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Bar News - October 15, 2010


State Sued Over Underfunding of Courts

By:


Chuck Douglas (2nd from right), a member of the legal team bringing the court funding lawsuit, speaks at a press conference with (left to right) attorneys Kirk Simoneau, Larry Vogelman, and Finis Williams.
The battle over adequate court funding has entered a new arena with the filing of a lawsuit against the state of New Hampshire seeking "sufficient funding of the judicial branch of State government to enable it to meet its obligations to our fellow citizens."

The lawsuit seeks about $6 million to supplement the current judicial system budget, and requests that the State Treasurer immediately turn over $4 million to restore funds cut from the justice system in the current biennium. The petition and writ of mandamus, filed in Merrimack County Superior Court, argues on behalf of five plaintiffs who allege that they have been denied their constitutional rights to timely relief from NH state courts.

Among the exhibits accompanying the pleading are a form "Cancellation Letter" from District Court and Family Division Judge Edwin Kelly announcing the indefinite postponement of a district court case, and a notice from the Manchester District Court to all parties in small-claims actions that says "significant delays" can be expected before new cases can even be scheduled. (See the "Court Budget Crisis" page for a link to the pleading.)

The lawsuit was developed by a team of lawyers, including Charles G. Douglas, of Concord; Lawrence A. Vogelman, of Manchester; and Finis E. Williams, III, of Concord, with six other attorneys listed as supporting counsel.

The NH Bar Association is not participating in the lawsuit, but NHBA President Marilyn Billings McNamara says many members are supportive of its aims. (See her comments in accompanying article.)

The plaintiffs in the lawsuit are:
  • The mother of a brain-injured child, still a minor, whose jury trial has been indefinitely postponed due to lack of funding for a judge. The case, originating in 2001, was the subject of a 2007 NH Supreme Court decision that returned it to the trial court level.
     
  • The parents of two minor children who are involved in a custody dispute in Derry Family Court, who contend that their ability to bond with their child is jeopardized by court inaction. While the children’s grandparents have a temporary guardianship, the plaintiffs allege that court-ordered visitation with their children has not occurred as required. A motion to compel compliance with a visitation schedule, filed on June 15, 2010, has not yet been acted on.
     
  • The executrix of an estate of a 39-year-old man who died after surgery and is alleging medical malpractice. The jury trial, having been postponed four times, is now scheduled for trial in July 2011, but it is unclear whether that date will be reached.
     
  • A condominium maintenance worker, working on contract with the property, suffered a painful and ongoing wrist injury and settled before trial for an amount comparable to his medical bills. The plaintiff claims he agreed to "an unreasonably low settlement" because he could not afford to wait longer for a trial.
At a news conference on Sept. 28, the day the lawsuit was filed, Douglas emphasized that the lawsuit aims to secure adequate funding for "an entire branch of government, not a state agency." He said $4 million was chosen as a figure adequate to restore staffing so that vacant administrative positions could be filled, jury sessions – cut by 1/3 statewide for the coming year – restored and furlough days resulting in near-monthly statewide court closures eliminated.

In news accounts, representatives of the Governor reiterated their position that the judicial branch could have saved money through other cutbacks that would have had less of a direct impact on judicial access, and Neal Kurk, a NH House member who serves on the House Finance Committee, asserted that the judicial branch has many inefficiencies that could be addressed.

At the plaintiffs’ news conference, attorney Douglas was asked whether the court funding suit resembled the Claremont school funding cases. He denied a connection, asserting that the amounts of money being requested in the court suit are much smaller than that required by a school-funding scheme and that the right to timely access to remedies in the courts is specifically spelled out in Part 1, Art. 14 of the NH Constitution. The right to have civil disputes heard by a jury, in Part 1, Art. 20, is labeled as "sacred."

Attorney Williams pointed to the nonpartisan nature of the lawsuit – noting that the attorneys working on the case come from a variety of political backgrounds – Douglas is a well-known conservative Republican, Williams is a Democrat, and Vogelman is active in the NH Civil Liberties Union.

Vogelman, who is NHBA Vice President, said that while the monetary amount addresses current needs, the lawsuit seeks to end an ongoing cycle of underfunding. "The courts are the great equalizer. They allow the individual citizen to fight the state," said Vogelman, adding that without access to courts to enforce them, "contracts are worthless pieces of paper."

An initial hearing on the injunction may result in a hearing on this case before the date of this Bar News issue. Updates on the progress of this case will be reported on the website or in the e-Bulletin.

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