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.

New Hampshire: House approves 184-145 jury nullification bill; judges would have to instruct jurors using specific language set by legislature

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.

New Hampshire: plan to specifically allow public to video record judges & jurors scrapped in committee

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.

 

New Hampshire: plan to strip supreme court of rulemaking authority advances out of committee on 8-8 vote

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.

New Hampshire: House committee approves 9-8 plan to require judges give specific jury nullification instructions; related bill allowing for juries to “veto bad laws” rejected 16-0

Efforts by New Hampshire legislators to require judges give jury nullification instructions passed out of the House Judiciary Committee this week. This is just the latest in a 20+ year effort to require such instructions (detailed here).

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))

HB 1270 as amended (amendment here) and approved on a 9-8 vote by the House Judiciary Committee would replace the 2012 law with the following

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.  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 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.

A related jury nullification bill (HB 1333) was rejected 16-0 in committee. That bill provided an instruction that jurors could “veto bad laws” and “a jury has more authority than Congress, the President, or even the Supreme Court.

HB 1270 now goes to the full House for a March 9 vote.

New Hampshire: for 19th time in 20 years, legislature considers stripping or limiting the state supreme court’s rulemaking power; 3 prior attempts failed at ballot box

For the 19th time in the last 20 years the New Hampshire legislature is considering legislation to remove or curtail the rulemaking power of the state’s supreme court.

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.

Dating back to at least 1995 members of the legislature have attempted to repeal or curtail this rulemaking power. I discussed the 16 constitutional amendments and 2 statutes proposed between 1995 and 2014 here; nothing was offered in 2015. These efforts included 3 attempts to make such rules subject to legislative alteration that advanced out of the legislature but failed to receive the necessary 2/3rds vote of the public at the ballot box. (CACR 5 of 2001/2002 got 63.1%; CACR 5 of 2003/2004 got 56.9%; CACR 26 of 2011/2012 received only 48.9%)

This year’s proposal is CACR 13: 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.

CACR 13 is set for a hearing today in the House Judiciary Committee.

New Hampshire legislators try again for mandatory jury nullification instructions; judges would have to tell jurors they have “right to veto bad laws”

New Hampshire’s legislature has spent the better part of a two decades debating laws related jury nullification and juror instructions for use by the courts. The 2016 session looks to continue this trend with two pieces of legislation already introduced.

First, some background.

For over 20 years the New Hampshire legislature has debated jury nullification language (see table at the end of this post). The forms varied, but generally broke down into two groups:

  1. Specific and exact language to be used by judges in directing jurors on nullification
  2. General direction that judges were to inform jurors of nullification

These efforts culminated in HB 146 of 2012. While originally a much broader nullification statute

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.

The bill that became law was amended to remove references to nullification.

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.

Legislators became infuriated after state courts failed to give nullification instructions based on the 2012 law. By 2014 a new bill was introduced (HB 1452) that went back to the desire for specific nullification language. That bill quoted, effectively verbatim, a 1984 New Hampshire Supreme Court case State v. Cote (129 NH 358).

The concept of jury nullification is well established in this country. If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.

It was overwhelmingly rejected in the House 193-84. After it was rejected the state supreme court decided in State v. Paul (167 N.H. 39) that the 2012 bill was in fact not a nullification law and that a “Wentworth instruction” (State v. Wentworth, 118 N.H. 833 (1978)) was enough

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.

That 2014 decision by the state’s supreme court resulted in various threats of impeachment for any judge who issued a Wentworth instruction (discussed here) and a brand new round of legislation (HB 470 of 2015) that was again rejected

The court shall allow the defendant or counsel for the defendant to explain this right of jury nullification to the jury.

Moving into 2016 two bills would again move towards specific-language instructions.

HB 1270 provides a paragraph instruction almost identical to one approved by the House in 2003 (HB 122) that would add one sentence to the Wentworth instruction

However, if you find, that the state has proved all of the elements of the offense charged beyond a reasonable doubt, but you find that based upon the facts of this case a guilty verdict will yield an unjust result, you may find the defendant not guilty.

The other bill is much more expansive. HB 1333 spans 9 different sections of law and includes references to Thomas Jefferson and the 1850 Fugitive Slave Law. Moreover, judges would be required to tell jurors they have a right to “veto bad laws” and “a jury has more authority than Congress, the President, or even the Supreme Court.

Both bills have been prefiled for the 2016 and directed to the House Judiciary Committee.

Continue reading New Hampshire legislators try again for mandatory jury nullification instructions; judges would have to tell jurors they have “right to veto bad laws”

New Hampshire Legislative Year in Review: judiciary’s annual weighted caseload study

Law

SB 14 Modifies composition of Judicial Council to reflect renamed/consolidated courts. Repeals a limitation on compensation for counsel for indigent defendants.

SB 65 Adds judicial branch employee member to the deferred compensation commission.

SB 90 Changes to the preparation process for the judicial branch budget.

SB 258 Changes the timing of determination of weighted case units for the purpose of calculating the judicial branch operating budget request and judicial salaries from October to July.

Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”

2015 saw some 32 pieces of legislation introduced in 17 states to ban or limit the use by state courts of foreign or international law. Of these, Mississippi saw after 5+ years of trying the enactment of such a ban. HB 177 provides in operative part that

A court, arbitrator, administrative agency or other adjudicative, mediation or enforcement authority shall not enforce a foreign law if doing so would violate a right guaranteed to a natural person by the United States Constitution or the Mississippi Constitution of 1890.

Notable regarding many of these bills is the continued focus on specifically banning the use by state courts of sharia law (Mississippi HB 493, HB 557, HB 622, HB 1216; Oregon SB 176, South Carolina HB 3521, and West Virginia HB 2994). The specific targeting of sharia was held as unconstitutional in a decision by the Tenth Circuit in 2012 which upheld striking down such a sharia-specific constitutional amendment approved by Oklahoma voters in 2010. West Virginia HB 2994 is of particular note here in terms of not just targeting sharia, but “Canon law, Halacha and Karma”, language almost identical to a bill introduced in Arizona 2010 and 2011 and discussed here.

Details on the legislation introduced in 2015 below the fold.

Continue reading Bans on court use of sharia/international law: Enacted in Mississippi; activity in 6 other states; WV considered ban on court use of “karma”