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2002 SESSION

01-0779

05/10

HOUSE BILL 447

COMMITTEE: Children and Family Law

AMENDED ANALYSIS

I. Establishes a task force on family law to develop a proposal for integrating a non-adversarial system for families undergoing divorce, separation, custody disputes, and other family law matters.

II. Clarifies that the judicial council is responsible for payment of indigent defense expenses.

III. Authorizes the department of administrative services and the state library to assist the judicial conduct commission in certain areas. The bill permits the commission, with the approval of the legislative fiscal committee, to employ counsel, attorneys, and other assistants, in case of reasonable necessity, and makes a continual appropriation for such purpose.

IV. Makes an appropriation to the judicial conduct commission for the 2002 fiscal year nonlapsing.

V. Expands the scope of the judicial conduct commission to include judicial referees, court reporters, clerks, and registers.

VI. Clarifies the procedures for judicial conduct commission appointments and complaint response timelines.

VII. Establishes a study committee to assess issues related to shorthand court reporting.

VIII. Postpones to July 1, 2003 the effective date of amendments to RSA 331-B, relative to shorthand court reporting, contained in HB 706.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

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01-0779

05/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Two

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

250:1 Task Force on Family Law Established.

I. There is established the task force on family law consisting of 22 members who shall serve at the pleasure of the governor. The members shall include persons familiar with family law, mediation, family support, and children's services. All non-legislative members shall be appointed by the governor. The members of the task force shall be as follows:

(a) A marital master.

(b) A judge of the superior court.

(c) A judge of the family division.

(d) A court alternative dispute resolution representative.

(e) An attorney with the department of health and human services, division of children, youth, and families.

(f) A representative of the department of health and human services, division of child support and child support enforcement.

(g) A child psychologist.

(h) Two members of the New Hampshire Bar Association, one of whom shall be a member of the family law section.

(i) A representative of guardians ad litem.

(j) A child impact provider/instructor.

(k) A representative from the commission on the status of women.

(l) A representative from the commission on the status of men.

(m) A representative of the New Hampshire Coalition Against Domestic and Sexual Violence.

(n) Two members of the house of representatives, one of whom is a member of the children and family law committee and one of whom is a member of the judiciary committee, appointed by the speaker of the house of representatives.

(o) A member of the senate, appointed by the senate president.

(p) A male community member who is also an experienced consumer of family law, mediation, family support, or children's services.

(q) A female community member who is also an experienced consumer of family law, mediation, family support, or children's services.

(r) Two at-large members.

(s) The executive director of the judicial council.

II. The governor shall appoint one member to serve as the chairperson. The task force shall meet at least monthly at a date, time, and place designated by the chairperson. Nine persons shall constitute a quorum for the transaction of business. Legislative members of the task force shall receive mileage at the legislative rate when attending to the duties of the task force.

III. A member who misses 3 consecutive meetings may be removed from the task force. The governor shall immediately fill all vacancies of non-legislative members. The speaker of the house of representatives or the senate president shall immediately fill all vacancies of legislative members.

250:2 Duties. The task force on family law is charged with developing a proposal for integrating a non-adversarial system for families undergoing divorce, separation, custody disputes, and other family matters. In accomplishing its goal, the task force shall:

I. Gather information on and study the current state of family law and its application in the court system, including current procedures and reporting requirements.

II. Develop a comprehensive plan, including, but not limited to:

(a) Recommendations for modifying New Hampshire's family laws.

(b) Recommendations for modifying court rules as they apply to family law.

(c) Recommendations to increase efficiencies of case processing, reporting, and information exchanges.

III. Consider how the proposals of the task force may be coordinated with family resource centers and family service centers in order to integrate a non-adversarial family law system that provides support to families prior to making a decision regarding divorce, custody, or other family law issues.

250:3 Report. The task force shall:

I. Provide an annual report describing the task force's activities and findings to the house and senate judiciary committees, the house committee on children and family law, and any other relevant committees.

II. Submit a final report to the senate president, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, and the state library on or before November 1, 2003. The final report shall outline the findings and recommendations of the task force.

250:4 Payment of Expenses. Amend RSA 604-A:8 to read as follows:

604-A:8 Payment of Expenses.

I. Each claim and written statement in support thereof when approved by the court shall be forwarded to the [commissioner of administrative services] judicial council for payment. The commissioner of administrative services may adopt rules, under RSA 541-A, in addition to the requirements of paragraph II, to carry out the provisions of this section.

II. Statements submitted by counsel for payments of fees shall in each case be examined by the trial and appellate judges and certified by them as to the reasonableness of the fee requested and whether the defendant continued to be eligible for assignment of counsel during the duration of the trial. Such certificates shall be attached to the request for payment of counsel fees. Counsel must submit bills to the appropriate court for payment within 60 days of the disposition of a case unless the trial judge finds that there are extenuating circumstances. Courts shall, within 30 days of receipt, certify statements as outlined above and forward the certified statements to the [commissioner of administrative services] judicial council for payment.

