By PAULA TRACY, InDepthNH.org

CONCORD – Judges at the Circuit and Family Court level, past and present, asked the Senate to take out a portion of a bill they are considering that would make their performance evaluations public.

Currently judicial evaluations are only made public if two such evaluations are not satisfactory.

The bill would evaluate a judge’s clarity, impartiality and temperament and would include an in-court evaluation every three years and make those evaluations public. There would be 30 judges evaluated each year.

House Bill 1130 already passed the lower chamber on a vote of 192-151.

The bill is sponsored by state Rep. Bob Lynn, R-Windham, former chief justice of the Supreme Court, who said he worked up the bill in consultation with Supreme Court Chief Justice Gordon MacDonald.

MacDonald and the high court have been in the news lately after MacDonald approved a $50,000 benefits payout to a staff member, and recently retired Supreme Court Justice Anna Barbara Hantz Marconi was criminally convicted in a matter in which she met with then-Gov. Chris Sununu about an instigation into her husband, Geno Marconi, who was then director of the Division of Ports and Harbors.

Hantz Marconi said at the time that MacDonald told her she had a right to meet with Sununu, but MacDonald denied that.

The bill would not impact the high court, according to one judge.

“Any judicial process should be uniform for all judges,” said David King, a retired chief of the circuit courts, who still serves as a senior active judge.

He said he came to the Senate Judiciary Committee public hearing on behalf of 60 judges in opposition to the public evaluation aspect of HB 1130-FN.

Critics say all of the judges in the state oppose the bill.

King said the bill as written would not impact the Supreme Court because of an existing rule keeping their evaluations non-public.

He criticized MacDonald for not asking for input from the lower court on the bill when the bill’s sponsor, Rep. Lynn, asked him to work on it. King said the bill will do nothing to improve judicial performance but will harm the circuit court system disproportionally.

He said that judicial evaluations should remain confidential and noted the American Bar Association has promulgated guidelines to evaluate judges and have found no evidence that making evaluations public will improve judicial performance.

Jessica A. King, General Counsel for the Judicial Branch, responded to a request for comment from MacDonald.

She said: “The Judicial Branch has taken no position on HB 1130.  It appears that the bill would apply to all judges, irrespective of the court on which they sit.”

Lyn Schollett, executive director of the NH Coalition Against Domestic and Sexual Violence, spoke in strong support of the bill. She said she has seen both positive impacts judges have and traumatizing harm of judicial actions in the court by ineffective judges.

This bill, she said, would provide for more accountability and transparency and it would help with public trust. Schollett said 12 states have such a process and others use their state bar association for such evaluations.

The point is not to change case outcomes but to look at things that could be enhanced such as impartiality, clarity and transparency, according to the bill.

Courtroom evaluations by impartial parties would be helpful, said most all who testified and that is part of what is in the bill that is new.

Schollett said many victims appear before a judge without a lawyer and the coalition does hear from them about a “small group of judges” who do not follow the law and do not treat victims properly.

Placing those reviews in the public eye could be helpful to improve accountability, she said.

Ellen Christo spoke in her individual capacity as a judge and not in her position as administrator of the state Circuit Court system. She said in-court evaluations are a great idea and would help with a learning process for judges to improve the court. But she spoke against aspects of the bill related to making the evaluations public.

“Judges must remain impartial and independent. We decide cases based on the law and the facts that are before us and nothing else,” she said. She said she worries that judges could make decisions based on public opinion.

“Even the perception of that pressure is a problem,” Christo said.

There are already strong systems in place to hold judges accountable including appeals, she noted.
Another concern, she said is reliability of the evaluation data itself.
In the circuit court, she said, they handle well over 100,000 cases a year and on average only about 24 people evaluate the judges. Those comments could have a disproportionate impact.

She said there is an issue of judicial safety. Naming the judge can intensify public emotions and create a focal point for negative exposure.

The number of threats in the circuit court is increasing, she said. This issue has been in front of the legislature since 2011.

King said he thinks the bill could lead to more motions to recuse, which are very expensive. He recalled a case where he was the 10th judge to hear a case with almost 600 docket entries.

And he said there will be fewer evaluations if they have to be signed now under this bill and those who are disgruntled litigants will be all too happy to post the evaluations on social media.

He said the Supreme Court would not be impacted by the bill because they are exempt under Supreme Court Rule 56.

King pointed out that the high court had its hand in developing the bill, as Lynn had testified.

Lynn said the state overwhelmingly has a very high quality of judges and this bill would enhance the process of evaluations to make them public.

He said there needs to be public accountability. And while he said there may be some who have concerns, they are effectively appointed for life. Judges may serve until age 70.

Lynn said he has heard that some are concerned that by doing this, it could have the effect of judges too willing to recuse themselves, “particularly in family cases where there is no shortage of difficult litigants.”

But he said that would actually be a violation of the code of judicial conduct to recuse himself or herself if there is no merit.

State Sen. Tara Reardon, D-Concord, a member of the committee, said she agreed with Lynn’s statement that the state has a high caliber on the bench.

But she said she worried that this bill could make a judge a kind of target for what might be said about them inside or outside the courtroom and worried that it could be used as a subject for appeal.

State Sen. Debra Altschiller, D-Stratham, asked if it could be used as an accelerated process for impeachment.

Lynn said it is possible that could happen but it is not the intent of the proposed changes in the law.