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.
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’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
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.
The New Hampshire House yesterday approved on a 184-145 vote a bill to require judges give specific jury nullification instructions to jurors in criminal cases
HB 1270 as amended would replace an existing 2012 law with more specific language. The specific language was a key element for the House; legislators became infuriated after state courts failed to give nullification instructions based on the 2012 law and the state supreme court ruled the 2012 law did not require any specific nullification instructions.
The new law would contain 3 elements.
The first element essentially repeats the existing 2012 law although instead of the defense informing the jury, it would be the court doing so.
In all criminal proceedings the court shall
permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.
The second element is a “Wentworth instruction” derived from State v. Wentworth, 118 N.H. 833 (1978)
At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: 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 of the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty.
The third element of the instructions by the court would be the nullification instruction
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 1270 now goes to the Senate.
A bill that would have allowed for the audio recording of judges and jurors has been scrapped in committee. HB 1546 as introduced made it legal to audio record someone if at least one party to the communication was aware (current law requires the consent of all parties).
The bill went further, however, and made it expressly legal to audio and video recording any public servant
Any person to make an audio recording or an audio recording in conjunction with a video recording of any public servant, as defined in RSA 640:2, II(a), while the public servant is performing a government function or any activity related to a government function.
The definition of “public servant” under RSA 640:2, II(a) included judges and jurors. It would have been a crime to prohibit any such recording.
Earlier this week, however, the House Criminal Justice and Public Safety Committee approved a heavily modified version that dropped any reference to recording public servants. The elimination of all-party consent to recording, however, was kept in the bill.
For the 19th time in 20 years, the New Hampshire legislature is considering stripping or limiting the state supreme court’s rulemaking power, despite 3 prior attempts failing at the ballot box.
Article 73-a was added to the New Hampshire constitution in 1978.
The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.
CACR 13 was advanced without recommendation on an 8-8 tie vote by the House Judiciary Committee. It strikes the provision that supreme court rules “shall have the force and effect of law.” It also limits the court’s power of “governing the administration” of the courts to only “governing the employees.”
The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the
administration employees of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.
The bill now goes to the full House for a vote on March 9.