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Bar Journal - June 1, 2001

Judicial Reform - A Legislative Perspective



The 2001 Session of the New Hampshire General Court began with the filing of several legislative proposals in both the House and Senate directed at the operation of the judicial branch of government. Such proposals are not uncommon. Each session sees a fair number of initiatives aimed at making changes to the courts. But the comparatively large number of bills this session seems to reflect a growing discontent among legislators and may result in the reformation of some judicial practices.

The term "judicial reform" has been widely employed by legislators to describe the broad spectrum of proposed changes to the court system. The term does not refer to a specific legislative initiative, but in the wake of the Brock impeachment, has become somewhat of a rallying cry around the commonly held belief that the public expects legislative response.

Many legislators ran for election promising to bring about judicial reform. Next to education funding, few topics have received as much press coverage during the 2001 session.

After all of the debate, there appears to be general agreement that New Hampshire courts are working efficiently and that, for the most part, litigants are well served by the current system. The legislature has recognized that it does not wish to intrude into the day-to-day management of the courts. However, both the House and Senate are giving definition to judicial reform by attempting to reach consensus among legislators for a limited number of immediate changes. There are also some areas which have been identified for more study before the legislature can act.

This session of the legislature will chart a course for both immediate and future changes to the court system. By the time this article is published, some initiatives will have already been enacted and others may have been defeated or delayed. In any event, this is a best effort to describe the judicial reform effort as it is taking shape in the 2001 legislative session.


Amend Article 2, Part 73-a

In an article, which recently appeared in the New Hampshire Bar Journal, Judge Robert J. Lynn of the New Hampshire Superior Court provided a well-documented history of Part 2, Article 73-a of the New Hampshire Constitution. Article 73-a was added to the New Hampshire Constitution in 1978 and states:

"The Chief Justice of the Supreme Court shall be the administrative head of all the courts. He shall with the concurrence of a majority of the Supreme Court Justices make rules governing the administration of all courts in this State and the practice and procedure to be followed in all such courts. The rules promulgated shall have the force and effect of law."

The problem arising from Article 73-a is not its language, as Judge Lynn explains in the article, it is the way it has been interpreted and applied by the Supreme Court. The Court has viewed its authority broadly and has, in essence, used Part 73-a as a basis for asserting exclusive authority to adopt rules free from any interference from the legislature. This, of course, raises concerns. Some legislators believe that they, as elected representatives of the people should have the ultimate authority to enact rules, not judges, who have lifetime appointments and, other than the Constitutional threat of removal by address or impeachment, no system of public accountability.

CACR 5 is a proposal to amend Article 73-a to read as follows:

"The Chief Justice of the Supreme Court shall be the administrative head of all the courts. The Chief Justice shall, with the concurrence of a majority of the Supreme Court Justices, have the power by rule to regulate the administration of, and the practice, procedure, and rules of evidence in, all courts of the state. The rules so adopted shall have the force and effect of law. Notwithstanding part I, article 37, the general court may regulate these matters by statute and may accept or reject any rule adopted by the Supreme Court. In the event of a conflict between a statute and a rule, the statute, if otherwise valid, shall supersede the rule."

Proponents believe that this simple change will allow the courts to continue to operate independently while protecting the right of the legislature to make laws. In effect, it more clearly defines the separation of powers between the judicial and legislative branches of government. CACR 5 passed the House of Representatives on April 26, 2001, on a vote of 290 to 48. Because it is a proposed constitutional amendment it requires a 60 percent favorable vote in both the House and Senate to secure its passage. Although subject to amendment in the Senate, passage appears likely and a question regarding its adoption will probably appear on the ballot in November 2002.

Judicial Selection

In her second term, Governor Shaheen established a Judicial Selection Commission. The Commission has been broadly praised. It is clearly a positive step in eliminating patronage appointments and in selecting the best-qualified candidates for judicial assignments.

The current commission was created by Executive Order, which is subject to repeal at any time. A new governor may not wish to carry on this impartial selection method. Furthermore, currently all the members of the selection commission are chosen by the governor and the outcome could be indirectly controlled by the governor through his or her appointments. While most people would like to see the selection commission continue, they would also like to see it be a more independent body.

Senator Mark Fernald has proposed CACR 16 which would provide for a constitutional amendment creating a Judicial Selection Commission. Members of the Commission would be appointed by the governor, Speaker of the House, President of the Senate, and Chief Justice of the Supreme Court. There would be a total of eleven members, including one judge, four attorneys, and no more than six members of any political party. The Commission would provide a list of nominees from which the Governor would make a selection for appointment.

Judicial Review

The legislature has not embraced either judicial term limits or the election of judges. But it does appear poised to adopt some form of judicial review. Senator Fernald has also provided in CACR 16 that the Judicial Selection Commission will review judges after they have held office for ten years. The Commission may remove a judge if it determines, after hearing, that the appointee has not satisfactorily carried out his or her judicial responsibilities. The purpose as set forth in CACR 16 would be to allow for meaningful review in a non-partisan manner.

Judicial Retirement

House Bill 560, revising the judicial retirement system, was proposed by Representative Neal Kurk and has been a subject of much discussion. Under the current retirement system, judges make no contribution to their retirement. They cannot receive retirement benefits until they reach age 65, regardless of their years of service. The current system appears to be unfair. Some judges may want to retire prior to age 65, but may feel compelled to stay on the court until they qualify for retirement benefits. A revised retirement system is a legislative priority and will likely be passed in this legislative session.

