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Bar News - August 13, 2004 Judge Challenge Pilot Ends By: Anita S. Becker Used Rarely THE MERRIMACK COUNTY Judicial Challenge Pilot Program, which quietly sunsetted earlier this summer, was used less frequently than its legislative sponsors might have hoped. The no-cause-required challenge to remove a judge from a case was used in less than one percent of the 4,052 civil cases heard within the county during the two-year span of the pilot project. Despite that statistic, the bill’s sponsor, state Rep. Tony F. Soltani, an Epsom attorney, said that he considers the pilot a success and will sponsor a related bill next session to make the option available permanently on a statewide basis. Soltani said he also wants to study the limit on one judge (or marital master) limit per case studied to see if it should be expanded. "The naysayers said that the sky was going to fall but the sky is still up," Soltani said. He was unconcerned that the challenge was only used 68 times in two years (see accompanying chart). "It’s still a new concept," he explained. "There are 68 people who walked away from the justice system with a better perception of the law." At the time the pilot was implemented, then-NH Superior Court Chief Justice Walter L. Murphy said Merrimack was chosen as the pilot county to provide a "fair test" for the concept. He explained that it would be unfair to try it in a one-judge county, and it also wouldn’t be a "real test" if it was tried in a five-judge court, where a judge could be too easily switched. Murphy is not surprised that the challenge is rarely used. "It didn’t amount to a hill of beans," he said. "I don’t think there was ever any need for it. I know of no systemic prejudice going on that would require it." He added that it places a burden on smaller courts especially those with only one full-time judge. Prior to the pilot in Merrimack County, and currently statewide, there is no requirement that a judge be disqualified from a case for any reason. Litigants may petition a judge to recuse himself/herself due to a conflict of interest, but the discretion remains with the judge on whether or not to stay on the case. Some court officials, like Murphy, a retired judge who still hears cases, believe that the current recusal practice is adequate and that the no-cause removal of a judge encourages "forum shopping" and adds administrative burdens on court staff related to scheduling and documentation. Generally, the option to remove a judge was used mainly by plaintiff’s attorneys and certain lawyers and firms invoked it more often than others, explained William S. McGraw, clerk for the Merrimack County Superior Court, who tracked use of the challenge. He pointed out that the plaintiff was the one who had the judge removed in 42 of the 68 cases in which the challenge was used. McGraw said that judicial challenges add more work for court staff. "It was a substantial burden here," he explained. "There were an additional two steps involved for each case and scheduling judges was more difficult." He predicted that it would be even more complicated to handle challenge cases with the new individual docketing system in place. "I think it is a statute that solved a problem that didn’t really exist," said McGraw. "It was very rarely used." Soltani said that he was prompted to pursue the legislation because he noticed, and heard complaints from constituents and other attorneys, that in some district courts litigants would get preferred treatment because of their attorneys’ relationships with the judges. "There is a perception across the state that there is an ‘old boys’ network’ out there," said Soltani. The current system puts litigants and their attorneys in an awkward position, he adds. Petitioning to ask judges to recuse themselves puts the parties at risk of retaliation from the judge and can lead to a negative impact on the case, he believes. "With the no-cause-required rule there are no hard feelings, the party requesting the move is not on record," he explained. "We do it with juries, we should be able to do it with judges." "I know the court does not care for it, but this is not going to undermine the justice system and delay someone’s trial," said Soltani, who added that he believes current Superior Court Chief Justice Robert Lynn will be fair in examining the concept of expansion. Lynn was unavailable for comment at press time. The original House legislation called for statewide implementation of the concept, but the bill was amended in the Senate to create a one-county pilot project that was to be evaluated by a legislative study committee. The committee’s report on the two-year pilot project was due to the legislature in January 2004 but has not yet been submitted, according to Soltani. The program to "Permit Judicial Challenges by Parties in Non-criminal Cases" is defined in the "miscellaneous" section of the NH Court Rules: "Each party to any non-criminal case in the Merrimack County Superior Court or in any district court in Merrimack County may request that one justice of the superior or district court, as the case may be, or one marital master in a case that may be heard by a marital master, not be assigned to the case. Such request shall be in writing and shall be signed by the party, or the party’s attorney, making the request. The request must be filed with the court no later than 30 days after the return date in any non-criminal case, or three business days before the first hearing, whichever occurs first. "Upon timely filing of a request under this rule, the clerk of the court shall not schedule the case in question with the justice or marital master named in the request. In the event that no judge then sitting in the Merrimack County Superior Court or no judge of the applicable district court is able to hear the case, the chief justice of the superior court or the administrative judge of the district court, as the case may be, may change the venue of the case." The rule was effective for non-criminal cases filed in the Merrimack County Superior Court or in any district court in Merrimack County from July 1, 2002 through June 30, 2004.
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