Bar News - March 16, 2012
Legislators Propose Changes to Courts, Legal Processes
The state courts’ rule-making authority, the unified status of the NH Bar, and access to the justice system are among the bills and proposed constitutional amendments that New Hampshire legislators are considering.
At presstime, the NH House had voted on several bills regarding the courts and the legal profession, with a number of other bills awaiting House floor action. As March wanes, the action will shift from the NH House of Representatives which tends to generate more legislation, to the Senate for more prolonged consideration of a smaller number of bills.
The NH Bar Association has voted to oppose several proposed constitutional amendments and bills that seek to weaken the authority of the Judicial Branch to set rules for the operation of the courts or that appear to upset the balance of powers between the legislative and judicial branches. (See sidebar article on the role of the NH Bar Association in reviewing proposed legislation, as governed by the NH Supreme Court’s Chapman decision on permissible legislative advocacy by a unified bar.)
While the Legislative Chart lists those bills reviewed by the NHBA Legislation Committee, the following lists bills of interest to the legal community that have advanced in the legislative process, having either passed the House or been given a favorable vote ("Ought to Pass") by a legislative committee.
(To appear on the ballot in the upcoming November general election, these CACRs must be approved by both legislative chambers but do not need to be signed by the Governor.)
Two amendments seek to amend Part 2, Art. 73-a of the NH Constitution, which provides that the NH Supreme Court make rules "with the force and effect of law" governing the courts of the state. The Bar Association officially opposed both of these amendments.
CACR22 – Added language is italicized and deleted material is in brackets: "The Chief Justice of the Supreme Court shall, with the concurrence of a majority of the Supreme Court justices and the Legislature, make rules governing the administration of all judicatories in the State and the practice and procedure to be followed in all such judicatories. [Delete: The rules so promulgated shall have the force and effect of law.]
CACR26 - Proposes that "article 73-a of the second part of the constitution, relative to authorizing the chief justice of the supreme court to make rules governing the administration of all the courts of the state, be repealed."
The following bills have been favorably reported by the relevant House committee or have been passed by the House.
HB1131 – establishes "a committee to study the revisions to laws which would be necessary if the supreme court and superior court were abolished as constitutional courts." Passed the House.
HB1181 – creates an "offers of judgment" process similar to federal Rule 68. The NH bill, though, raises the cost of making a decision not to accept a settlement offer if a later verdict is for a lesser amount. Plaintiffs’ attorneys believe this bill tilts the balance in favor of litigants or defendants with greater resources and will discourage worthwhile litigation. (The NHBA took no position on it.) Another bill, SB406, pending before Senate Judiciary Committee, creates an "early offer" process in medical malpractice cases that would have a similar effect. (The NHBA took no position.)
HB1368 - prohibits a joint tenant from severing a joint tenancy with rights of survivorship without the consent of the other joint tenants. (The NHBA did not take an advocacy position, but, after consultation with the NHBA Real Property Law Section membership, legislators were advised that this measure will have unintended consequences.)
HB1422 – Prohibits the application of any foreign country’s law in a New Hampshire case. This bill has passed the House and awaits Senate action. (The NHBA opposed this bill.)
HB1395 – seeks to revoke Supreme Court Rule 50 and 50a – regarding Interest on Lawyers Trust Accounts. (The NHBA opposed this bill on the grounds that it violates the separation of powers.)
HB1474 – prohibits requirement of membership in the NH Bar Association as a prerequisite for practicing law or appointment to certain positions. (NHBA opposed this bill.)
In the NH Senate, fewer bills have been acted upon. One bill supported by the Bar, SB355, which creates an exemption from the NH SAFE Act for attorneys representing clients, is awaiting a vote by the full Senate.
NHBA Legislation Committee Monitors Bills
As a unified bar, the NH Bar Association maintains a legislative program that is more likely to provide background information to broaden legislators’ understanding of law than up-or-down advocacy.
Each year, when appointing members to the NHBA Legislation Committee, the Bar president strives to include members representing all major practice areas. Serving on the Legislation Committee is a challenging assignment. When the legislative session opens, the Committee must, in a very short time, sift through a large number of introduced bills to determine their relevance to the legal community and recommend to the NHBA Board of Governors whether to take an informational or advocacy role.
Both the Legislation Committee and the Board of Governors evaluate the appropriateness of advocacy or opposition to a bill according to the guidelines of two court decisions that address issues regarding the unified bar and legislation. A 1990 US Supreme Court decision, Keller v. State Bar of California found a legitimate public policy purpose in a state requiring attorneys to belong to a bar association and then set forth general restrictions on political or legislative activities. The NH Supreme Court, in the 1986 Chapman decision, set specific limits on the NH Bar’s legislative activities. Chapman limits the Bar’s advocacy on legislation to issues relating to the efficient administration of the judicial system, the composition and operation of the courts, and the "education, ethics, competence, integrity and regulation, as a body, of the legal profession." The Chapman decision notes that "where substantial unanimity does not exist or is not known to exist within the bar as a whole, particularly with regard to issues affecting members’ economic self-interest, the Board [of Governors] shall exercise caution."
The Committee reviews a list of bills screened by the Bar’s legislative researcher Susan Keller and legislative representative, attorney John MacIntosh, focusing on the bills of general interest to the legal community or courts. In this session, they winnowed down nearly 1,000 introduced bills to approximately 100 . On a small number of bills, the Committee recommends either opposition or support under the Chapman guidelines. For a larger number of bills, the Committee may decide to recommend that the Association take an "information" position. On these bills, the Committee is suggesting that advocacy is not suitable but believes that the Bar Association can help lawmakers by noting potential unforeseen or unintended consequences. The Legislation Committee’s recommendations are then forwarded to the NHBA Board of Governors which has final say on the recommendations. Once the legislative positions have been voted upon by the Board of Governors, MacIntosh is authorized to convey those positions to the legislature.
In a large legislature with many members unfamiliar with the complexities of particular areas of law, the Bar Association’s legislative representative often is consulted by committee leaders and members to discuss a bill’s potential impact if it were to become law.
The bills reviewed by the Legislation Committee, their recommendations and the Board of Governors’ decisions, are posted at www.nhbar.org.