NH's "Independent" Judiciary

Like the federal government, NH's government is split into three branches. Each limits the power of the others, a design intended to provide a system of checks and balances on all three branches.

This system is identical to our Federal government and is one of the reasons the United States, "an experiment in democracy" has persisted despite wars, assassinations, and the 2000 presidential election. A central tenet of all this is that the three branches remain separate and independent, and open to examination by the citizens they serve.

Unfortunately, the separation between Executive and Judicial branches is failing within the domain of child abuse and neglect. Not only does DCYF encourage their supervisors to meet with judges "to ensure the Court's fullest cooperation," but judges find the meetings mutually useful. This does not bode well for a parent unjustly accused of abuse or neglect if DCYF decides the accusation is founded!

Recently NH Public Radio's The Exchange, a statewide talk show, had this topic:

Tuesday, Dec 19, 2000 - Child Protection. A new report cites major problems in how the state handles abuse and neglect cases. But state officials argue they simply don't have the resources to keep up.
The last caller was Judge John Maher. His comments make it clear that his court works with DCYF and that parents have no reason to expect anything but a decision that sides with DCYF:
LAURA KNOY: Our topic today is child protection in New Hampshire. Our guests - Nancy Rollins in the studio, director of the Division for Children, Youth, and Families in NH; and joining us from Living on Earth in Cambridge is Christina Crowe, a member of the oversight panel that's monitoring progress at DCYF. [Crowe was at the studios of Living on Earth, she is with Harvard's Judge Baker Children's Center in Boston in addition to serving on the oversight panel.]

... Our next caller is from Brentwood and it's John. Hi, John, welcome. Go ahead.

JOHN MAHER: Hi Laura, how are you today?

LK: Okay thanks.

JM: I have not had an opportunity - I was listening to you on the way in and then couldn't hear some of the speakers because I don't have a radio at work.

I just wanted to comment that I'm a judge in the system, both in the probate court and family division.

In the area of adoptions, I think that Cathy Adkins has worked tirelessly to continue to make that a better process.

And also, under Judge Kelly, I've found that DCYF in the working with the permanency plan with Christy Lamont has done, they have done an excellent job and have tried to be assistance to us in every possible way.

The problem that I continue to see is, is the workload. In the family division, for example, in abuse and neglect cases, I just marvel at the dedication of the staff and I think the biggest problem that we're seeing is that they can't keep staff and they can't keep attorneys. Maybe it's salaries, maybe it's workloads, or both, but this is the problem. And we're not going to continue to have quality representation of DCYF unless we can either pay those attorneys or get more attorneys or reduce the caseload, one of the three. I just think they're doing a great job for the resources that they have.

And that's all I really wanted to say.

LK: Okay John, thanks a lot for calling.

JM: You bet.

If I were a parent represented by a court appointed attorney (the court gives them $1,200 per case) and heard this call, I'd despair of ever getting my kids back. DCYF funding is the responsibility of the Legislative branch. If there is anyone Judge Maher should be lobbying for it would be the young families that come to his court who can't afford a private lawyer.

Another aspect judicial control is the Judicial Conduct Committee. The JCC is comprised of several judges and two members of the general public. They investigate complaints against judges filed by the public, attorneys, and judges. Their offices are next door to the Supreme Court. A similar committee, the Professional Conduct Committee, is responsible for investigating misdeeds (err, make that alleged misdeeds) of lawyers. Both are part of the judicial branch.

The Supreme Court was investigated by the Legislature in year 2000 for improper influence charges. Associate Justice Stephen Thayer resigned and Chief Justice David Brock was impeached but was found innocent in his trial. Citizens of New Hampshire had a chance to see some of the inner workings rarely explored by the Legislature or media.

The JCC held their own investigation and apparently were about to file formal charges and plan their own hearing into Brock's actions. However, Brock's attorney give the Committee a draft lawsuit to be filed against the Committee if they did so. In negotiations with Brock's attorney David Nixon and Justices John Broderick and James Duggan a compromise was reached where Brock would accept a reprimand from the committee but not admit to wrongdoing.

While the Brock affair was the biggest case the JCC has ever handled, and while most complaints to the JCC have little merit, one of two "public" members reported in a long article in the Concord Monitor:

"During my time on the committee, I've seen the JCC go through some amazing gymnastics to avoid taking public action to enforce the code. That lack of action has meant that when we do take action, it is perceived as a very big deal."
Anne Coughlin

This gives another aspect of the Judiciary's independence and has reraised calls to move the JCC from the Judicial Branch to the Legislative Branch. There are also ethical questions about Broderick's and Duggan's involvement, and still more how the JCC can fairly investigate them. It would seem that the lessons of 2000 have yet to soak in.

Contact Ric Werme or return to his home page.

Last updated 2001 May 15.