A HOUSE JUDICIARY Committee subcommittee earlier this month heard from a number of witnesses from outside and inside the state on whether New Hampshire should abandon its "lifetime tenure - until age 70" system for state judges.

The committee, co-chaired by Reps. Jack Pratt and Tony Soltani, also solicited opinions on whether there should be legislation or a constitutional amendment to institutionalize the Judicial Selection Commission— created last year through an executive order— to screen and recommend potential nominees for selection by the governor.

Leaders of the judiciary and the Bar Association testified in support of the current system of life tenure. NH Governor Shaheen’s legal counsel, Judy Reardon, some legislators and members of the public testified in support District Court Administrative Judge Edwin Kelly pointed out that renewable terms for district court judges— 51 of whom are part-time—could pose problems in recruitment because attorneys must limit their private practices to avoid conflicts on the bench, and adding the uncertainty of renewal would make those positions less attractive to many attorneys.

Murphy also said that a renewal process injects politics into the system because it raises the risk that judges who are close to renewal might tend to consider the public reception of a controversial decision, or might try to avoid deciding such sensitive cases.

"I worry about having two separate categories of judges, those with life tenure and those without and the attempts on the part of some litigants or their counsel to shop for a judge who might be more sympathetic to a person’s cause because of perceived public sentiment," Murphy explained. " I worry about those judges whose appointments are coming up for review being able to withstand the pressure of the process, or who might be tempted to evade the tough issues by referring the ‘hot potato’ case to a colleague who is not up for renewal. I worry that judges might be inclined to look over their shoulders to test the winds of public opinion rather than objectively applying the law."

NHBA President Peter Hutchins, in his testimony, responded to critics who said that admitting the potential for such influence indicates that someone should not have been appointed to the bench in the first place.

"This argument is simplistic and ignores reality," Hutchins said in his prepared testimony. "A person who chooses to enter public life to become a judge will likely do so during the prime of his or her legal career. A goal of judicial selection should be to recruit and select the very best practitioners possible to fill judicial vacancies. To suggest that a person who has given up a career, clients, a law partnership and financial security to become a judge would not and should not have a strong interest in retaining that judicial position seven or 10 years after appointment is disingenuous."

Hutchins urged that if a retention process were implemented, it should be based on a presumption of reappointment unless there is significant evidence the judge should not be retained. "It should not be the burden of the judge to prove again that he or she is qualified. Those desiring removal of a judge should have the burden of proving that the judge is incompetent or corrupt," Hutchins said. "The Legislature already has available to it the bill of address and impeachment processes to remove judges for these reasons. By improving selection, evaluation and discipline for judges, these methods of removal should be sufficient."

On the other hand, the current system does need improvement in one area, noted Probate Court Administrative Judge John Maher. He suggested that the current judicial pension system does not have the flexibility to allow judges to retire early and still obtain some benefit from the pension system. (The current system now provides no payments unless a judge is disabled or reaches the age of 65.)

However, a key figure in Maine’s judicial review process — which is similar to that being considered by NH lawmakers — spoke reassuringly of his state’s experience. Malcolm Lyons, a Maine attorney who chairs a committee that makes recommendations for renewal of state judges after seven-year terms, said the system works well. During the 15-year existence of the committee, only "one or two" judges have failed to earn renewal — such a decision is made by the governor. Lyons maintained that the non-renewals were based on performance factors, rather than political reasons.

Speaking for the New Hampshire Judicial Council, executive director Nina Gardner indicated that it supported regular judicial reviews, but opposed term limits. The Council believes that the address process (Pt. 2, Art 73) is adequate to deal with unsatisfactory judges. It also supports the Selection Commission process, but has no opinion as to whether it should be "constitutionalized."

Several witnesses also pointed to the need for the legislature to consider the effectiveness of a more rigorous evaluation process established by statute earlier this year that is being implemented by the court system.

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer