JAMES E. DUGGAN, an associate justice of the NH Supreme Court, told a legislative commission that the Supreme Court is willing to restore the right to appeal in most cases, but only if the high court’s staff and facilities are expanded sufficiently to handle the increased workload.

"We are willing to construct another system provided adequate resources are provided to do the work. That is the only obstacle we see," Duggan told the Appellate System Reform Commission at a hearing last month. The commission, a group consisting of legislators and executive, court and Bar appointees, has been examining remedies to what had been a steadily mounting caseload and concerns about litigants’ access to appeals.

Members of the court have not set a price tag on expansion, but at the NHBA Developments in the Law CLE, Supreme Court General Counsel Howard Zibel said two to three staff attorneys and an equivalent number of support staff would be required, plus additional office space.

The court currently operates under a discretionary review system – only death penalty cases are accepted as a matter of law – with all five members of the court participating in the screening process. Only one vote by a justice is required to grant a notice of appeal, but in recent years only about one-third of the cases presented for appeal have been accepted. In the first nine months of this year, 40 percent of the cases were accepted. Duggan, who headed the Appel late Defender Program for many years before his appointment to the Supreme Court late last year, acknowledged he used to be a critic of the court’s discretionary review process because he did not believe that cases were being screened on their merits. After 10 months of participating in the screening of cases, however, he says that now he is satisfied with the current process, believing that proposed appeals are thoroughly considered by the court.

"The problem is perception," Duggan said. "There is the feeling that cases are being given short shrift, that cases aren’t being reviewed on their merits. It’s hard to persuade someone otherwise because the screening does happen fairly quickly."

Duggan denied that the current appeals rate is influenced by the justices’ workload. "We do not reject cases because we have too much to do," he said.

However, even other members of the bench are critical of the present system. Superior Court Chief Judge Walter Murphy, testifying at an earlier commission hearing, said he found the 40 percent acceptance rate "unacceptable." He cited in particular the lack of review of marital cases, which constitute 43 percent of the work of the Superior Court, but account for a much smaller percentage of the accepted appeals.

At the hearing, considerable time was devoted to discussing how the process could change if the court were to convert – by court rule – from a discretionary system to a system where virtually all appeals would be considered. Duggan suggested that discretion should be retained for appeals of landlord/tenant, small claims and workers’ compensation cases, traffic violation convictions and certain post-conviction appeals, such as probation violation cases or pro se criminal filings.

Duggan said the justices’ work in reviewing appeals under the non-discretionary system would increase their work incrementally. Instead of reading the notice of appeal and the reply brief, the justices would read more comprehensive briefs and trial transcripts. To accomplish that in a timely fashion, the justices would need the assistance of more staff lawyers and law clerks, as well as more office space and files to handle more paper. Duggan also emphasized that even though the court might be required to rule on all cases presented to it, the right to appeal would not include a right to oral argument or to a full opinion. Duggan said the voluntary 3JX process, which results in expedited, unpublished orders issued by three of the court’s justices that explain the court’s disposition, would continue under a full appellate system.

Several commission members questioned Duggan on alternatives to full review, such as whether it would be possible for the court to do more to explain actions such as summary affirmances. One-sentence dispositions by the court can lead litigants to believe their proposed appeal was not fully considered, commission members said. Duggan said that terse dispositions are necessary and efficient. In such cases the legal issues are not in dispute and the explanations would be no more than "repeating and rehashing" points that had already been made in the lower court opinion, he said. Duggan added that to write a two- or three-page explanation of a decision would takes almost as much work as writing a more elaborate appellate opinion, and would not be a good use of the court’s resources.

NHBA President Peter Hutchins said the only remedy the Bar could offer for increasing the efficiency of the appeals process would be to increase its efforts to improve appellate advocacy. Following the hearing, Hutchins spoke with Justice Duggan about the possibility of organizing a CLE program aimed at teaching writing skills. If lawyers write more concise notices of appeal or briefs, it will take less time for the court to read them and it may be easier for the justices to determine whether the issues merit briefing and argument, Hutchins reasoned.

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