Bar News - April 13, 2012
Concerns Mount over Inaction on Judges
By: Dan Wise
Snow is not the only thing thatís been lacking in NH this winter. Despite a lengthening list of vacancies or judges unable to sit due to illness or injury, no judicial nominations have been made since last summer.
Bench Strength Update:
Circuit, Superior Courts
|18 Positions budgeted
||17 judges (1 vacancy)|
|(Statutory size of the Superior Court is 21 Associate Justices + Chief Justice)|
|25 full-time judges
||18 judges (7 vacancies)|
|25 part-time judges
||18 judges* (7 vacancies)|
|* Two judges, two part-time judges in the Circuit Divison, Michael Feeney and Edward Tenney, are temporarily disabled and are not able to serve.|
|10 Masters full-time; 2 part-time.|
Masters positions are being phased out.
By the summer, 3 vacancies among masters to be converted to judicial positions.
Alice Love, part-time master, steps down in April; Leonard Green to retire July 1, and Deborah Rein retired on Dec. 1, 2011.
Most notably, the fifth seat on the NH Supreme Court has been vacant since Associate Justice James Duggan retired in January. After Duggan announced his intention to retire last fall, the governor promptly asked the Judicial Selection Commission to begin its search process, and set a Nov. 18 deadline. Nearly five months have passed since then.
At the Executive Councilís last meeting, Gov. Lynch said he hoped to bring forward a Supreme Court nominee at the Councilís April 18 meeting. The all-Republican makeup of the Executive Council heightens the challenge for the lame-duck governorís judicial picks this year, however.
Philip Waystack, co-chair of the Judicial Selection Commission, said his screening group has provided the governor with a list of candidates for the supreme court and is now interviewing Superior Court candidates.
Supreme Court Clerk Eileen Fox said the impact of only four justices hearing cases hasnít had an impact yet on the courtís issuance of opinions. Comparing the first three months of 2012 vs. 2011, the Court issued almost the same number of opinions, but she said the judges are sitting more often (on 3JX cases). "Thereís not a dramatic difference, but we will be relieved when we have a fifth justice again," she said.
With only four justices, worries Joshua Gordon, a Concord-based appellate practitioner, each judgeís workload increases by 20 percent, at a time when the judgesí administrative and rule-making duties seem to be increasing. He said there is a loss of diversity of views with only three or four justices hearing a case, instead of five. So far, no case has had to be re-argued due to a tie, but Fox said there have been several cases where only three judges have heard a case due to a conflict.
Doreen Connor, an appellate lawyer with Primmer, Piper Eggleston & Cramer, formerly of the Wiggin & Nourie law firm, said disqualifications are a concern as "having such important cases decided by a panel of three is not optimum."