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Bar News - January 20, 2006 Opinions: Superior Court Not in Danger of Becoming ‘Inferior’ The following letter by Superior Court Chief Justice Robert Lynn responds to a letter by attorney David Nixon, published in the Jan. 6 Bar News, page 10, and available at www.nhbar.org under Publication Archives. The upshot of Attorney Nixon’s article appears to be that the Superior Court has become the black sheep of New Hampshire’s judiciary. In support of this thesis, he cites three examples: (1) the lack of paid mediators (or retired judges) to perform mediation in the Superior Court; (2) the supposed “short-changing” of the Superior Court in the budgeting process so that funds can be “diverted elsewhere;” and (3) the claim that “[t]he 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.” Each of these examples is either inaccurate or at least fails to tell the whole story. Dealing with the last point first, I need do little more than reference the debate over CACR 5 to demonstrate that I have never been shy about expressing my views concerning matters that affect the courts or the administration of justice, whether the Supreme Court agrees or not, and I will not hesitate to do so in the future. My colleagues on the Superior Court also are not known for being shrinking violets – when they disagree, either with me or with the Supreme Court, they have no hesitancy about saying so. That is exactly as it should be. At the same time, the judiciary, like any other organization, must have a leadership structure – in our case headed by the Supreme Court. And, as with any organization, there will be times when some members may disagree with decisions made by management. But the fact that not everyone agrees with every decision is hardly a strange phenomenon and certainly is not indicative that the organization is in trouble. Rule 170 mediators: Turning to the matter of mediation, it is true that, at present, mediators in the Superior Court are not paid for their services. However, one of the prime reasons for this is that, in the past, the many volunteers – including Attorney Nixon – who so generously give of their time to make the Rule 170 mediation program work, strongly opposed the idea of paying mediators for their services. Two important points, not mentioned by Attorney Nixon, must be emphasized. First, as noted in another article in the January 6 Bar News, recently retired Sullivan County Superior Court Clerk Peter Wolfe has been appointed to head a Committee on Alternative Dispute Resolution Services. Two Superior Court Justices, a Superior Court Clerk, and several attorneys who regularly practice in Superior Court will serve on this Committee, whose very first task will be to evaluate the current Rule 170 program and suggest such changes as may be necessary. As part of this review, those with a viewpoint on whether paid mediators should be utilized in the Superior Court will have ample opportunity to express their opinions. Second, as noted elsewhere in this issue of Bar News (see page 24), the Supreme Court has recently given approval to new Superior Court Rule 170-B, which affords the opportunity for judge-conducted mediation in certain complex civil cases. As for the issue of the budget, there is, once again, more to the story than what is reflected in Attorney Nixon’s article. There is no doubt that several years ago court employees were threatened with layoffs because of a lack of funding. But these layoffs, had they occurred (fortunately, they were avoided at the last minute), would have resulted from spending limitations that impacted not only the Superior Court, but the Supreme Court and Probate Court as well. While these layoffs would have been devastating, it is unfair to suggest that they were somehow targeted at the Superior Court. In fact, the only reason the District Court was not impacted by that budget “crises” is because, at that time, the legislature had funded the District Court through a separate budget line item and had mandated that such funds not be used for any other purpose. And, contrary to Attorney Nixon’s implication, the reason the legislature had imposed this restriction (which, thanks to the increased trust between the judiciary and the legislature, has been removed in the present budget) was its concern that, in the absence of same, the Supreme Court would be inclined to prefer (not eschew) the Superior Court’s spending needs at the expense of the District Court. Interbranch relations Having set the record straight with regard to the above matters, let me now turn to the broader question of the relationship among the various components of the Judicial Branch and between the Judicial Branch and the Legislature. As for intra-branch relations, I must strenuously disagree with any suggestion that the Superior Court has been singled out for disparate treatment by the Supreme Court. I enjoy an excellent working relationship with Chief Justice Broderick, the other members of the Supreme Court, and the administrative judges of the Probate and District Courts. The Chief Justice is open, accessible, and particularly attuned to the importance of keeping people “in the loop” when it comes to the decision-making process. Indeed, there is no question that, under the new leadership of the Judicial Branch, there is an unprecedented degree of openness and communication between and among the various levels of courts. And far from treating the Superior Court as a second-class citizen, the Supreme Court has been very supportive of our needs. To cite just a few examples, last year the Supreme Court approved our request to increase the salary of Superior Court law clerks so that we may continue to attract well-qualified applicants; Chief Justice Broderick also has indicated his support for a gradual increase in the number of law clerks so that eventually each judge may have his/her own dedicated law clerk; and the Chief Justice has enthusiastically led the way in our efforts to build a new courthouse to replace the woefully inadequate Merrimack County Superior Court. While the budget under which we currently operate was indeed approved by the legislature without change from what was proposed by the Judicial Branch, the proposal we submitted was a “maintenance level” budget which was designed simply to allow the courts to provide the same level of service as in the prior biennium. The current budget contains no money for new or expanded programs and requires that all levels of court (Supreme, Superior, Probate, Family and District) maintain an across-the-board vacancy rate of approximately 6 percent. Operating under these conditions undoubtedly presents many challenges, but these challenges result from fiscal constraints which affect the whole of state government rather than from any sinister plot by the Supreme Court to undermine the Superior Court. Attorney Nixon is undoubtedly correct that, thanks to the new leadership of the Judicial Branch, relations between the courts and the legislature have greatly improved over what they were several years ago. I for one thank God that this is so, and I intend to do all in my power to see that it continues. Judicial independence and the separation of powers are core values which must be preserved. But as part I, article 37 of the New Hampshire Constitution makes clear, these principles do not envision that there be an absence of cooperative efforts or, worse still, a positive animosity among the branches of government. Quite the contrary, part I, article 37, recognizes that the three branches of government must work together insofar “as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity.” Finally, it is worth noting that if, as I hope and expect will be the case, Justice Hicks’s nomination is confirmed, the composition of the Supreme Court will consist, as it almost always has in the past, of a majority of Justices who formerly served on the Superior Court. Given this history, it seems unlikely that the Superior Court need fear becoming the “Inferior Court” anytime soon. Respectfully, Robert J. Lynn, Chief Justice New Hampshire Superior Court |
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