250:5 Records Required. Amend RSA 604-A:10 to read as follows:

604-A:10 Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services.

I. The [commissioner of administrative services] judicial council shall keep records of the notification of eligibility and assignment of counsel as submitted by the courts of the state pursuant to supreme court order 81-5A and subsequent related orders. In addition to any other use the [commissioner of administrative services] judicial council shall make of these records, the [commissioner of administrative services] judicial council shall keep records including the following information and compile such information on a monthly basis:

(a) The name of the courts, including the location and the type of the court.

(b) The type of the case as defined by the most serious offense charged in the case, according to the following categories:

(1) Homicide

(2) Other felony

(3) Misdemeanor

(4) Juvenile

(5) Other

(c) Whether the case was assigned to a private attorney or a public defender.

II. When a final bill has been approved for payment to a private attorney, the [commissioner of administrative services] judicial council shall record the following information:

(a) The type of case as defined in RSA 604-A:10, I(b).

(b) The amount of the attorney's fee.

III. The [commissioner of administrative services] judicial council shall also compile the gross monthly cost for bills approved for payment for expenses other than counsel, including those pursuant to RSA 604-A:6.

IV. The commissioner of administrative services shall, with the approval of the attorney general, adopt rules pursuant to RSA 541-A, governing determinations of eligibility for payment of indigent defense expenditures, determinations of repayment schedules, financial and credit investigations, and any other matters [he] the commissioner deems necessary or advisable for the performance of [his] duties under this chapter.

250:6 New Sections; Administrative Support; Legal Costs. Amend RSA 494-A by inserting after section 17 the following new sections:

494-A:18 Administrative Support. Notwithstanding RSA 494-A:1, upon request of the commission, the department of administrative services shall assist the commission in matters related to personnel and benefits administration, purchasing, telecommunications, financial data management, and property management. Upon request of the commission, the state library shall assist the commission in development and maintenance of a web page on the official state website.

494-A:19 Legal Costs. With the approval of the joint legislative fiscal committee, the commission may employ counsel, attorneys, and other assistants, in case of reasonable necessity, and may pay them reasonable compensation. The governor is authorized to draw a warrant for the costs of such compensation out of any money in the treasury not otherwise appropriated.

250:7 Appropriation Made Nonlapsing. Amend 2001, 267:8 to read as follows:

267:8 Appropriation. The sum of [$125,000 for the fiscal year ending June 30, 2002 and the sum of $250,000 for the fiscal year] $375,000 for the biennium ending June 30, 2003 [are] is hereby appropriated to the judicial conduct commission established by this act, for the purposes of the administration of the provisions of this act. The governor is authorized to draw a warrant for said [sums] sum out of any moneys in the treasury not otherwise appropriated.

250:8 Judicial Conduct Commission; Definition of Clerk Added; Definition of Judge Amended. Amend RSA 494-A:2 to read as follows:

494-A:2 Definitions. In this chapter:

I. "Clerk" means a clerk of court or a deputy clerk, a register of probate or deputy register, a court stenographer or reporter, and any person performing the duties of a clerk, register, or reporter.

[I.] II. "Commission" means the judicial conduct commission established under RSA 494-A:1.

[II.] III. "Executive director" means the executive director of the commission appointed under RSA 494-A:3.

[III.] IV. "Judge" means [supreme court justices under RSA 490:1; superior court judges under RSA 491:1; superior court marital masters; district court judges under RSA 502-A:3; and probate court judges, under RSA 547] a full-time or part-time judge of the supreme, superior, district, or probate court; a retired judge who is recalled to judicial service; a full-time marital master; and any referee or special master who is an officer of the judicial system and who performs judicial functions.

250:9 Judicial Conduct Commission; Terms of Office; Service Pending Appointment of Successor. Amend RSA 494-A:5, II to read as follows:

II. After the initial appointment, a member may be reappointed for an additional term of 4 years. Members may not serve more than 2 consecutive terms. Members who have served 2 consecutive terms may not be reappointed until they have been off the commission for a period of 4 years. Notwithstanding the term limits established in this paragraph, members may serve until their successors have been appointed.

250:10 Judicial Conduct Commission; Duties; Proceedings; Clerks Added. Amend RSA 494-A:10 to read as follows:

494-A:10 Duties; Proceedings.

I. The commission shall be responsible for addressing complaints concerning the conduct of judges and clerks in the courts of this state. The commission shall determine if a complaint constitutes conduct which violates the Code of Judicial Conduct. The commission shall adopt rules for its proceedings under this chapter. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. If the commission finds evidence of criminal acts, it shall report such evidence to the attorney general. If the commission finds that a judge's or clerk's conduct warrants the removal of the judge or clerk, the commission shall refer the matter to the legislature.

