By Anna Berry
Two of the bills supported by the New Hampshire Bar Association’s legislative advocacy efforts were signed into law by Governor Chris Sununu in June. But the accomplishments of the 2019 legislative session have been overshadowed by the stalemate between the governor and the Democrat-controlled legislature, according to attorney John Macintosh, the Bar Association’s legislative representative at the Statehouse.
“The biggest story is that Governor Sununu has vetoed more bills than any other governor in history,” Macintosh said. “The budget’s in flux [and] there are 50 [vetoed] bills which probably won’t be reviewed by the legislature until the end of September at the earliest.”
Macintosh is the Bar Association’s legislative representative at the statehouse in Concord. Of the 37 pieces of legislation — plus one constitutional amendment — that the Bar’s Board of Governors took a position on this year, the Board recommended support of two bills. The committee opposed three bills, all of which did not make it out of the House.
To fulfill its mission as enumerated in Article 1 of the Bar’s constitution (excerpted on page 23), the Bar Association maintains a legislation program. The NHBA follows the guidelines of two decisions that authorize, with some limitations, lobbying by unified bar associations.
As a unified bar, the NH Bar Association maintains a legislative program that is more likely to provide background information to broaden legislators’ understanding of law than up-or-down advocacy.
Each year, when appointing members to the NHBA Legislation Committee, the Bar president strives to include members representing all major practice areas. When the legislative session opens, the Legislation Committee must, in a very short time, sift through a large number of introduced bills to determine their relevance to the legal community and recommend to the NHBA Board of Governors whether to take an informational or advocacy role.
Both the Legislation Committee and the Board of Governors evaluate the appropriateness of advocacy or opposition to a bill according to the guidelines of two court decisions that address issues regarding the unified bar and legislation.
A 1990 U.S. Supreme Court decision, Keller v. State Bar of California, found a legitimate public policy purpose in a state requiring attorneys to belong to a bar association and then set forth general restrictions on political or legislative activities. The NH Supreme Court, in the 1986 Chapman decision, set specific limits on the NH Bar’s legislative activities.
Chapman limits the Bar’s advocacy on legislation to issues relating to the efficient administration of the judicial system, the composition and operation of the courts, and the “education, ethics, competence, integrity and regulation, as a body, of the legal profession.”
The decision notes that “where substantial unanimity does not exist or is not known to exist within the bar as a whole, particularly with regard to issues affecting members’ economic self-interest, the Board [of Governors] shall exercise caution.”
The Legislation Committee reviews a list of bills screened by the Bar’s legislative representative, focusing on the bills of general interest to the legal community or courts. Usually, they winnow down nearly 1,000 introduced bills to about 80. On a small number of bills, the Committee recommends either opposition or support under the Chapman guidelines.
For a larger number of bills, the Committee may decide to recommend that the Association take an “information” position. On these bills, the Committee suggests that advocacy is not suitable but believes that the Bar Association can help lawmakers by noting potential unforeseen or unintended consequences. The Legislation Committee’s recommendations are then forwarded to the NHBA Board of Governors which has final say on the recommendations. Once the legislative positions have been voted on by the Board of Governors, the Association’s representative is authorized to convey those positions to the Legislature.
In a large Legislature with many members unfamiliar with the complexities of particular areas of law, the Bar Association’s legislative representative often is consulted by committee leaders and members to determine a bill’s potential impact if it were to become law.
The two bills supported by the Bar Association were signed by the governor in June. SB 298, relative to summoning out-of-state witnesses in criminal cases, will be effective as of January 1, 2020, while SB 147, relative to the adoption of the Uniform Fiduciary Access to Digital Assets Act, was effective as of June 25.
The three bills opposed by the Bar Association were: HB 314, relative to the submission of evidence prior to hearings in divorce cases; HB 246, relative to penalties for corrupt practices; and, HB 217, relative to bonds for public employees and repealing the board of claims.
All of the bills reviewed by the Legislation Committee, their recommendations and the Board of Governors’ decisions, are available on Legislation Watch, an online bill-tracker accessible from the New Hampshire Bar Association’s website on the legislation program page: