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Bar News - December 15, 2000 Judge Stahl: Keeping a Safe Place for Justice Editor's note: The following is an excerpt of the luncheon speech given by Hon. Norman H. Stahl, a judge with the First Circuit Court of Appeals, on Nov. 2, 2000, at the Bar's Federal Practice Institute CLE. When I returned home in the fall of 1956, New Hampshire was a very different place. Although our economy was manufacturing-based in the southern part of the state, much of the factory employment centered on textiles and shoes, two industries which for all intents and purposes no longer exist in this state. Law firms were very small by current standards. I was the eighth lawyer at what was then Devine & Millimet and the Bar had 300-plus lawyers. There were five Supreme Court justices, five Superior Court judges and a number of part-time municipal court judges. Manchester and Nashua may have been the only municipal courts with full-time judges. All of the probate judges were part-time. Some of the municipal court judges were non-lawyers. Because the Bar was small, we pretty much knew everyone. And the judges also knew all of us. As Martin Meyer wrote in his book The Lawyers, "A prominent lawyer in New Hampshire reported that we have only four or five bastards and we know them all." That statement was essentially correct. We did much on a handshake, knowing that the lawyer whom we were dealing with today would be the same lawyer we would be dealing with tomorrow and the day after. You knew whom you could trust, and our word to each other meant something. Judges came to our functions, and we often socialized with them. Judges were not anywhere near as isolated from the public and Bar as we are today. Our Bar Association was not integrated, yet we had well-attended Bar meetings, and most of us liked it the way it was. But as our state changed and grew to the modern, industrial state that we are today, and as the Bar grew and changed, the judiciary also grew and changed. Some prior accepted practices began to appear to be inappropriate. Yet, unfortunately, in some areas we were slow to recognize that changes in past practices were required. Following the recent difficulties that have bedeviled the state Supreme Court, we hear the clarion call for judicial reform. The reforms that many seek do not have to do with practice or court policy, rather what is sought are major changes in how the judiciary is chosen, disciplined and retained in office. Thus, whatever is done in the next legislative session has the potential for lasting impact on the judiciary, the public and the Bar of this state. The call for reform takes many guises. Some suggest that judges be elected, some call for limited but renewable terms, some suggest that judges be rated and graded and still others suggest that the solution is to have retention elections. If judges are to be rated, what standard will be applied and by whom and how will the rating be accomplished? Will judges be rated on the outcome of cases, judicial demeanor, scholarship or all of the above? Proposed changes to how judges are disciplined could make the process more open and understandable and give the public a greater feeling of confidence in the system. Yet I can tell you from personal experience that the vast majority of judicial complaints have to do with case outcomes, not real issues of judicial misconduct. Over the past 10-1/2 years, I have met many state and federal judges from jurisdictions that have judiciaries governed by one or another of the suggested schemes. A small story about elected judges - last fall when I was taking a seminar, I was with a judge from California, an elected judge. I asked him, "How do you handle lawyers who have been contributors to your various campaigns? Do you allow them to appear before you?" He said, "Of course I do, but if they give me more than $10,000, then I might recuse myself." The former chief judge of one of the largest circuits in the country told me about a situation in one of the states in his circuit where calls came from a Supreme Court justice to various law firms telling them how much they were to contribute to the judges' re-election fund. Fortunately, neither major party [gubernatorial] candidate supports judicial elections [in NH], but it does appear that retention elections after some period of time, either a one-time election or seven-year terms, has some support from both. When one considers the various proposals, you must consider the potential or the unintended consequence. Impartial and fair justice has always been the goal, and when I look back on my years of practice in this state I can say that we have had a first-rate judiciary, dedicated to the public interest and, unlike the situation in some states, essentially scandal-free. Our judges are hard-working, dedicated people who care about what they do. We have heard much about the Judge Fairbanks case, and much is made of the fact that Fairbanks was a judge. What is lost in the discussion about Fairbanks is that his improper activities were not in his judicial capacity; they occurred in his practice as a probate lawyer. I suggest that one reform that would be an important improvement would be the elimination of all part-time judgeships. A word about the idea of judicial independence, currently the subject of much discussion: In my view, what sets our judicial system apart from that in most other countries is judicial independence. I have spoken to foreign groups, and judicial independence is always one of the first topics raised and one that is most admired. Judges in states with retention elections, and judges who are in fact elected, have told me that they do consider the effect a controversial decision may have on their retention in office. The brave ones do the right thing and risk the consequences, but I think it naive to believe that elected judges will not be tempted to tailor their opinions to satisfy public opinion. All too often, we forget that the Constitution was designed to protect unpopular people and ideas. I often ask people whether they think that our country would be better off today if the federal judges down South had been elected during the time that the implementation of Brown v. Board of Education occurred. Those federal judges, protected by life tenure, handled the desegregation cases at great personal risk, but at no risk to the loss of their position. Judicial independence certainly served the nation well in that instance. The former chief judge of the Eight Circuit, Richard Arnold, recently said, "The court is inherently a non-democratic institution in the sense that it has no direct connection to the voter. But the reason for that is because there must be a safe place, for if you have a direct connection to the voter, there is no safe place for justice to occur." In the coming debate about the future of the New Hampshire judiciary, it is the Bar [members] and the public who will make the choices that will dictate the future. The judiciary's role in the debate will be very limited. Thus, the Bar will bear the responsibility of assuming a proactive and thoughtful role in the process if we are to ensure that after reform there will be a "safe place" where justice can be done without fear of voter retribution.
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