THE THIRD BRANCH 
SUB-COMMITTEE of NH CITIZENS COMMISSION ON STATE COURTS 
Executive/Legislative 
Minutes of Off-Line Meetings 
Wednesday, December 14, 2005 
Present: 
Donna Davey, Peter Heed, Martin Gross, Ann Kuster, Andrew Peterson (Chair,) Katrina Swett 
Absent: 
Kelly Ayotte, Charles Bickford, Robert Duhaime, Francis Frasier, Michael Whalley, Dick Winters 
Guests: 
Senate President Theodore Gatsas, Kate Hannah (Legal Assistant to the Governor,) Susan Kelly, Governor 
John Lynch, Speaker of the House W. Douglas Scamman Jr. 
Topic
Discussion
Action
Meeting with Senate 
President Theodore Gatsas: 
Katrina Swett took notes relating to the meeting with Senator Gatsas. 
Attached to these minutes. 
Meeting with Governor John 
Lynch: 
Three areas of focus were to be considered: 
1. Budget 
2. Common Legislation (matters of interest) 
3. Separation of Powers (evidence of decisions relating to balance 
in that area) 
BUDGET 
Q: Government can comment, but not have a substantive input in 
the submission of the Judicial budget request. Is there a sense of 
having benefited or lost something related to the budget process? 
(Marty Gross) 
A: It is true that, by statute, the Governor is permitted to comment on 
the Judicial budget but not change it. However, I was very involved in 
the budget process this year, changing the budgetary approach to a zero 
base with no additional personnel to base it on what the real needs are. 
The Judicial branch advocated for their budget. There needs to be a free 
and open dialogue on details in order to be an advantage. (Governor) 

Meeting with Governor John 
Lynch Cont’d: 
Opportunity for Improvement: The Judicial branch does a good job 
with capitol needs versus operating expenses. Although needs were 
addressed, I didn’t feel that we got into priorities with the Judicial 
budget. There is a need to do a better job of educating people. There has 
been more conversation but there needs to be even more. We ought to 
do more with them, not only with the Executive – Judicial, but also the 
Judicial – Legislative and the Legislative – Judicial. The tendency is for 
the Judicial branch to come forth at budget time and then go back into 
seclusion, much like UNH was doing. There is a need to follow the 
process that UNH has done. (Governor) 
Q: Do you see any risk in problems of perception in informal 
contact? (Marty Gross) 
A: I’ve never had a conversation uncomfortable to have with the public. 
As long as they are open, that’s fine. Openness takes some of the risk 
away. If there were unopen contact, then I would be concerned. 
Conversations with Chief Justice Broderick have been best for the 
Judicial branch and best for the State. (Governor) 
Q: How should communication take place – what is the best 
modality? 
A: Probably all of the above. We were very engaged in the budget 
process we just went through. I need to know what’s driving the cost, 
what the needs are. That’s the benefit of zero balance. Sometimes, 
historically the way things have been done just continues. It’s 
appropriate to ask the question of what is the best way? Is this the best 
way or are there improvements, not just with the Judicial branch but 
with every area. We should be able to have discussions in public of 
needs and priorities. (Governor) 
Opportunity for Improvement: Consider what is driving the cost. 
Consider if the way things are being done is the best way or could 
improvements be made. Have discussions in public of needs and 
priorities. (Governor) 

Meeting with Governor John 
Lynch Cont’d: 
Q: Have there been any experiences where you felt information was 
not forthcoming? (Ann Kuster) 
A: No, because again, the practice was very different. (Governor) 
Comment: Capitol needs come through the Legislature; perhaps they’re 
used to just that. The Chief Justice felt this last session came out better 
because the way the budget was done was changed and the atmosphere 
of trust that has been established over the past 2 years helped with the 
process. But you don’t get the opportunity to suggest how they might 
make their objectives better presented – i.e. separate personnel system 
and inability to tell them how you think the court can improve. (Marty 
Gross) 
Governor Lynch: Every single department where we zero-based, said 
their budget was a maintenance budget. I heard this over and over again. 
Some said we “really don’t have to understand our budget because” of 
the public policy of our state. But we need to understand how the money 
is being spent to ensure the organization continues to be relevant. We 
did the budgets together, sat at a table and went over them. Often we 
discussed needs and priorities which the Commissioner and Deputy 
Commissioner didn’t even know were there. They got a better 
understanding of their real needs as part of this process. 
Question: Do you think the Judicial branch should become involved 
in hearings? (Marty Gross) 
A: That could be helpful. I don’t believe it would jeopardize their 
independence in any way. (Governor) 
Opportunity for Improvement: Consider Judicial involvement in 
budget hearings. 
Question: One of the goals of the Chief Justice is to help the public 
understand the role of the Judiciary branch. Would it be helpful 
for representatives of the Judicial branch to speak here and there 
around the State? (Katrina Swett) 

