LABORING UNDER THE shadow of the school-financing tussle, legislators have been voting on a variety of bills that could significantly change the judicial system.

A bill considered key to judicial reform, CACR 5, which would give the Legislature the "trump card" over Supreme Court actions on rules, was expected to be approved by the House last week and sent on to the Senate. The House has already acted on the biennial operating budget, cutting $9 million from the judicial branch’s budget over the biennium, but approving capital expenditures for the Carroll County Superior Court and the automation of the courts’ antiquated computer system.

Meanwhile, the House Judiciary Committee is considering a Senate-passed bill to establish a five-year rotating term for the Supreme Court chief justice.

The judiciary committees in both chambers are also setting aside for further study a number of bills regarding judicial matters.

At press time, the NH House of Representatives was expected to approve CACR 5, a resolution that would amend Part 2, Article 73-a of the state constitution if eventually approved by the voters. If approved by the House, CACR 5 would move to the Senate for consideration, and eventually would require the approval of the governor before it could be put on the ballot for voters in the November 2002 election. House Judiciary Committee Chair Henry Mock has called the measure "crucial" to any judicial reform efforts since he believes it would redress an imbalance he sees between the authority of the court and the Legislature.

CACR 5, after much discussion by the House Judiciary Committee, amended the article dealing with the authority of the Supreme Court chief justice to administer the courts by adding the following two sentences: "Notwithstanding Part 1, Article 37, the General Court may regulate these matters by statute and may accept or reject any rule adopted by the Supreme Court. In the event of a conflict between a statute and a rule, the statute, if otherwise valid, shall supersede the rule."

According to Rep. James L. Craig, a Manchester attorney who chaired the subcommittee that developed the Article 73-a measure, CACR 5 will not lead to paralysis of court rulemaking or micro-management by the Legislature. The words "if otherwise valid" were also added at Craig’s suggestion to explicitly point out that the court retains the ability to consider the constitutional merits of a particular statute.

A companion bill, HB 252, spells out how the Legislature might exercise its rulemaking review role. Its provisions include:

• All existing rules of practice and procedure remain in effect unless changed by statute or subsequent court rule;
• The court’s rule-making process would be subject to the Right to Know law;
• The court would be required to report on rules changes to the Speaker of the House and the Senate president, including how the new rules would apply to pending court proceedings as well as rationale for the new rule.

Many in the House Judiciary Committee believe that changing 73-a is key to judicial reform. Others, particularly in the Senate and the Bar, disagree with this assumption. The Bar Association’s Board of Governors has voted to oppose CACR 5. NHBA President Gregory D. Robbins said the perceived problem of disproportionate authority could be better addressed without resorting to a constitutional amendment. The Bar has supported a measure that would add legislative members to the Court’s Advisory Committee on Rules. Said Bar President-Elect Peter Hutchins, "With an appropriate mix of people on the Rules Committee, potential conflicts or concerns could be identified early and resolved."

Craig and Christopher Reid, both attorneys and members of the House Judiciary Committee, said CACR 5 would not lead to meddling by the Legislature, but would restore balance to the separation of powers in NH government, and would put New Hampshire more in the mainstream than the current situation. Some lawmakers, along with Superior Court Associate Justice Robert Lynn (in a March 2001 Bar Journal article), said decisions by the Supreme Court have too broadly interpreted Part 2, Article 73-a. The court, particularly in a ruling regarding prior sexual assault evidence, has contended that the court has ultimate authority over all court rules, including statutes that are otherwise constitutionally sound.

Martin Gross, a Concord attorney who figured prominently in the 1974 Constitutional Convention that successfully proposed to voters the Article 73-a amendment, also supports CACR 5. He believes that the Supreme Court’s interpretation of its authority has tipped the balance and intruded into the Legislature’s inherent lawmaking authority. "The court has become more and more insistent on its institutional independence and this insistence has led to it asserting exclusive authority over rulemaking, a situation which cries out for a response," Gross said.

The fate of the bill in the Senate is not known. Senate Judiciary Committee Chair Edward M. Gordon said CARC 5 appears to be a "reasonable measure," although he vowed to keep an open mind. "I’d like to hear if there are alternatives to this," he added.

Rotation of chief justice: SB 35 has already passed the Senate and is being considered by the House. This bill, supported by the Bar Association, would create by statute a five-year rotating term of office for the chief justice of the Supreme Court. The measure would enable all five justices of the court to become more involved in administration, and enhance the court’s authority by de-emphasizing the role of a single individual as administrator. One proviso of the bill would allow a justice to decline the position to spare the court system from being managed by a reluctant administrator. Robbins, in testimony before the House Judiciary Committee, said he believed the rotation system would tend to de-politicize the chief justice’s position, and shift the focus of the court’s administrative role to more of an institutional one.

Judicial system budget: The NH House cut the $59.6 million judicial branch budget by $9 million over the biennium. According to Donald Goodnow, executive director of the Administrative Office of the Courts (AOC), if those cuts are sustained by the Senate and approved by the governor, the judicial system will have to significantly reduce support personnel. Salaries, he said, are the major part of the budget and judicial positions are permanent and cannot be reduced, except through attrition. "It will have an effect on constituent services," said Goodnow.

Court computerization: The AOC’s request for funding to upgrade its antiquated, DOS-based court record-keeping software and hardware has been partially funded in a capital budget approved by the House. The capital budget allotted $1.1 million over the biennium for the technology upgrade, less than half the requested $3.4 million.

Interest on judgements: HB 140, which would fix a flaw in existing laws that can prevent a party from collecting interest on a judgement during the period of appeal, has passed the House and is being considered by the Senate Judiciary Committee.

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