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Tuesday, February 21, 2012

Tort reform, limiting power of courts among proposed bills related to judiciary

CONCORD – A Republican lawmaker wants to turn the clock back to pre-1966 and re-establish a legislative check-and-balance over the court system.

Another wants to require the losing party in civil suits to pay the winner’s legal fees.

A third believes no person is fit to serve as judge until he or she has matured to at least age 60.

These were among a dozen of so bills affecting jurisprudence that the majority party proposed in the current legislation session.

While the Republican leadership said legislation would focus on promoting job growth and economic recovery, some lawmakers have widened the scope to include what they cited as needed reform in other areas.

One such proposed reform was sponsored by Rep. Joshua Davenport, R-Newmarket.

Davenport was the primary sponsor of a constitutional amendment to restore legislative control over the judiciary. The bill was killed, but a sister bill, also sponsored by Davenport, remains. The surviving bill would study what revisions to laws would be necessary if the Supreme Court and superior court system were abolished as constitutional courts.

Before an amendment to the N.H. Constitution took effect in 1966, the state’s judiciary could be changed by legislative will, including dissolving courts. Under the current structure, the Supreme and superior Courts can only be changed through constitutional amendment.

Architects of the U.S. Constitution envisioned a neutral judiciary, Davenport said.

New Hampshire before 1966 struck a balance between the branches of government, he said. But after the 1966 amendment, the executive branch has had the upper hand, Davenport said.

Courts’ neutrality has eroded over time, he said.

“You want a neutral body to adjudicate constitutional issues. You don’t want a bias,” Davenport said.

He said the issue cuts across the political aisles – both parties have complained at times that the courts have been biased one way or another. Davenport thought the clearest path to restoring neutrality and balancing the influence of the legislative and executive branches was through the constitutional amendment.

His proposal, Constitutional Amendment Concurrent Resolution 25, died in the Judiciary Committee, as did a constitutional amendment proposed by Rep. Gregory Sorg, R-Easton, which would have gone a step further.

Sorg’s proposal, CACR 28, would have taken substantial judicial power from the courts and given it to the Legislature. Under the failed proposal, the N.H. Supreme Court would determine the constitutionality of judicial acts, while the state Legislature would determine the constitutionality of legislative acts.

However, Davenport’s bill (HB 1131) remains alive to form a committee that would study abolishing the Supreme and superior courts as constitutional courts.

“It’s not a bad idea to have a committee study the issue right now,” he said.

Another bill that died in the Judiciary Committee also would have made a sea change in New Hampshire jurisprudence. Rep. Robert Kingsbury, R-Laconia, sought to require that no one would be eligible to be appointed a judge until he or she was at least 60 years old.

“By 60, most people are grandparents, meaning they’ve gone through the cycles of life themselves. This makes them better enabled, in my opinion, to be judges of other people,” said Kingsbury, who is 85.

“As far as judging people, I think they’d do a better job of judging if they themselves had the life experiences they would have by the time they are 60,” Kingsbury said.

Kingsbury cited one N.H. judge appointed to the bench at 28, and another two at ages 30 and 32.

The appointments are for life, he said.

“That’s an awful long time to be a judge. As they say, power corrupts,” Kingsbury said.

Phil Waystack, who chairs the Judicial Nominating Commission, said it would be a “grave error” on an arbitrary age instead of qualifications.

“There are so many skilled and talented people less than 60, to create an artificial bar for people under 60 would be a huge mistake,” he said.

However, another proposal is still very much alive that would limit judges to five-year renewable terms.

The proposal by Rep. Harold “Skip” Reilley, R-Hill, was recommitted to the Judiciary Committee and due for additional review. If passed, the question of whether to appoint judges to five-year terms versus lifetime terms would be posed to voters in November. If more than two-thirds of voters say yes, the state Constitution would be amended.

The provision would allow the governor and Executive Council to remove judges who failed to “behave well.”

Other proposed laws had tort reform as their goal. One such is HB 1178, which would require the losing party to pay the winning party’s attorney’s fees and court costs in tort actions.

The sponsor, Rep. Spec Bowers, R-Georges Mills, said the bill would remedy the situation where businesses are settling weak suits they would probably win in order to avoid hefty legal fees.

“Where we are right now is a system where, you win, but you lose,” Bowers said.

He cited an infamous 2007 Washington, D.C., case in which a customer sued his dry cleaners seeking $54 million over lost trousers. The dry cleaners won the suit, but was ruined by having to shell out more than $100,000 in legal fees, Bowers said.

In New Hampshire, potentially thousands of weak lawsuits brought against businesses are settled because the business owners don’t want to pay high legal fees, Bowers said.

Often, those lawsuits don’t meet the legal threshold of being “frivolous,” just merely absurd, he said.

Bowers thinks the bill fits the Republican leadership’s overall emphasis on promoting legislation to grow the economy. Money shelled out in fighting or settling lawsuits could be spent instead on growing a business and thus creating jobs, he said.

The bill has cleared the Judiciary Committee and stands a chance of going to a vote in March, Bowers said.

Patrick Meighan can be reached at 594-6518 or Staff Writer Joseph Cote contributed to this story.