Meeting with Governor John 
Lynch Cont’d: 
A: I think that’s a great idea. People want to have information. 
(Governor) 
Opportunity for Improvement: Hold a forum to have members of the 
Executive, Legislative and Judicial branches to discuss the roles of each 
branch before the people. An open house at the State House for citizens 
to come and listen might be helpful. The media could be invited, as 
well. 
Comment: It’s a credit to our State that 61% of survey respondents 
have no experience with the court system. 4th graders do come through 
the State House and get a better sense of how things work. To get a 
better sense of the Judiciary branch is important for students. It would 
be helpful to have students spend an hour in District Court to see what 
it’s like. Perhaps this could be considered a requirement before 
graduating high school. Having a revolving group of students in the 
back of the courtroom would also give accountability. (Andy Peterson) 
Governor Lynch: That approach was used in relation to the Shipyard. 
Commissioner’s needed to go there and meet the people. 
COMMON LEGISLATION: 
Question: Going beyond the budget, has the Governor’s office 
engaged in any issues related to the effectiveness of advocacy? How 
do you assess there they are now? (Andy Peterson) 
A: I haven’t gotten into legislation affecting the courts. (Kate Hannah) 
The issue of the Governor’s ethics legislation has been discussed, 
talking about that and how it may and may not be helpful in terms of 
financial disclosure and equality of the branches. 
People from AOC came over on behalf of Agency. Judges do testify 
sometimes on certain legislation. The General Counsel to the Supreme 
Court and the Executive Branch comes over and testifies on occasion. 
Nina Gardner has a high profile presence on specific subjects. 
Opportunity for Improvement: Explore the possibility that the 
Judicial branch could increase their effectiveness in the State House by 

Meeting with Governor John 
Lynch Cont’d: 
utilizing Nina Gardner more. (Marty Gross) 
Question: One thing we are exploring is whether there times when it 
is not appropriate? (Andy Peterson) 
A: Discussion revolved around a specific instance when a Judge gave a 
personal opinion (legislation arose out of conflict among various courts 
on a specific issue.) Lack of communication can be a problem. On the 
other hand it can be difficult with legislation to have 6 different 
Representatives saying 6 different things. (Governor) 
Question: Do you feel that information flows through one way and 
not the other? If making a decision on an issue of constitutionality 
where a Legislator has specifics on a case, Senator Gatsas feels there 
is constraint about getting matters before the Court. Do you have an 
opportunity on the record to weigh in? (Andy Peterson) 
A: There is an opportunity on the record to file a brief, but there is a one 
way street. (Kate Hannah) 
Opportunity for Improvement: The Judicial branch could invite 
members of the Legislative branch and Executive branch to discuss 
opportunities to communicate. (Kate Hannah) 
Speaker of the House, W. 
Douglas Scamman Jr.: 
Three areas were to be considered: 
1. Budget 
2. Separation of Powers 
3. Whether the Legislature feels the same way as the Judicial 
Question: How is the relationship among the branches these days? 
(Andy Peterson) 
A: If I have a strength, it’s being able to sit and talk with anyone. Way 

Speaker of the House, W. 
Douglas Scamman Jr. 
Cont’d: 
back the Governor’s had involvement in the budget, then that changed 
and that was a mistake. The way it was done this time was really good. 
There is a statute that the Governor can only comment. We want an 
individual court but don’t want to see them in a position of not being 
able to have their budget reviewed. It becomes adversarial. The court 
isn’t in the budget business. To be open to the expertise of financial 
assistance would be helpful. In the past they haven’t been encouraged to 
do it. This time, Justices came over and spoke with Tom Eaton and the 
Speaker of the House, and talked about it with House Finance. That’s 
why the budget did better this time, because it was a team effort. 
(Speaker of the House) 
Question: The Chief Justice talked about building an atmosphere of 
trust. By doing it this way, they were able to understand the Judicial 
branch numbers a little more. What do you think of the value and 
the risks of informal contact? (Marty Gross) 
A: I see only value, no risks. The more you talk to each other formally 
and informally is fine. You can’t make a decision unless communication 
is going on. One of the risks of private contact is if the person doesn’t 
tell you up front and you find out later, it damages credibility. It wasn’t 
always acceptable for Judges to give Legislators the facts. (Speaker of 
the House) 
Comment: The consensus is that the process of developing the budget 
with the court was like night and day from before, and that it went well. 
(Andy Peterson) 
Opportunity for Improvement: I think Judges should have an 
opportunity to present their budget in hearings like everyone else. And 
I’d like to see more contact between the Judicial and Legislative 
branches. (Speaker of the House) 
Comment: One of the biggest changes in the next few years is rolling 
out the Family Court statewide (domestic violence and juvenile cases 

