Bar Journal - June 1, 2001
The Supreme Court Looks Ahead
By: Hon. Joseph P. Nadeau
"In New Hampshire today, judicial tyranny has taken the place of a correct and just administration of the laws."
Sound familiar? Think you heard this comment last week? Last month? Last year? How about, last century?
How about, none of the above?
In his book on Supreme Court Chief Justice Charles Doe, one of New Hampshire’s early and innovative judicial leaders, John Reid reports this quote of Senator Chandler, referring to the supreme court under Chief Justice Doe, appeared in the Concord Monitor on February 20, 1896.
While Judge Doe’s personal contribution to the administration of justice in New Hampshire has few parallels, the kind of public attack he often faced for his willingness to be creative has not been so rare.
No doubt, the New Hampshire Supreme Court, during the hundred and five years since Chief Justice Doe’s death, has worked hard to effect a "correct and just administration of the laws." Yet its efforts, too, have not always received instant enthusiasm or even immediate recognition. It may very well be that the court itself bears some responsibility for the limited knowledge most people have about the court’s operation. I hope this article, describing recent initiatives underway at the time of its writing, will contribute to a better understanding of the court as it makes a genuine effort to address modern day issues.
THE JUDICIAL PROCESS
Many lawyers never argue a case in the Supreme Court, but every lawyer knows the importance of a supreme court decision to clients and the daily practice of law. Few, however, think about the administrative and judicial processes which lie behind cases from the moment a notice of appeal is filed until the final decision is published. An understanding of that process may help attorneys and litigants to appreciate the significance of recent steps taken by the court to improve it.
When a notice of appeal is received at the Supreme Court, a new file is opened and a docket number given to the case by the staff. Immediately the staff checks to see if any justice is disqualified from participating by checking a list the judges prepare, and continually update, of attorneys whose cases they will not hear because of recognized conflicts. Three or four times each month, the notices of appeal which have been docketed are provided to each justice who is not disqualified. If some unexpected conflict appears at that time, a judge disqualifies himself or herself and does not participate in the case.
Justices review the cases individually and make an initial determination whether they believe the appeal should be accepted, declined or summarily affirmed. Regular screening meetings are scheduled each month at which justices discuss the cases. Any justice disqualified leaves the room while that case is discussed. No case is declined except by unanimous vote of the justices screening the case with at least three justices participating. A case is accepted if one judge believes it should be. No case is declined for lack of resources or lack of time to consider the issues presented.
About one-third of the approximately nine hundred cases appealed each year are accepted by the court. For each case accepted, a briefing schedule is established and parties so notified. If the appeal is declined or summarily affirmed, the parties are notified by an individual order.
Before oral argument, the staff assembles five copies of the briefs, notice of appeal and appendix in each case and distributes a set to the justices who will hear the case. After oral argument, the justices discuss each case and take a preliminary vote on its outcome. Once again, any justice disqualified leaves the room while that case is discussed. Individual cases are randomly assigned to a justice, in the majority, who is responsible for preparation of the decision and its presentation to the court for discussion at a future conference.
Between the time of oral argument and the first conference, the assigned judge and his or her law clerk are responsible to research and prepare an initial draft of each decision. Once the authoring judge is satisfied with the initial draft, it is then given to a law clerk, who was not involved in its preparation, for a second review of the record, all the citations and the substance of the decision. When the second review is completed, it is returned to the authoring judge and his or her law clerk for consideration of any comments, suggestions or questions.
The authoring judge then prepares a second draft of the opinion which is given to a staff attorney for a final review of structure, grammar, proper citation and comments on the logic and organization of the decision. Following that review, the authoring judge prepares a working draft for presentation at an initial conference for discussion with all of the justices, not disqualified.
At this conference, each judge indicates agreement or disagreement with the decision. The result and logic of the decision is discussed and everyone has the opportunity to offer comments and suggestions for improvement. There may be few changes and the justices will vote on the decision at that time or it may be necessary that more significant revisions be made, in which instance the draft will be scheduled for further review at a subsequent conference. At this first conference, any justice who wishes to dissent or to write a concurring opinion will make that intention known and prepare the dissent or concurrence expeditiously for review with the final draft of the decision.
Several conferences may be necessary to produce the final result but when the justices have all agreed on the ultimate product, a final draft is given to a staff attorney for a last proofreading with another staff member, after which the decision is distributed to the parties and the public.
This process has been developed by the court over many years as a reliable way to reach the right result in all cases. The present court recognizes the importance, however, not only to get the decision right, but also to get it right within a reasonable period of time. To balance quality and productivity, the court has made some changes which impact the decision at various stages of its preparation.
Some of the changes the court has made involve redefining staff attorney, paralegal and law clerk responsibilities to make the best use of individual skills and general management principles. Paralegals, for instance, will work with staff attorneys to prepare orders so they can be issued faster and so the clerk’s office can concentrate on docketing cases, handling files, preparing notices, disseminating orders or decisions and tending to other administrative tasks.
Law clerks assigned to justices will focus upon research and drafting of decisions, while specially assigned law clerks will check and proofread drafts. By eliminating citations to the Atlantic Reporter in our decisions, we have significantly reduced the time required for research, drafting and cite checking at all levels.
