Bar News - September 21, 2016
NH Caseloads Mirror National Decline
By: Kristen Senz
The total number of court cases filed in New Hampshire and across the country has decreased by an average of about 15 percent since 2009, according to data provided by the NH Judicial Branch and the National Center on State Courts.
This substantial drop in overall case filings, despite US population growth of roughly 5 percent during the same period, is driven by a complicated mix of factors – including the impact of the recession, budget cuts, court fees, and the use of alternative dispute resolution – that makes deriving any definitive causal relationships extremely difficult.
“The drop in caseloads seemed to coincide with the drop in the economy, but we can’t absolutely say with any degree of certainty that the recession is causing this,” says Neil LaFountain, senior research analyst at the National Center on State Courts (NCSC). “Some of this is the economy, some of it may be [increased use of] alternative dispute resolution… Inevitably, it is a combination of things.”
As caseloads have shrunk, the complexity of the average court case has increased, according to court officials. In New Hampshire, caseload trends across court levels and case types highlight potential relationships and effects of various social issues, including the state’s opioid addiction crisis.
LaFountain, who has been the lead on the Court Statistics Project at NCSC since 1992, says he doesn’t recall ever seeing a multi-year drop in case filings as dramatic as the current trend. “Generally speaking, it increases over time,” he said. “This decrease has been contrary to the growth in population… Clearly, there are other things at work here.”
Circuit Court Civil Filings Down
Civil lawsuits and small claims cases in New Hampshire have seen the most dramatic decrease, dropping nearly 40 percent between 2011 and 2015, said NH Circuit Court Chief Administrative Judge Edwin Kelly. Instead of the disputes between neighbors that turned into small claims cases 20 years ago, the majority of the small claims docket today is made up of consumer debt claims by large corporations. Kelly thinks the decline may be a reflection of a recovering economy.
“When things are bad and unemployment is high, people tend to default on loans and financial obligations, and we see an increase,” he said, adding that the 17 percent drop in landlord-tenant cases during the same period, the majority of which were initiated due to nonpayment of rent, tracks with his theory, as people tend to pay their rent before making loan payments during tough times.
This theory, however, is not easy to test. Looking back to compare annual case filing statistics from before the recession began with the figures in recent years is problematic, court officials say, due to changes in NH Judicial Branch electronic case management systems.
Although the overall number of family court cases has increased since fiscal year 2012, divorce filings dropped by about 3 percent between 2011 and 2015, according to court statistics. During the same period, the number of parties who represented themselves in divorce cases climbed dramatically, making the cases more complicated and time-consuming, Kelly said. (Note: The family court case count for fiscal year 2012 does not include the nearly 600 family law cases in Cheshire County that were still being heard in Superior Court that year.)
Criminal cases in the Circuit Court decreased by 17 percent between 2011 and 2015, but Kelly said the criminal case types have remained balanced. He attributes the decline to changes in approach by local law enforcement agencies, many of which have shifted to a community policing model that generally results in fewer arrests. “Any observation that we make is really speculation,” Kelly said, “but clearly it has to do with enforcement on the part of the executive branch, and perhaps a reduction in crime as a result of enforcement.”
Overall filings in the probate court have fluctuated, gaining about 2 percent since fiscal year 2012. New Hampshire’s trust-friendly laws have led to increasing wealth entering the state under trust. As the population ages, Kelly said, he expects to see the number of probate cases and complex trust and estate litigation expand rapidly.
Other Circuit Court case types seem to have been affected by the opioid addiction crisis, including juvenile cases, guardianships over minors, and abuse and neglect, all of which appear to be on the rise following substantial decreases in total filings, Kelly said.
Superior Court Case Surge
New Hampshire is among the states hardest hit by the opioid addiction epidemic. Increased media attention, concern among citizens and enforcement action have helped drive a startling one-year spike in NH Superior Court criminal case filings, which rose 15 percent between fiscal years 2015 and 2016, according to NH Superior Court Chief Justice Tina Nadeau.
“There’s so much awareness around this problem and we want to make sure people aren’t dying, so if we can’t get them into treatment, and they have contact with law enforcement, then they are getting arrested, so I think that’s probably a big part of it,” Nadeau said.
The Felonies First legislation, which began rolling out at the beginning of this year, could push criminal caseloads even higher in Superior Court, as cases that were once filed as felonies but resolved as misdemeanors in the Circuit Court will now be filed in Superior Court in the first instance.
“I think it’s kind of early to tell, but probably at least in the beginning, there may be a slight increase,” said Nadeau.
The civil caseload in Superior Court has trended steadily downward between fiscal years 2012 (7,807 total cases) and 2015 (5,601 cases), but it jumped up by about 7 percent between fiscal years 2015 and 2016 (6,008 cases), statistics show.
These statistics track with national trends that show case filings dropping most dramatically in civil cases in courts with limited jurisdiction, such as New Hampshire’s Circuit Court, says LaFountain, of NCSC.
Appeals Drop Off
Appeals to the New Hampshire Supreme Court fell by about 23 percent between fiscal years 2012 and 2016, from 906 to 699 cases, according to court statistics. Generally, appellate case numbers lag behind trial courts by about two years, according to NCSC.
Civil appeals are the only case type that has increased as a percentage of the overall Supreme Court caseload in recent years, says NH Supreme Court Clerk Eileen Fox.
“From calendar year 2011 to calendar year 2015, the number of civil, criminal, family, administrative and miscellaneous cases all decreased, which is consistent with the decrease in the number of appeals filed during the period,” Fox said. “As a percentage of the overall caseload, civil appeals increased, and criminal cases decreased. The percentage of family and administrative cases remained approximately the same during the period.”
As with other case types, the appeals that are being filed are growing in complexity, says Fox, who cited State v. Exxon Mobil as one recent example.
Predictions and Implications
As states around the country begin to submit caseload data for 2015 to the Court Statistics Project at NCSC, LaFountain said, he is seeing signs that case volume, on average, may have hit a plateau.
“The early reports we’ve seen suggest that maybe it’s leveling off, but it’s too soon to tell what it looks like nationally,” he said.
Chris Keating, the new director of the NH Administrative Office of the Courts, says it is unclear how decreasing caseloads over the past few years will factor into the formulation of the NH Judicial Branch budget, especially given the increasing complexity of cases and costs associated with facilities and personnel. Both Kelly and Nadeau have said the Judicial Branch plans to request legislative appropriations for a new weighted caseload study and additional judges in the next state budget.
The reasons behind the drop in caseloads over the past few years will remain unknown, at least until there has been more time to study the issue, says LaFountain. But the statistics show clearly that people are looking to methods other than the adversarial court system to solve problems – something Kelly referred to as a “great awakening.”
“There is a growing sense that the court system, and the criminal court in particular, cannot be the answer to every social problem out there. Legislatures have wanted to arrest their way out of problems,” he said, referring to the increasing arrests of drug addicts and people suffering from serious mental illness, “but without treatment and supervision, you’re not going to solve these problems.”
Bar News plans to continue reporting on caseload statistics this year. Are there specific issues or case types you would like to see covered? Please email firstname.lastname@example.org with tips or suggestions.