The Supreme Courts’ “Citizens Commission on NH State Courts” was created by Chief Justice John Broderick because of the escalating complaints about the NH court system. Far from being a “Citizen’s” commission, the one hundred and five member group was composed of one third judges and lawyers, and dozens more court hangers-on. There are retired judges, members of the committee on judicial conduct, the executive director of the Judicial Council, court clerks, members of the public defenders office, the Legal aid society, law school professors, the past and present Attorneys-General, law enforcement officers, and others closely connected to the courts. In sum, over 70% of the commission were closely connected to the courts. Members of the general public are in decidedly short supply. As might be expected, the 70% majority seemed more intent in growing the courts’ size, budget, and influence, than in creating real reforms in the way the courts operate, to better serve the public.
Nowhere was this judicial bias more evident than in the Family Law Research (sub) Committee. The Commission was charged with reviewing the reports of several committees which preceded it. One of those reports, issued by the Family Law Task Force, was issued at about the same time as the report of the Commission to Study Child Support and Custody Issues. However, THAT report was not on the list to be studied. Neither was the report by the Commission on the Status of Men. Is it just coincidental that both reports strongly recommended a rebuttable presumption of shared physical custody? The oversight was corrected, and both reports were eventually posted on the Citizen’s Commission web site for review, along with the report of the National Probate Judges College, which also recommended a rebuttable presumption of shared physical custody. It should be noted that the report of the Task Force on Family Law strongly reinforced the idea that shared custody was in the best interests of the children, although the task force stopped short of actually recommending such a presumption.
Individual members of the Family Law Research Committee were charged with condensing the recommendations of each of the reports suggested for study. The judge reporting back on the Child Support and Custody Commission failed to mention their recommendation regarding shared custody. That oversight was brought to his attention, and although he promised to submit a revised report, the shared custody recommendation was omitted once again.
The Citizen’s Commission held “Listening Sessions” at several locations around the state to obtain feedback from the general public. Complaints about the family courts outnumbered complaints about all other courts COMBINED by a ratio of 5:1. Chief among those complaints was the inequity in custody decisions, which were said to favor primary maternal custody in an overwhelming majority of cases. Indeed, statistics from the Department of Vital Statistics indicate that mothers are awarded primary custody in seventy five percent of all cases, while fathers are awarded custody in only 10 – 15% of cases. Complaints about the unfairness of child support orders closely followed the complaints about custody. The nature of those complaints notwithstanding, the family law research committee failed to recommend any of the suggestions from previous commissions regarding either custody or child support. Their actions beg the question, “If the objective of the commission was to make the courts more equitable, just, and users friendly, why not address the concerns most often voiced by the “consumers” of court services?” Instead of taking those complaints seriously, the commission was told that the nature and number of those complaints was due to the “superior organization” of the fathers’ groups, who “rallied the troops” to come out and testify. The obvious obverse observation, that those who are favored by the courts failed to complain because they had no reason to complain, was overlooked. Furthermore, the commission made no plan or attempt to tabulate the public input from the listening sessions and court surveys, until this writer recommended such action, and volunteered to do the work involved. Otherwise, no-one reading the commissions report would know if the commission had addressed any of the public’s concerns.
Instead of addressing “consumer” complaints, the family law research committee chose, instead to focus on recommendations which would increase the size of the court system, add multiple layers of bureaucracy, require the hiring of large numbers of new personnel, and dramatically increase the courts’ budget, without addressing the underlying reasons for re-litigation and conflict. Finding money for all the above was a prime concern. It was suggested that the courts already had a funding source available, in the form of payments from the child support collection agency, amounting to in excess of two million dollars per year. Committee members first tried to deny the existence of those payments, then, simply resorted to ignoring them. One must wonder what becomes of that two million dollars, if it’s not available to fund new court programs. When the legality of those payments, from an executive branch agency to the judicial branch, in violation of the Constitutional mandate for Separation of Powers, was questioned, the question was deferred to the legislature.
