Lawmakers Have Done Grievous Harm To Courts – published in the Concord Monitor 1/6/2013
With a new Legislature coming to Concord, it is a good time to review how recent New Hampshire legislatures have treated the judicial branch. The truth is not pretty. Going back to the judicial impeachment trials and anger at the Claremont school decision, I would say the dominant legislative attitude has been hostility, expressed by under-funding.
Instead of being seen as a respected co-equal branch of government entitled to adequate funding, the judicial branch has been reduced to being a beggar for funds, competing and standing in line with other state agencies.
Maybe it shouldn’t need to be said, but the judicial branch is a branch of government just like the executive and the legislative. It is not a state agency like Fish and Game or Health and Human Services. In his talk in Concord last September, Justice David Souter remarked on the fact that two-thirds of Americans do not understand we have three branches of government. I wonder if some of the two-thirds were in our Legislature. The skinflint approach of our last Legislature was not just harmful to court functioning, it was self-destructive to government.
I will focus on three consequences of the under-funding that have damaged the justice system. There are others.
First, under-funding the courts has translated into understaffing the court system. Attorney Lee Nyquist outlined the results in a recent piece in New Hampshire Business Review. Delay is the major cost to citizens. Litigants, especially in our new circuit courts, which have jurisdiction of domestic matters, must wait longer for hearings. Nyquist says it takes six months to get an initial temporary hearing after a divorce is filed; six months for a hearing on a divorce modification and four months for a hearing on an emergency domestic matter like parental visitation.
It also takes longer to get written decisions from the court. There are too few clerical staff handling too many cases. As Nyquist says, this is not the fault of hardworking court staff. Because of the understaffing, he says that litigants may have to wait two months before a decision is sent out by the clerk’s office. For the litigants, especially in family matters, the delay often adds stress, anxiety, and sometimes financial hardship.I spoke to two New Hamp-
shire attorneys to get their take. Mary Krueger, director of the New Hampshire Legal Assistance Domestic Violence Advocacy Project, pointed to courts’ reluctance to issue orders on child support in the context of domestic violence cases. Judges are so crunched they will defer to the court issuing a divorce or parenting order. Unfortunately, the delay in making an order can be very detrimental to the litigant who may be desperately in need of income.
Steve Cherry, a Henniker attorney, mentioned the 2011 legislative action de-funding guardians ad litem (GALs) as harmful to low-income clients. For over 30 years, GALs have contributed to quality resolution of very difficult domestic disputes. They have acted as the eyes and ears of the court in assessing the best interest of children. While capable of error like anyone else, GALs often offer the court a very helpful perspective and insight. This legislative de-funding particularly hurts the poor who lack income to pay for a GAL. Financially better-off folks did not lose out since they can afford to pay if they need a GAL.
Legal Assistance cut
The second damaging consequence of legislative underfunding was the $1 million cut to New Hampshire Legal Assistance, a non-profit law firm that advocates for the poor, elderly and disabled. The cut led to the closing of both the Nashua and Littleton legal aid offices. The organization had to shrink dramatically and lay off dedicated, long-time, highly trained staff. The cut meant thousands fewer clients could be served.
Those unfamiliar with legal aid probably do not appreciate the gravity of the cut. Legal Assistance advocates have had an unsurpassed ability to get outstanding results for their clients in very challenging circumstances. Without an advocate, the likelihood of a poor outcome sharply increases. The cut meant more vulnerable clients getting evicted, foreclosed on, and facing benefit denials without help. These everyday adverse events are business as usual, under any radar screen. The underside of the lives of poor people generally escapes scrutiny.
There was a double indignity in the Legal Assistance cut. Lawyers who work for Legal Assistance make an idealistic commitment to the public interest. While they develop expertise in poverty law, they earn quite a bit less than they could earn in private practice. Instead of recognizing and honoring that commitment, the Legislature coldly trashed it. There was a willful blindness to the damage inflicted. Not only was Legal Assistance devalued, it was undermined.
I find it grating when spokespeople from the last Legislature tout its budget-cutting and all the money saved. It is only fair to point out the unacknowledged harm which consistently falls on the poor and people not represented by expensive lobbyists.
Abuse, neglect cases
The third area of under-funding I want to mention was the 2011 legislative stripping of the right to a lawyer in abuse and neglect cases. Indigent parents previously had the right to a lawyer when they faced charges of abuse or neglect.
The last Legislature removed the statutory requirement that parents get lawyers in these cases. New Hampshire had the dubious distinction of joining Mississippi as one of the only two states to deny counsel to poor people in these cases.
It is hard to overstate this particular harm. How many rights are more fundamental than the right to raise and care for your children? Parents facing abuse or neglect charges need counsel. They may be illiterate, poorly educated, of limited English proficiency, homeless or mentally ill. They may be incapable of articulating a defense they have. Sometimes poverty itself can be seen as neglect. There is something wrong and shameful when such a fundamental right is sacrificed solely for economic reasons.
It is possible to see the matters I have discussed as random and not reflecting a larger whole. However, I think not. There has been a pattern of punishing the justice system, especially poor litigants who are people with the least clout to fight back.
I hope the new Legislature turns over a new leaf and is ready to move beyond the past. When legislators under-fund the judicial branch, the truth is that they are only shooting themselves in the foot.
(Jonathan P. Baird of Wilmot is a federal administrative law judge who previously worked as an attorney for New Hampshire Legal Assistance. This column reflects his views, not those of his employer, the Social Security Administration.