New Hampshire: House committee rejects 13-0 plan to expand judicial performance evaluation program to include all court personnel

Since the 1990s (by rule) and 2000 (by law) New Hampshire has provided for a judicial performance evolution program (R.S.A. 490:32 and Supreme Court Rule 56) that produces annual reports on how the state’s judges fare in areas such as Temperament, Legal Knowledge, and Attentiveness. This year, an effort made in the House to expand that program to cover all court personnel has been rejected.

HB 311 would have amended R.S.A. 490:32 to read in operative part (new language in bold)

The chief justice and a majority of the supreme court, in consultation with the administrative judges of the superior and circuit courts and other nonjudicial branch officers as established by court rule, shall design and implement by court rule, a program for performance evaluation of judges and court personnelThe program for performance evaluation shall ensure that each judge and court employee is evaluated a minimum of once every 3 years.

That proposal was rejected by the House Judiciary Committee as Inexpedient to Legislate on February 15 by a 13-0 vote.

New Hampshire: House approves 170-160 specific language for judges to use for jury nullification

Earlier today the New Hampshire House approved on a 170-160 vote HB 133 which would require judges in criminal cases give a specific jury instruction (discussed here).

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

 

New Hampshire: House Judiciary Committee approves 10-8 specific jury-nullification language judges must use in criminal cases

The New Hampshire House Judiciary Committee yesterday forwarded with a “Ought to Pass” recommendation HB 133, which would require judges give specific jury nullification instructions in criminal cases. The bill is just the latest in a 20-year effort by the state’s legislature to force judges to give jury nullification instructions and do to so with specific verbiage. A similar bill without specifying what words were to be used was enacted in 2012 only to have the state’s supreme court rule that the law did not require a specific jury nullification instruction.

HB 133 would provide that “in all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” Moreover, the court would be required to utter the following words, exactly

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 133 now goes to the full House, which approved the same language in 2016 on a 184-145 vote.

 

New Hampshire: House committee votes 12-0 against plan for legislative confirmation of judges; concern for “politicizing of appointments”

A plan to require New Hampshire judicial nominees be confirmed by the state’s legislature was rejected unanimously by the House Legislative Administration committee last week.

Currently the state’s judges are nominated by the Governor and confirmed by the independently elected Executive Council. CACR 5 called for judges to be nominated by the Governor or Council and confirmed by the legislature in joint session.

The committee report (see page 5) recommending the bill be deemed “inexpedient to legislate” (i.e. rejected) by the full House noted that allowing either the Governor or Council to nominate created the possibility of dueling appointments.

As for the joint session element, the committee report noted “concern about the politicizing of appointments” as well as the amount of time judicial vacancies might remain in such a system.

The full House is expected to vote on the bill this Thursday.

After 20+ years of trying, New Hampshire legislature again to take up mandatory jury nullification instruction

The latest in the 20+ years of efforts (detailed here) by New Hampshire legislators to require judges give jury nullification instructions are up for a House Judiciary Committee hearing next week. As I noted last year when this came up, current law adopted in 2012 (HB 146) provides

In all court proceedings the court shall instruct the jury of its inherent right to judge the law as well as the facts and to nullify any and all actions they find to be unjust. The court is mandated to permit the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Many legislators became angry when the state’s supreme court ruled in 2014 this law did not require a specific jury nullification instruction by judges (State v. Paul (167 N.H. 39))

This year’s bill (HB 133 of 2017) is effectively a repeat of a 2016 bill (HB 1270) approved on a 9-8 vote in the House Judiciary and by the full House 184-145 before being killed in the Senate. HB 133 of 2017 would require judges use the following exact language in instructing criminal jurors

If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty.  However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.  Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.

HB 133 is set for its House Judiciary Committee hearing on January 19.

New Hampshire: House members want legislative confirmation for judges, allow Council *OR* Governor to nominate; bill will not be going to House Judiciary committee this year

New Hampshire’s judicial selection process is unique to itself and Massachusetts (and formerly Maine): judicial nominations are made by the governor and confirmed by an independently elected Executive Council (Massachusetts calls it the Governor’s Council). The legislature plays no role. That may change, however, under a constitutional amendment set for a hearing tomorrow.

CACR 5 of 2017 would provide that any future judicial nomination be made by the Council OR the Governor and confirmed by a majority of the Legislature in joint session.

This isn’t the first time a proposal has been forwarded to change the way New Hampshire picks its judges, there’s been several attempts in the last 3 years, including an identical proposal from 2014 (CACR 16) and 2015 (CACR 8). The 2014 House Judiciary Committee report , approved by a 16-2 majority, said the proposal would “needlessly complicate a process that is working well.” The 2015 House Judiciary report declared, again by 16-2, that “The present system has worked well over the years and does not require modification.”

Perhaps because of the prior rejections, this years’ version will be appearing before the House Legislative Administration committee and not the Judiciary committee.

Details of prior efforts and committee rejections below the fold.

Continue reading New Hampshire: House members want legislative confirmation for judges, allow Council *OR* Governor to nominate; bill will not be going to House Judiciary committee this year

New Hampshire: plan to strip supreme court of rulemaking power killed by full House 244-47

A plan to strip the New Hampshire Supreme Court of its rule making authority over the judiciary has been scrapped by the House. CACR 13 was tabled by voice vote by the House yesterday.

CACR 13 as introduced would have amended the constitution to provide any such rules created by the supreme court would not “have the force and effect of law” and the court limited to making only rules governing court employees. A floor amendment would have continued to let the supreme court make rules regarding “administration of all courts in the state” but made them subject to legislative override (“provided that if such rules conflict with statute, statute shall prevail.”)

This year’s effort marks the latest in a 20+ year effort to remove the supreme court’s rulemaking authority or make is subject to legislative override.