IN A RECENT editorial (March 14, 2001), the Union Leader uses the occasion of the petition recently filed on behalf of New Hampshire Supreme Court Justices Brock, Broderick and Horton (retired) to further its claims that "New Hampshire is home to the Old Boy Network of Justice." In so doing, however, the editorial unwittingly makes the case in favor of safeguarding the appropriately high degree of judicial independence built into the structure of New Hampshire government.

In their petition, the Supreme Court justices seek reimbursement of attorney fees and costs associated with last summer’s impeachment proceedings. This statute provides for reimbursement of such fees in the event of "any claim" made against present or former state officials, including any justice of the Supreme Court. The petition, a public document, was filed at the Merrimack County Superior Court in Concord. The petition quotes the statute (RSA 99-D), refers to prior Supreme Court cases allowing reimbursement to state officials for actions seeking to remove them from their jobs, and presents other factual and legal support for the justices’ position.

It is not my intent to comment on the merits of the justices’ petition, or to express an opinion as to what the result should be. Legislators and other elected officials, the public and the press can review the actual filings, confirm the legal research, come to their own opinions and express them.

It is important, however, to point out a major factual flaw in the Union Leader’s treatment of this issue. The editorial posits that whichever Superior Court justice ultimately hears and decides this position has a direct conflict of interest since "their career depends upon Chief Justice Brock." The editorial claims that the chief justice is "in charge of all the lower court judges," and asks its readers to consider how a Superior Court judge could reach a decision contrary to the Supreme Court justices if it meant they would "never work in [their] field again if [they] did the right thing."

It is then argued that this is further evidence that New Hampshire’s judicial system is "terribly dysfunctional," and that the justice’s 99-D petition represents a "special plea for favors." This entire argument is premised upon the assumption that the Supreme Court in New Hampshire can control or otherwise influence the decision-making of the Superior Court. This assumption is false as a matter of constitutional law, and as a result, the Union Leader’s entire argument fails. It represents no more than an effort to keep the flame of "paranoia" and "misinformation" burning to distort the legitimate debate on judicial reform.

In New Hampshire, Superior Court judges have constitutional lifetime tenure. Their salaries and benefits are set by statute. Removal is possible only by bill of address or impeachment carried out, as we have seen, in the Legislature. They cannot be demoted (punished) by the Supreme Court or its chief justice. They can be promoted (rewarded) only by the governor with the approval of the executive council. Their salaries can be increased only by the Legislature. The types of cases heard by Superior Court justices (jurisdiction) are dictated by statute. The Supreme Court has no authority over the geographic assignment of Superior Court justices, nor what cases they will hear. These tasks are handled administratively within the Superior Court itself. In short, neither the Supreme Court nor its chief justice has any authority to harm or threaten the "careers" of Superior Court judges in this state. These "career" considerations are either dictated by the state constitution or subject to the control of the other two branches of government.

Given these facts, it is easy to see that the structure of New Hampshire’s judicial branch provides the type of judicial independence necessary for a Superior Court judge to properly and dispassionately decide a case in which a fellow judge is a party. The lifetime tenure that the Union Leader rails against is what ensures that, in this case, the Supreme Court justices would be powerless to reward or punish the Superior Court judge making the decision. On the other hand, if the current system were changed to make judges in our state politically answerable for their decisions in high profile cases, the potential for the type of conflict of interest discussed by the Union Leader would become institutionalized.

We encourage lawmakers, the public and the press to take a fresh look at judicial reform measures with an eye toward maintaining the decisional independence of our judges, which benefits all of us. To erode this independence through overzealous reform risks injecting political pressure into the decision-making that the Union Leader itself would agree should occur free of conflict and influence. Our judiciary is insulated from political pressure to enable the judges to decide the issues that come before them by making a dispassionate and objective analysis of the facts and law applicable in each individual case.

As Justice Wilson of the United States Supreme Court wrote in the 1793 case of Chisholm v. Georgia, "Causes, not parties to causes, are weighed by justice in her equal scales. On the former solely her attention is fixed; to the latter she is as painted, blind." To be sure, there are ways to improve our judicial system and enhance the quality of our judiciary. But we must remain vigilant and avoid sweeping away the protections that makes the Union Leader’s cynical and factually incorrect scenario impossible in New Hampshire.

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