HB 1535

AN ACT relative to creation of a commission to study the state's increasing appellate caseload and solutions to the increasing appellate caseload.

SPONSORS: Rep. L. Jean, Hills 17; Rep. J. Pratt, Ches 2; Rep. Soltani, Merr 10

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

I. Over the past 30 years, New Hampshire's appellate caseload has expanded steadily. In the early 1970's annual supreme court filings were in the range of 100 cases; by 1997, the caseload had reached a high of 900. Many factors have contributed to the expansion of the appellate caseload. They include the growth of the state's population from 750,000 to 1,200,000 people, an increase in the number of superior court justices and marital masters, an increase in the number of lawyers in New Hampshire, and an increase in the number of laws passed by the New Hampshire general court and by Congress.

II. Throughout this period of growth, the number of justices on the New Hampshire supreme court has remained at 5. The supreme court attempted to manage the caseload increase through rules, adopted in 1979, that eliminated universal access to full appellate review, including briefing and oral argument, and substituted a system under which full appellate review became a matter of judicial discretion. As the caseload continued to increase, this practice resulted in a steady decrease in the percentage of cases being accepted for full appellate review. While the acceptance rate of cases in 1980 was 73 percent, by 1998 the acceptance rate had declined to 36 percent.

III. The general court finds that there is a clear need for expanded appellate review in New Hampshire. The system of discretionary review, in combination with the continued expansion of the appellate caseload, has seriously eroded access to appellate review for New Hampshire citizens and has undermined the supreme court's ability to develop law and to provide guidance to New Hampshire citizens, lawyers, and trial courts.

IV. In 1999, the legislature created a study committee to consider certain matters concerning superior court justices, including the possibility of assigning them to hear appeals. The study committee recommended that a task force be created to study appellate review in New Hampshire. In 1999, the New Hampshire Bar Association, with assistance and funding provided by the New Hampshire Bar Foundation, completed a study of the New Hampshire appellate system. The New Hampshire Bar Association also recommended the creation of a task force to review potential solutions to the need for increased appellate review.

I. There is established a commission on appellate system reform to study, report on, and prepare legislation relative to solutions for the problems facing the New Hampshire appellate system. The commission shall consist of the following members:

(d) Two members of the New Hampshire Bar Association, appointed by the association's president.

II. Legislative members shall receive mileage at the legislative rate when attending to the duties of the commission.''

3 Duties of the Commission. It is the overall duty and obligation of the commission to study ways and means by which the desires expressed in section 1 shall be obtained. It is specifically the duty of the commission to make recommendations to all 3 branches of government to improve the appellate system on a short-term and long-term basis. The commission may request resources or funding; if it deems appropriate or necessary for the completion of its task.

4 Chairperson; Quorum. The members of the commission shall elect a chairperson. The first meeting shall be called by the first-named designee of the speaker of the house. Seven members shall constitute a quorum.

I. The commission shall report its findings and any proposed recommendations for legislation or rule enactment or modification which may alleviate or eliminate the delays in the appeals process and increase the number of appeals accepted and written decisions on a short-term or immediate basis no later than November 1, 2000.

II. The commission shall report its findings and any proposed recommendations for legislation or rule enactment for long-term permanent remedies to the problems described in section 1 no later than November 1, 2000.

III. These reports shall be filed with the speaker of the house of representatives, the senate president, the governor, the house clerk, the senate clerk and the state library.

The Administrative Office of the Courts has indicated this bill will increase state expenditures by an indeterminable amount in FY 2001 and each year thereafter. There will be no fiscal impact on county and local expenditures or on state, county and local revenue.

The Administrative Office of the Courts has stated this bill could result in substantial cost to the judicial branch due to costs associated with staff and clerical support, and replacements for the seven superior court justices to sit on superior court cases. The Office states it is unable to determine an amount because of the following unknown reasons:

· It is not clear whether the intermediate appellate court would automatically sit on the approximate 500 cases annually that are rejected, or whether an additional petition would be necessary;

· It is not clear whether the intermediate appellate court would issue a full written opinion, a summary disposition, or some other species of case resolution and these factors would affect staff time;

· It is not clear whether the intermediate appellate court would be annexed to the supreme court or; for instance, sit in the county superior court site in which the case originated;

· It is unclear how many support staff members, including clerk, staff attorneys, law clerks and clerical support would be needed;

· There is no basis for the court to plan the county by county phase-in called for in this bill; and

· There is no mention of replacement for the seven superior court justices sitting on appellate cases.