New Hampshire Citizens Commission on the State Courts Commission Meeting Transcript Monday, March 13, 2006 Representative’s Hall Capitol Building, Concord, N.H. 9am-12pm Kathy Eneguess: Thank you and welcome to Representative’s Hall. This morning is - as you are all familiar - is the first of hopefully a final two sessions for our deliberations of all of your hard work. We have before us today thirty four recommendations as recommended by the research committees and we also have before us today an email problem. So my first question to all of you is, does everybody have your recommendations today? Yes? Because we do have extra copies up here. We realize that there is something going on, some gremlin on our web site but I know that Julie then took her email and emailed everybody so that hopefully everybody received it very directly. I know that you’ve all read this very thoroughly and are prepared today. We do have a quorum of fifty individuals out of our now ninety nine individuals on our commission. People have either moved away or decided that they could not complete their task so we are down to ninety nine from our original one hundred and five but we also have a very strong body of work for us to deliberate on today and next Monday. The first thing we thought we would do is to offer you some, some, some interesting thoughts about clarity and measurement of each of these recommendations. So as you listen to each of us speak about these recommendations, we want you to be very thoughtful. The recommendation needs to be clear and it needs to be measurable. We realize that some of these recommendations have some duplication, but the way we would like to proceed today to begin our discussions is to go through each and every recommendation as a stand alone. Then put each and every recommendation into each of one bucket. I have buckets on display, over here to my left, your right. The first bucket is the consent bucket. We will be using the hands up effect unless we are very close. If there is a close vote, we do have the ability to have a ballot box with cards in order to move into a different bucket. Three buckets – consent bucket, needs further discussion bucket, and inexpedient bucket. As we proceed today we will begin by outlining every single recommendation, giving you a moment to think about it, then requesting a vote. Today is about trying to move the process forward so that we can have a thorough discussion on those issues that we may not have consent on. So if there’s a possibility of moving the discussion to a consent and I know somebody’s going to turn that phone right off (phone ringing in background). If there’s a possibility that we can move many to the consent bucket, then we will be able to have a longer discussion on the rest that we need to deliberate. If we find ourselves at noontime next Monday needing more time, we’ll find more time. We don’t know what date that will be but as we proceed, we’re going to be as thorough as possible about this because this is your report. This is about the future of our court system through the public lens and we want to be very thorough about it. You each have put in a great deal of time and effort and we want to honor that by making sure we are as thorough in our process of deliberation. So to begin that, Will, would you like to bring some clarity to this discussion? Will Abbott: Does anybody know what this is? Sally Davis: I think it’s how you test water for (inaudible). Will: Thank you, Sally. It’s called a sechi disk. And it’s what technologists use to test water clarity. And we’re going to leave this up here, how you test the measurement with the yard stick, because if you think, if you come to the roster and you’re concerned about the clarity of the recommendation, just hold this up, a picture’s worth a thousand words. Again, we’re trying to get through with as little time possible. But remember that as we go through this, clarity is really important. These recommendations when we present them publicly need to mean the same thing to everybody that they mean to us, number one. And they need to be clear in what people, how they read them and how they act on them, so the sechi disk, remember that. Kathy: And we also have a yard stick. Sorry, I forgot the yard stick, so now we have a ruler. We would like you to think about how to measure each of these recommendations. As we know, much of where we hit must be measurable, and I’m sorry I have a hoarse voice today so if I sound a little shorted, please forgive me. We want to make sure that each of these recommendations has some level of measurement so when we look back at our document in the future and you all see the availability for us to come together again in the future, we want to not just have clarity, but we want to be able to measure the progress on each of these recommendations. So if you would please keep that in mind as we proceed this morning. The process goes as follows: if in fact following the reading of the recommendation, Will is going to read each of the recommendations. They are also here on the board for us. If in fact there is a point of clarification that is necessary, we are going to ask each of the Chairs of the research committee to come up and clarify. So we are you asking first if you have clarifying questions before we move to a consent vote. If there is a issue of clarity, then we can ask for the consent vote, if in fact there is not enough support for the consent vote we will then move to the discussion vote. Is everybody clear? Will, would you like to begin with recommendation numero uno? Harland Eaton: (inaudible) Kathy: Yes, sorry, Harley? Harland: (inaudible) Kathy: That is correct. Harland: (inaudible) Kathy: Let me outline the process again. The question was just raised as to how we are going to have our discussion on these topics. As Harley just indicated, everyone was not at all the research committees. The first thing we are going to do is go through each recommendation. If you have points of clarity, question of clarification, ask for that today. We want to go through all thirty four first. If there is need for further discussion, we will put it in the discussion bucket and that will be when a more thorough discussion will occur as we will start again at number one and continue to go through each of them that are in need of a discussion. So that would be the time for further discussion. Harland: (inaudible) Kathy: We are going to vote it into a bucket. If we vote it into the consent bucket, everybody understands the topic and are very clear that they think this is a recommendation that we should proceed. If there is need for further discussion after clarification, it will go into the discussion bucket and we will look at it again when we get to it on the list the next time. Ok? So, we‘re going to go all the way through one through thirty four, put them in a bucket and then we will start at number one again. Sally? Sally Davis: Sally Davis. I just am trying to understand this better. There will be an explanation from the Chair of that committee and if there is still a point of clarity, bring that (inaudible) continue to back and forth and ask questions? Kathy: We will request that if you do have a question of clarification that you come here to the well, ask your question of clarification and the Chair of that committee will assist you further. Ok? So, hopefully we will have each of your questions of clarifications quite clear by the time we move to a vote to move it into a bucket. Is that clear for everyone? I’m sorry I might not have been as clear as I could have been. Item number one. Will: Ok, I’ll remind everybody that we’re trying to record these proceedings so if you do have a question about a recommendation, come up to Kathy’s podium and ask it and if you’re the Chairman or the designee of the research committee, if you could come to this podium and be prepared to answer it. And again, to Sally’s point, if it’s clear that a recommendation is going to require a lot more discussion than two to four minutes, I think that we ought to have a motion to put it into the bucket for further discussion. Ok? Our goal today is to separate the wheat from the shaft, not that there’s all one or the other, but. Ok, the first recommendation. This is from the Alternative Dispute Resolution Committee. That the court recognize the effectiveness of the limited ADR programs presently in existence and recognize further the potential for further improvement. That the court review the ADR programs at every court level and dedicate the leadership, energy and resources to the construction, operation and review of ADR systems with well established lines of authority and accountability designed to increase the efficiency of the judicial system to serve the needs of the public. Questions? Go ahead, Sally. Peter, do you want to, are you the designee of the committee? Peter Wolfe: I guess Dr. Squires couldn’t make it today so he asked me. Kathy: Peter, would you join us in Will’s well? Sally: Since I was on this committee, I should have understood it better, I suppose, but I have a question about line fourteen, which says “in review of ADR systems with well established lines of authority and accountability.” That sounds like they’re only existing ADR programs now and not ones that might be implemented as a result of looking at programs at every court level. Is that what is meant? They have to already be well established with lines of, that grammar on this makes that mean that to me. Peter: Mike, do you want to answer this, or, I guess my response is you raised two questions. One we’re looking or asking the court to go beyond the current programs with this recommendation. And the answer is yes to that question. Sally: Ok. I don’t read it that way because it seems to me like the modifying clause afterwards means it has to be well established and with lines of authority and accountability already. Peter: Attorney McDonough was responsible for the language and he can explain what he intended. Joseph McDonough: My name is Joseph McDonough and I wrote this as you know, (inaudible)- Sally: Right. It sounded really good that day. Joseph McDonough: The reason that I put that language in is because I feel that what we need for the ADR system is the dedication of someone with sufficient (inaudible) in the judicial system to set it up and (inaudible) and make sure it’s operating efficiently and make sure that it has the proper resources and facilities to carry out against the function. As we know, between fifty and seventy percent of the civil cases that are in the Superior Court system at the present time are settled as a result of this ADR system, but there are deficiencies in the system that should be corrected to make it work better. Because I want somebody to have the job of making the court efficient and I want that person to be accountable to the Chief Justice. That’s why I wrote it. Sally: But that sounds like recommendation two, not one. Joseph: I’m sorry? Sally: That sounds like recommendation two, not one. Not number one. Joseph: It does, we may have to tinker with the language of one or both of these, but what we really wanted to do is to make sure that someone is accountable for running the system and has to be accountable on a periodic basis to the Chief Justice- Sally: Right. Ok. I would like to add the verse, I can’t do that anymore? Kathy: If you need further clarification of what the intent is- Sally: I don’t think I’ve been answered, but I don’t know if anybody else thinks so or not. Kathy: Sally, if you need further clarification versus wordsmithing, what other clarification of the intent would you like at this point in time? Sally: I want to know if it includes perhaps a single program in a single county that might have no recognition at all but if the system has somebody (inaudible). It doesn’t sound to me as though the first one recognizes any sort of program, only (inaudible) talking about (inaudible) seem only to be talking about (inaudible). Joseph: I think the comment was designed to be a broader comment than just 170 because there are plenty of courts that don’t have an ADR system yet in them. I guess someone that can take a look at the whole subject of ADR and construct a program for probate, district, Superior and perhaps Supreme Court and then somebody’s got to be responsible for it. Sally: So it sounds like (inaudible) well established lines is what you want for the future? Joseph: Yes. Kathy: That is- Sally: (inaudible) Joseph: I beg your pardon? Sally: It is not already existing in court (inaudible)? Joseph: I think it can be improved. And I don’t think it exists in the type and form you and I want it. Kathy: Further clarification? Clyde? Clyde Terry: Move to the consent calendar. Kathy: Is there a second? (unknown):Second Kathy: All in favor? (unknown): (inaudible) Kathy: Thank you. Sally: (inaudible) question (inaudible) Kathy: Further question. Sally: Oh, (inaudible). Kathy: It can be changed by a two thirds consensus vote of those present and we will pull that back out of the consent bucket next Monday if in fact that is the case. All in favor? Please raise your hand. Thank you. Recommendation one into the consent bucket. Will: Recommendation number two. The committee recommends that the Supreme Court establish a court office of dispute resolution institutionalizing ADR in the court. The office should be responsible for overseeing the development, administration and monitoring of all court-annexed ADR programs. In addition, the office should be responsible for establishing system-wide standards of conduct for neutrals, developing criteria for training and qualification of neutrals and collaborating with other individuals and organizations including governmental units to increase access to dispute resolution services. Kathy: Question or clarification, Harley? Harland: (inaudible) Kathy: Motion to move to consent. (unknown): (inaudible) Kathy: We have a second. Further discussion. All in favor please raise your hand. Thank you. Moved to consent. Will: Recommendation number three. The committee recommends that the court system update and improve the Rule 170 program. This highly respected program is fourteen years old and is showing signs of its age. It needs updating, making it mandatory in all counties as well as addressing deficiencies in how it is currently administered. It can no longer rely on the use of volunteer mediators which detracts from the development of a highly skilled mediator pool. This update must be given priority within the court system. Kathy: Harriet? Question or clarification? Is there a question or clarification? Harriet Cady: I think clarification. Kathy: Peter, would you like to join us again? Harriet: It is my personal opinion that whenever you use alternative dispute resolution you should at least have it first so you know this is the way to identify ADR. Number two- Kathy: This is not a discussion, this is a clarification on this particular recommendation. Harriet: If you can clarify that. But I think this one particularly, what is Rule 170 to the average person? And about seventy percent of New Hampshire has computer access, how do they know to go and find this in the court system. Kathy: So your question on clarification is the procedure by which an individual would get to Rule 170 so we need to be very clear about that Peter, is that….? Peter: I’m not sure how to respond to this. I think maybe we can change the words Rule 170 into the words civil court, Superior Court, Superior Court, civil (inaudible). Rule 170 synonymous (inaudible) better clarify to say (inaudible). Would that help? Kathy: Is everyone clear that that is the intent of this particular part? Then we will make a note to that effect. (unknown): We couldn’t hear because of noise. Peter: I’m sorry. (unknown): I think it might need to be turned up or something. Peter: Ok. Change the wording