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Bar News - February 23, 2007

Pending Superior Court Retirements Exacerbate Judge Shortage



The state Judicial Branch has asked the Legislature to restore two positions that will otherwise be eliminated with the recent retirement of two Superior Court judges—Hon. Bruce E. Mohl and Hon. Robert E. K. Morrill. Soon to be adding to the ongoing problem of a superior court judge-time shortage, is the expectation that several other judges are also planning to retire. Currently, there are 22 superior court justices, half of whom are eligible to retire within the year.


“There are more judges eligible to retire than originally expected,” says NH Superior Court Chief Justice Robert J. Lynn of the large number of judges that can now retire early at age 60. “About five out of the 10 eligible judges might retire, and two already have,” says Lynn. Additionally, Judge Bernard Hampsey, Jr., is required by state law to step down from the bench when he turns 70 years old this October.


Because of changes to the judicial retirement system in 2003, judges can now retire at age 60 after at least 15 years of service. Judges must give the court 30 to 90 days notice if they decide to retire early.


“We have been assured by the Governor’s office that [judge appointments to fill the vacancies] will be handled as quickly as possible,” says Lynn.  “Gov. Lynch understands the importance of this issue.”


Retired judges are allowed to become senior associate justices, available to fill temporary vacancies when requested by the chief justice of the NH Supreme Court.


The NH Superior Court should have 24 ¾ judges, according to a weighted caseload study by the non-profit National Center for State Courts, based in Virginia. The judicial branch commissioned the study in 2005.


Lynn said the judicial branch has requested the state to increase the number of superior court judgeships to 24 for the 2008-2009 budget, which has not yet been submitted to the Legislature. The request requires a change to RSA 491:1. The court has also requested an increase in its overtime budget to address caseload backlogs. Until the number of judge positions becomes 24, from the current statutory limit of 22, this fiscal year is budgeted for the statutory number.


“Our present shortage is actually more than two-and-three-quarter judges (the difference between the study’s recommended 24 ¾ and the current 22),” says Lynn. “That figure does not take into account that, where there is no family court, superior court justices are still handling marital cases as well as their other cases.” The counties of Merrimack, Hillsborough (north and south), Cheshire and Strafford do not have family courts. “The reality is that we are still doing marital cases in these counties.”


Lynn believes that once the Family Division has expanded statewide (which is not expected until late 2008/early 2009) that the issue of judge time will settle itself if the appropriation for an additional two superior court justices is approved by the Legislature. The increase to 24 judges would be for superior court justices only. “The Superior Court will not be hiring any more marital masters.” Marital masters will eventually all go to the Family Division and the division will have the responsibility of filling any future vacancies.


The decision to request the restoration of judgeships is partially based on backlogs in criminal and civil caseloads in various parts of the state. The move to decrease judge time in family court counties was due to the establishment of the Family Division in 2005, 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 family court counties, the need for superior court judge time was also expected to be halved. However, 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 and increasing the number of masters to 18 from 11 to provide for the funding for the Family Division.



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