REMARKS BY THE HONORABLE JOHN T. BRODERICK JR.

ASSOCIATE JUSTICE OF THE NEW HAMPSHIRE SUPREME COURT

JANUARY 24, 2002

NEW HAMPSHIRE BAR ASSOCIATION

MID-YEAR MEETING

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It has been a long time since I have stood before you….my friends and fellow lawyers…men and women proud of their profession, as I am, steadfast in their commitment to the law, stubborn sometimes about the positions they take, disappointed perhaps when others don’t agree with them.

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But even in the most difficult times—and clearly these have been difficult times—there is I believe a level of mutual respect and trust among us that calls us to set aside whatever strain might have come between us, to turn the page, and move on. I have come here today in that spirit. I hope you will join me.

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Last spring, I ventured out of our cloistered quarters in Concord at the invitation of my dear friend Judge Robert Marshall to share some thoughts with the Greater Salem Bar Association about a subject that is at the very heart of our democracy, judicial independence.

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To me, judicial independence means the ability to make decisions without fear of retaliation and being strong enough as an institution to withstand retaliation if it comes. It means following the law and precedent. It means doing the right thing for the right reason, because, in the final analysis, it will be the integrity of the law that matters, its focus on first principles that counts and not its fleeting popularity, or unpopularity. Judicial independence is a grounding principle, as old as our democracy and essential to its basic fabric.

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In Salem that May evening, I asked lawyers to speak out on judicial independence because of its historic importance to the rights and liberties of our citizens and because it was under assault. As judges, we cannot speak out as readily as you and when we do, it is often misunderstood or misrepresented as self-interest. But all of you can speak out, and many of you have. I urge you to continue or to begin because judicial independence is still imperiled and the stakes are high.

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I want to say a special thank you to your president Peter Hutchins whose willingness to tackle the issues and to step forward in the newspapers, on radio and television has made a forceful contribution to the public debate about the role and unique responsibilities of the Judicial Branch of government. Your efforts, Peter, have not gone unnoticed and are deeply appreciated.

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Lawyers know the system better than anyone. You breath life into its promise and your voices should be heard. I urge you to move to the forefront of this important debate with facts, with reason and with dignity. The good people of New Hampshire---who have the most to lose-- will listen and respond.

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While it is not for me to deliver an official "State of the Judiciary" address, I do want to report to you on some of the accomplishments at the Supreme Court after 12 months of very hard work—by the justices and a very dedicated and talented staff.

*The first very important event of 2001 was the addition of Justice Duggan to the court. His appointment has been good for the state of New Hampshire, but not so good for me because it is more difficult than ever to get my questions in at oral argument. But let me say, it has been a pleasure getting to know Jim as a colleague and an honor to work with him.

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During 2001, we had over 300 oral arguments and issued a record 376 written decisions, 223 published and 153 unpublished.

*We disposed of 1,014 cases which reduced the pending caseload to its lowest level in 10 years.

*We established performance standards which set a time period of 180 days between oral argument and decision.

You should know too that we have arranged our oral argument schedule for 2002 with that goal in mind. I am confident that in most cases we will surpass our goals.

* We modernized the Code of Judicial Conduct, providing detailed ethical standards to help guide judges in their personal and professional life. We followed the American Bar Association model code which recognized, as well it should, that a judge’s life is far more complicated these days than it used to be.

*In December, we formally adopted rules for our 3JX docket which as you all know has made it possible to use three-judge panels to move cases more efficiently through the appellate process. Our goal is to have decisions in those cases within two to three weeks after oral argument.

*We are in the process of adopting a new and streamlined "Notice of Appeal"---hopefully one that will make our job and yours easier.

*Lawyers can now advertise that they have been certified as a specialist in a given field by an organization accredited by the ABA.

*And after many, many years of work by a longstanding committee, the Supreme Court has approved new Probate Court rules.

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I would like to thank my colleagues on the Supreme Court, especially Justice Dalianis, the chairperson of the Supreme Court’s Advisory Committee on Rules, for the strong leadership they have demonstrated in getting the work done. In fact, the Rules Committee now has no backlog and is up to date. The committee has done an extraordinary job.