the Rule 170 program. change that to the Superior Court civil ADR program. Kathy: Is that now clear? Tina? Further clarification? (unknown): (inaudible) Tricia Lucas: My name is Tricia Lucas and I guess my question of clarification, Kathy, is that the first two recommendations that we just put into the set essentially directed the court to look broadly at ADR. Number three says fix an existing program, develop resources to fix an existing program and so I might figure out if there’s any consistency between the broader recommendations in one and two and a very specific for three. Kathy: Peter, can you answer that? Peter: Yes, Kathy. Broader ADR programs, the court has ADR programs by statute in the family and the Superior Court. That program is being implemented now and it seems to be working extremely well. It will continue working. The small claims, in the district courts there’s a court rule that has that program up and running and it is working extremely well it’s in the process of being implemented state-wide. And the probate court has a mediation program that’s been in existence for approximately four years now and that is working extremely well. The Rule 170 program is the one program that the court currently has that is in existence by court rule that is outdated and specifically needs updating and that’s why that rule was specifically referenced in the recommendations because that is the one program that is currently not meeting the needs for which it was created. Kathy: Tricia, does that clarify? Tricia: Yes, it does. Kathy: Thank you. Further clarification? (unknown): Move to consent. Kathy: I have a motion to move to consent and a second. Further discussion? All in favor please raise your hand. Thank you. Recommendation four. Will: Recommendation four comes from the Communication and Customer Service committee. The recommendation is as follows: Create a customer service based court environment. A. Designate a greeter at each courthouse and a family law case manager in each judicial facility. Set up a one eight hundred (1-800) help line. B. Create a court-wide ombudsman’s office. C. Establish fixed and non-traditional court hours. D. Create judicial facilities with greater attention to litigant needs. Kathy: Question or clarification? (unknown): (inaudible) Kathy: We have a request to identify yourself when you come to the podium as well, please. Larry, would you like to join us? Cathy Green: My name is Cathy Green and my question of clarification is the body of the rationale speaks to scheduling issues, but the recommendations really don’t address it, so I don’t know if amendments are proper at this point. Kathy: Probably not at this point but if you want, you can ask the Chairman if there is an intent. Cathy: I was wondering if your intent might be to add to C. the language “and schedule cases more efficiently”? Larry Gilpin: Larry Gilpin, Chairman of the committee. May I refer that question to a member of our committee, Jeff Osburn? Jeff? (unknown): (inaudible) Kathy: We will have a quick committee deliberation on the side and hopefully move this right along. Jeff osburn : I think you Cathy actually raised a good point, and the intent of all this, the focus was to deal with the typical situation where people are coming into court who don’t know where to be and all of the energy that is wasted at that time. But I think Cathy raised a really good point to add that clause to broaden the intent. Kathy: So the clause could read as…? Jeff Osburn: (inaudible) and schedule cases more efficiently. Now that, we also address that in one of the subsequent recommendations. (inaudible) But, what we were really aiming at here and maybe in our rationale we went a little more broadly than we should have, we were aiming at the in court time, the start of the day forward dealing with both pro se’s and lawyers coming into court, knowing where to go, how to keep the system moving at that time. We also wanted to accommodate people who needed to come in at times other than traditional times and I have no problem with that is I think that we do address it on the next one, also, though. I think it’s fine to add, it just makes it clear that we’re trying to accommodate the public both scheduling and their (inaudible) time they have to come to court. Kathy: Further clarification. Ed? Hon. Ed Kelly: My name is Ed Kelly, Kathy this is really a clarification about process. I notice that recommendation twenty two from the Public Access committee actually recommends streamlining court scheduling and I wondered if we want to look forward to some of these recommendations that are mentioned in three or four different places. Kathy: Well, we do know that we have some duplication, so the process is to try and get as many into the consent bucket if in fact there is further clarification, we can leave this in the discussion bucket, but we would hope to come back next week with any duplication outlined and be very clear of where those duplication items are. Harriet, did you have a question of clarification? I know Cheryl is here. Cheryl Killam: Cheryl Killam: I just had the concern that people with disabilities and senior citizens aren’t being addressed in this area, especially when it comes to customer service, many of our courts have a back door entrance and the treatment that people receive at the back door is not anywhere near sometimes the treatment you receive if you come to the front door. Kathy: So your question of clarification is reflected in this- Cheryl Killam: (inaudible) reflected in this area? Kathy: Could anyone answer that question? Byron Champlin: Byron Champlin, Vice-Chairman of the committee. I think that in one of our other recommendations we talk about making the facilities more user-friendly, and having better accommodations for both the staff and clients and honestly I’m not sure that we addressed the issue of handicapped access because I don’t believe it was (inaudible) to us. Kathy: Harriet, further clarification? Further clarification? Harriet: I would like to ask did this committee consider the pile-up that comes on a Monday that are called for cases and the cost to the citizens and how they could make that court system more user-friendly and less costly to the citizens. Kathy: Is that a question of clarification on this recommendation or a general discussion item? Harriet: (inaudible) this recommendation because they’re talking about creating a customer (inaudible). Kathy: Please reflect into your microphone so that all can hear you. Harriet: I’m assuming it comes under this because I’m assuming they’re talking about producing a consumer based friendly court and one of the most friendly things you can do is to help the citizens not to make their appearance the most costly by having lawyers standing around waiting for a case to be heard. Kathy: Thank you. I believe the Chairman has a clarification answer for you. Larry: That’s what we meant by scheduling. And I think when we move forward in our recommendations that will be addressed as well. Kathy: Ok, thank you. Ken? Ken Barnes: Hi, Ken Barnes. I have a clarification question more about the discussion than about the recommendation itself. The recommendation for an ombudsman is very general but in the explanation it says restrictions on ex parte communications with judges while necessary to preserve judicial fairness are powerful roadblocks to receiving information and as I understood an ombudsman’s recommendation would not involve ex parte communications and I don't think the committee was actually intending that it would somehow be recommending doing away with (inaudible) ex parte communications but I just wanted to clarify that and maybe take that out of the discussion, the recommendation. Byron Champlin: Byron Champlin, Vice-chairman of the committee. No, we weren’t, our intent was not to recommend that ex parte, that the rule be eliminated. What we were saying was that, that because of, of that restriction communication doesn’t often get to the justices and relative to customer satisfaction or dissatisfaction with the system. So, again our intent was not to do away with ex parte. Kathy: Thank you. Further clarification. Do I hear a motion? Is there a second? (unknown): Second. Kathy: Further discussion? All in favor? Thank you. Any opposed. Thank you, it’s in the consent bucket. Will: Recommendation number five, also from the Communication and Customer Service Committee. The recommendation is to rapidly implement and maintain up-to- date technology and related equipment. A. Implement a system-wide computer system within two years. B. Make better use of video teleconferencing to reduce physical presence at court-mandated hearings. C. Improve the functionality of the court web site. Kathy: Question or clarification? (unknown): Move to consent. Kathy: I hear a motion and a second. Further discussion? Andy? Andy Peterson: I’m Andy Peterson from Peterborough. I’m a little concerned because I think that many of us here want to honor the work of the committees which is tremendous work and I want to move this process ahead and support you to do so. My understanding from when we had the Steering Committee meeting was different than what’s being expressed here today about how high a standard we have to get something off the consent calendar. And I hope that if members look at these items and come forward with a suggestion that we have further discussion next week. That a member comes forward would like to do something, we’re kind of mending on the fly a little bit here and the thing is there may be things here we may wish to consider to discuss and have amendments to. For example, in this recommendation, the use of video teleconferencing to reduce physical presence at court-mandated hearings is outlined in the discussion. It’s gone under a significant amount of discussion in legislation in the state house because it does prove, imrove efficiency, particularly in preliminary hearings. There is a question about being able to face your accuser and having your day in court, having the person actually there and seeing their body language and so forth. It might be critical to give a person at a given time, what we say in this language is that it’s a matter of cases where it’s extraordinary and this is brought up that that would be surfaced and in other cases it seems to say that we ignore that we have max headroom unless it’s on a screen and questioning which is the way it looks to a degree you’re there. So, I, I think these things are things that are reasonable people can disagree about and question. And so if we do move forward today on a number of things that the consent basket as I’m voting to do, today on some of the original that the first recommendations, you know, I’d like the body to be lenient when people come forward and ask to take something out in case it needs more discussion. This here is an aggressive recommendation to go forward towards technology in these hearings which has had, there have been questions about them in the legislature over the years. I’m generally supportive of it but I think these really should be understood. Thank you. Kathy: Mr. Chairman, did you discuss that as part of your- Larry: Yes we did. Kathy: Thank you. (unknown, possibly Jeff Osburn): If I could address that on layman’s terms, the intent in this is to use facilities to expedite routine hearings. Any recommendation we made would be subject to the Constitutional rights of any criminal defendant for instance who faces his accusers and obviously you could not do away with a lot of important hearings and trials but this is really aimed at a number of things in the civil area where you can do motion hearings. Also in the criminal area, particularly in the federal court we’re cognizant of their use of these types of facilities so they don’t have to transport prisoners for very routine matters in which they do not necessarily need to be in court. But our recommendation, and you save a lot of money that way, there’s a lot of money spent transporting prisoners to court for various kinds of, of and I don’t want to say meaningless but more mundane hearings that are handled routinely in federal court by the good use of cameras, so we in no way feel that this committee has any right to supersede the Constitutional rights of the defendant and the court would obviously have to make some judgements on what could and couldn’t be handled by a use of technology but that was our goal to save people driving and transporting (inaudible) and the kind of personnel that’s needed to do those things. Kathy: Thank you. Further need for clarification? We have a motion and a second on the floor. All in favor to move to the consent bucket? Those opposed? Sent to consent bucket. Will: Recommendation number six, also from Communication and Customer Service. Review the staff compensation structure to assure recruiting and retaining a well-trained and qualified staff and provide adequate staff facilities in which to work. Kathy: Question of clarification? (unknown): Move it. (unknown): Second. Kathy: I have a motion and a second to move to the consent. Further discussion? All in favor? Any opposed? Move to the consent bucket. Will: Recommendation number seven. Dedicate a person to establish and administer an outreach and education program targeting internal and external audiences. Kathy: Question of clarification? (unknown): Move it. Kathy: I have a motion. I have a second. Further discussion? Bruce? Question or clarification? Bruce Felmly: I guess a question. Kathy: Your name, sir? Bruce Felmly: Bruce Felmly and I don’t understand exactly when we’re going to get to discuss the pieces of this and I, and I understand the three buckets and stuff but everyone would agree that we need more communication about the court system. The recommendation is to dedicate a person to establish and administer an outreach and education program targeting internal and external audiences, but almost nothing in the, in the subsequent materials that tells who that person is, who they work for, what exactly happens. It talks a lot about the need and I think we can all agree with it, then it goes into talking about things like press conferences for judges and stuff, there’s a ton of complicated stuff here. When are we going to get to talk about this, because I don’t want to get yelled at that I’m not asking questions of clarification because I don’t deal with getting yelled at well, so when do we get to dig into some of this stuff that so it looks like Mom’s apple pie (inaudible)? (laughter) Kathy: Well, I promise I won’t yell. (laughter) Kathy: But this is the clarification, if in fact this motion goes down and we move it to the discussion bucket, that would be the time. Bruce: Well, here’s my problem, I think most of us are intimidated by thirty four of these buckets going forward. There’s a momentum here, we’re going to do this about eleven fifteen, everything’s going to be in the consent bucket. I think that this is one of those items where we ought to consider discussing it much more and I understand at this point I would suppose that other people (inaudible) Kathy: (laughs) Well, then this motion needs to go down. Bruce: I move to put it in the discussion bucket. Kathy: Well, we have a motion and a second on the floor, we will need to vote on that first. Is there further clarification that the Chair could answer for anyone? Is everyone clear about the process? If you move for all in favor of this, it stays in the consent bucket, if in fact you move this motion, if you say no to this motion, we will re-open it and the we will allow for a second motion to move into the discussion. Yes? Harley? Harland: (inaudible) I know where I am (inaudible) think I could hear on this committee and their question (inaudible) consent bucket. I think the committee (inaudible) into the consent bucket (inaudible) We don’t know all the answers. Kathy: Ok. Very good. Yes? Lew, do you have further- Lew Feldstein: I have a similar concern and I was part of the group that approved this but I realize now it’s flawed because by only allowing people to ask questions and information, for those of us unfamiliar with the set of issues, we’re not (inaudible) to discussion because all we hear is questions and information and there’s no way to register a set of concerns which (inaudible). The committee must modify the process to allow (inaudible) debate to at least register some concerns so that the rest of us can hear (inaudible). Kathy: Would you come down to the well and make that comment so everybody can hear it. Did everybody hear that? Yes? (unknown): No. Kathy: Ok. We are perfectly willing to modify our process here folks. We are trying our best to make it as open as we possibly can and the Steering Committee had about a three hour meeting to try and figure this out so if in fact you’re starting to feel too pushed and that’s what I’m hearing, let’s clear the table on this particular motion. I would encourage you to defeat the motion and then let’s have an open discussion about the procedural process. So right now I have a motion to move this to the consent bucket with a second. All in favor? Opposed? It looks like it has been defeated. Mr. Co-chair, would you like to move to an open discussion on this? Will: I think to Kathy’s note when we had our meeting last week, I think our fear then was everything would end up in the more discussion bucket, so you surprised us this morning. (laughter) Will: Having said that, if there were, I think given just the comments that were made, if we want to go back here to these recommendations and if there really is discussion, the process was not to intimidate anyone from having a conversation here. What we were trying to do was see if we could separate those recommendations that were easy from those that were not so easy. We weren’t intending to separate all of them into the consent calendar. So if anybody has concerns about the six recommendations you already acted on, I would suggest that we re-visit the decisions that we made. If you really want more discussion on the substance, and this is the key point, if it goes into the consent bucket, there isn’t going to be any more discussion on the substance, so if you want a discussion on substance, I think we ought to make certain that everybody understands that it goes into the more discussion bucket. Does anybody want to re-visit the decisions we’ve already made on one through six? Cheryl? Cheryl Killam: Number four. Kathy: Ok, why don’t we consider number four pulled from the consent bucket then and moved to the discussion bucket. Further question? Dave? (unknown): (inaudible) (unknown): Please use the microphone. Will: Everybody needs to come up to the microphone so everybody in the room can hear. David Snyder: David Snyder. Just as a point of process, that we have three hundred sixty minutes to do thirty four of these, so if you work through process maybe you just look at it as a ten minute time period for discussion. It might give you something as a guideline on process that might accommodate all of the input that people want to have. Kathy: Well, we now have approximately two hours and ten minutes left today and three hours outlined next Monday. If we need more time, we will find more time. Will: I would also suggest that if you are voting to put something in the more discussion bucket you should come prepared next week with either written amendments that get to the point you’re trying to make or be prepared to offer something concrete as an alternative to what’s on paper already. We strongly encourage you to take the time to prepare a written amendment. Kathy: So we are now back at item number four and further question or clarification? Cheryl Killam: Clarification. I just want to re-state why I asked this to come back. Customer service is about how people are treated. I know in our recommendation that we are talking about physical accessibility and items like that but this is how people are treated and there are a lot of issues and questions that people have when it comes to something like a disability, whatever that is, or, to assisting senior citizens. So, that’s why I ask that this be brought out. Kathy: So you’re moving this to the discussion bucket? Cheryl: Yes. Kathy: Is there a second? (unknown): (inaudible) Kathy: All in favor? Any opposed? It is our first in the discussion bucket. Thank you. Will: Are there any others for items one through six that people would like to re-visit? Laurie Morrow: Laurie Morrow. I’d like to re-visit recommendation one and I just have confusion so I don’t know where that falls under this, when this was spoken about there was a discussion about, it seems that you want a new employee in order to facilitate recommendation number one. And again what I feel is wanting here is how does this committee suggest what is outlined in number one become a reality? In other words, here’s the recommendation but how do you plan on doing it? And it was spoken that there needs to be a person to supervise this and implement it. Who is this person, so I guess I feel where this is the very first recommendation of this committee, we need to define it even better and make suggestions on how to (inaudible) recommendations (inaudible). Kathy: Peter, would you like to address that? Peter Wolfe: I guess to answer your question (inaudible) second recommendation which the office of dispute resolution. Kathy: Does that clarify? (unknown): (inaudible) I’m sorry. Kathy: If you’ve got a further question or clarification. Laurie: Not on what’s written but on what was spoken at that podium, it was referred to in number one as an individual and referred to in number two as an office. But I still (inaudible) ask for some more discussion on how both one and two should be implemented. There’s need, but how do we go about it. Peter: In all honesty, number one is a little bit confusing in that we are trying to talk about two different things, one is that the court, that the court review existing ADR programs and try to make broader use of ADR and at the same time it talks about establishment of someone responsible for doing it. There is some confusion in how that is drafted, but Attorney McDonough, do you have any comments or anything else on how that is done? But to answer your question about the administration of the ADR programs, those would be administered not subscribed to, they would be created, and if you look at recommendation number two it does delineate the responsibilities of what that office would be doing and that would be carrying out these recommendations. Joseph McDonough: If that answers your questions, I won’t bother speaking? If it doesn’t, maybe, do you still have questions? (unknown): (inaudible) Joseph: Basically the ADR program is very, very effective but does not exist in every courthouse in this state and where it exists gets varying degrees of support from the judicial system. Sometimes its regarded as a very effective tool and the people that administer it, well it really worked the system to try and get as many cases to go through ADR as they possibly can. And in some they don’t. I can think of one court which abandoned for a period of time the ADR system because the young woman that ran the ADR system called on people to serve as volunteers with (inaudible) and it went on for over a year with no ADR in one of the busiest courthouses in the state. That’s not the kind of attention ADR ought to get because it solves between fifty and seventy percent of the cases that come to court and it solves them quickly and cheaply. Cheaply for the state and cheaply for the litigants. If we’re going to make this system work, somebody has to be in charge of it and make sure that it is used extensively. That’s part of what I think we meant in number one. The other thing I can think of is one particular courthouse, I don’t see the clerk here so I can say this, in which the ADR is conducted one party each in a room stuffed with old files. The room’s dimensions are about twelve by ten. You run out of oxygen after about an hour. I don’t think, I don’t think that that brings to the process the kind of dignity that you would want brought to your particular case if you were, if you were a litigant in that particular county. I think that you have to treat litigants with a certain kind of deference and respect and to show that this state is interested in solving your problems and if you stick them in a supply closet I don’t think you do. Kathy: Does that answer your question? (unknown): May I make a comment? Kathy: Would you like to put this in the discussion bucket? (unknown): Yes, please. Kathy: Would you like to make that motion? (unknown): (inaudible) Joseph: Second. Kathy: All in favor? Any opposed? (unknown): (inaudible) Kathy: This is item number one, it’s now been moved to the discussion bucket. Will: Sally, if you and Mike and the committee want to try and talk after we break up here today, it might be helpful if you can try and address the concerns that you both are raising because I think Mike just articulated what the intention was here, so, I think it’s the language unless I’m missing something, I think it’s the language. Kathy: It sounds that way. Hon. Ed Kelly: Ed Kelly. I hate to do this but I want to raise another process issue, I wonder if we allot even the ten minutes that David Snyder mentioned to some discussion some of these might not end up in the discussion bucket- Kathy: Exactly. Hon. Ed Kelly: - (inaudible) and move on. Kathy: Is that comfortable for everyone if we just have a discussion for ten minutes? We’ll go to question and answer and then we’ll look at the various buckets so that won’t just be about clarification. We will try and limit your time to two minutes please so that…think about what it is that you would really like to see changed if anything. If it’s a language issue, then maybe we can clean that up. So, if we can all try very hard and we will try and watch the clock. I appreciate your tolerance for process shifts here. Harley and then I believe we have another one up here. Harley: (inaudible) Kathy: Right. Harley: (inaudible) Kathy: Well that was where we tried to get to already and we only made it to number seven, so I think we’ll just proceed for ten minutes for each and we’ll keep on moving forward. Another question on process? I saw a hand over here, I’m sorry. Michael Morgan: My name is Michael Morgan, I’m the Superintendent of schools in Barrington and I don’t have a legal background. My (inaudible) is dealing with like a teacher that deals with deliberative session and dealing with adults is harder than dealing with than kids. So with that in mind I would suggest a process, we have three choices at the end of ten minutes, you know, we have a choice of consent, we have a choice of bucket and we have a choice of non and I think that if we could somehow expedite things in that way we might get through it faster than we have been (inaudible) because everybody (inaudible). I would suggest the process where, five or ten minutes, let’s get this over with and boom, make a decision and come back. Thank you. Kathy: And what do folks think of that? (unknown): (inaudible) Kathy: There is a second. Ok, we’re short-cutting this bucket idea. I’m sorry Steering Committee, the bucket has now moved. (laughs) Is everybody comfortable with that? Ok. Moving right along. We are now at which number, sir? Will: Number seven. Kathy: Number seven, is everybody there? Ken? I see a couple of hands. Go ahead. Ginnie Martin: I have a question on number three. Kathy: Question on number three. Would you please come forward? Ginnie Martin: Ginnie Martin. One of my questions on number three involves the discussion around volunteer mediators which are mentioned under the recommendation can no longer use volunteer mediators which detracts from the development of highly skilled mediator pool and then further down we have a question where it talks about becoming more difficult to find attorneys who will volunteer their time. But I didn’t see anything that, that states this positively the court should be paying mediators or having a pool of skilled mediators who are going to be paid for their services. Kathy: Peter, would you like to address that? Peter Wolfe: If we’re not going to use volunteers, we’re going to have to pay mediators so I guess that’s just the opposite, that’s just how we worded it. I don’t know if I answered your question? Ginnie: (inaudible) I guess (inaudible). Peter: Ok. Kathy: Are you comfortable with that, Ginnie? Ginnie: I can live with that. Kathy: Further discussion? Ginnie: I think it would be more helpful to turn it around and say what’s actually, I think what Peter’s saying, is the intent of the subcommittee is on that one. Peter: I can’t agree more that it’s better to word things positively and maybe we should put it in the discussion bucket (inaudible) positive statement. Kathy: Maybe you can suggest the language and get together with Peter on that? Bruce, you had your hand up. Bruce Felmly: I’m Bruce Felmly. I had the same concern as Ginnie had and this is an issue that’s been debated with regard to Rule 170 for years and the rule is very successful and you’ve got to figure out what incentivices people to participate as mediators and you certainly want to attract the best and the brightest but this is a huge expense item. If you’re starting to talk about paying mediators for the volume you want to expand this, it’s a huge amount and the reality of it is that money is not (inaudible) to people that are currently the volunteers in there and as we look at it I think that the sort of eight hundred pound gorilla in the corner here. Are we going to turn this into a system where the mediators are all paid so, you know, it’s a very, very large ticket item and I don’t think it’s entirely driven by money and I would encourage all of us to really focus on that discussion because this is something that Peter well knows and has been debated for years and is a big issue. Kathy: - consent or further discussion bucket? All pretty clear? Go ahead. Will: Ok, I think we put number seven in the further discussion, there was a vote on that. Kathy: I’m sorry. Will: So we’re on number eight. This is from the Communication and Customer Service Committee. The Chief Justice will report to the Commission as a whole on the implementation of the recommendations contained within this report within six months of submission. Will: I bet you all thought this was over with in May. (laughter) Harley: Move it. Kathy: (laughs) We’ve got a discussion coming here. Andy Peterson: Andy Peterson. I’d love to have an opportunity to discuss this next week and present an amendment that would allow for an interim report in six months of the final report and approximately six months thereafter. In keeping with the legislative schedule that would (inaudible) an interim report in November an idea of what’s going on what we’re doing moving forward and it would spur activity in the coming legislative session and also have incentive to see progress during that time the final report would be brought up again. I think it’s a great idea to have a report. I think alternatively what you have is a situation where the court will frankly be accepting these recommendations and not being able to do too much about them other than restating the statements that (inaudible) and make plans for the future. In order for the Commission to be effective I’d like an opportunity to offer an amendment. Kathy: So did I hear a motion? (unknown): (inaudible) amendment Kathy: Be brought forth? (unknown): (inaudible) Kathy: Very good. So, you’re moving it to the discussion bucket, did I hear a second? (unknown): Second. Kathy: Any further question, discussion? All in favor to the discussion bucket? Any opposed? We will expect an amendment. Thank you. Will: Recommendation number nine. This is from the Courts as a Business Committee. Human Resources Management. The critical ingredient to the court’s future is in its human resources, the judiciary and its staff. With that in mind, the Courts as a Business Research Committee’s first recommendation addresses the court’s human resources and is in three parts. A. That the New Hampshire justice system be served by a full time judiciary. Specifically this policy should be in place for all new appointments effectively phasing in the timing and cost of this policy shift. B. That the justice system should significantly increase its investment in training and development of the judiciary and court staff. This investment should include funding for courses and seminars and making available adequate judiciary and staff time to attend such educational opportunities. Further, minimum standards and continuing education requirements should be established by job title and monitored in performance reviews. C. As the justice system moves to be more outcomes or performance driven, see the Committee’s recommendation number ten, job descriptions and annual reviews should include measures of personal accountability for outcomes. And the human resource system should provide support where appropriate for re-mediation, assistance and corrective actions. And excellence in the delivery of superior outcomes should be rewarded. Kathy: Questions? Discussion? Sally? Mr. Chairman, would you like to join us? Sally: My knees aren’t working very well. On line ten page nine it says “should include measures of personal accountability for outcomes”. Does that mean a judge is personally accountable for the judgement he makes? Is that what you mean by outcome? Eric Herr: By outcomes, I mean, what we meant for example the items that we listed as illustrations, cost per case, the time to close a filed case, that sort of thing as regards to we couldn’t think of a nice numerical way to measure justice, but we did want to measure performance of courts on things that mattered to the various constituencies of courts. So assume for example the cost of courts for filing is of some interest to the legislature. Sally: Ok. Do fees…..