Speaker of the House, W. 
Douglas Scamman Jr. 
Cont’d: 
are moving into Family Court.) (Andy Peterson) 
Response: It’s important that the State Court and Family Court look at 
dynamics of what is needed in Superior Court and Family Court. 
(Speaker of the House) 
Comment: The report form the Court is seeing efficiencies from having 
the same Judge working with members of the same family. (Andy 
Peterson) 
Response: It’s encouraging that all see it as being able to do the change 
without additional funds. (Speaker of the House) 
Question: What about interactions with Judicial Representative’s 
on other than the budget? (Ann Kuster) 
A: This term in my service here, there has been no problem, they’ve 
been very open. (Speaker of the House) 
Question: What about a specific? How about the Dan Hughes case 
on school funding? Because of interaction he saw between Judges 
and members of Legislature he did not feel he had an opportunity to 
have a fair judgment. (Marty Gross) 
A: He thought he’d have a fairer shot on the Court than on the floor of 
the House. The Court was not in a position to do much more than they 
did because of Legislation passed. He had the guts to go forward and 
add an issue that needed addressing and earned the 1st Amendment 
award from Loeb. (Speaker of the House) 
Question: Do you feel you have access to specifics? (Ann Kuster) 
A: Our Constitution gives us that right on pending legislation. Where 
one would get involved in an amicus brief, if there was a law where it 
seemed appropriate to put in an amicus brief, I have no problem with 
that. (Speaker of the House) 
Comment: The Senate President didn’t feel he had a mode to present 

Speaker of the House, W. 
Douglas Scamman Jr. 
Cont’d: 
information to a Judge that might make a decision in a court. (Andy 
Peterson) 
Response: If we passed a law and felt the law was clearly correct or 
clearly wrong, I don’t see any reason why he can’t give input. 
(Speaker of the House) 
Question: Is it useful to tell the court “Legislators are entitled to file 
an amicus brief?” (Marty Gross) 
A: Anyone can file an amicus brief. (Speaker of the House) 
Comment: A Legislator has said to us, “I feel constrained.” (Andy 
Peterson) 
Response: This constraint doesn’t exist. There is a process. The Court is 
very liberal in accepting these. (Speaker of the House) 
Comment: There are cases we’ve had before the Supreme Court that 
have a different perspective. The Governor filed a brief as well. In 
education cases, that’s not uncommon. (Susan Kelly) 
Response: Senator Gatsas was not President of the Senate at that time; 
he may have felt personally constrained. (Speaker of the House) 
Question: What do you feel about the idea of courts inviting 
Legislators and Leaders to meet? (Ann Kuster) 
Comment: 61% of survey respondents haven’t had any contact with the 
courts. As a result, there is a lack of understanding among the populace 
about the role of the Judicial branch. Would it be helpful to invite 
Legislator’s to be present in court sessions? (Ann Kuster) 
A: I don’t know how much that would do. 39% of the people do deal 
with the courts. People may wonder why one person is put in jail for 1 
year and another for 6 months for the same thing. (Speaker of the 
House) 
Comment: Judges come over to testify on bills and come over to testify 
on budgets. We went through a tough time with the courts for a while 

Speaker of the House, W. 
Douglas Scamman Jr. 
Cont’d: 
because Sununu appointed a wrong person to the courts. (Speaker of the 
House) 
Comment: I feel we’re moving past those more problematic times. 
(Ann Kuster) 
Response: Oh yes, there’s an evolution in all processes. (Speaker of the 
House) 
Comment: Senate President Gatsas felt there is still a degree of rancor 
among the Legislature about the Claremont decision. (Andy Peterson) 
Response: When you start defining “adequate education” you’re 
overstepping the bounds. When members of the Legislature wanting 
more money in their communities and throw their hats in. As long as it 
has “adequacy” as a red flag, it is used by some to get more money than 
they should have (Manchester is one.) The state property tax is where 
Legislators are trying to get more money. Two communities, 
Londonderry and Merrimack got tucked to it. One of the bills gave more 
money than the total education budget. The two points together do have 
a thread connecting them, the word “adequacy.” (Speaker of the House) 
Question: Regarding Claremont, who decides which branch a 
purview is? (Andy Peterson) 
A: The Court is one co-equal branch that puts on a Ref’s uniform and 
makes the call. (Speaker of the House) 
Question: Do you sense that this causes a strain among the 
branches? That the Court is the one to do it? (Andy Peterson) 
A: The Court has always done it. That doesn’t bother me. They’re the 
ones that have to decide the amicus brief is done correctly. 
We have the same Constitution as MA, except we changed one area. 
(Speaker of the House) 
Question: Who’s fit to serve as a Judge? (Ann Kuster) 
A: That’s right back in the Legislature. Right in terms of 

Speaker of the House, W. 
Douglas Scamman Jr. 
Cont’d: 
constitutionality but I wonder if it’s right to this day. (Speaker of the 
House) 
Question from the Speaker: We got past two competing committees 
because of a Judicial decision. Do you think a lot of people don’t 
think the Court should be arbiter of that kind of thing? 
A: No. Impeachment. Claremont was the raw nerve that set off the 
whole impeachment. (Andy Peterson) 
Speaker: There are people here who ensure the Constitution. It’s 
brilliant the way it’s written. 
I’m very comfortable with my relationship with the Court. There’s that 
one thread of a problem. Once we get beyond that, OK. 
Next NH Citizens on the 
State Courts Commission 
Meeting: 
The next formal meeting of THE THIRD BRANCH sub-committee of 
the NH Citizens on the State Courts Commission will be held in 
conjunction with and during the next NH Citizens on the State Courts 
Commission meeting on January 17, 2005. 
The Third Branch sub-
committee will meet formally at 
the next NH Citizens on the 
State Courts Commission 
Meeting on January 17, 2005