New Hampshire Citizens Commission on State Courts Draft Recommendations for Consideration March 13, March 20 Recommendation #31 Research Committee: The Third Branch Recommendation: Maintaining constructive working relationships with executive and legislative branches. A. The Court System continue its activities to develop and maintain constructive working relationships with the leadership of the Legislative and Executive branches, while incorporating procedures and safeguards to promote transparency and minimize risk to the Court System’s reputation for decisional independence. B. Specifically, the System should develop and adopt a written policy statement setting forth the objectives for conducting such outreach activities, outlining the permissible subjects of such activities, stating what subjects will not be pursued through such activities, and establishing a process for selecting the person or persons authorized to conduct such activities on the System’s behalf and the subjects they are authorized to pursue. C. The policy statement should be made available to the public. Rationale: The Committee appreciated the opportunity to consult with Chief Justice Broderick, along with the chief justices of the Superior and District Courts and Court System administrative officials, to learn about the System’s recent efforts to rebuild and strengthen inter-branch working relationships in connection with System budgeting and other operational issues. The Committee also met in separate sessions with the Governor, the Speaker of the House and the President of the Senate, to get the benefit of their views on the subject. In general, the leaders of the Executive and Legislative branches agreed that working relationships had improved, and expressed approval of the System’s efforts. However, certain cautions also were expressed. 1) Most advocacy should be conducted “on” and not “off” the record. 2) System representatives should be consistent, candid and fully informed. 3) Mechanisms should be set up to invite opportunities for the Executive and Legislative Branches to communicate with representatives of the System . Recently, there have been statements in the media suggesting that the System’s decisional independence has somehow been compromised by its efforts to improve its working relationships with the other branches Without accrediting their accuracy, such statements, as well as the constructive comments from the Governor and legislative leaders, demonstrate that the System’s improved inter-branch outreach efforts can generate risk to the System’s reputation for decisional independence, if not pursued openly and carefully. The Committee believes that the System’s reputation for decisional independence is fundamental, and risk of damage to that reputation must be avoided or minimized. The Committee concludes that a written and publicly available policy statement for conducting the System’s inter-branch outreach activities, if well constructed and carefully adhered to, can improve the effectiveness of such activities, while at the same time reducing the risk of harm to its reputation for decisional independence. Recommendation #32 Research Committee: The Third Branch Recommendation: Budget The Commission does not recommend changing RSA 9:4-a, that outlines the current budget process, but believes that A. The Court System would benefit from consulting with the Governor’s Budget Director to obtain the Governor’s advice and expertise in preparing its budget for submission to the legislature, and that B. The Court System should voluntarily participate in the Governor’s budget hearings to give the Governor, the legislature, and the public an additional opportunity to understand the Court’s budget. Rationale: Pursuant to RSA 9:4-a, the Chief Justice of the Supreme Court submits the judicial budget to the Commissioner of Administrative Services, who includes the request in the Governor’s budget in the amounts requested by the Court, for submission to the legislature. The Governor is not permitted to alter the amounts requested by the Court System. The Third Branch Committee appreciated the opportunity to meet with the Governor, the Speaker of the House and the Senate President regarding the Court System. The leaders agreed that the Court System had greatly improved the information it provided to them during the budgeting process, however, they noted that the Court System would benefit from receiving the advice and expertise of the Governor’s Budget Director and from participating in the same process as other agencies in preparing its budget for submission to the legislature. Recommendation #33 Research Committee: The Third Branch Recommendation: Follow-up and follow through A. That the Judicial Council continue its activities to improve the administration of justice in the state of New Hampshire, taking full advantage of its statutory authority to serve as an institutional forum for the on-going and disinterested consideration of issues affecting the administration of justice, with the added inclusion of acting as a conduit for communication between the Judicial-Executive- Legislative branches. B. That the Judicial Council consider the recommendations of the Citizens Commission on the Courts C. That the Judicial Council develop and adopt a written policy statement setting forth objectives for the Council to achieve, including serving as a forum for individuals and groups (such as the Citizens Commission on the Courts) to bring matters of concern forward and to agree upon ways to modify practices and procedures to serve the ends of the justice system D. That the General Court shall provide adequate funding to the Judicial Council as may be necessary and prudent to accomplish the objectives stated therein. Rationale: The Committee researched the purpose and objectives of the Judicial Council, including the statutory authority outlined in Chapter 494-The Judicial Council. Further, the Committee discussed the Judicial Council with the Executive Director Nina Gardner, as well as four of our colleagues, former Attorney General Peter Heed and current Attorney General Kelly Ayotte, former N.H. Senator Andy Peterson and Dartmouth College Professor Dick Winters, who all have served or currently serve on the Judicial Council. The Judicial Council was established by the Legislature in 1945 “to serve as an institutional forum for the on-going and disinterested consideration of issues affecting the administration of justice.” The Council is comprised of 5 members of the judicial branch, the attorney general, a clerk of the Superior Court and a clerk of the district and municipal courts, the president- elect of the N.H. Bar Association, the chairs of the Senate and House Judiciary Committees, 8 members appointed by the governor and council, and 5 members appointed by the chief justice of the supreme court. In recent years, the activities of the Judicial Council have been focused upon administration of the funding for legal assistance for disadvantaged New Hampshire citizens, as well as on legislation relating to the administration and funding for legal assistance programs. The Committee respectfully suggests that the Judicial Council is the appropriate forum for inclusion and administration of these recommendations for improvement. Recommendation #34 Research Committee: The Third Branch Recommendation: Civic Education We urge Justices of the New Hampshire Supreme Court, Superior Courts, and District Courts to more actively educate the New Hampshire citizenry in the importance of a vital and independent judiciary. The Justices’ efforts should be cooperative and in concert with New Hampshire’s other elected officials, as well as via individual efforts of members of the Judiciary. Rationale: We believe that there is great value in strengthening general public understanding of the complementary and balancing roles of the three branches of New Hampshire state government. The Judiciary, as the one unelected branch of government, has a particular interest in furthering such understanding by working cooperatively with the leaders of the other branches to engage in civic education programs that would serve to enhance the spirit of comity among the branches. The Judiciary should take the lead in examining the feasibility of organizing a statewide series of symposia on the topic of "Your Government and How it Works." Ideally these fora (in schools, Town halls and community centers) would feature informal presentations by the Governor, Legislative leaders and the Chief Justice followed by dialogue and discussion amongst the government leaders and the public. The Judicial Branch is the unique part of a set of interdependent governing institutions. The uniqueness of the judiciary is that it, alone among the governing institutions, is the unelected one. The Governor, members of the General Court, and Executive Councilors restore and recharge their standing with the electorate every two years via the vote. The unelected Judiciary, appointed for life on good behavior, is the democratic and republican anomaly. It is a "democratic" anomaly because of its appointive (albeit with Council approval) nature. It is a "republican" anomaly because in an elected-representative system of government, judges are appointed, essentially for professional “life,” for reasons of affiliations, beliefs, and the high qualities of their professional and legal standings. Put differently, the judiciary is the unrepresentative branch of our government. Its standing in our representational, majority-rule democracy is therefore more tenuous. Further, it is precisely following occasions when controversial and enduring conflicts come to a head in cases such as Claremont, that individual and several members of the judicial branch must redouble their efforts in setting out their reasoning and interpreting their decisions to those most affected, in this case, the tax-paying voters.