II. The commission shall, by rules under RSA 494-A:12, adopt a Code of Judicial Conduct based on the Model Code of Judicial Conduct (August 1990), as adopted by the House of Delegates of the American Bar Association on August 7, 1990. The Code also shall address the professional conduct of clerks as defined in RSA 494-A:2, I.

250:11 Judicial Conduct Commission; Procedures for Complaints; Public Availability; Clerks Added and Deadline Extension for Probable Cause Determination Permitted. Amend RSA 494-A:11 to read as follows:

494-A:11 Procedures for Complaints; Public Availability. The commission shall adopt rules of procedure to be followed in making its determinations which shall incorporate the following:

I. When a complaint is received by the commission, the commission shall determine if the complaint alleges a violation of the Code of Judicial Conduct. If the commission determines that the complaint on its face alleges no violation of the Code of Judicial Conduct, the commission shall dismiss the complaint and respond to the complaining party, explaining the basis for its decision. If the commission determines that the complaint alleges a violation, the commission shall send a copy of the complaint to the judge or clerk and the judge or clerk shall have 21 days to respond in writing. There shall be no direct communications between the judge or clerk and the complaining party. Following the response from the judge or clerk, the commission shall send a copy of the response to the complaining party. The commission may also conduct such further investigation as it may deem necessary before ruling on the complaint. The commission shall, within 90 days of the first meeting following receipt of the complaint, or for good cause shown, such longer period as determined by the commission, determine whether there is probable cause to believe that the judge or clerk has committed a violation of the Code of Judicial Conduct. If not, the complaint shall be dismissed. If so, the commission shall proceed to make a final determination as to whether a violation has occurred. In any event, the complaining party and the judge or clerk shall be informed of the ruling on probable cause along with a brief explanation of the basis of the decision.

II. After making a finding of probable cause, the commission shall conduct a public hearing before making a final determination. After probable cause has been found, the complaint, response, transcripts, findings, deliberations, and reports of actions taken shall be available to the public under the provisions of RSA 91-A. The exemption regarding internal personnel practices in RSA 91-A:5, IV shall be inapplicable to proceedings or documents under this paragraph relating to a complaint before the commission.

III. After notice and hearing, the commission may impose disciplinary actions with regard to a complaint by reprimand or censure. The commission may recommend that the supreme court suspend the judge or clerk.

IV. If the complaint referred to the commission alleges conduct that would constitute a crime, the commission chairperson shall immediately refer the matter to the attorney general. The referral of such a complaint to the attorney general shall not supersede the commission's jurisdiction relative to whether a violation of the Code of Judicial Conduct has occurred. However, the commission shall suspend its activities until the criminal proceedings, if any, are concluded.

V. In all cases, whether a complaint is dismissed or not, complaints received by the commission shall be made available to the administrative judge of the court in which the judge or clerk complained against holds office. Furthermore, all complaints against judges and clerks received by the administrative judges and other judges of the superior court, the district court, and the probate court shall be forwarded to the commission.

VI. The statute of limitations for any complaint shall be 3 years from the act which is the subject of the complaint or from the conclusion of the trial or appeal during which the act occurred, whichever is later.

250:12 New Paragraphs; Judicial Conduct Commission; Disqualification; Appointment of Alternates. Amend RSA 494-A:7 by inserting after paragraph II the following new paragraphs:

III. If a member is disqualified under this section, the commission may vote to name an alternate in his or her place.

IV. If the entire commission is disqualified under this section, the appointing authorities under RSA 494-A:4 shall name alternates.

250:13 Committee Established. There is established a committee to study shorthand court reporting.

I. The members of the committee shall be as follows:

(a) Three members of the house of representatives, appointed by the speaker of the house of representatives.

(b) Three members of the senate, appointed by the president of the senate.

II. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.

III. The committee shall review all statutes and issues relevant to shorthand court reporting.

IV. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named house member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Four members of the committee shall constitute a quorum.

V. The committee shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the senate president, the house clerk, the senate clerk, the governor, and the state library on or before November 1, 2002.

250:14 Shorthand Reporting; HB 706; Effective Date Changed. Section 7 of HB 706 of the 2002 legislative session is repealed and reenacted to read as follows:

7 Effective Date. This act shall take effect July 1, 2003.

250:15 Contingency. If HB 706 of the 2002 legislative session becomes law, section 14 of this act shall take effect upon its passage. If HB 706 of the 2002 legislative session does not become law, section 14 of this act shall not take effect.

250:16 Prospective Repeal. Sections 1-3 of this act, relative to the task force on family law, are repealed.

250:17 Effective Date.

I. Section 14 of this act shall take effect as provided in section 15 of this act.

II. Section 16 of this act shall take effect November 1, 2003.

(Approved: May 17, 2002)

(Effective Date: I. Section 14 of this act shall take effect as provided in section 15.