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Bar News - November 17, 2006

Sudden Impact: Election Changes Everything: ‘Clear sailing’ on judicial picks; 8-9 vacancies expected in 2007-8




COncord Election Ward 5 Poll
The crop of signs touting ballot questions and candidates outside the Ward 5 poll in Concord illustrated the high level of interest in this year's election. 

Last week’s decisive swing to Democratic control of the NH legislature and the U.S. Congress is triggering a sudden shift in roles for many attorneys in government, or who work closely with it.


Of particular interest to the Bar: many judgeships will be up for appointment in the next two years, and the change to a three-vote Democratic majority on the Executive Council will probably give Gov. John Lynch “clearer sailing” on judicial and other appointments, political leaders agree.


Superior Court Chief Justice Robert Lynn said he knows of eight to nine judges who are either planning or must retire from the Superior Court during the next two years.  (Not all of the retirements will necessarily result in appointments, however. Currently, the Superior Court has 24 justices but is budgeted for 22 positions due to the creation of the Family Division; however, the judicial branch in its budget for next year is asking for an expansion to 24 due to rises in caseload.)


For some attorneys, the political sea-change has a personal and immediate impact.


Concord attorney Paul Hodes joins government service for the first time as he will soon begin commuting to Washington, D.C. to serve as the 2nd District Representative in Congress. Although he lacks the seniority status of the man he defeated, six-term incumbent U.S. Rep. Charles Bass, Hodes will be part of a large and mostly Democratic freshman class  that will have a say in crafting a much different legislative agenda for the new Congress. Hodes, who will take a leave from the Shaheen & Gordon law firm after winning in his second try for the office, will represent New Hampshire in the U.S. House along with Carol Shea-Porter, another Democrat, who ousted two-term incumbent Representative Jeb Bradley. 


NH’s two U.S. Senators, Judd Gregg (a former Nashua attorney who remains on active status) and John E. Sununu, both Republicans who will now be in the minority, will see changes from a different perspective: both are likely to lose key leadership positions once Democrats decide on committee assignments.  Gregg, in his 15th year in the Senate, chaired the Senate Budget Committee, and the Senate Appropriations Subcommittee on Homeland Security in the 109th Congress. Sununu has served on the Banking, Commerce, and Foreign Relations Committee. 


Meanwhile, in the corner office at the State House, Gov. Lynch, a member of the Bar on inactive status, starts his second two-year term next year with the power to accompany his popularity. As a Democrat in state government, he will have plenty of allies: Democrats have an unheard-of 237-163 majority in the NH House of Representatives and a 14-10 lock on the NH Senate.


Steve Duprey, who chaired the state Republican party from 1992 until 2001, said that for attorneys interested in participating in government, “The most significant change will be that a majority of the Executive Council will be of the same party as the governor. That will give the governor much more latitude in appointing the people he wants.”


The Executive Council, which votes on major contracts and confirms appointments, will have two new faces, both Democrats — Beverly Hollingworth (replacing retiring Ruth Griffin, a Republican) and John Shea (who ousted longtime Republican incumbent Peter Spaulding) who will form a pro-Lynch, three-vote majority along with second-term Councilor Debora Pignatelli, a Democrat from Nashua.


“Governor Lynch is not going to change his way of governing,” said Katherine Hanna, a Manchester attorney who served as co-chair of the Lynch campaign and as Lynch’s legal counsel for one year. “He has always taken a bipartisan approach to making appointments. He will continue to look for qualified candidates, whether they are Democrats or Republicans or independents.”


Hanna cited the delay experienced by her former law firm colleague, Thomas Burack, a lifelong Republican and an experienced environmental attorney, whose nomination was held up for several months due to a lack of sufficient votes on the Executive Council. “In any other scenario, a qualified nominee such as Tom would have sailed through,” Hanna said, adding she believed his nomination was held up for reasons that had little to do with his qualifications. (Burack was confirmed Nov. 1 as Department of Environmental Services Commissioner. See page 15.)


Speaking generally of how Lynch’s second term will differ from his first, with same-party majorities in both the NH House and Senate, Hanna said: “Last session, there was a lot of time wasted, getting mired down in partisan politics, staving off the barbs – it will be a much more streamlined process for getting things done this session.”


Aside from turning from Republican to Democratic control, the NH Senate also gained another lawyer-member, as Plymouth attorney Deborah Reynolds ousted longtime Senator Carl Johnson. Reynolds, a behind-the-scenes activist who won in her first bid for public office, will join attorneys Peter Burling, Joseph Foster, David Gottesman, and Margaret Hassan as NH Bar members in the Senate. Another Democrat, Molly Kelly, who defeated Thomas Eaton for the District 10 senate seat, has a law degree from Franklin Pierce Law Center but does not practice and is not admitted in NH. Kelly is a financial advisor for AIG Valic.


With Democrats in charge of the Senate, more Democrats will be assigned to chair committees – in the last session, the only Democrats named to committee leadership posts were Lou D’Allesandro and Foster, who chaired Judiciary.


Foster said that lawyers in the Senate—all of whom are Democrats—will likely gain more chairmanships and be busier than when they were in minority status, and they will have greater influence in staffing decisions. On the House side, the learning curve will be greater, since the responsibilities of leadership there are greater, Foster said.


“There is no one alive who ever worked for a Democratic speaker [in the NH House],” said Burling, quoted in a Concord Monitor article. Burling served as the leader of the Democratic caucus in the NH House for many years before his election to the NH Senate.


(In a future issue, we will highlight the members of the NH Bar in the NH House. Please contact if you are a Bar member elected this year.)


Although Republicans remain in control of the White House and NH’s congressional delegation is split, Hanna said the changes on Capitol Hill and the NH State House will open up appointive or staff positions for attorneys and others who might not have been considered before. “For many who had been frozen out, there will be many opportunities in state government and on the federal side,” Hanna said. “I encourage young attorneys with an interest in government to consider working in Washington. It can be a great training ground for younger lawyers.”


County Attorney Roundup


Three county attorney races were contested this year, and familiarity won out over party affiliation, despite the Democratic onslaught.


The most hotly contested county attorney race, in Belknap County, featured two veteran prosecutors: former Laconia City Prosecutor James Carroll, running as a Democrat, who triumphed over Wayne Coull, a Republican who had served as Deputy County Attorney for the past 10 years, and recently became interim County Attorney following the resignation of Lauren Noether.  


In Rockingham County, Republican Jim Reams won a fifth term as county attorney, defeating Democrat David Mirsky of Exeter, who was making his first try for the office.


And in Cheshire County, former NH Attorney General Peter W. Heed, a Republican whose last-minute write-in campaign landed him on both major-party ballots, easily defeated Scott Trendell, who has been working as a prosecutor for several towns in the area, who ran as an independent.


Ballot Questions Prevail


Although they did not garner much attention this year, two constitutional amendments on the ballot both won voters’ approval. (A two-thirds majority is required to pass a question.)


Question 1, which inserts language into the NH Constitution explicitly barring government from taking private property to be developed for private use, was approved by more than 76 percent of the voters.


Question 2 requires that districts for the NH House of Representatives be created to allow greater representation of citizens in smaller towns, through a complex mechanism of allowing “floterial” districts in which representatives are elected by more than one town or ward. The current system, mandated by a 2002 NH Supreme Court decision, eliminated floterial districts in favor of larger multi-representative districts that the court said were less likely to result in large variations in population between districts. 



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