(laughs) are fees part of this? I mean there are other places, too where it sounded like we were funding everything from, from the state but there wasn’t any way (inaudible). Eric: This does not speak to the question of fees unless as the next recommendation will speak to the various constituents of the courts. In meeting the needs of the various constituents of the courts, the courts in its process of developing its objectives and metrics decide that something about these is important but that’s totally up to the courts and its constituents. Kathy: Further question? Paul? Paul Clements: I’m Paul Clements. My concern with this item is the training and development of the judiciary and court staff. I can do a re-write if necessary, but I think an amendment is warranted to include the phrasing that to the point that all the training and development in the court system would be balanced and provide a balanced perspective on several issues. We have trainings and seminars and so forth in the courts and judiciary staff right now that are provided by agencies with a particular bias and that’s the only training that the judges and the court staff get on those issues and I think we need to insist in this recommendation that all training courses of any kind use balance in their perspective. Thank you. Kathy: Further discussion? Donna Davey: I’m Donna Davey from Concord. I’m a little concerned with the wording in the rationale “productivity gains”. And I know in the corporate health care field, productivity gains means rushing your patients to the doctor to get more (inaudible) at the end of the day and I’m a little concerned with this kind of terminology regarding justice and I wonder if maybe we can try and define the type of gains you’re looking for. Kathy: Mr. Chairman? Eric Herr: By the way I also forgot to introduce myself. My name is Eric Herr. The next recommendation specifically says that the courts need to, the judicial system needs to establish a process by which it determines what these objectives should be. And it should reflect the needs of the various constituencies objectives. We were mindful of productivity being a narrow version of what courts do and not the most important thing they do, yet it is still true that measuring productivity should, should provide the courts with one means of measuring one aspect but only one aspect of what they do. Kathy: Further question? Donna Davey: I have an overall concern, if you go through all of these recommendations, very often a lot of them are seeking to establish a new position of some kind or a board or a committee and there are, there are dollar amounts that should be attached to these. I don’t even know how to quantify but some of these could end up being inexpedient if we looked at what the overall cost is going to be. I’m a little concerned how to make a judgement when we have no idea regarding the financial outcome. Kathy: Well, I think in the discussion that the Steering Committee had about that exact topic that we do not have the time to deliberate and actually come up with a specific fiscal note that that would be up to the courts and that would be part of this reporting back mechanism that had been spoken about by the Communications Committee. So, each committee Chair had worried about that, as you will, and from this point forward that will be a report back piece. These are recommendations from the public. The reality check will then come back to us as we proceed. We’re very cognizant of implementation, but there may be some ways of reviewing a different process that this body has brought forth that maybe the courts hadn’t thought of before. Donna Davey: Are we expecting that Chief Justice Broderick and the justice system will be locked into whatever our recommendations are and to seeing that these things are all carried through or is it like the nine eleven (9-11) Commission, these are our recommendations that the powers that be decide which ones or none? I mean once you quantify things, that would knock some of them out of the ball field. How…. Kathy: Our expectation is that this report will go to the Chief and the Chief will then ask for varied groups to come together. There are three ways that we can proceed or the Chief can proceed. Either by doing it through the court system without much further debate except within the court system there are legislative initiatives clearly within all of these recommendations and the third is probably some gentle suggestion from this commission to stay involved. Donna: Ok. Kathy: Does that help? Donna: Yes. Kathy: Further question? Mary Krueger: I’m Mary Krueger. I’m from Concord. And I would like to move this for further discussion because I see that this is pretty heavy on efficiency productivity piece but I don’t see a lot about what kind of workload the current staff is needing to deal with and some way to take a look at that. I’m a little dubious sometimes of looking at government being run as a business but I understand there are good things you can borrow from business and incorporate into government but there’s also the fundamental issue of making sure that justice is served, to be understaffed, over-worked, under-paid, and that’s an important aspect and we should be including in this recommendation. So I’ll make that motion to move this. Kathy: There has been a motion made and a second. Further discussion? All in favor for moving it to the discussion bucket? Any opposed? It is now moved to the discussion bucket. Will: Recommendation number ten. The judicial branch today is managed largely on the basis of process, i.e. rules that define the approved approach to each circumstance. While this approach is essential to the operation of the courts, the Courts as a Business Research Committee recommends that the focus on managing process be balanced by equal emphasis on outcomes or performance management, e.g. time to dispose of a filing, cost per case, constituent satisfaction. To that end, the Committee recommends a five-step process: 1. Assemble a leadership group of judges and staff to recommend outcomes- based performance objectives and specific metrics for consideration and approval by the Chief Justice and the administrative judges. 2. Use that same leadership group to develop recommendations for reporting and review processes to be employed on quarterly and annual basis for the ongoing management of the New Hampshire Judicial Branch. 3. Use these performance objectives and metrics and reporting and review processes to actively manage performance throughout the entire judiciary. 4. Report on the judiciary’s performance against these objectives and metrics to the Judicial Branch’s constituencies e.g. the Legislature, Governor and Judicial Council, the New Hampshire Bar and the public on at least an annual basis. 5. Review and evolve the objectives, metrics and management processes on a continuing basis. Kathy: Question? Discussion? Cathy Green: Cathy Green. I’d echo the concern that was raised on the previous question, just point out that we heard from judges in our Sentencing Research Group that expressed concern about their ability to do a case in six minutes that is allotted, or supposed to be allotted for a case and the concern they were heading more towards those kind of finite limits on judges time. So I think this is an important area. I’m sure there is a lot that is very important in this recommendation, but I do think that we need to be cognizant of those issues. I move it for further discussion. Kathy: Is there a second to that motion? I see a second. Further discussion? All in favor? This goes into the discussion bucket. All in favor? Any opposed? Thank you, it’s now in the discussion bucket. Will: Recommendation number eleven, also from the Courts as a Business Research Subcommittee. This is relative to Information Technology. The Courts as a Business Research Committee recommends that the Judicial Branch significantly accelerate its deployment and management of information technology in the context of a technology plan to improve the courts’ effectiveness and efficiency. Specifically, the Research Committee recommends that: A. The implementation of the Odyssey case management system be accelerated and the courts’ management fully utilize the outcomes and productivity measures embedded in Odyssey consistent with the second recommendation above. B. The Judicial Branch adopt benchmark technologies, e.g. electronic filing and notification, digital voice recording and electronic scheduling and adopt new practices and processes to impact the efficiency and effectiveness of the judiciary in terms of the outcomes discussed in the performance management recommendation discussed above. C. The Judicial Branch put in place an Information Technology Advisory Board, perhaps from the Judicial Council to provide ongoing, independent expert counsel on best practices in the application of information technology. D. The Judicial Branch develop a technology plan to provide a framework for technology investment and the technical evolution of the courts. As part of that plan, the courts should establish a limited set of IT principles to guide that plan, e.g. the court’s various constituencies should be free to choose their preferred medium of exchange: telephone, hard copy, email or the internet and that processes should be designed so that each keystroke is captured only once to avoid duplication of effort and increased error rates. Kathy: Further discussion? Harriet? Harley? Why don’t you come on down. Harriet Cady: My question to this is since some of them are duplicative or near duplicative, such as five to this, could we somehow combine them in order to take all these good suggestions and put them with the others to show that we’re looking at the tele- communications and Odyssey… Kathy: We will be seeking to do that as we get to the next step in our deliberations. Further question? Harland: My only concern is that I think all the courts throughout New Hampshire, all the systems, area should be consistent. One of the things that bothered me on D, A, B, C, D. Down where it says I think on line 27, 28 the courts are free to choose their preferred medium, I think they do that now, all I’m saying I think we had better (inaudible) throughout the whole system that’s my opinion, the whole system, the various courts are operating independently. Kathy: Mr. Chairman? Eric Herr: I’d just like to address that, the narrow question being the reference there is to allow the various constituents, so for example an attorney or a pro se litigant to be able to choose something other than electronic filing, to be able to choose in person a presentation or a letter or whatever makes sense to the constituent, not that the courts dictate the medium of information exchange. Kathy: Does that answer your question? Thank you. Do I hear a motion from the floor? (unknown): Second. Kathy: I hear a motion and a second to move to consent. Further discussion? All in favor? Any opposed? Thank you, moved to consent. Will: Recommendation number twelve. This is from the Family Court Research Committee. Support for pro se litigants in Family Division cases. That the Family Division make available to pro se litigants critical information about the court process, the availability of alternative dispute resolution and the impact of family conflict on children as early in the process of a family case as possible in order to improve the efficiency and reduce the adversarial nature of the process. Procedures to provide this information and support should include access to case managers by all pro se litigants, the requirement of early attendance at child impact seminars and the expanded use of technology to provide information about the court process including ADR at the outset of the case. Kathy: Question? (unknown): (inaudible) Kathy: Motion to move to consent. Do I hear a second? Further questions? All in favor? Any opposed? Thank you. Moved to consent. Will: Recommendation number thirteen, also from the Family Court Research Committee. Expanded and creative use of alternative dispute resolution in Family Division cases. The committee recommends that the Family Division actively and creatively research and experiment with all reasonable forms of alternative dispute resolution in family related cases to expand the availability and use of ADR in Family Division cases. Kathy: Question? Sally? Mike, are you going to be the…thank you. Sally Davis: I would like the Family Court to define in this to state what is covered in Family Court systems so it’s clear that it addresses juvenile issues, a marriage, all those things instead of just broadly saying the Family Court which lots of people don’t necessarily understand. Mike Ostrowski: Mike Ostrowski. I agree Sally that having a definition or a parentheses definition of what the Family Court is and what their purpose is, is a friendly amendment or a friendly addition. Kathy: Thank you, further questions? Andy Peterson: Andy Peterson. Just as a suggestion, it seems to me that number fifteen here might be moved in order to the front when we so the report to have a definition of Family Court included. The Committee’s foundation (inaudible) expand to have its expanded resources state-wide and have these other things flow from that. Kathy: Maybe you can make that suggestion when we get to fifteen, but thank you. Further question? Do I hear a motion? (unknown): (inaudible) Kathy: Move and second to the consent calendar. Further question? All in favor raise your hand? Any opposed? Thank you, moved to consent. Will: Recommendation number fourteen, also from the Family Court Research Committee. Use and oversight of