Several of the newly sought programs are well intentioned, and could prove beneficial. However, there was exhibited some reluctance to do away with the status quo. Although complaints of gender bias were foremost in the “listening sessions”, precautions against continuing the bias were dismissed out of hand. Mediation, as a method of forestalling conflict and court appearances is a good idea. But the committee balked at the idea of making it mandatory for all parties. They want, instead, to allow one party to opt out of bargaining in good faith by playing the domestic violence card. An unsupported accusation against the other party, a tactic currently in common practice, would throw the case back to the court for decision by a judge or marital master.
The same criticism holds true for the parties’ cooperative development of “parenting plans”. When the court is known to be biased, to a statistically provable degree, why bargain away entitlements, monetary advantages, property, and custody? In response to a discerned need to provide for unrepresented “pro-se” litigants, the employment of “case managers” was recommended by the committee. The case manager would provide legal information and guidance to the pro-se litigant. But in each case, mediation, parenting plans, and case management, the committee is recommending that ONLY current court employees with a minimum of five years experience be employed. That’s like drawing water from a contaminated well. The courts have demonstrated gender bias at all levels; to require that new positions are filled by “old” employees would only continue the biases.
Another common complaint heard at the “listening sessions” concerned illegal and discriminatory actions by the presiding judges and marital masters, in support of an obviously gender biased agenda. Speakers told of decisions made on the basis of hearsay evidence, proven perjury being allowed, legitimate motions being denied a hearing, testimony and witnesses not being allowed, false reports submitted by lawyers and GAL’s being accepted without challenge, alteration of transcripts, and decisions which were in violation of state and federal law. It was suggested that the Committee on Judicial Conduct was not performing the function intended, discipline of members of the court. Indeed, it was suggested that the committee sees its function as protecting the judges from complaints, rather than protecting the litigants. However, suggestions for changes as to how the committee operates were ridiculed. Once again, the concerns of the “consumers” were ignored.
In sum, we have a commission, appointed by the courts, composed largely of members and friends of the courts, reviewing the reports from previous court appointed commissions, acting to protect the image of the courts without making any substantial changes to the status quo. Rather than address the legitimate concerns of the public, they propose expansion of a corrupt and biased system. They propose window dressing and band-aid measures to re-assure the public that the court system is functioning in its best interests, while maintaining and increasing their own profitability. They ignore obvious flaws in the court system, institutionalized violations of the Judicial Code of Conduct, in order to protect the political agendas of special interest groups.
Had there been any REAL interest in reforming the courts to make them more responsive to the ideals of justice and service to the public, they would have focused more closely on the complaints of litigants. It was a cruel joke to call this a “Citizen’s Commission”. The suggestions below would have addressed some of the citizens’ concerns, but, unfortunately, they will not be found in the commission’s final report. The citizen’s voices were not heard, their concerns will not be addressed.
RECOMMENDATIONS OF THE MINORITY
#1: There should be a rebuttable presumption, operative from the first appearance, that shared custody is in the best interests of the children following a divorce, and that both parents deserve equal consideration from the courts. The court should actively promote shared custody in keeping with that presumption. In any case where shared custody is NOT ordered, the decision must be defended by written findings of fact.
#2: The courts should support a change in the child support guidelines, from an “income shares” method of calculation, to a “cost shares” method, including a calculation of actual parenting time spent with the children.
#3: The court should renounce the “Cooperative Agreement” which provides for payments to the court from the child support collection agency, and promotes the abuse of support orders to enhance state and court revenues.
#4: The court should support and promote a Constitutional amendment to remove the Committee on Judicial Conduct from the authority of the courts.
#5: Programs providing for mediation, cooperative formulation of parenting plans, and child impact seminars should be required to provide information that is balanced and unbiased. Such programs should be made mandatory, allowing for exceptions only in cases where substantive evidence can show that an exception is warranted. Every exception must be noted in written findings of fact.
#6: Training of court personnel on the issue of domestic violence should present a balanced perspective, free of gender bias, and based on verifiable facts.