Bar News - April 19, 2017
Bar’s Legislative Advocacy Recap
By: Honey Hastings and Kristin Mendoza
The NH Bar Association Legislation Committee has reviewed nearly 100 bills during this legislative session and has made recommendations about whether the NHBA should take a position or provide additional information to legislators.
The following list of bills represents those pieces of proposed legislation that were still pending in the NH Legislature as of early April and that were determined by the NHBA Legislation Committee, and subsequently the NHBA Board of Governors, to merit support, opposition or information from the NHBA.
The NH Supreme Court, in the 1986 Chapman decision, set specific limits on the association’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 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 NHBA Legislation Committee reviews a list of bills screened by NHBA Legislative Representative John MacIntosh, focusing on the bills of general interest to the legal community or courts. The number of bills reviewed by the committee varies; out of an average of 1,000 bills introduced, in the last five years they have reviewed as many as 200 or as few as 80.
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 recommends that the association take an “information” position – either “information negative,” “information positive,” or a neutral “information” postiion. On these bills, the committee believes 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 board votes on the legislative positions, the Association’s representative 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 determine a bill’s potential impact. The bills reviewed by the Legislation Committee, their recommendations and the Board of Governors’ decisions, are available on Legislation Watch, an online bill-tracker accessible from the NHBA Member Dashboard, under the “Popular Links” tab.
SB 40 Electronic Wills
Creates the New Hampshire Electronic Wills Act under new Chapter 551-B. The new act authorizes the additional method of creating valid wills that are written, created, and stored in an electronic format and executed using electronic signatures. The NHBA’s position is “Information Negative.”
SB 71 Alimony
This “alimony reform” bill would replace the current statute with “term alimony” for most situations, plus allow for “reimbursement alimony” in certain limited situations. The amount of alimony would be the lesser of “need” and guidelines based on 30 percent of the difference in the parties’ adjusted gross incomes. Term alimony would be limited to 50 percent of the length of the marriage, unless the court found “special circumstances” that would justify a variation from the guidelines. The cohabitation test is codified. This bill would apply only to cases final after its effective date. SB 71 passed the Senate unanimously and is now in the House Children and Family Law Committee. The NHBA’s position is “Information Positive.”
SB 93 Uniform Access to Digital Assets Act
Creates the Revised Uniform Fiduciary Access to Digital Assets Act under new Chapter 554-A. This act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency. The NHBA Trust and Estate Section, with the approval of the NHBA Board of Governors, played an active role in suggesting language and advocating for this bill. This legislation has been proposed in 31 states and adopted in 19. The NHBA supports this bill.
SB 143 Court Requests for Documents in Conjunction with Guardianship Petitions
Amends RSA 106-B:14 to allow courts to request and receive a copy of the criminal conviction record of a proposed guardian and any household member who has provided authorization in conjunction with a petition for guardianship of a minor pursuant to RSA 463 or a petition for guardianship of an incapacitated person pursuant to RSA 464-A. The NHBA provided information on this bill.
SB 167 Burden of Proof in
Termination of Parental Rights Cases
This bill provides that the burden of proof in termination of parental rights cases shall be proof beyond a reasonable doubt, rather than clear and convincing evidence, that grounds for termination exist. The bill was introduced at the request of the Supreme Court, passed the Senate, and is now in the House Children and Law Committee. The NHBA supports this bill.
SB 200 Incarceration for Nonpayment of Fines or Fees
Amends RSA 604-A to provide that no indigent defendant may be incarcerated after a final hearing for nonpayment of an assessment or nonperformance of community service without having been afforded the right to be represented by counsel at the final hearing. The NHBA supports this bill.
HB 439 Rape Shield Law
Amends RSA 632-A:6 to specify that proffered evidence that is excluded under the chapter remains under seal and exempt from public disclosure unless or until the NH Supreme Court overturns the trial court’s evidentiary ruling. Only evidence that the Supreme Court rules admissible would be subject to public disclosure. The NHBA’s position is “Information Negative.”
HB 652 Veterans Track/Benefits
Amends RSA 490-I:1 to allow for the creation of a veterans track within an existing drug court or mental health court for both veterans and active-duty military members with mental illness or substance abuse issues. The bill identifies 10 components to the veterans track and allows a person sentenced by a drug court or mental health court through the veterans track to petition the court after one year of successful completion of the program for annulment. The NHBA provided information on this bill.
HB 538 Professional Licensing
Adds a new section to RSA 332-G to require occupational regulatory boards to post on their websites information concerning reciprocity for persons holding a professional license in another state. In addition, the boards must specify what conditions or criteria must be met to obtain certification in New Hampshire. The NHBA provided information on this bill.
Bill Retained in Committee
Several House bills were “retained” by the first committee to consider. This means that the committee will consider them further and make recommendations on each in the fall for the legislative session beginning in January 2018. They include the following:
HB 134 Causes for Divorce
This bill would make substantial changes in fault divorces. Most important, if either party accused the other of a fault ground to affect the financial settlement or parenting time, then the divorce could not be granted because of “irreconcilable differences.” This means that, conceivably, pleading fault could prevent a divorce. There would be no option to “plead in the alternative” by listing both fault and no fault grounds. Other changes to RSA 458:7 would replace the word “drunkard” with the phrase “abuser of alcohol or other drugs”; and add new fault grounds of committing domestic violence under RSA 173-B:1, or being found to have abused or neglected a child under RSA 169-C. HB134 would clarify that either party to a divorce under RSA 458:7 (fault grounds) has a right to trial by jury. The NHBA’s position is “Information Negative.”
HB 506 Petition to Modify Child Support
This bill provides that, for purposes of the effective date of modification of a child support order, notice to the respondent may include traditional service, certified mail, written notice, and electronic notice, stating that the petitioner seeks to modify the child support obligation based on a substantial change in circumstances and a petition for modification is pending and will be filed with the court if efforts to file a joint motion are unsuccessful. NHBA’s position is “Information Negative.”
HB 521 Revising the Alimony Statute
This “alimony reform” bill would create four types of alimony, with differing criteria, purposes, and duration. In determining whether there would be alimony, this bill starts with the traditional “need and ability to pay” test; then reviews an expanded list of criteria for type, amount, and length, including age, occupations, ability to maintain marital lifestyle. The court would have discretion to vary the amounts and durations. In addition to codifying the case law cohabitation test, the bill would add a new reason to change or end alimony: “maintaining a common household.” This bill would allow modifications on existing orders based on its passage. The NHBA’s position is “Information Negative.”
Honey Hastings is a mediator based in Wilton. Kristin Mendoza is the principal attorney at Millyard Tech Law in Nashua. Both are members of the NH Bar Association Communications Advisory Council.