Bill Text - HB1677 (2016)

Abolishing the supreme court general counsel position and the judicial council.


Revision: March 8, 2016, midnight

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HB 1677-FN - AS INTRODUCED

 

2016 SESSION

\t16-2059

\t09/10

 

HOUSE BILL\t1677-FN

 

AN ACT\tabolishing the supreme court general counsel position and the judicial council.

 

SPONSORS:\tRep. Brewster, Merr. 21

 

COMMITTEE:\tJudiciary

 

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ANALYSIS

 

\tThis bill abolishes the supreme court general counsel position and the judicial council.  The bill transfers the judicial council's duties relative to public defenders and counsel and guardians ad litem for the indigent to the department of justice.

 

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Explanation:\tMatter added to current law appears in bold italics.

\t\tMatter removed from current law appears [in brackets and struckthrough.]

\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.

\t16-2059

\t09/10

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Sixteen

 

AN ACT\tabolishing the supreme court general counsel position and the judicial council.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

\t1  Position Deleted; Unclassified Salaries.  Amend RSA 94:1-a, I(b) by deleting the following:

\t\tCC\tJudicial council executive director

\t2  Reference Change; Board of Marital Mediator Certification.  Amend RSA 328-C:13 to read as follows:

\t328-C:13  Board of Marital Mediator Certification Administratively Attached.  The board of family mediator certification established under RSA 328-C:4 shall be administratively attached, under RSA 21-G:10[, to the judicial council established in RSA 494].

\t3  Reference to Judicial Council Deleted.  Amend RSA 490-A:2 to read as follows:

\t490-A:2  Chief Justices of the Supreme and Superior Courts.  The chief justice of the supreme court, with the advice and consent of the chief justice of the superior court in respect to all matters affecting the superior court, shall be responsible for supervising the efficient operation of all courts in New Hampshire.  In meeting this responsibility, the chief justices shall receive the advice and cooperation of all persons and bodies interested in the administration of justice, including, but not limited to, the justices of all courts in New Hampshire, [the judicial council,] the administrative committee of probate courts, the New Hampshire probate judges association, the New Hampshire superior court clerks association, the court accreditation commission, the New Hampshire Bar Association, and all county and local bar associations.

\t4  Reference Change; Felonies First Project; Implementation Plan.  Amend RSA 592-B:2, VI to read as follows:

\t\tVI.  Prior to the implementation of this chapter in counties other than Cheshire county, Strafford county, and Belknap county, the [judicial council] supreme court shall issue a report on the implementation of this chapter to the senate president, the speaker of the house of representatives, and the chairpersons of the senate and house judiciary committees.  The [judicial council] supreme court shall survey the municipalities and counties affected by the felonies first project in order to obtain cost and effectiveness opinions.  The [judicial council] supreme court shall evaluate the number of probable cause hearings requested, waived, denied, and held, and the final disposition of each probable cause hearing held.  The [judicial council] supreme court shall also evaluate the number of discovery depositions requested, denied, and approved.  Beginning July 1, 2017 and ending in January 2020, the [judicial council] supreme court shall issue an annual report on its recommendations and the implementation of this chapter to the senate president, the speaker of the house of representatives, and the chairpersons of the senate and house judiciary committees.

\t5  References Deleted; Contract Attorneys.  Amend RSA 604-A:2-b to read as follows:

\t604-A:2-b Contract Attorneys.  The state of New Hampshire, by the[ judicial council] attorney general and with the approval of governor and council, may, within the limits of available appropriations, contract with any qualified attorney in the state to provide for the representation of indigents in circumstances where, pursuant to RSA 604-B, the public defender program is unavailable to provide such representation.  The [executive director of the judicial council] attorney general shall authorize payments to contract attorneys provided for under this section.

