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Bar News - October 1, 2000 Supreme Court Works to Regain Lost Ground, Lost Faith By: Dan Wise ON NOV. 14, Chief Justice David Brock will once again take the center seat at the NH Supreme Court to hear oral arguments, a position from which he was absent for more than seven months during his impeachment by the House of Representatives and his ultimate acquittal by the state Senate. The ritual of oral argument may remain the same, but it is no longer business as usual at the court. The unprecedented investigation and impeachment and the extensive public discussion of the operations of the court have already triggered several changes. The court has issued a new policy on recusal, disclosed and revised its practices regarding a confidential docket, created an independent committee to develop recommendations for a more independent judicial discipline process and announced that it is bringing in a consultant from the National Center for State Courts to provide advice on how to improve case-processing practices. Some members of the Bar, however, are asking whether members of the court are prepared to make profound changes in attitude and practices which they believe are necessary to rebuild confidence in the state’s highest court. “It has become clear from this long, sad process that we can’t go back to where things were before,” said Martin Gross, an experienced appellate attorney from Sulloway & Hollis in Concord, who served for more than 20 years as chair of the Court’s Board of Bar Examiners. “It’s time for different approaches. The institution got stuck and lost its way. It is sad that the wake-up call had to come with the fierceness that it did, but now is the opportunity to look at doing things differently.” The court also faces the challenge of catching up on a chronic case backlog that was exacerbated by the prolonged absence of Brock and, for the duration of the House investigation, Justices John Broderick and Sherman Horton. Supreme Court Clerk Howard J. Zibel said the next few months will see many decisions released by the court – including a number of opinions written by Brock that were heard and researched before the investigation began last March. (See sidebar.) Gross said he had avoided commenting publicly during the investigation and trial, but he believes Bar members and others “who are not hostile forces” must now “speak up for a constructive scrutiny of the court.” The consultants’ review of case processing is an especially important effort, said Gross. “The consultancy process needs to be supported. I believe the court should convene an advisory committee of respected people from the business world to act as a sounding board for the consultants,” Gross said. “We need to ensure that the consultants’ views are not merely shared with those who have a vested interest in doing things the way they are done now.” Richard Y. Uchida, a Concord attorney, agreed on the need for an advisory group to aid the consultants in their work. “There needs to be a users’ perspective in this process,” he said. “Changes need to be made that will meet the needs of litigants.” Gross said many attorneys have been dissatisfied with the court’s processing of appeals for a number of years. “The process has not been able to keep up, and there have been inordinate, unexplained delays in a variety of situations. Somehow the court has come to be perceived as blind to the value of other people’s time,” he said. “No doubt, the court has got to get the decision right, but inordinate delays are not acceptable. For a decision to take four years or even 18 months after oral argument – clients, and not just those who are unsophisticated – just don’t get it. They do not understand why the product can’t be delivered in a reasonable amount of time,” said Gross. Uchida added that the court must pay particular attention to communicating about its work to the public in the months to come, both to regain the confidence of litigants and to help forestall damaging “reforms” that would weaken the judicial branch of state government. Ned M. Gordon, a Laconia attorney and one of two state senators who did not participate in the impeachment trial (Gordon began his law career with a clerkship under Chief Justice Brock), said that leadership – from all three branches of government – is needed to sort through the many legislative proposals for changes in the court’s structure. “There are going to be 50 or more bills addressing the court and judiciary in the next session. I think it would be unfortunate if we simply allow the process to play out bill by bill,” said Gordon, who this year was vice chair of the Senate Judiciary Committee. “If I was the governor, I’d appoint a blue-ribbon commission to evaluate the court system and all of the procedural issues to provide some direction to the legislature. Someone needs to create a vision of where the court system should go,” he said. Gordon also expressed skepticism about the ability of the court to examine itself. “I have reservations about how the court system can evaluate its own processes. Improvement needs to be clear of internal court politics,” he said. Gordon also called for an examination of the validity of the unified Bar. “There should be an objective evaluation of whether a continued marriage between the judicial branch and attorney licensing is in the best interests of the state,” said Gordon. The issue of reforms that would enhance the court system’s ability to handle appeals requires that the court prove to the legislature and the public that all other methods of expediting its work have been examined, the attorneys agreed. “Before you can have a hope of some solution, such as an added appellate court, people have to be satisfied that the Supreme Court has made absolutely the best use of its current resources,” Gross said. On the legislative front, much depends on the outcome of the upcoming elections. Not only who occupies the governor’s office is at issue, but also the makeup of both the House and Senate. What has not received much attention is the potential price tag for some reforms. Gordon, who last year criticized the court’s call for a separate intermediate appellate court, said, “When it’s clear that something is providing value, the legislature finds a way to fund it.” SUPREME COURT CLERK Howard Zibel said attorneys and litigants in 52 out of 128 cases argued before May agreed to have new justice Joseph P. Nadeau participate. Decisions have been issued in 13 of those cases, Zibel said. The remaining cases will be decided with the participation of retired justices who sat for oral arguments. Meanwhile, the panels including substitute judges from the Superior Court that sat during the impeachment investigation have been wrapping up their work and issuing decisions. Decisions in all of the cases argued in May and all but a handful of June’s cases have already been released. Overall, Zibel said, the court is on a pace to accept fewer cases and issue fewer decisions this year. By the end of September, the Supreme Court had accepted 204 cases, compared to 241 during all of 1999. Zibel said the number of cases accepted at this point in the year might be lower for a variety of reasons, not just because of the impeachment effort. “You had different judges doing the accepting and that can have an effect,” he said. As of mid-October, the court had issued only 60 decisions this year, compared to 158 during all of last year. However, Zibel said the chief justice has a number of cases researched and many should be released in the next few months. |
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