guardians ad litem in the Family Division. It is recommended that the court critically review its use of guardians ad litem in family cases in light of the state-wide expansion of the Family Division and its increased use of alternative dispute resolution. It is further recommended that the training and supervision of guardians ad litem in family cases and the oversight of the quality and cost of these services be improved. Kathy: Question? Harriet? Harriet Cady: Not so much a question as a comment that the Legislature is taking action on this particular issue that we are speaking. Secondly that the guardian ad litem board is also working on rules which I think is where this particularly goes to rather than the courts. The guardian ad litem board was set up to set the rules of the education (inaudible) so whether or not this rule should, this representation should be within the courts I don’t think so. I think it’s more a case of to the Legislature. Kathy: Mr. Chairman? Mike Ostrowski: Mike Ostrowski. Patricia, would you speak to this because you wrote the, this particular one and I’m not exactly sure of the background. Tricia Lucas: I’m Tricia Lucas and the thought here was that on the Family Division side there are a lot of concerns about the functioning of the guardian ad litem system and so we recognize that there is a guardian ad litem board, we know it’s working on rules, we know that if it’s going to improve it’s going to have additional funding and that in the rationale there are a number of specific recommendations that could be considered in improving the guardian ad litem system. We also wanted at the same time, to specifically say that in the Family Division with the state-wide expansion that we would want the court in addition to try and improve the guardian ad litem to look at the way it’s going to function in a state-wide expanded Family Division where there will be greater use of ADR. That’s the theory. Kathy: Further question, clarification, discussion? Paul? Paul Clements: Paul Clements. One of the most frequent complaints from the listening sessions and the court surveys was that many of the GAL’s were biased in their work, that they’re untrained. If the board of GAL’s was to operate like the Committee on Judicial Conduct then there would be no oversight of the GAL’s whatsoever. I think it’s a wise idea to take oversight of the GAL’s away from the courts, leave it in the Legislature which the current pending bill would now do and to try to get them some supervision and training and try to remove any bias. There are a good many cases where GAL’s are not really needed, but they’re being ordered into the case anyway as a kind of welfare (inaudible) I guess. So I would like to suggest that you recommend this into the refuse container. Kathy: I’m sorry, you would like to do what. Paul? Paul: Recommend it for the refuse container. Kathy: Which refuse container? Paul: The inexpedient, I’m sorry. Kathy: Inexpedient? Paul: Right. Kathy: Would anyone second that motion? I’m sorry, you received no second. Further question? Nina Gardner: Hello, my name is Nina Gardner and I just wanted to as a point of discussion where Representative Cady took us in this recommendation. I think these recommendations are terribly important as family law and part of the expansion of the family division and although they may not specifically be in the purview of the court system, they represent a piece of important public information that needs to be in the report and as a member of the guardian ad litem board, I have to tell you I think it’s important for broader views to have access to this information so that we can support the guardian ad litem board, the resources to be independent, which is what the Legislature has set it up to be, so I encourage you to support this recommendation and put it on the consent calendar. Kathy: Further discussion? I hear a motion. Is there a second? I hear a second, is there further discussion? Sally, a further question? Sally: Since I wasn’t on this committee, I’m not sure now how the legislative part of this and how the court part of this work and whether they work separately, sometimes together or never together or just what? Kathy: If there’s a legislative initiative working it’s way through the general court, that is not our purview. It is our purview to make recommendations, if it’s already fixed by that point, that’s great. Ed? Further clarification? Hon. Ed Kelly: Ed Kelly. I thought I’d answer Sally’s question as to how might it occur between the courts and (inaudible). Kathy: Oh, sorry. I misinterpreted the question. Ed: And it is a hybrid system right now, not all guardians ad litem are currently certified by the board and there continues to be guardians certified by the court through the old system. Additionally the board of guardians ad litem do not supervise those guardians in terms of accepting a place at this point (inaudible) any complaints that continue to come to the court and those guardians continue to be disciplined through the courts. So the system is not fully operative, it’s fair to say and it is true that this is probably among the most frequently received complaint in the Family Division. And one other issue that I address at the beginning part of this recommendation acknowledges that as the Family Division moves aggressively towards alternative means of dispute resolution, we believe that we will be using guardians ad litem far less frequently. Currently everyone that comes into the Family Division, if it’s case that involves children, moves into mediation unless they fall within the parameters of six very well-defined exceptions. So every one of those cases go to mediation. (inaudible) show that somewhere between sixty or seventy percent are mediated and this is all prior to the appointment of the guardian ad litem, so our expectation is that we will use guardians less frequently and that’s where the first half of that recommendation goes to. Kathy: Thank you. Any further discussion? We havea motion and a second on the floor. All in favor to the consent calendar? Any opposed? Thank you. It’s moved to the consent calendar. Will: Recommendation number fifteen also from the Family Court Research Committee. Relative to resources necessary for support state-wide expansion of the Family Division. That the Judicial Branch support the state-wide expansion of the Family Division during the transition period by providing sufficient staff resources including judges, masters and support staff and training staff on family issues. Adequate staff and training resources are necessary to ensure the successful expansion of the Family Division while maintaining the existing court functions during the transition. Kathy: Questions? Kelly Ayotte: I have a question. Good morning. Attorney General Kelly Ayotte. I’m from Nashua. The only comment I have is I’m very supportive of recommendation fifteen but what I’d like to add to it, I certainly have a concern that as the court moves to transition to the family court and the family division that we put a sentence in here stating that it’s important that the court maintain adequate resources in the Superior Court. Because that court still handles the bulk of, obviously the District Court handles the bulk of criminal cases, but a fair amount of criminal cases as well as other very important civil matters. It is my concern that we just express that include a sentence which I would be willing to bring forth an amended sentence. Particularly in the criminal cases to make sure that there is expedient access to a judge and I’m already hearing some concerns in the northern part of our state and that’s why I would like to include that. So, I would move it to discussion for purposes of adding a sentence and bringing forward in our next meeting. Kathy: Is there a second to that? Further discussion? Question? Mike Ostrowski: (inaudible) this recommendation since our charge was speaking to the family court and we didn’t make any recommendations for Superior Court, and the call for increased resources here sort of had that intent but that is (inaudible) implement the family court division there needed to be implication (inaudible) being (inaudible) resources for other divisions, but it can be (inaudible) say that with regards to the Superior Court. Kathy: Thank you. We have a motion on the floor and a second to move to the discussion bucket. Paul? Further discussion? Paul Clements: Paul Clements and once again I have to express a concern with the phrasing of the training of staff, and adequate staff and training resources. Up to now, most of the training provided now by the court is very one-sided and biased and I would like to include the wording here that all training should be as balanced as possible and should represent a variety of perspectives on issues of for example, domestic violence, custody and so forth. Kathy: Thank you. We will then expect two amendments. Any further discussion? All in favor? Move to the discussion bucket, yes. Further clarification? Al Cantor: Process issue. Kathy: Yes? Al Cantor: I think most of us are- Kathy: Please state your name. Al: I’m sorry, Al Cantor. Kathy: Thanks, Al. Al: Most of us are better at town meeting. I think it would be useful Kathy if right when you call for the vote if you could just remind us what we are voting on, which number and which bucket. Thank you. Kathy: Because I know there’s no other conversation going on in the room. (laughter) Kathy: Thank you. (laughs) Thank you. I’d like to take that vote again since we got interrupted halfway through. So I have a motion and a second to move to the further discussion bucket. All in favor please raise your hand. Any opposed? Thank you. Will: Recommendation number sixteen. This is from the Problem Solving Courts Research Committee. The New Hampshire judicial system should expand the use of a therapeutic justice model in dealing with mental health issues, certain drug offenses and other family-related legal problems. New Hampshire’s successful experiments with drug courts in a number of locations and with a mental health court in Cheshire County warrant an expanded statewide therapeutic justice approach to certain carefully defined matters which come before the judiciary. This problem solving approach can result in more successful long-term solutions to certain drug offenses, cases where there are significant mental health issues or cases involving family-related problems. These cases are among the most difficult in our court system’s caseload and this approach can pay off in reduced recidivism and more efficient use of judicial time and energy. Kathy: Question? Andy Peterson: Andy Peterson. I just had a question for you, Nina, if you would. The entire document here as far as I can see never mentions the victim of the crime and there are a couple of opportunities to do so as I read the recommendations and I wonder if that might be of interest to others. To me this therapeutic justice area is one where the victim of crime might be mentioned and I wonder if your committee discussed that and how a victim might be involved in this process of therapeutic justice. Thank you. Nina Gardner: Thank you for the question, Andy. My name is Nina Gardner and I was Chairman of the Therapeutic, the Problem Solving Court Committee, re-named from Therapeutic Justice because we thought it was the more appropriate response. The models we looked at did not involve victims. What they were in fact looking at is how they in fact treated the defendant in person or clients of the court who is coming to the court primarily with problems that are self-inflicted because of drug or alcohol abuse and probably did not involve victims of crimes. Those kind of cases do not typically fall into the model of cases that go into these kinds of problem solving court cases. Where does the victim and this need for sort of social justice that involves, those are not typically cases that are brought into this kind of model. These are carefully screened out cases in which the ability to find…help, assistance for the defendant is the more appropriate solution rather than the adversarial process. And it’s used in this state in a very limited measure in Superior Court and (inaudible) cases but to my knowledge it does not involve cases where there are victims. And I know that with the juvenile program, it is primarily where the juvenile, him or herself is the victim in a sense. (inaudible) crimes as a result of that habit. I don’t know if that answers your concern, the models we looked at did not have a victim piece. Kathy: Further question? Kelly Ayotte: With respect to this particular- Kathy: Excuse me, identify yourself, please. Kelly: Oh, excuse me, Kelly Ayotte. With respect to this recommendation, I certainly understand the issues that Mr. Peterson brought forward and what I would like to recommend is that this be moved to purposes of discussion for discussion box and I would like to bring forth again another amendment that says two things, essentially with regard for just outline, maybe a quick sentence saying that these are the types of cases we’re focusing on and also a sentence that says that we would anticipate bringing forward these pieces when it’s consistent with public safety and I think that, that is what Nina was in effect saying, so I would be willing to take a stab at bringing forward a sentence that would reflect that part of the consideration of this committee. So I would move that we put it in discussion for the purpose of bringing forward an amendment which I would be willing to do at the next meeting. Kathy: Is there a second to that motion. (unknown): (inaudible) Kathy: Any further question, clarification? Ken Barnes: Hi, Ken Barnes. This recommendation seems to focus exclusively on criminal matters but I would just suggest that when we have further discussion next week we also suggest the possibility of having some kind of problem solving courts dealing with therapeutic issues on the civil side as well. There are certainly a lot (inaudible) who are litigants in the civil courts, people who have other problems and (inaudible) appear a lot in divorce and custody cases, so (inaudible) subject broached as well. I think Nina discussed it (inaudible) or not. Nina: We did not. The answer to your question is no we did not look at it beyond the kind of litigant use that we have seen in New Hampshire and surrounding areas. Certainly some of the research materials we read talked about this aspect, but you know one of the things about problem solving courts that is very important is the judge follow through, and the connection with the judge and the, in essence the client and if it’s done on a (inaudible) the training necessary and the commitment and the follow through may not be there. So that’s part of why we sort of kept it in the well established bounds of mental health courts, drug courts where there’s been a proven track record to look at. But we certainly could consider that as part of the ongoing discussion next week. Kathy: Thank you. Anything further? And we have a motion and a second to move this to further discussion bucket. All in favor? Any opposed? And we will expect an amendment from Attorney General Ayotte. Thank you. Will: Recommendation seventeen. This is from the Public Access to New Hampshire Courts Research Committee. All courts in the state of New Hampshire will meet or exceed the requirements for compliance with federal and state laws pertaining to accessibility. Currently there is one courthouse that is not accessible and the majority of the courthouses in this state have some areas that are not accessible. All court facilities shall have provisions for: A. Compliance with all applicable building codes for the removal of all structural barriers that prevent or impede physical access. B. The deployment and usage of effective and accessible methods of communication such as