GOV. CRAIG BENSON has nominated NH Superior Court Associate Justice Robert J. Lynn to succeed Superior Court Chief Justice Walter L. Murphy. Murphy retired Dec. 31. A public hearing is to be held sometime in January on Lynn’s nomination by the governor and Executive Council, but at press time a date had not yet been set for the hearing, or for a vote on the nomination by the Executive Council.

Lynn, 54, of Windham, has been a Superior Court judge for 11 years. He is a 1975 graduate of the University of Connecticut School of Law and began his law career as a clerk for federal Judge William Ditter, Jr., in Philadelphia. He went on to work as an assistant U.S. attorney for NH; an associate and later partner at Cleveland, Waters & Bass, Concord; an attorney with McSwiney, Jones, Semple & Douglas, Concord; an assistant U.S. attorney for Connecticut; and an assistant U.S. attorney for Massachusetts.

Benson said he interviewed several potential nominees and was impressed with Lynn’s "management style" and his opposition to judicial activism. "It’s important for a judge to be like an umpire in baseball," he said.

Brock Succession Still a Controversy

At the Dec. 17 Executive Council meeting, Benson also said he is considering 20 to 30 possible nominees to fill the vacancy created when Chief Justice David Brock retired from the NH Supreme Court Dec. 31. Benson said he hoped to nominate someone at the Council meeting on Jan. 7, just after this issue of Bar News went to press. Check the NH Bar Association Web site at www.nhbar.org for updates.

The issue of naming a chief justice to replace Brock remains controversial. On Dec. 19, the NH Supreme Court declined, 4-0, to offer an advisory opinion to Benson and the Executive Council on the constitutionality of a law enacted in 2001 that makes the senior member of the court (in this case John T. Broderick, Jr.) the next chief justice, and creates a five-year rotation for chief justice. (See the text of Benson’s inquiry and of the justices’ decision Questioning the Process. Broderick recused himself from the decision.)

By declining to offer an advisory opinion, the justices have upheld the constitutionality of the law. In a statement issued by Benson, however, he said that he still intends to follow the past practice of the governor and Executive Council selecting the chief justice, citing Part II, Article 46 of the NH Constitution as justification. That article states in part that "all judicial officers, the attorney general…shall be nominated and appointed by the governor and Council…"

Benson said, "The Council and I felt this issue to be a serious matter and requested an opinion from the Supreme Court. They have chosen to abdicate their decision-making authority, and declined to answer our questions. In the absence of court guidance, I will therefore proceed under the authority of the New Hampshire Constitution. The constitution clearly states that it is within the discretion of the governor and Council to nominate and appoint all judicial officers…."

Benson said that he plans to meet with Justice Broderick and other potential candidates for chief justice in the coming weeks. "It is my hope that the state Legislature will take action to mitigate the constitutional conflict with RSA 490:1," he added.

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