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Bar News - October 16, 2009

Chief Justice: Cost Cuts May Require Court ‘Holidays’


Chief Justice Broderick speaks at NHBA Board meeting; left to right are David Foley, Sullivan County Governor; President Elect Marilyn B. McNamara; Secretary Peter Hutchins; and, writing, NHBA President James J. Tenn, Jr.
Editor's Note: Chief Justice Broderick's comments in this article were made before the SEA's rejection of the contract proposal that included across-the-board furloughs. In an Oct. 14 memo to the judicial branch, Chief Justice Broderick said the courts are being asked to absorb a $3.1 million budget cut as part of the overall personnel cut Gov. Lynch is implementing.

By invitation of the NHBA Board of Governors, Chief Justice John T. Broderick, Jr., sat down with the Board at its September 24 meeting. He spoke about the state and court budgets and noted progress on some initiatives, and answered a variety of questions posed by Board members.

Broderick began by noting that a high vacancy rate of full-time employees in the court system inevitably affects the level of services the courts are able to deliver. (A later update: As of October 1, 2009, 67 of 632 full-time, non judicial positions were vacant.)

In his remarks at the meeting, and in an Oct. 5 memo to judicial branch employees, judges and marital masters provided to Bar News, Justice Broderick indicated that the Legislature’s directive to reduce General Fund appropriations by $25 million through personnel-related savings could result in furloughs for judicial branch employees and even possibly economic-related court closings.

[This article goes to press before the outcome is known of the State Employees’ Association vote on the contract proposal that includes a 19-day unpaid furlough plan. Check the e-Bulletin or the Bar’s website for updates on the state budget as it relates to the court system.]

If the state employees’ union agrees to the contract proposal calling for furloughs to pare state payroll costs, the Judicial Branch will go along, Broderick said. The agreement calls for 19 unpaid workdays for state employees in the 22 months remaining in the two-year budget cycle. The judicial branch would, as Broderick said in his memo "participate in some form." Broderick also said that while judges’ salaries are not subject to these changes, he believes the judges realize the difficulties of the budget crisis and the need for the court system as a whole to do its part.

Chief Justice Broderick told the Board that state employee furloughs might result in possibly 12 days when all courts would have to be closed. Justice Broderick did not indicate whether those days would be staggered or whether all courts in the system would be closed on the same days.

Broderick noted that in California, state courts are closed one Wednesday each month, and in Vermont, courthouse doors are shuttered on one day each month plus Friday mornings.

"I don’t remember the NH courts ever being closed because we could not afford to keep them open," lamented Broderick. Later in the Board meeting, he encouraged attorneys to advocate for adequate funding for the justice system. "It is important not to wait for two years [until the next biennial budget process begins], to talk about court funding," he said. "We are losing ground."

Justice Broderick also touched on several other subjects:

Business court. Anticipating Executive Council approval of four judicial nominees, Broderick announced that the Business Court, to be presided over by Richard B. McNamara, would hold its hearings at the Warren Rudman Federal Courthouse in Concord. Broderick said that Chief Judge Steven McAuliffe has offered the temporary use of a courtroom and chamber there at no charge to the state. Several board members questioned Broderick about the Judicial Branch’s advocacy of the business docket, which sets aside one judge to hear business-to-business disputes. Board members pointed out that some smaller counties only have access to a judge in their courthouse every other month. Broderick reiterated arguments he has earlier advanced, that the state courts endanger their future by not innovating to better serve business litigants, who can afford to leave the system for private dispute resolution services. "If we don’t get a handle on the flight to private justice [venues]," said Broderick, "in 10 years, the state courts would only be serving the incarcerated and those without lawyers." He has said that a court system which is irrelevant to the business community will have an even more difficult time obtaining funding than it does now.

Litigation reforms. Broderick also mentioned that he has asked attorney Philip Waystack and Superior Court Chief Justice Robert Lynn to co-chair a task force to examine the Superior Court’s trial rules in light of a recent report by The American College of Trial Lawyers that called for significant changes to the civil litigation process. "The bottom line of the American College of Trial Lawyers’ report is that there is too much discovery, and the process is too expensive," Broderick said. The NH group is expected to issue a report in December that would suggest how NH’s rules could be changed. (See August issue of Bar News for more on this effort.)

Both the courts and lawyers must work to lower the costs of dispute resolution in the courts, Broderick asserted. "If lawyers are not affordable to more people, they are in trouble," he said.

Hillsborough North relocation. "The good news is – it’s happening; the bad news –it’s happening," said Broderick, noting that the relocation plan is in place, and reminding attorneys that the outcome ultimately will be a modernized and improved courthouse (and asbestos-free) facility in Manchester. (The Judicial Branch website and the Bar Association website will have updates on the move to Nashua.)

Lawyers Assistance Program. The creation of a professional (as opposed to the previous all-volunteer model) Lawyers Assistance Program is succeeding, as evidenced by an increase in inquiries, Broderick said, indicating that more attorneys are aware of its existence. Broderick also is encouraged that more women in the legal profession, better reflecting their proportion within the Bar, are contacting NHLAP.

Mandatory IOLTA. Justice Broderick said the Court is considering a plan to make the Interest on Lawyers Trust Accounts program mandatory to increase funding for civil legal services programs. Any rule change to effect that would go through the Rules Advisory Committee process, where public comment would be considered.

Board member Quentin Blaine, representing Grafton County, asked Broderick to consider the "access to justice" issue of court-appointed indigent defense fees, which have not been increased since 1991. Blaine said the current levels are extremely low, and especially insufficient for practitioners in rural counties who must travel long distances to make court appearances. "The fees are grossly inadequate," Blaine said.

Broderick agreed, but said that it was not politically feasible for the judicial branch to secure increases." There are so many competing interests [in the state budget] for that money."

Larry Vogelman, an at-large member of the Board, criticized the Family Division, saying it is has diverted too many resources away from the superior court. Broderick defended the Family Division, and said the major flaw of the Family Division approach is that there have not been sufficient financial resources to implement it properly.

See page 6 for additional issues covered at the Board of Governors meeting.

Supreme Court Rule 42(9) requires all NH admitted attorneys to notify the Bar Association of any address change, home or office.

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