New Hampshire Relay, telecommunication devices for the deaf - TTY, assistive listening devices - ALD’s, computer assisted real-time translation services - CART, video relay services - VRS, accessible web sites and alternative formats for all printed materials-large print, Braille, audio-tape and computer disk. C. The removal of language barriers for non- English speaking citizens by providing translation services, oral or sign language interpreters, and translated written materials. D. Discrete funding sources for payment for communication access and for support of annual disability sensitivity training. Kathy: Questions? Do I hear a motion? I hear a motion to move to the consent calendar. Is there a second? (unknown): Second. Kathy: Any further questions? All in favor, please raise your hand. Any opposed? Thank you. It’s moved to the consent. Will: Recommendation number eighteen from the Public Access Research Committee. The recommendation is for full funding, fund full staffing for traditional civil legal services. Kathy: Question? Judge Kelly? Hon. Ed Kelly: This is a, Ed Kelly, this is an extremely important recommendation in my view. The question that I raise to the committee is when do you consider the purview of the court to this question, rather does the legal (inaudible) in following through on this recommendation and is this really a recommendation that needs to be made to the legislature or some other audience including the Bar Association. I’m not sure that the court has the authority to do what the recommendation suggests. Kathy: Thank you. Claudia, would you like to answer that? Claudia Nixon: Actually, no. (laughter) Claudia: I’m Claudia Nixon, Co-Chair of the subcommittee and I am going to refer to Al Cantor. Al Cantor: Judge Kelly, we did not- Kathy: Would you identify yourself, please. Al Cantor: I’m sorry. Kathy: Thank you. Al: I’m Al Cantor and our Chair, Ralph Littlefield is not here, Claudia is our Vice Chair. I was on the subgroup that’s working on this. We, as we looked at this issue of access we saw that there were a great many people who basically did not have access because of financial reasons. We didn’t dwell on this particular issue, whose purview it was, but we didn’t want to (inaudible) obvious point to us which was that through New Hampshire Legal Assistance pro bono, legal assistance, legal aid referral (inaudible). (unknown): (inaudible) Al: (inaudible) pro bono (inaudible) We have a very good system and they’re very integrated and we didn’t want to leave out the fact that they’re really good, they need to be strengthened and they need to be funded. Kathy: Further question? Do I hear a motion? (unknown): (inaudible) (unknown): Second. Kathy: I hear a motion and a second to move to the consent bucket. Further question? All in favor? Any opposed? Thank you. It’s moved to the consent bucket. Will: Recommendation number nineteen from the Public Access Research Committee. Commit New Hampshire to a Civil Gideon that is to recognize that in the same way that criminal cases that may result in the loss of liberty compel the state to provide an attorney for a defendant, so too should civil cases that could result in significant loss, such as the custody of a child or the loss of a home, compel the state to provide legal representation to those who could not otherwise afford it. Kathy: Question? Hon. Ed Kelly: I raise the same issue with regard to this recommendation. Kathy: And your name? Hon. Ed Kelly: My name is Ed Kelly. (laughter) Hon. Ed Kelly: The same issue with regard to this recommendation, that we are committing New Hampshire, these recommendations are going to the Supreme Court and I don’t think that the Supreme Court has the authority or the power to do anything about this recommendation. I probably ought to try to beat John Crosier to the motion before I sit down. (laughter) Kathy: Further question? Come on down. Make a line. Peter Wolfe: I would just like to follow up on Judge Kelly’s comments and just ask has anybody thought who’s going to bear the cost, what the costs are going to be, for this recommendation, who’s going to bear the cost? Kathy: And your name, again, sir? Peter Wolfe: Peter Wolfe Bruce Felmly: Hi, Bruce Felmly. Somewhere along the same theme. The current President of the ADA is Mike Greco, he’s been pushing very hard for a commitment to a civil Gideon type statute. As far as I know no state in the country has gone this far. It has to be in terms of a civilized society a wonderful goal. We’d want to put in some money for interstate highways because everyone would move into New Hampshire if we were to do this. It’s hard to argue against something like this except in one respect. If we’re serious about taking the lead of what is perhaps the most, you know, one of the most controversial subjects as to what society owes its citizens in terms of legal services. This number nineteen in my view, should be about twenty five pages long. It should describe what the nature of the services are, who’s going to do it, how we’re going to fund it, what the projections of cost are. I mean this transforms legal services of New Hampshire. I would love to see this society do it, but it’s a zero sum gain. So you might say what’s the downside of the recommendation, it says to set forth a philosophical commitment to a (inaudible) society. There’s one potential downside which is hopefully our recommendations are going to be seen by whether it’s the legislature or the judiciary or whatever as a concrete effort to make things better, not simply an aspirational wish list. I mean I would love to see this happen, I would love to see you know, truth, justice and a lot of other things prevail. I don’t want to see our proposals perhaps lose their punch and credibility by being seen as simply an innovative wish list so and I hate to be the guy that says there’s another bucket for this one, but if we’re going to spend time discussing it I think it’s a discussion that really needs to grapple with what the ramifications of this are because a lot of people are studying what this would cost the American society and I would frankly not want to see New Hampshire trying to necessarily invent that wheel but rely on a lot of other people have already put into it. Which is a long way of saying at a minimum I’d want to discuss it and I think I’d want to allocate about seven or eight months for discussion. Kathy: Would either of the Committee Chairs or Co-chair like to respond before we continue this? John? (unknown): I would yes. Kathy: Thank you. (unknown): I’m not one of the Chairs or Co-Chairs but a member of the committee, I’m actually the person who proposed this but I would like to speak a little bit to what we are saying. I agree it is a long haul, I agree it is not likely to be enacted in this state any time soon. But I do think that it is something, to answer Judge Kelly’s question, it is something that is within the power of the Supreme Court. The Supreme Court of the United States is the group that (inaudible) spend time in jail have a right to speak to an attorney (inaudible) same thing as people who are going to lose their child, they are going to have their parental rights terminated. That is equally catastrophic in a person’s life that they might need an attorney to help them rather than having to go pro se through the courts. So it is something that the courts can say and there is some benefit to having a philosophical commitment to put ideas out there that, you know, this is not expected to be enacted any time soon, even to say that up front in some of the rationale that we discuss here but this is the long term hope. The long term hope is that everybody (inaudible) have attorneys. That said, I understand the point that perhaps this might sound too pie in the sky and we’ll just go with our other recommendations and I’m willing to see a discussion of it or whatever it is the Commission wants to do, but I did want to clarify those couple of points. Kathy: Ginnie, are you speaking as a member of the Committee? Ginnie Martin: Yes I am. I’m actually a member of the subcommittee that put this in here. I’m an eternal Pollyanna I guess. But we felt that it’s important to at least put this out there, and put this concept out there for discussion and there are possibilities for an incremental civil Gideon. There are instances now where the state is not a party to a case for example in termination of parental rights. If the state is involved someone is probably going to qualify for court appointed council. But if, if the state is not involved then there’s no entitlement to court-appointed council and that kind of case. We, we have other areas in which people don’t qualify for council and they don’t know what their rights are and they may wind up in jail on a civil contempt action so I think we need to look at this and perhaps look at some , focus on some key areas where we believe that there should be expansion of court appointed council. Kathy: Thank you. Harley. Harland Eaton: The court (inaudible) and New Hampshire courts in my opinion are very, very efficient but what is a key issue to me even though it would make the courts more efficient and more productive than what they’re doing but more and more we’re seeing and I don’t know the answer to this (inaudible) but more and more we’re seeing pro se litigants trying to address this issue and some (inaudible).We can ignore the issue but it isn’t going to go away. It just gets greater and greater and greater and we can put it on the back burner and not address it but at some point in time what I really (inaudible) in the court system in New Hampshire and the administrative justice that we can’t do that and some people can’t get there because we can’t afford it, we can ignore it and I don’t think we ought to ignore it and I don’t know the solution to this but I think somewhere in the Legislative Branch they’ve got to review this look at this some way and if we can help that person, that doesn’t have any money, they can’t afford an attorney, can find some means to get justice through the system if he needs some help. Kathy: Thank you. Harriet. Further discussion? Harriet Cady: Thank you. I’d like to say I agree with Judge Kelly and Bruce in that I think that this is a very important issue not so much the courts, but can this Commission not make a recommendation that this area needs to be studied by the Legislature with a court so that maybe we can make a recommendation for our Commission specific to an issue. Kathy: Thank you. John as a member of the committee? John Tobin: No, not as a member of the committee. Kathy: I’m sorry? Thank you. John Tobin: The committee as a whole. Thank you. I’m John Tobin and I have to reveal my bias, I’m the Director of the New Hampshire Legal Assistance, sorry I don’t speak to this. (inaudible) First I’d like to speak to the process of it, Bruce and some other folks have raised the question of cost of this and there are a number of other recommendations that you’ve approved are only a little less pie in the sky in terms of sky. Full funding for technology and court staff and court space are as aspirational as you come and full funding for legal services is in that same category, so I think in terms of scrutinizing this one and not others because there’s no price tag isn’t consistent. It absolutely should be discussed but I also want to go back to the beginning and echo what Harley said. An awful lot of the issues that confront the court have to do with a title wave of people who are pro se, who are slowing the courts down and who are presenting a whole lot of issues. And unless we grapple with that (inaudible) by separating those who can afford lawyers and directing them to do that or holding them to the same standard as lawyers and taking people who can’t afford lawyers and (inaudible) in getting them, you don’t address the pro se problem and therefore you haven’t really addressed a huge number of the things that are, that drove this Commission into being creative. So, yes it is aspirational, yes it is a big leap but it is also central to dealing with one of the central issues the courts face, and if you don’t face it, you don’t face it. With respect to the purview of the courts, the court obviously can’t write a statute and appropriate the money. But court leadership in speaking to this issue, is really important and one of the things that’s happening in other states is that other states are, courts leaders are speaking to this issue and it is making a difference and nobody, no state can a judge or a court make this happen but in every state the court leadership (inaudible). Kathy: Thank you. Paul, have you spoken to this yet? Come on down and then I’m going to call the question in about two more minutes. Paul Clements: My name is Paul Clements. When I first started through the family court process twenty some odd years ago, I was faced with the possibility of incarceration, thirty days for non-support. This is down in Massachusetts. Because I was faced with the possibility of a thirty day in jail today, I was allowed to have an attorney in court. All well and good. I beat the rap, didn’t have to go to jail. But from that point on when I was faced with a possibility that was much more crushing as a matter of course than (inaudible) I lost my daughter. As seventy five percent of the fathers in the court system today do, we lose our children and that is more crushing than a ten year prison sentence. And yet if the father is indigent, he has no way unless he’s an attorney himself, and attorneys generally aren’t indigent, but an indigent father has no help in preserving the integrity of his family and preserving his relationship with his child. And I dwell on this because it was mentioned in this recommendation. The loss of a child is one of the most devastating losses that a parent can suffer, whether it’s lost through death or lost through a divorce court. And to have to face that possibility without necessary aid to prevent it, it’s…a disenfranchisement for the fathers. Now granted this might be a rather expensive proposition but the family courts right now, limited as they are prior to the proposed expansion is receiving over two million dollars a year from the child support collection agency. Now what better use to put that two million dollars to than into a legal defense fund for indigent parents. That’s just one recommendation for how to resolve the funding problem, I’m sure there are others. And even if this measure doesn’t engender any action in front of the Supreme Court, or even from the Legislature, the fact that we put this recommendation out there, the public view will be worthwhile. Thank you. Kathy: Thank you. (TAPE CHANGE, SOME CONVERSATION NOT CAPTURED-JM.) Sally Davis: -people that need legal representation and if Kentucky can afford it surely New Hampshire can. Kathy: Thank you. Do I hear a motion from the floor as to what you’d like to do with this recommendation? Clyde? Clyde: Move to the discussion bucket. Kathy: Thank you, is there a second? (unknown): Second. Kathy: Further discussion? All in favor of moving this to the further discussion bucket please raise your hand. Those opposed. Thank you, it’s now moved to the further discussion bucket. Will: Recommendation number twenty came from the Public Access Research Committee. Promoting the development and use of legal insurance. Kathy: Further discussion? Donna, come on down. Donna Davey: Donna Davey. This just isn’t going to happen. I thought that it would go to inexpedient, but, but the people who most need legal insurance I guarantee you aren’t going to be able to afford it. Kathy: Is that a motion? Donna: And the state isn’t going to pick up the tab and employers certainly aren’t, it’s just (inaudible). I make a motion to move it to the inexpedient. (unknown): Second. Kathy: We have a motion on the floor to move it to the inexpedient bucket, we