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Bar News - September 22, 2006

Superior Court Seeks Restoration of Two Judge Positions



The state Judicial Branch is going to ask the Legislature to restore two judge positions that will otherwise be eliminated with the retirement, over the next year or so, of two unnamed judges, according to Chief Justice of the Superior Court Robert J. Lynn. “Overall, it is becoming apparent that shortages [in judge time] are becoming critical in the short term,” he said.


Donald Goodnow, director of the Administrative Office of the Courts, said the judicial branch budget for the coming fiscal year is budgeted for the statutory number of justices (22), but he said he expects that legislation may be introduced to increase the number of superior court justices to 24.


The decision to request the restoration of judgeships is partially based on backlogs in criminal and civil caseloads in Carroll County. Also, Superior Courts in Sullivan and Coos Counties saw judge time reduced last year from 12 consecutive months with a sitting judge to six alternating months. The move to decrease judge time in those counties was due to the approval of the statewide Family Division, which provided for separate family courts that hear marital and certain juvenile cases.


With what seemed to be a reduction of caseload by roughly half in those less-populated counties, the need for judge time would theoretically also be halved. However, in reality, the criminal docket and certain types of civil cases actually increased over the last eight years, and these increases were not taken into account in connection with the decision to reduce the number of superior court judges from 29 to 22 to provide for the funding and establishment of the Family Division in 2005.


“The thought was that, at the time the expansion of the Family Division was proposed, the superior court was authorized 29 judges and 11 marital masters. Since, on average, domestic cases made up approximately 45 percent of the superior court’s docket, we believed that the expansion of the Family Division could be accomplished by decreasing the number of judges to 22 and increasing the number of masters to 18. This would leave the total number of judicial officers the same, but would change the mix between judges and masters,” Lynn explained.


Statistically, Superior Court filings have risen from 1997 through 2005 by nearly 21 percent; of that figure, non-marital filings have risen by about 32 percent. Criminal filings rose by 56 percent and equity filings climbed by about 23 percent.


Even if the Legislature approves the restoration to 24 superior court judges, the court cannot justify having judges sitting in the less-populated counties on a full-time basis, Lynn explained. The Superior Court—including Lynn and Judges Timothy J. Vaughan for Coos County, Stephen M. Houran for Sullivan County, and James D. O’Neill III for Carroll County—is working with the trial bars and court clerks in each area to make the transition less difficult.


Lynn said the courts may install equipment to allow the use of videoconferencing for things such as arraignments, bail hearings and other pre-trial motions. “Hopefully, what we’ll be able to arrange is, on a month when the judge who is handling that region’s cases is at another court, that judge will hear the videoconferences of their home court,” said Lynn. “It won’t address all of the problems but it will help.”


Sullivan County Attorney Marc B. Hathaway and Philip R. Waystack, a civil litigator with Waystack & King in Colebrook, agree that the court is making an honest effort to resolve the problems associated with moving from a full-time court to a part-time court in their areas, but each has major concerns over the assignment process, which leaves their counties without a judge six months out of the year.


The concerns include access to justice for local citizens, the right to a speedy trial for defendants, impact on victims and witnesses, and the squeezing out of civil cases by criminal cases from the docket.


“Judge Vaughan and [court clerk] David Carlson have been very proactive with us [Coos County trial bar],” said Waystack. “They regularly schedule meetings to discuss issues and keep us up-to-date.”


“The court is working hard to do the right thing, but there is inherently a problem with building a system that causes [such inequity]. They are dealing with too much work and not enough resources,” said Hathaway. “The Legislature must address the need for equal access to the court for all counties. What is allocated to us [Sullivan County] now [for judge time] and the manner in which it is allocated is inadequate. Citizens in Sullivan County cannot access their court in the same way as citizens in other counties can.”


In Carroll County, the court with the largest backlog, Lynn scheduled judges from other counties—one per week for 12 weeks on a rotating basis June through October—to hear cases and eliminate the log jam. Carroll was given priority, Lynn explained, because cases in that court were delayed to the extent that speedy trial rights of criminal defendants were a real concern. In a few instances, defendants had to wait more than a year for their cases to be heard. “This schedule is special and not reflected in the regular schedule of justices’ assignments.”


Hathaway says that the reduction in judge time in Sullivan County is having a significant impact. “The speed at which you can get a motion heard can affect the speed of the rest of the trial,” he explained. “The on-again-off-again schedule has the effect of slowing down the entire criminal justice system.” He says that judges are coming to their home bench with two months’ worth of work to go through in half the time. “The judge needs time to read the files, do the research and write the orders. The judge must work an incredible amount of hours to keep these cases moving forward and write quality orders.”


Waystack explained that the greatest effect on his civil practice has been the difficulty in obtaining a “date certain for trial.”


“Date certain for trial does a lot to move the parties to settlement and helps keep the whole process moving,” said Waystack. The problem with the court not issuing dates certain for trial is directly related to the scheduling of criminal trials and their related pretrial requirements. The criminal list takes priority over the civil list because of the criminal defendant’s right to a speedy trial. Not having a date certain for trial also makes it more difficult to schedule the expert witnesses that many of these types of cases require.


Both attorneys talk about the difficulties of traveling to another court on the off months. Hathaway and others related to a case (defense, probation officers, sheriffs) must regularly travel at least an hour to get to another court, which takes time away from their other cases. Waystack does not mind traveling for his clients, but said that most courts are between an hour-and-a-half to two hours away and he must bill his clients for the time, making it more costly for them.


“The bottom-line is government has the responsibility to provide a place to have citizens’ disputes heard—criminal or civil—in a timely manner,” said Hathaway.


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