IF HIS DUTIES as a judicial referee aren't too demanding, Supreme Court Justice Sherman D. Horton hopes to get in some scuba diving after he retires. And perhaps some fishing.

Horton, 69, announced last month that he plans to retire from the Supreme Court Nov. 25, after having served as a justice for 10 years. He became eligible for his pension in June and will reach the mandatory retirement age of 70 in February 2001.

Horton said that the decision to retire now was based in large part on the changes he anticipates will occur in the Supreme Court as a result of the past year's events. He feels that whoever succeeds him on the bench should be involved in determining and implementing those changes.

"This court is in a substantial state of flux. There will be a lot of changes that will be controlling over the lives of the judges that serve here," said Horton.

"I'll be gone in February anyway, so I thought it would be a good idea to get whoever's going to succeed me in here to try to decide what those changes are going to be. Whoever's going to carry the load should decide what the hitch is going to be like on the pack."

Horton said he wanted to wait until the impeachment of Chief Justice David A. Brock was over before announcing his retirement. "I could have left last June, but I wanted to stay on as long as there was a challenge to me or any of my colleagues. It ended satisfactorily, now it's time for me to leave," he said.

The past year was obviously full of tumult and upheaval for the Supreme Court, but Horton stands behind the court and how it dealt with the difficulties. He believes the court handled the Thayer matter, which precipitated many of the events of the last year, appropriately. "Most of the issues of Thayer misconduct were either self-reported or reported by the court. I don't think we mishandled it," he said.

Horton believes, however, that the Supreme Court, in responding to certain pressures, failed to give Stephen Thayer his say. "We're in the business of due process. If we give it to everybody else, we ought to be able to give it to our own, but we didn't," Horton said. "We erred on the side of reporting - that's what the sharks wanted."

As to the attorney general's report that eventually followed, Horton believes that it was factually accurate, but called its conclusions "overblown."

"It was throwing gasoline on the fire. I think it did a substantial disservice to us and the state by feeding the frenzy," Horton said. He believes that the court did all it could with the report - proceed to hearings and "get the message out."

"We did eventually, but it was a painful trip," he said.

Although it was a difficult journey, Horton said that some good did come out of the past year. He believes that there will be a "pretty good self-examination of this institution and each of its players," he said, and that there is a newfound awareness of the need for some form of accountability in the court, which hasn't before existed. "How that'll manifest itself, though, I don't know."

Horton believes there will be a number of changes in the Supreme Court to "increase productivity and satisfy the complaints leveled in the impeachment investigation." One of those reforms, Horton believes, will be to move the judicial conduct system out from under the administrative control of the court. He said he fears excessive changes to the court that will threaten judicial independence and the quality of work the court does. "I'm reluctant to push too far to increase productivity unless it won't have an adverse effect on the quality of work," said Horton.

"I think that balance has to be struck by somebody who has to serve under the new rules," he said.

From practice to bench

When nominated in 1990 to the Supreme Court by then-Governor Judd Gregg (now a U.S. senator), Horton was the first justice in 44 years who had never served as a judge. After graduating from Dartmouth College in 1952 and serving in the Navy, Horton went on to graduate from Harvard Law School. He worked in private practice for the Nashua law firm Sullivan & Gregg for 32 years, which included Gregg and his father, former Gov. Hugh Gregg. Horton practiced in the areas of insurance defense, real estate, divorce, criminal law - "most anything that came in the door," he said.

Horton doesn't believe his lack of experience as a trial judge put him at a disadvantage for serving on the Supreme Court. It was a significant transition for him, though, from private practice to the bench of the state's highest court, he said. "Law suddenly became very monastic. This is a highly intellectual job - a lot of reading, thinking and writing - something you do pretty much on your own. It's not like the practice of law where you're always relating to people," he said. "The solitariness of the job took some adjusting to."

Horton said that in private practice, he had about a five-minute attention span because the phone was always ringing. When he became a justice, though, he found that "the phone never rang." He asked his daughter to call him twice a day "whether she needed to or not because I was starting to have withdrawals."

From criminal law to oral arguments

Horton said that as an attorney, criminal law was one of his favorite areas of practice. As a personal rule, he took five criminal cases a year. "It's a very exciting and interesting branch of the law," he said. During his years as a Supreme Court justice, however, Horton learned much more about the intricacies of criminal law than he did in private practice, he said. He believes that with a few exceptions, it is a "strong body of law in this state."

One of Horton's favorite parts of the job as a justice was hearing oral arguments. He said he put a lot of time into preparing for oral argument - reading briefs and any cases cited, preparing a "cheat sheet" of the facts and arguments of the case, making notes on his tentative decision, preparing questions that had come to mind. He said that oral argument gave him the chance to "act like a lawyer again" by scrutinizing a case and asking questions. "You get in the courtroom and you can engage in debate or banter with a lawyer - it's very interesting to get a lawyer to admit to certain things or watch them dodge them," he said.

Horton said he is impressed with how members of NH's Bar handle appellate advocacy. "I was amazed at what a good job the lawyers can do. They can shift ground and defend an attack from all sides," he said.

Career memories

Horton doesn't believe he had any "great achievement" while on the Supreme Court bench. "It was a matter of doing our job, of keeping our decisions consistent with the law and common sense. I just did my share. I didn't do anything that'd get me any medals," he said.

Some of his most memorable cases, Horton said, were dissents or concurrences in which he took the "other side." He is well known as the lone dissenter in the Claremont II case and says he will best remember his decision in the Gray Rocks zoning case. "Those were cases in which I expressed the furthest of my intellectual reaches, so they were the most memorable," he said.

Horton said that what he will miss most about his job at the court will be his colleagues - "the camaraderie and fun we had fighting over cases." He will also miss his law clerks and hearing oral argument. What he won't miss, he said, are the "administrative tangles" of running the judicial branch and screening cases for acceptance.

Advice for attorneys and successor

Horton's best advice for attorneys advocating in front of the Supreme Court: be prepared. He said that thoughtful, intelligent preparation is most likely to convince the court that you should prevail. "Some lawyers look at the panel of judges as a jury and try to sway us with flowery language - that's pretty much a waste of time," Horton said. "A good, solid, well-presented legal argument is very effective. Just stick to the appellate issues and do it intelligently."

And for his successor, Horton offers this advice: "Try to be philosophical about the myriad of frustrations thrown in your path." He said that any justice can get bogged down by the caseload, but "a little discretion" in how much time to spend on each case "goes a long way."

Horton believes that whoever is appointed as his successor should be "of a fairly decent intellectual ability and legal background." A Supreme Court justice, he said, should also not bring any social or political agendas to the position.

Retirement plans

Once he retires, Horton will become a judicial referee called in to serve on particular cases. He said that right now, he's not sure to what extent his services will be required. He knows he will continue to sit on the NHMCLE Committee and Rules Committee and will finish a number of cases.

Horton is interested in returning to private practice, he said, but he can't practice in any area of law that might appear in the Supreme Court - "which is pretty much everything," he said. "I used to fantasize that I'd return to private practice and work for the public defender or Pro Bono - which I still might do," he said.

Horton also hopes to find the time in retirement to take trips to Little Cayman, where his daughter Sally lives, to do some scuba diving and to Montana for some fly-fishing. "But my first loyalty is to the judicial referee job to the extent I have the health to do it," he said.

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