also have a second. Is there further discussion? All in favor for moving this motion to the inexpedient bucket, please raise their hand. Those opposed, please raise your hand. It has now been moved to the inexpedient bucket. Will: Recommendation number twenty one, also from the Public Access Research Committee. Creating a state-wide citizens advocate to look out for the legal needs of the average resident of New Hampshire. Kathy: Further discussion? Clarification? Motion? (unknown): Move to be placed in the consent bucket. Kathy: I have a motion for the consent bucket, is there a second? Further discussion? Trish? Tricia Lucas: This is standing in potential approval here, I’m going to have to ask the question that I should have asked earlier which is I don’t understand the role of this entity or this person so could somebody provide some clarification of that please before we vote on this. Kathy: Certainly. Committee, who would like to address that? Ken Barnes: The Co-Chair sits in front, she points to the person behind her, he points to the person behind him and I’m it. Ken Barnes. The office of the citizens advocate would be something like the consumer advocate at the PUC, there are states in the country that have either a consumer advocate or a citizens advocate or a public advocate, they call it various things and it’s proposing here would have a number of (inaudible) would start with perpetuating or systematizing the work of this commission and what we are already doing. And that is from the point of view of the average resident of New Hampshire to look out for the legal needs of average people and continue talking to the court when problems may arise or further (inaudible) needs to be proposed by other groups that the Chief Justice responds to us in six months or a year involves a citizens advocate would extend beyond that and have some kind of perpetual if you will consideration of the kinds of issues we’re talking about here. It would also look at the changes in New Hampshire population and I do think things need to be addressed, but language proficiency has, we have seventy six languages now being spoken in Manchester High Schools. Look at different types of cases that might be happening the larger commission needs and elsewhere there is increasing numbers of this kind of case and decreasing numbers of that kind of case, increasing number of pro se people, we’re going to be recommending a lot of things to try and improve upon the pro se problem as we call it, but who’s going to watch over that a year and a half from now or two years from now, say this is working, this isn’t working, here’s how things have changed and maybe there’s more things we need to do. And the citizens advocate (inaudible) states and the PUC look at services (inaudible) and not individual cases about it but perhaps there is some kind of systemic issue and we’ll deal with that and the final sentence I believe suggests that we could also have a staff where it brings cases of that systemic nature. But also refer those cases to the Bar Association and as the foot note describes private lawyers, like the lawyers who handle pro bono cases for individuals, private lawyers and there are a number of other cities from larger firms who volunteer for free to take systemic cases and the homeless on behalf of the mentally ill and they bring cases (inaudible) and they do it on a pro bono basis by the firm. So those are some of the things that this citizens’ advocate would do. Kathy: Further question or clarification? Joseph McDonough: My name is Joseph McDonough and the thought behind this recommendation was certainly very logical. I would like to point to this group however that there is at least one of the past two groups that already have this function and these groups already (inaudible) and (inaudible). The Judicial Council is charged by statute with advising the Legislature on pieces of legislation and the administration of justice and in the packet of recommendations there is reference made to an ombudsman that person is probably also the same thing. If you’re going to do this and you already have an organization set up and running and to some extent funded, the questions would indeed be (inaudible) organization (inaudible) onto the shoulders of an existing organization. Kathy: Further discussion? Ken Barnes: (inaudible) just briefly. The Judicial Council is under the auspices of the court system and is (inaudible) Kathy: (inaudible) Ken Barnes: (inaudible) the idea of this would be to have it be an assistance group like ours that’s independent and looks at the kinds of issues that the Citizens Commission has been looking at and not the kind of issues that the Judicial Council has been grappling with for many years. Kathy: Clarification? Joseph McDonough: The Judicial Council is not an adjunct of the court system (inaudible) appointment of the Judicial Council there are twenty six members spread all over (inaudible) most of them are concentrated in areas other than the court. Kathy: Further question? Kelly Ayotte: Kelly Ayotte. I also want to echo Attorney McDonough’s comments. That I do think we already voted or at least for discussion purposes to the discussion bucket an ombudsman which I think would be in a more general purpose an effective advocate for citizens as well as the understanding that we already do have a Judicial Council. I’m also concerned with understanding this position even though it’s been described to us because this position is going to bring cases yet it’s also going to bring forward and advocate with this committee and I’m a little confused on that because I think that could create a sort of conflicting position on how this would work and I would hate to undermine some of the other recommendations that we have here because I really think that at minimum before we move forward on this that there be further discussion in light of some of the other things that we’ve already discussed the ombudsman and the role of the Judicial Council. So I do have some serious concerns about this position and what it will actually do and how it will fit in with the existing court system and what it will accomplish. Kathy: And is there a motion on the floor, did I hear? Ken Barnes: (inaudible) the ombudsman proposal, I just looked again, it’s really in the context of helping be a go-between between people who come pro se to the courthouse and the clerks and explaining how the system works and things like that. It’s that kind of ombudsman, this kind of citizens advocate is completely different than that. It’s not dealing with individuals, it is more like the Judicial Council but it’s, it’s, I think we’ve proposed to do more things and certainly the proposal could be amended and have the bringing litigation part left out and still have a lot of suggestions in the proposal that are very, very different from the ombudsman which only helps us smooth the way for individuals in the court system. Kathy: I have a- Ken Barnes: (inaudible)- Kathy: I have a motion we need to deal with, was there a second to this motion? Before moving into further discussion? (unknown): (inaudible) motion was to move to consent. And that was seconded Kathy: I’m sorry, I did not hear that. (unknown): I made that motion about ten minutes ago. Kathy: For consent? That’s right. I’m sorry, that’s my fault. Byron, would you like further discussion? Thank you. We’ll deal with that motion first, Harley, if you don’t mind? Byron Champlin: The point of clarification is that the ombudsman is not necessarily to smooth the way for people in court but to be an advocate, to be a point for people to go when they have complaints, when they have issues with the courts that need to be addressed separate from, you know, the judges and attorneys. But dealing with their experience in the court so it’s not quite the same as what’s described (inaudible). I wanted to clarify that. Thank you. Kathy: Eric, further clarification? Byron: Did I identify myself, Byron Champlin? Kathy: I’m sorry? Byron: Did I identify myself? Kathy: I believe you did. Byron: I don’t want to break the rules. Kathy: (laughs) Eric Herr: My name is Eric Herr. If we truly want to be customer oriented to serve customers one of the things we need is clarity and communication and to whom they should voice their concerns. An issue is we have a Judicial Council, one needs to walk only around this floor to know there are a few other representatives and citizens of New Hampshire who are sitting in their seats right now. And there’s the Executive Council and there’s the Governor and an ombudsman and now we have another group that’s going to be the advocate for the citizens. I think we’re well represented in this state. I think they can do a good job of taking the judiciary to task. Those representatives can be taken to task and they also have our curse which is not inconsequential so I think this is redundant and in fact confusing and I think one of the principles of organizational design, is the Ghostbusters movie had it right, leave New Hampshire to the question, who do you call, we don’t need to add this yet another name to the list of who a citizen might call. We’re well-represented today. Kathy: Thank you. It’s now been ten minutes. I would like to call the question that was moved and seconded for moving this question to the consent bucket. All in favor please raise your hand. Any opposed? Motion defeated. Is there another motion? (unknown): (inaudible) Kathy: There’s a motion for further discussion. (unknown): Second. Kathy: There’s a second. Further discussion? All in favor? Any opposed? Thank you, it’s now moved to further discussion. Will: Recommendation number twenty two from the Public Access Research Committee. Streamlining court scheduling and promoting greater use of technology and communication access services for court conferences and hearings. Kathy: Questions? Come forward. Nina Gardner: Nina Gardner. I just want to comment that this is one that is duplicative of another and we ought to define this as we go forward so I suppose we should put this on the consent calendar to facilitate that. Kathy: Thank you. Further question? Do I hear a motion? (unknown): (inaudible) Kathy: Is there a second? (unknown): (inaudible) Kathy: Further question? All in favor of moving this to the consent calendar? Any opposed? Thank you. Will: Recommendation number twenty three from the Public Access Research Committee. Create ways to support pro se litigants including: A. Creating a public education program to educate people who may have legal claims about the court’s procedures, the resources available to them and legal issues that people should consider in evaluating their legal needs. One such resource is “unbundled” legal services where attorneys are permitted to work with a client on a portion of a legal case even if they do not handle the entire case. B. Expanding the case manager system ideally with a well- trained case manager in each court who would interview clients and either refer the client to legal services providers, recommend and facilitate alternative dispute resolution or provide procedural guidance and support if the client chooses to move forward pro se. C. Encouraging the use of non-lawyer professionals to provide simple, simpler law-related services within their areas of competency. D. Helping people involved in uncontested divorces to handle their own cases by developing an uncontested divorce kit and providing paraprofessional support to guide people through the court process. Kathy: Question? (unknown): (inaudible) Kathy: I hear a motion for consent calendar. Is there a second? Is that a second? Thank you. Further question? Come on down. Bruce Felmly: I’m Bruce Felmly. There’s two things about this almost all of which I favor, but the two things about it that cause me to think it deserves further discussion rather than being in the consent bucket. Item C which encourages the use of non-lawyer professionals to provide simpler law-related services within their areas of competency is a …though it’s phrased in a very neutral way, New Hampshire’s history of having non- lawyers represent other citizens is not particularly a pretty one for the most part. It’s one thing to represent yourself in court, if things go badly you only have yourself to blame, I suppose and we ought to give the pro se litigants all the resources that are appropriate and this recommendation goes a long way to do that. But once you take on the responsibility of representing somebody else’s interest and I’m not sure what simpler law-related services or their areas of competency are. There needs to be some regulation and oversight. We should be concerned about who those people are in terms of their character. We go through a rather extensive system when we have people who are given the responsibility or the ability to represent their citizens to make sure that they are competent, to make sure that they have a good background, or a criminal background checks, a variety of other things. Everybody is going to agree and most professions have figured out that we don’t need to have the board certified cardiologist, for example, doing everything that relates to a person’s cardiological needs and we don’t have a similar difference in the law. But this needs something or at least it needs more discussion as about what we mean by this. What is going to be the supervision of those people, who are they going to report to, what criteria, what does their area of competency mean and all of that (inaudible) system that you read about, you know, in certain spectacular cases on the front page of our newspaper for years and if you just do it without that kind of I guess oversight, I’m a little concerned. The second piece of this is a little more difficult to articulate and that is we all agree the pro se litigant issue is huge, practicing lawyers such as myself would be the first to sign up for that. On the other hand, there’s a huge perception out there on the part of the represented litigant that sometimes the system actually ends up providing the lawyer for the pro se litigant in the form of the judge and you need to have the balance in terms of providing system-based resources for the pro se litigant and it has to be balanced out with the person who is represented. And I would like to see us articulate that. I mean frankly, if we move to a system that encourages pro se litigation as opposed to providing the resources necessary to deal with that reality, we’ve stubbed our toe. The first rule of being a pro se litigant is you’re probably not going to win. You can give them all the kits and all the how-to stuff you want by and large and many of these issues they deal with are very complicated matters, complicated custody issues, complicated issues and family law things. So I want to be a little careful about trying to dumb down the system so that these important legal rights are dealt with by people who don’t have any legal training. Having said all that, I like everything in here except I’d like to see a little bit more of that balance here. Now I realize that there’s a phrase here until the day arrives when New Hampshire can achieve the ideal, but I also think we need to make the point that we’re not trying to create a legal system that encourages everybody to sort of do their own open heart surgery. Kathy: Thank you. Any further discussion? Harland Eaton: (inaudible) Kathy: And I don’t recall who seconded that motion, are you also willing to withdraw that? (unknown): (inaudible) Kathy: The motion has now been withdrawn. Do I hear another motion? (unknown): (inaudible) Kathy: This motion has now been made for further discussion. Second? Further discussion? All in favor please raise your hand. Any opposed? Thank you, this moves to the further discussion bucket. Will: Recommendation number twenty four from the Public Access Research Committee. Explore and encourage