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Bar News - February 6, 2004 Morning Mail Chief Justice Succession Law is Constitutional It was with a deep sense of bemusement that I read the commentary by Peter Hutchins in the Jan. 9, 2004 edition of New Hampshire Bar News titled, "Governor Should Follow CJ Rotation Law." In his article, Mr. Hutchins proceeds to take Governor Craig Benson to task for seeking to raise a constitutional challenge to the so-called chief justice rotation law. Mr. Hutchins attempts to justify his criticism of the governor’s proposed challenge on the grounds that it threatens to undermine the "will of the people." In support of this proposition, he notes that the rotation law was passed by the New Hampshire Legislature in 2001, by an overwhelming majority, and was signed into law by then-Gov. Jeanne Shaheen. He then contends that while there is no dispute that the governor and Executive Council have the constitutional authority to appoint judges, because there is no mention in the constitution of the appointment authority for the "chief administrative judges of the various courts," the Legislature, which "presumably reflect(s) the will of the citizenry," is free to designate the chief administrative judge of the various courts. He thereupon concludes that "... it is the duty and obligation of the governor" to abide by the Legislature’s established appointment mechanism. Unfortunately, Mr. Hutchins’ argument relies on selective facts, and, in some instances, mistakes the facts completely. Furthermore, while Mr. Hutchins currently seems compelled to genuflect at the altar of the "will of the people," his observance of that custom, like that of many recent Bar leaders, seems sporadic and self-serving at best. Contrary to the assertion that the constitution is silent on the appointment authority for the chief administrative judges of the various courts, Part II, Article 73-a of the Constitution of New Hampshire provides that: "The chief justice of the Supreme Court shall be the administrative head of all the courts.…" Further, the constitution provides that such chief justice, "with the concurrence of a majority of the Supreme Court justices," can make rules governing the administration of all courts in the state. Clearly, this language establishes the chief justice of the Supreme Court as a unique judge with special powers, powers that are different and more extensive than those of other Supreme Court justices and members of the judiciary generally. Obviously, a legislative action that attempts to supplant the governor’s customary power to appoint the unique judicial officer known as the chief justice of the New Hampshire Supreme Court would undermine the provisions of Part 11, Article 46 of the New Hampshire Constitution, which grants to the governor and Executive Council the power to appoint "(a)ll judicial officers." Consequently, rather than submit to the Legislature’s effort to further undermine the already constitutionally limited powers of the New Hampshire executive branch – clearly reflected in the judicial rotation law –I suggest that the governor and Executive Council are constitutionally obligated – both by the concept of separation of powers embodied in Part 1, Article 37 of the Constitution of New Hampshire and by their respective oaths of office, set forth in Part II, Article 84 – to support the Constitution of the State of New Hampshire by resisting this legislative intrusion. This is not an area in which comity between one branch of government and another can be allowed to provide window dressing for a substantial erosion of the powers clearly invested by our constitution in a particular branch of government – in this case the executive branch. With respect to Mr. Hutchins invocation of the "will of the people" as a rationale for the governor to forego a constitutional challenge to what appears to be a clear violation of the separation of powers, I find it curious that Mr. Hutchins feels so compelled to rally to the defense of the "public" in this instance when, as president of the New Hampshire Bar Association, he apparently was not moved to action by the will of the people in other notable instances in which the extension of judicial power into the area of legislative and/or executive branch powers were at issue (i.e. Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997)). In fact, "the will of the people" is the cornerstone of our democracy. It should be ignored by our elected and appointed officials only in very limited circumstances. Such circumstances most often arise only in those rare instances when the people’s "will" clearly contravenes a specific provision of the state or federal constitution, or violates an essential, widely understood and acknowledged core concept of separation of powers. The chief justice rotation law is a clear case of violation of the most basic concepts of separation of power as they are enshrined in our state constitution. That being the case, whether one believes that he or she will support the current governor’s selection in appointing a chief justice or not, we must recognize the governor’s right, and obligation, to attempt to preserve the powers of his office and those of the executive branch of government generally. That is how our system of checks and balances works to preserve the freedom of the people from oppressive government. Danford J.Wensley Electronic Court Recording Not in State’s Best Interests The Jan. 9, 2004 Bar News article "Pay Changes for Court Reporters Could Cause Transcript Delays" clearly identifies the problems facing our judicial system as the state government struggles to reduce the budget deficit. The need to solve the budget crisis is obvious, but we also need to be careful that the solutions do not leave the citizens of New Hampshire with a third-rate system of justice. No one welcomes a de facto cut in income. Most court reporters can appreciate the situation we all face and are willing to share the burden of fixing it. But this mea sure goes beyond the otherwise reasonable solution of simply paying people less for less work. We also have to consider the nature of the work that could be delayed, namely transcripts of court cases needed for appellate review. Someone’s property or freedom is involved in virtually every one of these transcripts. AOC Director Donald Goodnow and Superior Court Coordinator Joan Bishop indicate their optimism that responsible management can prevent unreasonable delays. It’s a goal that we all can hope and work for. That said, Mr. Goodnow also raises the possibility that court reporters could be eliminated entirely and replaced with electronic recording equipment. A recent study by the Justice Management Institute ("How to Conduct an Assessment of Your Court’s Record-Making Operations") found that the combination of stenographic reporting and computer technology and the development of realtime court reporting continues to enhance the value of the record. The study also showed that the role of the official court reporter is changing from a single-purpose function of creating a transcript for appellate review to being a multipurpose manager of a system that provides instant access to data for improving trial practice. Digital sound recording offers advantages of its own, when properly managed, but it also has limitations, not the least of which is that two people listening to the same recording will inevitably produce transcripts that differ, depending on each individual’s experience, education, vocabulary and "stick-to-itiveness," and whether he or she was present at the proceeding. In most cases, recording systems work – obviously, or they would never have made it this far as a technology. The reliability issue is that you don’t know when they will fail, which from time to time they do. An old court reporter joke contains a truth: At least when a court reporter dies in court, you know it. Judges, court administrators, and others in the court system need to analyze the best mix of technologies for creating and preserving the record of proceedings and where it makes the most sense to use each. A blanket approach of suggesting digital sound recording in all courts is neither good management nor good use of technology, and it will not serve the long-term interests of citizens and taxpayers. Marcia G. Patrisso Bownes Not First NH Judge to Sit on First Circuit I am writing to comment on a factual error in the well-deserved, well-written tribute in the Nov. 21 Bar News to Judge Hugh Bownes of the First Circuit U.S. Court of Appeals. In the tribute, it was stated that Judge Bownes was the first New Hampshire state judge to have been appointed to the First Circuit bench. This statement is not correct. He was preceded by Judge Peter Woodbury of Bedford, who was appointed to the court from the New Hampshire Supreme Court in 1941, became chief judge of the court in 1959, served as chief judge until 1964, when he assumed senior status, and remained a senior judge until 1970, when he died. Judge Woodbury was a New Hampshire state judge "through and through" because he had come up the New Hampshire judicial ladder, starting as justice of the Bedford District Court when he was only 29 years old, then serving as an associate justice of the Superior Court, then as associate justice of the Supreme Court. He was distinguished by his fairness, kindliness and dignified manner. He was also known by his conscientiousness and well-written opinions. He was highly respected and well-liked by his federal judiciary colleagues and by his law clerks, one of which I was privileged to be. In showing their esteem and affection for him, several of his clerks, I among them (I was then practicing with Orr & Reno, and I proudly retain my New Hampshire Bar membership to this day), organized a dinner honoring him. It was a most successful event well-attended by his former clerks, judges and his friends, including Professor Livingston Hall and Dean Erwin Griswold of Harvard Law School. Judge Woodbury and his wife were deeply touched by the event. Henry T. Dunker Editor’s Note: Thanks to the advice of James Starr, clerk of the U.S. District Court of New Hampshire, we checked the federal judiciary Web site at www.fjc.gov and determined that of the 26 First Circuit judges past and present, there is even another NH state judge that predates Judge Woodbury. The Hon. George H. Bingham, of Littleton, served as associate justice of the NH Supreme Court from 1902-13 before he was appointed to the First Circuit bench in 1913 by President Woodrow Wilson. He joined the First Circuit on June 5, 1913. Judge Bingham assumed senior status on March 23, 1939, and remained on the court until his death on Sept. 25, 1949.
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