It was heartening to read recently in the Bar News that paid mediators are now available in the District Courts throughout the state; and all credit should go to those who conceived and implemented this worthwhile program.  Kudos also to those responsible for a similar practice in the Probate Courts, where paid mediators have been available for several years.  And, of course, mediation in the Supreme Court is done by judicial referees, who are retired justices, and receive their full retirement pensions whether they volunteer their good services as mediators/referees or not. 

But mediators aren’t paid in the state’s Superior Court, where mediation by volunteer lawyers has been in operation, pursuant to Superior Court Rule 170, for more than 20 years.  In the Superior Court, where almost all important cases and jury trials are heard, the mediators are “pure volunteers” - they are paid nothing. Nada. They are not even reimbursed for expenses such as mileage.  This isn’t a personal complaint. I’ve been a Rule 170 “Volunteer” in the Hillsborough (North & South), Rockingham, and Merrimack County Superior Courts.  I believe lawyers have an obligation to volunteer their time and talents to help anyone in need (whether they can pay for a lawyer or not), and also to help the judicial system work.  We lawyers volunteer not only for the sake of judges and lawyers, but for the good of New Hampshire’s citizens, who are often enmeshed in an unfathomable maze of state statutes, judicial rules, complicated procedures, and sometimes expensive and frustrating delays.

The important point is that, once again, the Superior Court is revealed as the “designated orphan” of New Hampshire’s judicial system.  The Supreme Court gets a new state-of-the-art air-conditioning system, an extremely costly new driveway leading to its magnificent front entrance; it has a professional spokesperson, and increased staff.  The Administrative Office of the Courts (the Supreme Court’s Administrative Branch) has a somewhat more modest, but attractive and functional building, to go along with increased pay and benefits.  To be noted is that per case costs in the Supreme Court have increased by 81 percent from 1997-2002, while during the same period per-case costs decreased by 6 percent in the Superior Court.             

And all the while, the Superior Court Clerks, and their hard-working Court Assistants, and staffs, including Court Officers, courteous and competent at all times, are daily assaulted by disgruntled citizens, including lawyers, while trying to process cases and answer questions. They are inundated daily with demands for free legal advice, which they are not authorized to give, and they work in crowded, inadequate, and cluttered working areas and conditions.  And they perform their duties accompanied by the constant threat of layoffs because the judicial system’s limited financial resources are being diverted elsewhere. 

One possible solution is to allow the Superior Court to speak more directly for itself in the legislative budgeting process.   The word in the courthouse trenches is that the Superior Court Chief Justice and Associate Justices are discouraged from speaking out on behalf of the Superior Court.  This notwithstanding the fact that when New Hampshire’s court system was first unified in 1971 (the venerable Frank R. Kenison was Supreme Court Chief Justice, and William W. Keller was Superior Court Chief Justice), the statute as enacted provided that “ … The chief justice of the supreme court, with the advice and consent of the chief justice of the superior court in respect to all matters affecting the superior court, shall be responsible for supervising the efficient operation of all courts in New Hampshire”.

(RSA 490-A:2, and 3) (Emphasis added).

It now appears that that the Supreme Court has effectively usurped the authority of the Superior Court, making decisions for the entire court system without the consent, advice, or perhaps even the input, of the Superior Court, and is “orphanizing” the Superior Court in the process.   

Legislators effectively look out for their “own” local District Courts in the budget process; and the Supreme Court has, as aforesaid, a professional spokesperson, as well as a general counsel, a clerk, a legislative counsel, and a very efficient staff.  There also has been a much-ballyhooed  “dialogue” going on between the Supreme Court Chief Justice and leading legislators (at what cost to judicial independence and to the impartiality of Supreme Court decisions?) on the judicial branch’s budget.  This “dialogue” was so effective that this year the Supreme Court’s budget proposals were adopted without being reduced by a single dollar by the Legislature, a first in New Hampshire’s legislative-judicial history.        

Somebody has to be allowed to step up to the legislative plate and speak and fight for the Superior Court or, the way things are going, it’ll soon merit the title, “Inferior Court.” 

David Nixon is president of  the Manchester law firm of Nixon, Raiche, Manning, Vogelman & Leach, P.A.