innovation in how regular legal services are billed excluding: A. Excuse me, including A. Sorry, that was not a Freudian slip. A. Alternatives where appropriate to a billable hour system. B. Fee-shifting and fee-sharing in family law cases where one party has access to much greater financial resources than the other. Kathy: Question? Discussion? Clarification? Hon. Ed Kelly: Ed Kelly. I would like to ask the committee the same question I asked a few minutes back in terms of whether or not you consider whether this is the process of the courts or whether this is something that should be taken up by the Bar Association or the Legislature? Kathy: Would someone from the Committee please answer that? Clyde Terry: Hi, Clyde Terry. Just to answer the question, the (inaudible) of purview is (inaudible) is access basically of the courts injustice and when we took out the whole issue beginning from sort of an economic spectrum, beginning with sort of physical access, then we took a look at people who are indigent, lacking financial resources, again and sort of worked our way up the pendulum. But we still got to a whole series of people, a series of cases where access is denied because they simply don’t have the financial resources. So to answer the question, what is the purview of the court, does this fir within this Commission, the answer is yes, to encourage taking a look at those statutes where fee-shifting can occur or recommend working with the Legislature to those particular category of cases where we could redesign sort of those structures where we could have fee-shifting or fee-sharing is the only way that we can ensure there’s access for all levels of justice and not just for legal assistance, not the indigent and not just the wealthy or for those in between. Thank you. Kathy: Thank you. Further question? Motion before us is to move to the consent. All in favor, please raise your hand. Those opposed? This has now gone down. Anybody like to make a second motion to inexpedient? (unknown): (inaudible) Kathy: Is there a second? Thank you. Any further question? Sally? Sally Davis: (inaudible) Kathy: I’m sorry, I did say inexpedient, thank you. (laughs) I think my cold is getting to me. The motion was made and seconded to move to inexpedient. Is there further question of that? Would you like to remove that motion first before we move to the further discussion? That’s up to you, yes you made the motion. (unknown): (inaudible) (unknown): (inaudible) Kathy: Ok. The choices are you can vote this down and we can move backwards and I’ll take full credit for the process problem. We are now at inexpedient and I will ask for those in favor of moving this to inexpedient please raise your hand. Those that are opposed? Thank you. It does move to inexpedient. Will: Recommendation number twenty five from the Sentencing Research Committee. Because effective sentencing practices require a significant degree of coordination and consultation between policy-makers, judges, prosecutors, corrections officials and others, the court should establish a standing committee comprised of persons with influence and diverse expertise and having as its charge the ongoing development, implementation and advocacy for a just and cost-effective sentencing strategy for the state. Kathy: Discussion? (unknown): Move to consent. (unknown): Second. Kathy: I have a motion towards consent and a second. Further discussion? All in favor, please raise your hand. Any opposed? Thank you. Will: Recommendation number twenty six also from the Sentencing Research Committee. New Hampshire should institute pretrial diversion and alternatives to incarceration on a state-wide uniform basis. Kathy: Question? Discussion? Andy Peterson: Andy Peterson. I’d like to move this to discussion and ask the members to support that motion so that an amendment can be brought forward to cover the issue of victims rights that was mentioned previously before, restitution victims and to ensure that public safety is being maintained at the alternative sentencing. Thank you. Cathy Green: Cathy Green, on behalf of the Committee. I think we can work that language in, it’s certainly a concern of all of us. Kathy: Is there a second to Mr. Peterson’s motion? Second. Further discussion? (unknown): (inaudible) Kathy: Sure. Kelly Ayotte: I certainly am willing to work on that amendment and will support that amendment and I also want to say that I do think that the establishment of the pre-trial diversion program on a state-wide matter is very important so I’m very supportive of that principle. The one thing that I would also want to address, too, is that there is some in the rationale portion. There is a discussion about, on page twenty seven, beginning at line thirteen going down to line seventeen, there is a statement in there that a large percentage of the incarcerated population is sentenced to jail because alternatives to incarceration on a state-wide basis do not exist. My concern is including this in that language without some data supporting that is a concern to me because I am not sure what data supports that proposition, so I certainly am concerned about putting that in there without a word of discussion. Cathy Green: And again if anybody has specific amendments or concerns, you can certainly address it before next session. My sense is that we can probably avoid some discussion by eliminating the change in language. Kathy: Further question? Discussion? Clarification? Hon. Jim Michalik: Jim Michalik from Berlin. I’m still recovering from yesterday, so excuse me. My question really is to intent or clarification with regard to the word uniform. Was it the Committee’s intent that the, that the availability of uniform across the state or the particular options be uniform so that the judge may not have an opportunity to make a different decision based, depending on the case that’s before him or her. So my concern is the uniform word. Cathy Green: What the Committee intended was that people throughout the state would have uniform access to these types of programs. So somebody from Berlin would have access the same as somebody in Manchester would. Right now the programs are haphazard and there are some programs in different parts of the state (inaudible) to all. We don’t mean to imply to take away any exercise of discretion from a judge from mandated programs. We just want the availability to be there for the court system. Kathy: Thank you. Any further question? We have a motion on the floor for further discussion. All in favor please raise your hand. Those opposed please raise your hand. Thank you and the recommendation moves to further discussion. Will: Recommendation number twenty seven, also from the Sentencing Research Committee. In future years in order to ensure that the judicial system in New Hampshire can continue to protect public safety and rehabilitate offenders, the courts must rely heavily on the Department of Corrections field offices to provide effective supervision of probationers and parolees, to continue to provide, to provide timely information to the courts about non-compliant or slipping offenders so the courts can respond swiftly and individually to violators, to anticipate an increase in the number of offenders under supervision and to ensure that a consistent and sophisticated philosophy regarding substance abuse treatment informs the training and work of the probation and parole field officers. Kathy: Questions? Ed? Hon. Ed Kelly: Ed Kelly. My question is what the recommendation is really asking the court to do. Is it to look for increased funding for the Department of Corrections? Is it to ask for a closer working relationship, I’m not clear what it is the recommendation requests? Cathy Green: Cathy Green. I think actually, Judge Kelly the comment was well taken. I think if we clarify somewhat, I think the intent was (inaudible) additional funding but for standard and to enable the court to provide (inaudible) to the extent it can’t provide now. So if you wanted to move this to further discussion, we can clarify the language to resolve your concerns. (unknown): (inaudible) Kathy: Is there a second? Further discussion? We’ll expect an amendment. All in favor? Those opposed? Thank you. Moved to further discussion. Will: Recommendation twenty eight, also from the Sentencing Research Committee. New Hampshire needs to provide appropriate, timely and adequate treatment for substance abuse at all phases of the interface of individuals with the criminal justice system, including pretrial, post-sentencing and incarceration. Kathy: Question? (unknown): Move it. Kathy: (laughs) We have a question, sir. Kelly Ayotte: Kelly Ayotte. I was, one question I have as a recommendation, I think that this is very true that we need more substance abuse programs in our state to deal with those that are incarcerated (inaudible) in the process. My concern just goes again to the discussion, rationale purpose on page twenty nine on lines thirty to thirty five essentially, because in the rationale it states that, that New Hampshire is currently considering building a new secure prison facility and that we believe the state would be better served by investing in the establishment of substance abuse programs rather than considering building that facility. My concern arises in this, in that it may be in my view that needs to be looked at further, that is an issue for the Legislature and I don’t feel that I have enough information or we know enough what the track record would be for these substance abuse programs to know that we won’t need this other facility. So I think that this is a good recommendation. I think that including that in there could undermine the recommendation, because it is a very broad statement to say don’t build a new correctional facility, do this instead. In my view that is, I think goes a little too far and I would want further study of that issue before I’d be willing to support that proposition, but I am supportive of the concept that we need more substance abuse programs in our state for those who are incarcerated and prior to and after. So on that perhaps I would move for further discussion just for purposes of hopefully discussing amending the rationale portion. Kathy: Do I have a second to that motion? Further discussion? All those in favor please raise your hand for further discussion. Thank you. Those opposed? Thank you. It moves to further discussion. Will: Recommendation number twenty nine, also from the Sentencing Research Committee. The court should work to ensure that women who are incarcerated in New Hampshire are provided comparable conditions of confinement and equal educational, vocational, treatment and rehabilitative opportunities as men. Kathy: Question? Paul? Paul Clements: My name is Paul Clements. I am a volunteer in the men’s prison in Concord and have been for going on two years now. As such, I think I know a little bit about this. The recommendation is not being entirely truthful. Almost all of the training and educational programs that are available at the men’s prison are available in the Goffstown Prison for women and Laconia prison for women. In fact there are, if you could call them benefits to being at the Goffstown Prison that the men’s prison does not share. For example, the women’s prison has a full day of activities with families, extended families on the grounds for Mother’s Day. For Father’s Day this past year, the men’s prison got twenty minutes of cookies and milk in the visitors room. There had been a request from the inmates to have an outdoor event like the women did on the ball field at the men’s prison. Oh we don’t have funds for that. They have funds at the women’s prison. The women in the Goffstown Prison are allowed overnight visits with their children. The men in the state prison in Concord are allowed to see their children in the visiting room for about two hours twice a week. This just isn’t true. As far as sentencing goes, there was a case just the other day in the newspapers. A man and a woman related by romance, I guess. Both having no prior criminal records were arrested as partners in drug dealing. The woman was sentenced to two years probation. The man got six to seven years in the state prison. That’s the disparity in the sentencing. And it doesn’t work this way, it works the other way. I urge you all to vote inexpedient on this particular item. Kathy: Thank you. Further question. There was a motion towards consent calendar here. Is there a second? (unknown): Second Kathy: Further question? All in favor to the consent? Thank you. Those opposed? Thank you. It moves to the consent bucket. Will: Recommendation number thirty, also from the Sentencing Research Committee. New Hampshire needs to provide adequate space in its sex offender treatment program so that offenders need not extend their incarceration merely to complete a requirement of their sentencing that cannot be provided during their requisite term due to capacity issues. Kathy: Questions for the Committee? Do I hear a motion? (unknown): (inaudible) Kathy: Would you like to come up and ask? Cathy Green: (inaudible) Cathy Green. If somebody gets sentenced to New Hampshire State Prison for two to six years let’s say and the requirement of their sentence is they complete the sex offender treatment program. They get on a waiting list and because of the backlog of the program, they will not be able to complete the program until well after their minimum sentence and as we say in our rationale, there are three hundred people or so on the waiting list now. So it’s just to encourage adequate funding so the programs can be available so we don’t house people just for the reason they haven’t been able to get into the program. Does that explain it? Kathy: Further question? (unknown): (inaudible) Kathy: Thank you. I have a motion to move to consent and a second. Further question? All in favor, please raise your hand. Those opposed? Thank you. Kathy: Number thirty one. Will: Also from the, no, this is from the Third Branch Research Committee. Sorry. The recommendation is the following: 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 to 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. Kathy: Questions? Further clarification? Motion to move to the consent bucket. Is there a second? (unknown): Second. Kathy: Further question? Paul? Paul Clements: Paul Clements. We already have a promotion of cooperation between the various parts of the government as written into the Constitution. I don’t think that this is really necessary but I will agree that the cooperation between the various branches is a good idea. Up to the point where the courts are accepting payments from one of those agencies, one of the branches in violation of the Constitution as is now the case. There exists in New Hampshire and many other states as well, I understand, a cooperative agreement between the Department of Health and Human Services and in New Hampshire’s case, the Division of Child Support Enforcement Services. The child support collection agency under this agreement, pays the courts approximately two million dollars or more every year for hearing child’s court cases. That’s expressly written in the separation of powers mandates by state and federal Constitutions. Different branches working together (inaudible) and one branch paying another over and above the legislature’s allotment for expenses and salaries and so forth, that’s not okay. So what I would suggest is an amendment to this item saying that no financial considerations are to be included in the agreements between the various branches. Kathy: Further question? Clarification? All those in favor of moving this to the consent bucket, please raise your hand. Those opposed? Thank you. It’s moved to the consent bucket. Will: Recommendation number thirty two from the Third Branch Research Committee. The Commission does not recommend changing RSA 9:4-a