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Given the public discord over the last few years, it is very important for all of us in the judicial branch to promote cooperation between and among the branches of government. One thing we have done---for the first time in our history—is to ask the Governor and the leaders of the Senate and House to appoint members to the court advisory rules committee. Governor Shaheen and Senate President Klemm have responded favorably to our invitation. Although Speaker Chandler has declined, I hope in time he will reconsider.

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In a letter last fall to Governor Shaheen, Senate President Klemm and House Speaker Chandler, the Chief Justice asked them to meet with the Supreme Court on an ongoing basis because, as the Chief put it, "greater communication among the branches about issues of common concern will foster understanding about the roles of each branch…."

I am pleased to report that we did meet with the Governor, the Senate President and House Speaker in December, in our conference room at the court, to begin what I hope will be an ongoing informal dialogue. It was a good session, cordial and relaxed. I want to thank them for accepting our invitation. We all look forward to another visit--- at our house or theirs.

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The media has grown fond of describing the relationship between the judicial and the legislative branches as a "running battle." That sounds good, and it may well sell newspapers, but it’s not accurate. At least, I hope not. Responsible tensions between co-equal branches of government are intended, and indeed essential to the spirited process of democracy. It is through the resolution of tension that progress comes—and over the past year there has been some real progress amidst the clamor.

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For example, Representative Bob Wheeler of Goffstown has been a model of candor and courtesy in including me and others from the judicial branch in the work of his legislative committee to reexamine and revamp the judicial retirement system for future judges. While the judiciary has not agreed with all of the legislation the Wheeler committee devised and the House passed, and has made its concerns known, Bob Wheeler has been forthright, honest and genuine in his dealings with us and I thank him.

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Recently I sat down at the statehouse to talk with Senator Jack Barnes of Raymond, the Senate vice president for finance, about the Judicial retirement plan. Not surprisingly, our conversation found its way to other subjects, baseball among them. Senator Barnes was a willing listener as I hope I was. When it was time to go, we agreed we should talk more often. I want to thank Senator Barnes for reminding me that his door is open and that his telephone is in working order. I will avail myself of both and I extended the same courtesy to him.

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Another dedicated lawmaker, Representative Bob Rowe of Amherst, working with attorney Peter Beeson, has guided lawmakers, representatives of the bench and bar and members of the public through a thoughtful and detailed examination of the appellate review system in New Hampshire, with an eye toward expanding appellate access. The committee issued a comprehensive report which identified potential legislative initiatives, some of which are in process. My thanks to Bob and Peter for their leadership.

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Most recently, in fact just about two weeks ago, after considerable discussion, the Supreme Court and the Legislative Budget Office agreed that a performance audit at the court could move forward. In a letter to Representative Sheila Francoeur of Hampton, the chairperson of the Joint Legislative Performance Audit Oversight Committee, we thanked the members for their sensitivity to the important separation of powers issues which the audit request implicated. I think we have been successful in finding a middle ground and we appreciate the cooperation of all the legislators involved.

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We need to continue to establish these important avenues of communication and do what we can to find common ground. I think that’s what the people of New Hampshire want us to accomplish and it is what Part I Article 37 of the Constitution demands when it cautions that the need for independence be consistent with "that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."

We could use your insight and help in finding and following that path, whenever possible.

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Before I close, and on a very personal note, I feel compelled to say something to you about the unprecedented events of the last two years. They have not been easy for any of us. The last chapter, as you know, was written last week. As much as I might be tempted, there is no purpose now in replowing old ground. The substantial record of these traumatic days is there for all to see—and time and perspective will be, as they usually are, the best and surest tools of history.

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When I took my oath as a judge more than six years ago, and stepped away from the practice of law which I so enjoyed, I never imagined what lay ahead. I now realize more than I ever did the resilience and simple genius of our form of government, the immeasurable comfort of true friends, family and faith, the difficulties and challenges of public service and public life in a new era and the need, ultimately, to let yesterday go in anticipation of tomorrow.

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All of us are essential to the fair administration of justice in New Hampshire and we need to turn all of our energy and attention to its near-sacred purpose. The time for anger and anguish is over. The time for building and rebuilding is here.

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I know the character of my colleagues and the quality of this bar—and its distinguished history. I was very proud to lead it. That is why I am confident that we will emerge from recent events stronger, wiser and even more committed. We must because so very much depends on it.

Thank you for inviting me to speak today. It’s good to be back.