Rotating Terms for Chief Justice

Senate Bill 35 provides for rotating terms for the Chief Justice of the Supreme Court. Each term would be of five years duration. No Associate Justice would be required to serve as Chief Justice, although no one Justice could succeed himself or herself in the office. This bill passed in the Senate on a roll call vote of 23 to 1 and is now in the House, with prompt passage expected. The provisions of SB 35 will not take effect until the retirement of the current Chief Justice of the Supreme Court.

Legislation Participation in the Rules Committee

SCR 1 is a Senate Resolution encouraging the Supreme Court to add two legislative members, one from the House and one from the Senate, to the Supreme Courtís Advisory Committee on Rules. This would hopefully avoid some conflict between the court and the legislature by having legislators participate in the rule-making process as it occurs. While the court has not yet acted, it is hoped that the court will voluntarily adjust the committee membership to incorporate legislative representation.

Judicial Preemption

House Bill 134, sponsored by Representative Soltani, has been passed by the New Hampshire House. This would allow for either litigant to request that one judge be excused from service on a case. The courts have opposed this bill because it makes scheduling and administration more difficult. However, proponents argue that this is a good way of protecting the interests of individual litigants from judges who may appear to have predispositions. If a judge is known for giving longer or lighter sentences in criminal cases, then that judge may be avoided. If a judge appears to have a bias toward plaintiffs or defendants in tort cases, then that judge may be avoided. While this process may not directly provide judicial review, it may well demonstrate a pattern which could be helpful in evaluating judicial performance. Some form of this bill is likely to pass the Senate, perhaps with a limited pilot program to determine the impact upon the courts.

Independent Judicial Conduct Committee

The Supreme Court authorized an independent examination of the operation of the present Judicial Conduct Committee. In its recommendation, the appointed task force, chaired by Attorney Wilfred Sanders and Father Joseph DeFelice, concluded that the Judicial Conduct Committee should be made a commission and should operate independently of the court system. SB 197 has been submitted in response to the task force with the purpose of establishing such a commission. A similar bill was entered in the House. Issues have arisen as to how the commission will be funded, who will sit on the Commission and how appeals from Commission decisions might be handled. If these details can be worked out, it is likely that an independent judicial conduct committee will be created in this Session.


Appellate Reform

The volume of appellate cases continues to increase while the capacity to issue opinions remains constant. Creating a new judicial bureaucracy in the form of an intermediate appellate court appears unlikely given the current financial circumstances of the State. But, many believe that justice requires a meaningful review of lower court decisions. It is likely that the current legislature will create a committee to evaluate appellate review in New Hampshire with the intent of taking action in the next session.

Professional Conduct Committee

While the need for an independent judicial conduct commission has been recognized, there have also been calls for an independent Professional Conduct Committee. This may be more problematic, both from the perspective of administration and accountability. Again, this is a subject which will take some study before change is recommended.

Unified Bar

Should every attorney be required to be a member of the New Hampshire Bar Association in order to practice law in the State? This question is answered in the negative by legislators who believe that the New Hampshire Bar Association should be an independent professional association and not the licensing agency for the public courts. They argue that the license to practice should be based upon legal knowledge and good behavior. It should not be contingent upon involuntary association with others.

Opponents argue that it will cost the State more and that the Bar Association will be unable to provide some of the valuable services it renders today because of the guaranteed revenue stream. This debate will continue beyond the immediate session of the legislature.

Administration of the Courts

Currently, each of the four primary court systems, Supreme, Superior, District and Probate, has a sitting judge acting as chief administrator. At times, the various court systems appear to compete for jurisdiction and resources. There may be some advantages in consolidating administration of the courts in order to avoid this competition and to establish a more coherent plan for administering justice in the future.

Full Time Judges

Presently there are part-time judges in both the Probate and District Court systems. Some have questioned whether the system would be better served by full-time judges. This needs further study.

Judicial Appointments to Multiple Courts

It seems inefficient to appoint judges to individual courts. An alternative system would allow universal appointment, allowing judges to be assigned to cases on courts according to their expertise and aptitude. Appointment to multiple courts would also allow flexibility in managing the case levels and needs within the various courts.

Use of Technology

Technology has changed rapidly in the last ten years. It does not appear that the judicial system has kept pace. A study might assist in identifying needs and obtaining necessary funds for equipment acquisition and upgrade.

Judicial Responsibility

It is difficult to determine how many judges are needed in any given court system. The legislature lacks sufficient statistical information to measure judicial productivity. In addition, the legislature has little data as to how much time is spent by individual judges attending to the issues of litigants as opposed to other administrative activities or special assignments. Meaningful measures of judicial productivity need to be developed and applied if the judicial branch of government is going to be adequately funded in the future.

All these areas would provide adequate opportunity for study and may lead to improvements in the way the court system operates.


While judicial reform is a term used broadly by many to describe changes to the court system in general, its application is limited to relatively few legislative initiatives. Some of those initiatives are well on their way toward adoption through the legislative process. Others will take much more time to research and contemplate. In any event, the legislature is taking a measured approach toward judicial reform and the court system will continue to operate without interruption.

If you are in doubt about the status of any meeting, please call the Bar Center at 603-224-6942 before you head out.

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