RENEWABLE TERMS and public evaluations of judges at regular intervals appear to have bipartisan support in the state Senate. At a Senate Judiciary Committee hearing last month, lawmakers heard testimony on proposals aimed at broadening input into the judicial selection process and creating new forms of accountability.

See related statement on merit selection by NHBA President Gregory D. Robbins on page 5. At press time, the NH Supreme Court had announced formal procedures for judicial evaluations. See page 10.

While the school funding struggle has forced judicial reform off the front pages, Senate Judiciary Committee Chair Edward M. Gordon cautioned against confusing a lower profile with lessening interest.

"Judicial reform has not lost any momentum," said Gordon, a Bristol Republican and an attorney in Laconia. "The Legislature is focusing on education funding and judicial reform is obscured in its shadow, but there is general sentiment that you need judicial reform. It’s a broad concept and we are narrowing our areas of concern," he said.

Gordon cited judicial selection and review, the scope of autonomy of the judicial branch, judicial pensions and an independent Judicial Conduct Committee as the areas drawing the most interest among lawmakers.

Many of the changes legislators are proposing would require amending the constitution, a process that ultimately would require approval of a two-thirds majority of voters. While that is a difficult hurdle, legislators have the luxury of a longer deadline: The earliest that a potential constitutional amendment could be submitted to voters is Election Day 2002.

While both chambers of the Legislature are interested in making changes, differences appear to be developing between the approaches of the Senate and the House. Members of the House Judiciary Committee, including committee Chair Henry Mock, have made elimination of Part 2, Article 73-a a keystone of reform. But Gordon doesn’t share that priority. "The House is taking the initiative in that regard," Gordon said, adding that no similar legislation has been proposed in the Senate. "There is no support in the Senate for simply repealing that provision."

"I believe that most senators feel that the court needs to have some rulemaking authority over its branch of government. The problem is not with 73-a, it is the way it has been interpreted and applied. Rather than repeal it, it may be that an amendment is needed that makes 73-a more restrictive," said Gordon. He did not elaborate on how such an amendment would be tailored.

The Senate committee began its consideration of these issues in mid-March with hearings on proposals to replace lifetime tenure of judges with some form of renewable terms. One Judiciary Committee member, Senator Mark Fernald (D-Sharon) has proposed CACR 16, which would make permanent the Judicial Selection Commission mechanism Gov. Jeanne Shaheen created last year. Fernald’s proposed constitutional amendment goes much further, however, making the commission responsible for reviewing all judges every eight years and giving it the power to remove judges for poor performance. That provision drew opposition from Rep. John Pratt, a member of the House Judiciary Committee, who testified at the hearing that removing judges for cause is a duty that lawmakers should not, and cannot, delegate to a non-constitutional entity.

Officials of the Bar Association spoke in favor of the portions of Fernald’s bill governing judicial selection. "We feel that merit selection of judges may be the single most important judicial reform measure New Hampshire could adopt," said NHBA President Gregory D. Robbins. Keeping politics removed from the judiciary is essential to supporting public confidence in the system, Robbins said.

However, the Bar cannot fully support CACR 16 because of the reappointment process specified in the bill, Robbins said. "As a general proposition, the Bar has a concern about the effect of term limits on decisional independence of judges. However, we do recognize that many of our members would not be opposed to a term limit measure," Robbins said. Consequently, the Bar’s Board of Governors has voted to take an informational role on Fernald’s bill, expressing concerns on a variety of provisions, including coordinating any term limit reforms with changes in judicial pensions.

Two bills sponsored by Sen. Lou D’Allesandro (D-Manchester) were also discussed at the hearing. SB 24, a merit selection bill, would actually weaken the current system put in place by executive order by allowing the governor to "give high priority" to names submitted by the commission, instead of requiring the governor to either choose names from the list or ask for additional names. D’Allesandro also proposed SB 86, which sets up a process for the governor and executive council to review all judges every 10 years, including issuing positive or negative ratings that would be made public.

Sounding a note of caution was Sen. Debora Pignatelli (D-Nashua), who proposed SB 114, which would set up a broad-based commission to study judicial reform issues. She said it is important that more than just elected officials be involved in studying the issue. "I participated in the [impeachment] trial and our judicial system came up short in areas. We are still very close to the trial and I am reluctant to support changes in reaction to that process," said Pignatelli. "When we are looking at changing a coequal branch of government, I would feel more confident if we can seek a wide consensus of the people," she added.

Senator Gordon does not favor Pignatelli’s go-slow approach, nor the approach of Mock that would leave the drafting of specific proposals to a legislative study committee whose recommendations would not be voted on until next January or later. "Rather than waiting until the last few months [before a referendum] to draft something, if we act sooner, the people will have more of an opportunity to become aware of the consequences and the time to consider them," Gordon said in an interview after the hearing.

NHBA President-Elect Peter E. Hutchins, testifying at the hearing, endorsed the study commission idea, and took a long view of the ongoing judicial reform debate. "A lot of these issues are being put on the table, and we’ve had this year of building a learning curve," he said. Hutchins, who takes office as Bar President in June, promised that the Bar Association will make enhancing public understanding of the judicial system a priority of his tenure. He said the Bar would continue to gather information and serve as a resource to lawmakers and the public as discussion of various reform proposals continues.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer