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Bar News - November 9, 2007

Talking With the Chief Justice, Part 1: Changes in the NH Courts

Note: Part 2 of this interview can be read here.

John T. Broderick, Jr., Chief Justice of the New Hampshire Supreme Court, recently sat down for an interview with Bar News.


What priorities do you see for the Judicial Branch for 2008?

John T. Broderick, Jr.


We want to continue the rollout of the family division, which is currently in place in seven counties, and it is expected to be in an eighth county by January 30, 2008. We are hopeful to have it system-wide within the next few years.


We are also focused on implementing a more effective program of mediation in all superior courts. We will need the full cooperation of the bar to make that happen and I am very hopeful we will have it.


The Access to Justice Commission will continue its valuable work under the leadership of Justice Duggan and Chief Judge McAuliffe on making justice more affordable and accessible for more of our citizens.


We anticipate the adoption of streamlined rules of civil and criminal procedure to simplify the administration of justice in New Hampshire.


We will continue our efforts to install Odyssey, a new case management system, in every court site. To date, it has been installed in approximately 28 sites but there are almost 50 sites yet to receive it. Odyssey will facilitate the ongoing effort of judges and staff to provide uniform practice from court site to court site.  It will be a platform for change and will provide us with the potential for electronic filing.


We will also be looking at the creation of a business court docket in the superior court. These dockets are successfully in place in many states.


Enhancing court security while paying our officers a fair wage remains a very important issue, as does the need to bring the superior court to its full complement of judges. This is a time of great change in the court system as we must continue to adjust to accommodate the real world needs of lawyers and litigants and an ever-expanding number of citizens who represent themselves.


Bar News: Taking some of these topics one at a time, can you elaborate on the expansion of the Family Division and the concerns raised about it?


The expansion of the family division is the single largest change in the judicial branch footprint in a generation.  Anywhere from 43 percent to 50 percent of the superior court docket (depending on the county) will be absorbed by the family division when its expansion is complete.  Both the probate courts and district courts are also ceding jurisdiction to the family division.  Judges and staff have been working overtime to make the transition as smooth as possible.  As with any new project there will be a period of adjustment for judges, masters, staff and members of the bar. 


There has been some concern expressed about the First Appearance protocol.  As you may know in almost 70 percent of the marital cases at least one party is self-represented.  For this large population, First Appearance has been a welcomed addition.  We are not trying in any way to undermine the value of lawyers but are merely trying to deal in a realistic way with our docket.  Over time, I am hopeful that many divorces can be secured in a less adversarial and acrimonious environment.  Family relationships are intended to survive divorce where children are involved and I believe the legislature, the bar and the judicial branch are committed to ensuring the best possible outcomes.  I encourage members of the bar to continue to make their voices heard so we can fashion a process meeting fundamental needs.


Bar News: Alternative dispute resolution is an area of increasing emphasis for the judicial branch this year. Enhancing opportunities for ADR was a major recommendation of the Citizens Commission on the State Courts report issued before the last legislative session. How much progress do you think has been made since the Citizens Commission report came out?


I believe substantial progress has been made. We have now established a Judicial Branch office of Alternative Dispute Resolution headed by Attorney Karen Borgstrom, a highly skilled mediator. We have mediation in place in the probate court, the district court (small claims cases) and the family division. Effective January 1, 2008 we expect to have a re-invigorated mandatory Rule 170 program operational in the superior court in all ten counties.


We’re interested in creating as many “off-ramps” to litigation as possible. Litigation is sometimes too time-consuming and too expensive.  We need to make the judicial system more cost- effective for clients with lawyers as well as for the self-represented.


When you look at the rising tide of pro se parties and the increasing resort by many clients represented by lawyers to private forums of dispute resolution – arbitration, private juries, and so forth— we realize that the courts are losing market share.  If people are not using the public justice system, the courts will be largely displaced from their traditional role of providing a forum for dispute resolution.  Our ability to develop the common law is at risk as these cases disappear.  That is not, in my opinion, a positive development for the citizens of New Hampshire.


Bar News: The Judicial Branch’s budget proposal received a better reception in the legislature last year. To what do you attribute that?


We utilized many of the recommendations of the Citizens Commission Report to fashion our budget priorities and our requests for funding met with some success. We received appropriations to hire 19 additional staff persons in FY 2008 and one additional staff person in FY 2009, several of whom will work as case managers in family division cases. We requested and received $200,000 for Judicial Branch education, much of which will go to staff training. We received funds to convert three part-time district court judges and one part-time probate court judge to full-time status. [See related article on these judgeships on page 24.]  Each of these initiatives, I believe, will result in real improvements in service to the public and the Bar.


The Legislature also appropriated $200,000 to allow retired judges who opted for senior status to be recalled in exchange for a per diem payment equivalent to the daily compensation of a full-time judge. This new development will assist the superior court, in particular, in addressing pressing docket needs in less populated counties where there is no longer a judge in residence. 


Our operating budget requests for the last several budget cycles were not approved and, as a result, the Judicial Branch was essentially flat-funded. For fiscal year 2008 we received a 6.1 percent increase over FY 2007 and in 2009 we received an 8 percent increase over FY 2007.


I believe much of the credit for those additional funds belongs to the Citizens Commission and its extraordinary work. We have also developed a good working relationship with the legislature and the governor.


Bar News: What are the court system’s legislative priorities for the coming year?


As you know, this is not a budget year but we are hopeful the legislature may be in a position to pass a modest supplemental budget. Obviously that will require revenue estimates to come in higher than anticipated.


We have made the case for two additional superior court judges, one to be appointed July 1, 2008 and the other to be appointed effective July 1, 2009. This could probably happen without any new appropriation. We have proposed that the first position be funded from the anticipated Judicial Branch lapse for the first fiscal year of our current budget. The superior court now uses a weighted caseload formula to assess, in an objective fashion, how much judge time is required to handle its docket in an efficient manner. The most recent weighted caseload study indicates that almost 25 judges are needed. At present, even when the three current vacancies are filled, the superior court will be operating with only 22 judges. While the senior status judges will certainly be helpful in assisting the superior court to meet current demands, they are not a substitute for the added value of fulltime judges.


We are also in favor of a constitutional amendment to eliminate elected Registers of Probate.  We have vetted the idea fully with the Probate Registers and Judges and they are supportive.  The early response from the Legislature has been very favorable.


Bar News: Last year, there was a bill introduced to improve security in the courts but it did not prevail. Is this going to be an area you will pursue?


Over the past year we have focused considerable energy on improving court security. We have worked very cooperatively with all ten sheriffs and have presented the legislature with a detailed plan for implementing needed change. Justice Galway and Earl Sweeney of the Department of Safety have taken leadership roles along with Sheriff Hardy from Hillsborough County.


We have proposed that all court security be taken over by the sheriffs at every court site. There are now uniform standards fashioned by Police Standards and Training that are realistic and age-appropriate. The per diem compensation of current court security officers would increase from $65 a day to $150 a day. The increase would be phased in over three years. We are hopeful that the legislature will have sufficient resources to include initial funding for this critical need in any supplemental budget that may be passed in the upcoming legislative session.


Bar News: Other than a business court docket are there other ways to use judicial resources more efficiently?


Yes. Currently seven district courts and one superior court have “drug court” dockets. In these programs the YDC and jail or prison are not the only options. To date, the funding has come from private grants but when the funding is gone, I am optimistic the state and counties will pick it up. It is less expensive, in most cases, to keep some drug offenders out of jail than to insist on incarceration as the one and only option. In these programs the judges interact with the offenders, family members and the social service agencies. While we need more empirical data for a final assessment, many of these programs are proving successful. The collateral economic consequences to families of offenders make it in our collective interest to mine the full potential drug courts offer.


Three district courts (Keene, Nashua and Rochester) have “mental health” dockets for non-violent offenders. Again, the dockets create options and save money. It is cheaper and more prudent, in many cases, to have offenders afflicted with mental health issues that led to non-violent offenses to stay out of jail and take prescribed medications than to incarcerate them. Such programs also allow many offenders to remain in their jobs and support their families. Sound economics and sound penal practices need not be polar opposites.


Bar News: While there were an unexpected number of early retirements of judges, several judges who retired at the mandatory age of 70 wanted to continue. Do you favor changing the mandatory retirement age of 70 for judges?


I am sympathetic to the idea. Currently, a trial court judge over 70 can only serve as a judicial referee in the trial courts. Such judges, however, are eligible to sit as requested on the Supreme Court. That seems an odd distinction to me. Seventy is a very different experience for many people than it was decades ago. In the federal system, trial judges can take senior status at 70 and continue to sit, albeit on a less demanding schedule. I think we need to take a thoughtful look at the issue. Any change would, however, require a constitutional amendment and that would be quite an undertaking.


The interview, conducted in person on Oct. 15, and via e-mail, will be published in two installments.  Bar News extends its thanks to the Chief Justice for his time and effort. Most of this material is derived from his written answers.


In Part 2 of this interview, Chief Justice Broderick discusses trends he sees in the legal profession in the 21st century and the continuing efforts by the courts, the legal profession and other branches of government on access to justice issues.

Note: Part 2 of this interview can be read here.

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