Bar News - September 7, 2007
Superior Court Ranks Depleted; Civil Continuances Are Frequent
By: Dan Wise & Craig Sander
Superior Court judges David B. Sullivan and Bernard J. Hampsey are retiring from the bench next month, lowering the number of judges on the trial court to 19, three below its statutory limit, and, according to one study, five judges fewer than needed for its caseload.
“We are really hurting,” said Superior Court Chief Justice Robert Lynn. “We are beginning to see a situation where civil trials are having to be postponed with some regularity and, because of the state of the dockets, aren’t being rescheduled for months. He added, however, that the situation is not as dire as it was in the mid-1980s when the superior court last experienced chronic delays and backlogs because of a shortage of judges and courtrooms.
Right now, judges are the problem, not facilities. Court officials are eagerly awaiting news from the governor’s office on nominations to restore the superior court to full-strength. It is possible that nominations will be made at an Executive Council meeting on Sept. 5. But that would only be the first step in a process that, in the most favorable circumstances, takes months before a new judge can hear cases. The Executive Council’s confirmation process requires several weeks as members consider the nomination (including holding a public hearing). Once a nominee is confirmed, he or she usually needs some time to wrap up his or her existing caseload before going into public service. Then a period of orientation and training (usually at least several weeks) is required before a new judge can begin hearing matters on his or her own as a full-fledged judge.
The retirements, combined with the shrinking of the superior court as its domestic relations jurisdiction was shifted to the family division, have made scheduling increasingly difficult. Although the removal of family cases did shrink the court’s docket, most of that work was done by marital masters, and the judges’ criminal caseload has been growing. In 2004, to fund the Family Division expansion, the governor agreed not to appoint new judges to the superior court until the number of judges went from 28 to 22 judges. While the court is now below the statutory minimum, several superior courts continue to hear family cases as the statewide expansion of the Family Division has not been completed.
Clerks and attorneys around the state are scrambling to cope with the judge shortage. Cases, particularly civil trials and other matters, are being postponed repeatedly as judges must first concentrate on proceedings involving incarcerated criminals, and then other criminal matters. Judicial schedules, particularly in Cheshire and Sullivan counties, are being patched together with judges borrowed from other counties and with retired judges hearing cases on selected days. Chief Justice Robert Lynn has increased his time on the bench and Supreme Court Associate Justice Gary Hicks, a former Superior Court judge, took a turn on the trial court to hear a case.
Court clerks around the state, as well as staff in the Superior Court Chief Justice’s office, are finding they must devote extra time to tracking down judges and redoing paperwork to provide coverage.
Barbara Hogan, Cheshire County Superior Court Clerk, reached by phone, said she had just spent two hours rescheduling matters. Judge Philip Mangones is in Sullivan, hearing a murder trial and Cheshire is chiefly being staffed by Judge Arnold, who had been scheduled to sit in Sullivan County – another hard-pressed area – but retired Justice Philip Holman is helping out there because of a murder trial. “[The shortage] is the story of my life,” Hogan said. “It’s all very complicated – there’s a lot of clerical work every time something gets moved. Everything is being delayed. We only have marital masters half of the time and civil and equity [cases] are delayed.” Compounding the problem in Cheshire is that it is one of the counties that still hears all of the marital matters, and it will have no marital master available in October.
In one of the state’s busiest courthouses, Hillsborough County Superior Court South—where Judge Hampsey and Judge Sullivan both presided this summer— Clerk Marshall Buttrick says delays are inevitable. “We’re a little concerned, and [the retirements] will definitely cause some delays. Obviously [matters involving] incarcerated criminals will have to take precedence, and then the criminal docket. So I’m absolutely sure we’ll see some delays—I don’t know how long, but delays nonetheless—in the civil cases. We’re going to be asking retired judges to sit-in when they can and hopefully that will relieve some of the burden, but it will still be quite difficult,” he said.
In those courthouses that currently have a full complement of judges, clerks expect it will only be a matter of time before their judges are tapped to sit in courthouses without enough judges.
James Peale, Sullivan County Superior Court Clerk, who has been coping with the difficulties of scheduling with a judge sitting only every other month (after the introduction of the Family Division there), said civil and equity matters are simply not being reached on the docket. “The problem is there, we know it; everyone is suffering. It’s a system problem not a county problem.”
In the past legislative session, lawmakers did not approve a bill supported by the judicial branch that would have expanded the number of superior court judgeships to 24, citing financial concerns. The judicial branch had justified the increase with a weighted caseload study, by the National Center for State Courts, which found the court had enough work for almost 25 judges. Instead, the legislature approved an appropriation for additional funding for per diem payments to retired judges to hear cases on a fill-in basis. Chief Justice Lynn says many retired judges are pitching in and hearing cases, but that their help “is just not the same” as having full-time judges serving....
Earlier in the year, Judge Lynn warned court officials and Gov. Lynch that as many as half of the superior court’s judges were eligible for early retirement, and that he thought as many six might take advantage of the option. Under the contributory retirement plan that took effect in 2003, judges can retire before reaching the mandatory retirement age of 70 with at least 15 years on the bench at age 60 or at least 10 years on the bench at age 65.
So far, four superior court judges have taken advantage of early retirement (Judges Robert Morrill, Bruce Mohl, Arthur Brennan and Sullivan) while Judge Hampsey’s retirement is mandated when he reaches 70 in October.
The Judicial Selection Commission, issued a call for applications for superior court positions in April, and after reviewing candidates, made recommendations in July to the governor, said Phil Waystack, co-chair of the JSC.
Colin Manning, Gov. Lynch’s spokesperson, said the governor will act as quickly as possible to put judges back on the court, and was personally interviewing candidates on the JSC list. “This is a process that the governor takes very seriously. He wants to find the best candidates available and that’s a time-consuming process,” Manning said, adding: “The governor is well aware there are vacancies out there.”