LEGISLATION HAS BEEN introduced and amended in the House Judiciary Committee relative to marital masters and the manner of their appointment, among them House Bill 1360. These legislative proposals are based upon what I believe is the mistaken hypothesis held by some of the more outspoken members of the committee that there is general dissatisfaction with marital masters assigned to hear matters in both the Superior Court and Family Division. This conclusion appears to be based upon anecdotal evidence offered by parties whose cases resulted in orders unsatisfactory to them. While it is unlikely that anything I have to say about these matters will have the least amount of influence on the fate of these proposals, it would be remiss of me not to address the misinformation that forms the basis for these measures offered in the name of judicial reform.

Unfortunately, the work that the marital masters perform is, in too many instances, misunderstood and unappreciated by the Legislature and the public generally.

In recent years, more so than in the past, courts have become a venue for addressing a vast array of social problems, including such domestic relations issues as divorce, separation, child custody, visitation, child and spousal support, and domestic violence. Because there is no one else to resolve these issues, it falls on the courts to do so. In the year 2001, over 22,400 such domestic relations cases were disposed of in the Superior Court alone and accounted for approximately 44 percent of the total caseload. In the Family Division, currently operational in Grafton and Rockingham Counties, over 2,750 cases were filed in 2001. It is conservatively estimated that these cases resulted in between 75,000 and 100,000 orders being issued in 2001. The marital masters currently are involved in about 60 percent of those cases.

These cases, because of their importance to families, get the first priority after criminal cases, and are among the most litigious and controversial matters heard by judges and masters, hence taking an extraordinary amount of time and resources. The decisions resulting, understandably, are often unsatisfactory to one, if not both, sides of what is typically a heatedly adversarial process.

Very little recognition is given to the extraordinary demands that these heart-wrenching issues place on the time and morale of the judges and masters deciding them, as well as on the court staff who are at the front line dealing with litigants. These litigants are struggling with often desperately stressful situations: who gets custody of the children, what limitations should be placed on visitation, amount of child and spousal support, division of property, or who is going to jail and for how long. After hearing the cases before them, judges and masters retreat to their chambers at the courthouse, and, in many cases, even to their homes after hours to dedicate time to issuing recommendations and orders. These decisions often include a detailed explanation of the basis for the rulings. All of this work is done under the most severe scrutiny and criticism from members of the public, who are, for the most part, unfamiliar with the circumstances of any individual case or the evidence presented at trial upon which a decision is based.

It should not be at all surprising, given the contentiousness of domestic relations issues, that dissatisfaction over the outcome of such cases is frequently expressed to me. What should be understood and appreciated is that the decisions of judges and masters are made on the basis of what both parties presented at the time of hearing, and not what one side of the controversy interprets as the evidence. Simply put, in a controversy, there are always at least two sides of the story. It falls upon the court to make a determination based upon an objective evaluation of all the evidence presented by both sides.

The marital masters whose time is devoted exclusively to these cases have a great deal of expertise and experience in handling these extremely contentious and delicate issues. On their appointment by the court, and during the time they serve, they are required to attend numerous continuing legal education programs and keep current on changes in the law. They are extraordinarily proficient in their field of expertise and recognized among members of the legal community for their knowledge, fairness, integrity and dedication. They work under considerable pressure, dealing with the most difficult circumstances, and are required to address issues of a most serious nature with extremely important consequences to people’s lives. They do so without sufficient resources to address what is a staggering caseload and without technology that no business in this day and age, however small, can be without.

Very little recognition is given to those whose lives are dedicated to resolving parties’ controversies. In fact, it may be said that on many fronts, they are not only treated with a lack of esteem, they are publicly pilloried for doing what is required of them by virtue of their office. While they do not perform their tasks seeking public approbation, it is disheartening to find that there are those who question their motivations and work ethics with little or no objective basis for doing so.

One of the legislative proposals under consideration would have marital masters appointed no longer by the Superior Court, but by the governor and Executive Council. The change would be based upon a legislative determination that masters are not "officers of the court" because federal funding sources prohibit them from being so designated. In making any such finding, the Legislature would be mistaken. Federal funding sources prohibit masters from being judges, but not from being officers of the court. They are, in fact, officers of the court, appointed by the court, under court rules, and paid salaries set by and paid out of the judicial branch budget, as appropriated by the Legislature.

The current system of selection and retention of marital masters is exhaustive and extensive. Masters are chosen for their interest and expertise in the area of family law, and are subject to periodic review and evaluation by the Masters Committee, which considers input from members of the Bar and the public – just as court justices are reviewed.

Should the governor and Executive Council appoint marital masters, the masters would no longer answer to the very courts to which they make recommendations. This would create an unworkable relationship and would unacceptably mix judicial and executive offices, more or less removing the judiciary’s ability to supervise and control those who are accountable to it.

Additionally, the proposed legislation is not, in my view, the appropriate method for reappointment, as it introduces the possibility of such reappointment being conditioned not on the candidate’s fitness for office, but, rather, on his or her popularity (or unpopularity) at the moment. The very point of an appointed, tenured and independent judiciary is that officers of the court should be free to interpret the law without regard to political influence or popular opinion.

Given the fact that marital masters make many more enemies than they do friends in the performance of their duties, it appears highly unlikely that, despite their proficiency and aptitude, many would be reappointed. This system would result in a wholesale replacement of marital masters by untrained, but politically astute, individuals every five years. We do not have to go very far back in history to see that phenomenon at work: Look at the recent refusal of the Executive Council to act on the governor’s nomination of a highly respected and qualified marital master to a judgeship on the Superior Court. That decision by the Council was based upon unsubstantiated rumors, irresponsible assertions and mistaken conclusions.

A copy of this letter has been furnished the subcommittee considering HB 1360 and its various amendments.

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