New Hampshire: "live free or die," but in the meantime ...

• Author: Gilbertson, Seth Forrest
• Position: School finance cases in the New Hampshire Supreme Court

1. INTRODUCTION

   This High Court Study attempts to create a view of the current New Hampshire Supreme Court that is informative to the practitioner in a tangible way, and indicative of the direction in which the court appears to be headed and the effect that direction will have on both the law of the state and the greater state of the law. The Study will begin by examining the inner workings of the court itself and its relationship to the State of New Hampshire. Then, after explaining the methodology that will be employed, each justice will be examined independently, with consideration given to that justice's place on the court as a whole. Lastly, the Study will take a close look at the past, present, and future of the "Claremont cases," which entail a series of constitutional challenges to New Hampshire's system of public education.

   Throughout this Study, much heed will be given to the positions and reasoning of individual justices. New Hampshire is a state known for its independent nature, and though it takes a majority to decide a case, that majority is made up of autonomous legal minds. Because the most significant legal questions of the day are adjudicated and decided within this dynamic, this Study assumes that each individual position on the court can be revealing to the academic and crucial to the practitioner.

   Methodologically, this Study does not concentrate on the outcome of any single case. Instead, the focal point is the manner in which the justice or the court arrived at a given decision. Although cases are at times reversed or overruled, more commonly it is the gentle shifts in reasoning that change future outcomes and thus demand the most sincere contemplation.

2. THE COURT

   Sitting in Concord, the Supreme Court of New Hampshire is the highest tribunal and the only appellate-level court in the state. The court consists of one chief justice and four associate justices, each nominated by the governor and confirmed by a five-member executive council. (1) Each justice can serve, on good behavior, until reaching the age of seventy, at which point retirement becomes mandatory. (2) The office of chief justice is now chosen in the same manner as the associate justices. However, current Chief Justice John Broderick took the office of chief justice under a different statutory provision that has since been declared unconstitutional. (3)

   As with many, if not all courts, one can safely surmise that the method of judicial selection in New Hampshire has a profound effect on the respective behavior of the justices. (4) The two most salient factors of New Hampshire's selection system that likely affect the justices' voting patterns are first, that neither the people, nor the legislature, have a direct say in the selection process, and second, that the justices have a pre-determinable and usually lengthy tenure. (5) It is, of course, anyone's guess as to how these factors will influence any specific justice's voting pattern, much less any specific justice's vote in a particular case; however, the freedom to come down on what often amounts to be a politically unpopular side without fear of political retribution should not be underestimated. (6)

   The Supreme Court of New Hampshire's role in the state government is three-fold. The court has the power of appellate, and in rare cases, original jurisdiction, (7) the power of overall administration of the state court system, (8) and the obligation to issue advisory opinions at the request of the legislature or the governor. (9) With an animated mix of precedent, (10) procedural changes, (11) ballot measures, (12) and even the occasional scandal, (13) this court has been particularly active in both the law and the news (14) of New Hampshire throughout the past several years.

   Amidst all this commotion, it is a wonder that the court can find the time to dispose of 721 cases per year, though that is exactly what it does. Specifically, the court handed down 198 orders after argument and 151 written opinions, in addition to withdrawals, summary affirmances, and dismissals during 2004. (15) That year was especially significant because, on January 1, the court implemented a new appellate review process, making the transition from a largely discretionary system to a practice of accepting nearly all direct appeals from trial-level courts. (16) Under this new process, the court accepts nearly all cases that are decided on the merits from the trial-level courts of the state, in addition to selected appeals from administrative agency decisions and questions of state law transferred from federal courts. (17) Every case that is appealed is first considered on the transcripts and briefs alone; then the court may issue an order or decide to schedule the case for oral argument before either a three-justice panel (3JX), or the full court. (18)

   This new appellate review process was created by the court after a very large backlog was all but eliminated between 2001 and 2003 and improvements were made in the case management system. (19) As testimony to the character of the present court, four of the current justices took part in both the historical elimination of backlogged cases and the subsequent reform and expansion of the state's appellate review process. (20)

   Also significant about this new process is that the court, through its role as the administrator of the New Hampshire judicial system, was able to create and enact this drastic change in management on its own volition. (21) The administrative responsibility of the court has been interpreted broadly and now entails much more than the ability to make procedural rules. The supreme court has a license to oversee the budget for the entire state court system, (22) to design rules for professional conduct and admission to the bar, and even to discipline inferior members of the state judiciary. (23)

   Oddly enough, in the very year that the court used its administrative power to place the colossal burden of enhanced appellate review upon its own back without additional funding, it almost lost the "privilege" to do so. (24) In a rather blatant power grab, the legislature forced a measure to be included on the November 2, 2004, ballot that would have amended the state constitution to give the legislature more control over the state judicial system. This was the second time such an amendment was attempted by the legislature, and it failed again despite a fierce public battle between the judiciary and the legislature. (25)

   But the battle over control of the judiciary was not the only controversy this court has faced in the past several years. In 2000, Justice W. Stephen Thayer III (26) resigned to avoid a grand jury indictment for apparently:

   (1) argu[ing] an interested party's position to the Court in ... a matter in which he had disqualified himself without disclosing to the Court his financial relationship with the interested party; (2) misrepresent[ing] his practices as a recused justice in oral statements to the Judicial Conduct Committee; (3) participat[ing] in private conferences on proposed amendments to the procedural rules of the Judicial Conduct Committee while a complaint against him was still pending before that body, and (4) tr[ying] to influence the Chief Justice's selection of judges to hear the appeal in the matter of Thayer v. Thayer by objecting to the selection of [a particular] retired Superior Court Justice.... (27) The name of the case cited in the above quoted portion of the New Hampshire Attorney General's Report is not a coincidence; it was Thayer's own divorce proceeding. (28) Additionally, then-Chief Justice David Brock was tried by the Senate after four articles of impeachment were brought against him by the New Hampshire House of Representatives in the wake of Justice Thayer's case. (29) He won the case before the Senate (30) and continued to serve as Chief Justice until he retired at the end of 2003; (31) similar articles of impeachment alleging improper involvement in Thayer's misdealings that were brought against Justice Sherman Horton and then-Associate Justice John Broderick, also failed to pass. (32) Nevertheless, Justice Horton chose to retire before the dust had settled. (33)

   This "scandal" is also significant because the current makeup of the court is largely built upon a foundation created in place of the void left by these departures. Justices Dalianis and Duggan were appointed by Democratic Governor Jeanne Shaheen to replace Justices Thayer and Horton respectively. With the previous addition of Justice Nadeau to replace retired Justice William Johnson, this brought Governor Shaheen's appointments to three in less than one year. Given that the other two appointments were made by Republican governors, these three appointments to a five-member court make up the court's major bloc; without that kind of shake-up, it is safe to say that the contemporary jurisprudence of the New Hampshire Supreme Court could be drastically different.

   The court today is appreciably less tempestuous, one might even say tranquil. Even the politically polar ends of the court can only be characterized as moderate. (34) However, many would agree that at least for the state of the law in New Hampshire, this is a positive feature. Moreover, in 2004, the people of the state expressed some level of confidence in the court by voting down a proposal that would have led to more intensive and intrusive legislative oversight. (35) The docket is well-maintained, (36) and a dissenting opinion is a relatively rare occurrence given the large number of cases annually disposed of by the court (a helpful fact for the purposes of this Study). (37) The court is composed of strong legal minds; (38) the justices are very conscious of ethics; (39) and the direction of the jurisprudence appears to be guided by the cases that come before the court, not by the individual motivations of its members. The modern Supreme Court of New Hampshire is a...