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Bar News - April 20, 2007

Legislative Update: Some Help on the Way for Superior Court?



The effort to create two added superior court judicial positions (HB 577, a bill to bring the court to a total of 23 judgeships) appears to be falling short in the legislature due to funding concerns. However, the NH House is considering a bill that would allow retired full-time judges to be paid on a per diem basis to provide part-time help with growing caseloads.


HB 577 passed the House but was retained by the Finance Committee for further study, making it unlikely that funding for two additional judicial positions will be approved in this biennial budget, according to court officials. However, House legislative leaders included language in the budget passed on April 11 that will allow retired full-time judges to be paid on a per diem basis to hear cases, and appropriated $200,000 a year for that purpose.


Superior Court Chief Justice Robert Lynn said HB 786 will lead to more judge time being available in the superior court but it won’t be enough. Given that the superior courts are still hearing marital cases in four counties as the transition to family division jurisdiction continues, and the court has experienced a rash of early retirements, Lynn said the court is effectively down by three judges. Allowing retired judges to sit part-time “will be helpful but I am concerned that it won’t make enough of a difference,” he said.


The good news is that the Judicial Branch’s request for $7 million for a new Merrimack District Court and $2 million for an asbestos removal project at the Hillsborough County Superior Court-North courthouse in Manchester, are included in the latest capital budget being considered by lawmakers. However, funding for a new Merrimack County courthouse in Concord is not included, due to a lack of agreement over where the new facility would be located.


In mid-April, both chambers acted on bills to either approve and send to the other chamber for action, or retain bills for study which may result in their revival in a subsequent session. (This action sometimes serves as a quiet burial for an unpopular idea.)


The NHBA Legislation Committee reviews all of the bills introduced in each session of the legislature for bills of potential interest or concern to the legal profession. The Committee, aided by the NHBA’s legislative representative, John MacIntosh, provides guidance to the NHBA Board of Governors. In a few instances, the BOG authorizes an advocacy position on pending legislation, consistent with the guidelines on legislative activity for a unified bar under the NH Supreme Court Chapman decision and the US Supreme Court’s Keller decision. MacIntosh also provides guidance to lawmakers on the procedural implications of some bills as they affect the legal system or the work of attorneys.


The following is a selective list of bills of interest to various sectors of the legal community that have passed one chamber and are “crossing over” for consideration by the other legislative chamber.


House Bills:


HB 143:  Apportionment of civil damages. This bill would add one paragraph to RSA 507:7e to exclude parties not named in a suit from any apportionment of fault in a civil case. Supporters said this will make it easier for injury victims to recover damages in civil lawsuits. It will counter current caselaw that requires that a defendant cannot be required to pay 100 percent of the damages in a case unless it was found to be more than 50 percent liable for the injury. (The NHBA did not take a position on this bill. See page 4 for NH Bar member Charles G. Douglas III’s opinion article on the bill.)


HB 244:  Advance directives. This bill repeals paragraph IV(b) of RSA 137-J:10,  regarding the withholding or withdrawal of artificial feeding or hydration from mentally incompetent or developmentally disabled persons.


HB 273:  Special needs trust. Bill provides that disbursements from special needs trusts shall not be counted as unearned income when determining Medicaid eligibility unless those payments are used for food or shelter. (The Bar, at the suggestion of the Elder Law Section, supported this bill.)


HB 444:  Parental rights in abuse and neglect cases. This bill requires written findings from courts when abuse and/or neglect are found. The Health & Human Services Department is obligated to notify a parent (not charged with abuse and/or neglect) of their rights to request a hearing on custody.


HB 554:  Funding for NH Legal Assistance. Supporting the funding of an office for NH Legal Assistance to serve Concord-area residents.


HB 827:  Medical support for dependent children. This bill requires a court hearing a domestic relations matter to address medical support as part of the child support order, and establishes criteria for determining whether health insurance is available at reasonable cost to the parents.


HB 895:  Licensing of court reporters. Bill requires licensing of court reporters by the Joint Board of Licensure & Certification, rather than certification by the Chief Justice of the Superior Court.

A couple of bills opposed by the NHBA were voted “inexpedient to legislate,” or otherwise killed, including HBA 670 which sought to repeal the charter of the NH Bar Association, and HB 906, which sought to allow juries to issue verdicts that are contrary to law or the facts, the so-called “jury nullification” concept.


Senate Bills:


In the Senate (at press time), SB 264 had been re-referred by the Senate to its Judiciary Committee. This bill allows the prevailing party in a small-claims action to file a lien against the losing party’s personal and real property.


The Senate has also acted on a number of bills, including SB 80 regarding qualified minor’s trusts; SB 113, which calls for an end to part-time judicial appointments as part of a transition to an all-full-time judiciary; SB 170, creating an office for mediation and arbitration in the judicial branch; SB 193 allowing adjustments to child support guidelines under “special circumstances,” and BS 261 which would name the state law library the John W. King law library.


Information about bills being tracked by the NHBA Legislation Committee is available at, in the For Members area, under Law Practice Tips & Resources (under the red bar).





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