behind closed doors in their cozy conference room - the fireplace crackles with a real wood fire and the aroma of homemade brownies is in the air. Homey touches aside, in this room, serious business is on the agenda and the pace of the meeting is brisk. Literally covering the massive oblong conference table are mountainous stacks of binders and packets of paper that the justices will sift through in the next hour and a half as they complete their case-screening duties. At this screening conference, the justices will decide whether to hear 42 cases, slightly more than the usual number they consider in these twice-monthly meetings. The court, observing the confidentiality of its process, will not disclose how many were accepted on this day, but, if recent trends hold, about 40 percent of the cases will make the cut. Today is an especially busy day for the court - it also includes a clerks' agenda conference during which the justices, meeting with Supreme Court Clerk Eileen Fox and her staff, will consider scheduling of motions, procedural and administrative issues, progress on the development of court rules, and other items related to the court's oversight of the judicial branch. The meeting also includes a case conference during which 16 cases, already argued or briefed, will be discussed. These conferences are the culmination of many hours of reading and thought by the justices, the court staff, and the justices' law clerks, hours during which they pore over notices of appeal and assorted appendices, motions and responses to motions, drafts of rules, drafts of opinions, and committee reports. The justices comes prepared, feeling the weight of their responsibility to be ready for today, which reflects the institutional accountability they have to their constituents - the litigants - to expeditiously hear the disputes and, on a personal level, to their colleagues to do their fair share. "Each of us expects the others will carry their own load," said Associate Justice James E. Duggan. "When we come to these meetings, we don't want to let the others down by not being prepared." When Associate Justice John T. Broderick, Jr. suffered injuries that required a six-month recuperation period last spring, the other justices picked up the slack. "We just redistributed the work and kept on," said Associate Justice Linda S. Dalianis. At today's case conference, the justices are working hard to agree on opinions and to finish their drafts, pushing to meet a self-imposed goal of disposing of all of the cases argued through the month of October. As of Dec. 10, the court is close to that goal - with only 10 full-consideration cases and 12 3JX cases unreported. By comparison, the court had been taking an average of 203 days after oral argument to produce an opinion in 1997, according to a study conducted for an NHBA Appellate Conference in 1999, and had generated a backlog of 750 cases by 2000. Looking back only two years, the court has made remarkable headway in clearing that towering backlog. By the end of 2001, the court's backlog had been decreased to 514, a one-third decline and the lowest level of pending cases since 1991. The court's attempt to meet its self-imposed goal could have been derailed by the massive issue it dealt with this summer - the pressing, time-consuming and unusual matter of developing a legislative redistricting plan because the Legislature and executive branch were unable to agree on a plan. The justices attributed their ability to work more efficiently to several factors - innovations in scheduling, the development of the 3JX docket (three-judge panels hearing cases and issuing non-citable explanatory orders), as well as to a close collegiality that, perhaps, has been forged in a crucible of pressure and controversy. This "new court" features three new members, two trial court veterans and probably the most experienced appellate attorney in the state, who joined the court to replace three justices - one who resigned in disgrace and two who retired. As an example of the innovations, screening is now conducted twice a month, giving appellants a more prompt decision on whether the court will accept their cases. The justices agreed to set aside at least one day every other week for conferencing on screenings, opinions and administrative matters. "We thought that if we put every other Tuesday aside for conferencing, we would get a rhythm going," said Dalianis. Another element of the "rhythm" the court has developed is that oral arguments (on regular cases) are held during three months, then one month is skipped, giving the justices an opportunity in that fourth month to focus on completing opinions. Such innovations have allowed the court to maintain a brisk but sustainable pace, said Chief Justice David A. Brock. "In that month where we do not have oral argument, we are able to put every effort into clearing cases for that quarter." "I find it professionally satisfying to be working at a certain speed," added Broderick. The court's brisker pace means there essentially is no backlog, the justices contend, and consequently, the justices are becoming more selective about allowing continuances. (See page 20 for an open letter to the Bar from Chief Justice Brock on this policy change.) This focus on timeliness and efficiency, the justices contend, does not mean that they are making screening decisions with expediency in mind. "Nobody [among the justices] counts how many cases we are taking," Dalianis said. While the justices are aware of critics of discretionary review, who contend that every litigant should be entitled to an appeal, they maintain that they accept as many cases as they believe are valid. Under the court's rules, only one justice's vote is required to have a case accepted for review. Justice Duggan said that the group operates by consensus on most cases. "If I am the only one who wants to take a case, then I listen carefully to why others don't think we should take it, but we always err on the side of taking a case," said Duggan.
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