Lawmakers eye override of 2 vetoes

CONCORD – New Hampshire lawmakers are mulling whether to override Gov. John Lynch’s veto of bills meant to speed up the legal process for divorcing couples and to ease the backlog of jury trials by letting retired judges hear them.

Supporters of both measures say they likely don’t have the votes to override the vetoes at Wednesday’s legislative session, but they aren’t giving up.

One bill would expand the powers of judges past the state constitution’s mandatory retirement age of 70. If the bill passes, the older judges would be allowed to hear jury trials and sign orders without having an active judge approve them.

The judges already handle limited, temporary assignments – a role affirmed by a 1998 state Supreme Court ruling that held they retained judicial powers, just not the office. The ruling said the Legislature has the constitutional authority to authorize limited, temporary assignments to “ensure the adequate and orderly administration of justice.”

This year, the court asked lawmakers to approve the special category of senior judges to help with case backlogs. Under the bill, the judges’ physical and mental abilities would be assessed and they would perform limited duties. They would be paid on a per diem basis, which is less than an active judge earns.

The other bill, also a request of the court, would allow so-called “marital masters” to sign final orders in divorce cases without a judge’s approval if both sides agreed in writing. Marital masters currently make recommendations in divorce cases but those must be approved by a judge. The court said expanding the masters’ power would speed the process in part because judges don’t sit in every court where a master hears divorce cases and must be found to sign off on a master’s decision.

Lynch vetoed both, citing the constitution in both cases.

The governor said the state constitution clearly states no person can hold judicial office after age 70 and empowers the governor to nominate judges. The bill would shift discretion to appoint older judges to the courts’ chief administrative judges, in conflict with that appointment process, he said.

Lynch said any change to that should be done through an amendment to the constitution, not legislation.

Similarly, Lynch said marital masters are not judicial officers under the constitution and cannot make binding recommendations on the court. He also questioned placing the burden on families going through a stressful divorce to decide if a master should act as a judge.

Howard Zibel, the court’s general counsel, said the court is not lobbying lawmakers to override the bills. Instead, the court will try to work with Lynch on compromise legislation next year, he said.

Lynch objected to both measures on constitutional grounds, but left room for a narrow expansion of powers for older judges through legislation that defines the scope of their duties – something not spelled out in the vetoed bill. Zibel said Lynch didn’t address a provision in the marital masters’ bill allowing them to sign procedural orders without a judge’s oversight.

House Judiciary Chairman David Cote, a Nashua Democrat whose committee handled the bills in the House, said the committee discussed the constitutional issue, but came down on the side of giving the court more help.

“It ultimately boiled down to how much flexibility the courts should have in using judicial officers,” he said. “Delay is not in anyone’s interest.”

House Republican Leader Sherman Packard believes there is merit in having older judges serve, but the age limit in the constitution should be changed first.

“It might be financially beneficial to the state to allow some of these people to come back,” said Packard of Londonderry.