In December, the court instituted its first three-judge expedited docket, referred to as the 3JX docket. The three-judge panels alternate from month to month and the make- up of the panel is not known until oral argument, to eliminate the temptation to judge shop. Cases for the current 3JX dockets are now being selected from pending cases. The court is also identifying, at the time of screening, appropriate cases for future expedited dockets.
The docket has several important new features. Counsel are limited to five minutes of uninterrupted oral argument, supplemented by whatever time is necessary for counsel to answer questions from the justices. This change allows the court to schedule more cases on a single day. Also, the court is able to issue decisions in these cases within two to three weeks because it is not necessary to put each order through the formal process a full decision requires. For the time being, the orders issued on expedited cases are not published and do not carry precedential value.
Even though the docket is expedited, the three justices read all the briefs and then conference following the oral argument to reach a decision in each case. Decisions must be unanimous and a written order in each case is provided to the parties within thirty days of oral argument. If there is no unanimous decision, however, the case will be considered by the entire court or reargued. While it would be ideal to write a full decision in every case accepted by the supreme court, there are many which lend themselves to decision by this expedited procedure, which is essential if the court is to succeed in reducing the backlog and issuing timely written opinions.
You may be surprised to learn that the court has just begun to upgrade its word processing from the outdated WP 5.1 for DOS to the contemporary Word for Windows. It is also searching for a case management system to handle much of the work which is now done by hand. A new case management system will allow the court to keep and retrieve more data and with greater efficiency than is possible when information is kept and retrieved manually.
The court has formalized by rule, judicial performance evaluations which began in the superior court ten years ago and now occur at all court levels. Each judge and master is evaluated at least every three years. The purpose of the evaluations is to help judges do the best possible job; to improve the decision-making process; and to recognize strengths and to identify areas for improvement. This evaluation process is not intended to be another grievance procedure, but rather, an internal mechanism to provide judges with the opportunity to review performance and to help judges serve the public at a high level, on a daily basis.
The supreme court will also evaluate its performance. We have adopted objective appellate court time standards and will measure our performance against those standards. Surveys will be distributed to those who appear before us, for their anonymous input and assessment, and we will meet regularly to review the surveys and to discuss the level of our performance.
We expect grievances to be dealt with by an independent judicial conduct commission. To examine the disciplinary procedure and make recommendations for more committee independence, the court created a task force, chaired by Hampton attorney Jack Sanders and St. Anselm president, Father Jonathan De Felice. The co-chairs were given complete autonomy in the selection of task force members and the nature of its study. The Governor, President of the Senate and Speaker of the House each selected a member of the committee and the co-chairs selected the rest. The membership of the committee included a broad representation of professionals and the public. Recommendations for changes in the structure of the judicial conduct committee and the administration of its activities were made in a report to the court, the Governor, the Senate and the House.
Following receipt of the Sanders/DeFelice report, the court invited public comment upon its recommendations. The court then amended Rule 39 to reflect all the recommendations made by the task force for an independent Judicial Conduct Commission. If the legislature concurs by funding the new commission, it will be entirely independent from the Supreme Court. It will administer and be responsible for its own operation. It will be comprised of a majority of public, non-judicial, non-legal members. It will have subpoena powers, its own staff and offices separate from the Supreme Court. The commission will adopt its operating procedures, select its own officers, prepare its own budget and administer its own funds. The court intends to work with the task force and the legislature to implement the new structure.
The court also meets regularly with the director and managers of the Administrative Office of the Courts to increase its participation in the overall administration of the judicial branch. It deals regularly with legal, budgetary, personnel, facility, security, trial court and other management issues. It works closely with the executive and legislative branches of government on the Interbranch Criminal and Juvenile Justice Council, the Judicial Council and other cooperative efforts . It reviews legislation affecting the administration of justice, oversees admissions to the bar, judicial education services, enactment of rules and rule amendments. The court also acts upon countless petitions, motions and requests .
The court is involved with such issues as the impact of pro se litigants on the administration of justice throughout the court system. During the last few years, there has been a sharp increase in the number of individuals who represent themselves in cases at all court levels. To study and make recommendations for serving litigants in these cases, the court plans to appoint a task force composed of judges, lawyers, litigants and members of the public.
This year, the court received a technical assistance grant from the State Justice Institute to conduct an operational review and analysis of its case management process. Consultants from the National Center for State Courts will meet with justices and staff to examine workflow from the filing of a case to its final disposition. The consultants will also meet with a representative sampling of those who appear before the court for their perspective.
Following their review, the consultants will provide the court with an independent assessment of case processing and make recommendations for operational improvements. It is hoped this review will provide a new look and fresh approach to case management at the supreme court.
As you read this article, the longest delay facing litigants in the supreme court occurs between the time an appeal is accepted and when it can be scheduled for argument. This delay is a direct function of resources available to devote to the task. While judicial innovation, case management, a new 3JX docket, streamlined procedures, advanced technology and personal commitment may improve case disposition, current resources will not be sufficient to achieve all necessary change.
Even with the new excitement, enthusiasm and energy at the supreme court, it would be misleading to imply that channeling this energy and developing new procedures will by themselves permanently reduce backlog. For the court to achieve its goal of rendering decisions within adopted time standards, additional resources are essential. Without these resources and realistic funding, the court cannot expect to meet the time standards and maintain the high quality of its decisions.
We are, however, committed to "a correct and just administration of the laws." We are committed to the task of managing the judicial branch of government in a way that will prevent the prospect of tyranny from any source.