Bar News - October 19, 2012
Bar News Q&A with Candidates for Governor
Bar News asked the three NH gubernatorial candidates questions related to the judicial system, including some questions submitted by Bar News readers. We thank the candidates, Republican Ovide Lamontagne and former State Senator Maggie Hassan, a Democrat, who are NH Bar members, and John Babiarz, the Libertarian Party candidate, who is a certified emergency medical technician and entrepreneur. The responses were edited for style and space.
Would you continue to use the judicial selection process that involves screening by a judicial selection commission?
Babiarz: Yes, I would continue to use the judicial selection process currently in place. I would also have all printed material placed on the State’s website, a live video stream of the Executive Council judicial nomination hearings and public feedback available online. I firmly believe in open government and accountable government.
Hassan: Yes, as governor I will use a judicial selection process that involves screening by a judicial selection committee. An impartial and nonpartisan process for judicial appointments is essential to a well-functioning justice system. Furthermore, I will not impose a litmus test for judges with regard to abortion.
Lamontagne: As a practicing attorney in the state of New Hampshire, I would support a hybrid approach that continues to make use of the judicial selection commission to recruit, screen, and evaluate a pool of applicants that could serve at any level in the state’s judicial system. Using those evaluations, I would reserve the right to choose which candidates to nominate to the respective judicial offices.
What would be your budget priorities with regard to the judicial branch?
Babiarz: I would budget priorities that aid in keeping an open and transparent system in the spirit of Article 8 of the New Hampshire Constitution.
Hassan: The next governor must make filling judicial branch vacancies a priority, including making room in the budget to fund these positions. As governor, I will work to ensure that the judicial branch has the necessary resources to carry out justice in a timely and effective manner.
Lamontagne: I have served on the New Hampshire Judicial Council and worked on the Campaign for Legal Services. As a commercial litigator and business lawyer, I believe that meaningful access to justice is not only a fundamental civil right, but also central to the New Hampshire Advantage. Funding of the judicial branch would be a high priority in constructing and presenting a budget, particularly when it comes to legal services available to the poor and underserved, who otherwise would not have meaningful access to justice.
What is your opinion about state funding for guardians ad litem and representation for indigent defendants in child abuse and neglect cases?
Babiarz: This guardian ad litem issue is in serious need of reform and public oversight. The redress of grievance committee has done the citizens of this state a great service in exposing the problems. The process must be reformed in a manner that gives equal and open justice to all with the proper transparency. The rules of evidence in child abuse and neglect cases need to be followed, as in any criminal matter. I believe that reform must come first, before we consider paying for a process that is currently unfair.
Hassan: I believe that the state should reverse the 2011 decision to eliminate funding for guardians ad litem. The guardian ad litem program is important to protect the interests of all those involved in domestic relations cases. I also believe that indigent parents should be represented in child abuse and neglect cases.
Lamontagne: I have been a member of the Board of Court Appointed Special Advocates (CASA-NH), as well as on the New Hampshire Judicial Council and I believe that there is a responsibility for the state to provide funding for guardians ad litem for children involved in child abuse and neglect cases. This funding is a higher priority than funding for representation for indigent defendants in child abuse and neglect cases. However, I would seek to provide appropriate resources to support access to legal services for those indigent defendants in these sorts of cases.
Do you support or oppose the proposed amendment to Part 2, article 73-a, that will give the legislature the final say on court rules?
Babiarz: I most certainly do favor legislative oversight of the court rules. The historical record indicates there was such oversight until article 73-a was passed in 1978. I also had a New Hampshire Supreme Court case involving article 73-a.
Hassan: I oppose the proposed amendment. The separation of powers is essential to a well-functioning state government, and this is an example of where that separation must be maintained.
Lamontagne: Rulemaking by the executive branch of government is subject to review and consideration by the legislative branch. Rulemaking by the executive branch leads to the promulgation of rules and regulations, which have the full force and effect of law. As with the executive branch, judicial branch rules should be subject to review and oversight by the legislative branch, and so I would support the proposed amendment to Part 2, article 73-a.
See the Bar's CACR26 page for more information.
Are you in favor restoring capital expenditure for e-court automation?
Babiarz: Yes, provided all information is made viewable to the public, similar to or better than Pacer.
Hassan: The ongoing e-Court project is an important and much-needed effort to help bring New Hampshire’s court system into the digital age. I was encouraged by the recent update from Chief Justice Linda Stewart Dalianis, who reported that the group had decided to make use of the funding currently available to focus on small claims cases. Completing this phase of the project should provide a strong foundation to build on in expanding the project to all case types. As governor, I will follow Governor Lynch’s lead in working to fund this project.
Lamontagne: I am in favor of restoring capital expenditure for e-court automation. We should move as quickly as possible to develop an information technology platform so that our state courts can enjoy the benefits of a paperless environment and the efficiencies which follow, as does the federal court.
See page 38 for a brief update on the e-Court project.
In cases where indigent people are charged with criminal offenses and appointed private counsel (when a public defender has a conflict of interest), do you feel the private attorney should be trained or certified to ensure he or she meets minimum standards for representing criminal defendants?
Babiarz: Yes, but also the private attorney needs to have the ability to aggressively defend their client without court sanctions or fear of losing his or her bar license.
Hassan: Yes. A basic sense of justice demands that those accused with criminal offenses should receive adequate representation, and ensuring that private attorneys are trained or certified to meet minimum standards for representing criminal defendants helps us achieve this goal.
Lamontagne: A private attorney who is appointed to represent the interests of an indigent defendant has a duty to alert the court as to whether or not the attorney is competent and sufficiently trained or experienced to accept the professional engagement. I do not believe it is necessary to create more bureaucracy. The burden is on the appointing judge to make the determination on a case-by-case basis as to whether the private attorney is competent to render the representation.
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