\t6  References Deleted; Contract Services.  Amend RSA 604-A:6-a to read as follows:

\t604-A:6-a  Contract Services.  The state of New Hampshire, by the [judicial council] attorney general and with the approval of governor and council, may, within the limits of appropriations, contract with qualified firms or individuals in the state to provide stenographic and clerical services where, pursuant to RSA 604-A:6, the defendant has been found to be eligible for such services.  The[ executive director of the judicial council] attorney general shall authorize payments to such individuals and firms as provided for under this section.

\t7  Reference Change; Payment of Expenses.  Amend RSA 604-A:8 to read as follows:

\t604-A:8  Payment of Expenses.  

\t\tI.  Each claim and written statement in support thereof when approved by the court shall be forwarded to the [judicial council] attorney general for payment.  The commissioner of administrative services may adopt rules, under RSA 541-A, in addition to the requirements of paragraph II, to carry out the provisions of this section.

\t\tII.  Statements submitted by counsel for payments of fees shall in each case be examined by the trial and appellate judges and certified by them as to the reasonableness of the fee requested and whether the defendant continued to be eligible for assignment of counsel during the duration of the trial.  Such certificates shall be attached to the request for payment of counsel fees.  Counsel must submit bills to the appropriate court for payment within 60 days of the disposition of a case unless the trial judge finds that there are extenuating circumstances.  Courts shall, within 30 days of receipt, certify statements as outlined above and forward the certified statements to the [judicial council] attorney general for payment.

\t8  Reference Changes; Rulemaking; Records Required.  Amend RSA 604-A:10 to read as follows:

\t604-A:10  Rulemaking; Records Required; Judicial Council; Commissioner of Administrative Services.

\t\tI.  The [judicial council] attorney general shall keep records of the notification of eligibility and assignment of counsel as submitted by the courts of the state pursuant to supreme court order 81-5A and subsequent related orders.  In addition to any other use the [judicial council] attorney general shall make of these records, the [judicial council] attorney general shall keep records including the following information and compile such information on a monthly basis:

\t\t\t(a)  The name of the courts, including the location and the type of the court.

\t\t\t(b)  The type of the case as defined by the most serious offense charged in the case, according to the following categories:

\t\t\t\t(1)  Homicide

\t\t\t\t(2)  Other felony

\t\t\t\t(3)  Misdemeanor

\t\t\t\t(4)  Juvenile

\t\t\t\t(5)  Other

\t\t\t(c)  Whether the case was assigned to a private attorney or a public defender.

\t\tII.  When a final bill has been approved for payment to a private attorney, the [judicial council] attorney general shall record the following information:

\t\t\t(a)  The type of case as defined in RSA 604-A:10, I(b).

\t\t\t(b)  The amount of the attorney's fee.

\t\tIII.  The [judicial council] attorney general shall also compile the gross monthly cost for bills approved for payment for expenses other than counsel, including those pursuant to RSA 604-A:6.

\t\tIV.  The commissioner of administrative services shall, with the approval of the attorney general, adopt rules pursuant to RSA 541-A, governing determinations of eligibility for payment of indigent defense expenditures, determinations of repayment schedules, financial and credit investigations, and any other matters the commissioner deems necessary or advisable for the performance of duties under this chapter.

\t\tV.  The [judicial council] attorney general shall adopt standards relative to appointment for juvenile counsel.  Such standards shall establish training, experience, and other qualifications for attorneys to represent minors in such proceedings, and shall be developed with consideration of relevant national standards including, but not limited to, the Juvenile Justice Standards of the Institute of Judicial Administration and American Bar Association.

\t9  "Judicial Council" Replaced by "Attorney General".  Amend the following RSA  provisions by replacing "judicial council" with "attorney general":  169-B:12, II(b); 170-C:10; 170-C:13, 461-A:17, 461-A:18, I; 490:26-f, II and V, 490-C:3, I(a), 525-A:1, 525-A:2, 604-A:1-b, 604-A:2-e, 604-B:4, 604-B:5, and 604-B:8.

\t10  Repeal.  The following are repealed:

\t\tI.  RSA 490-C:2, I(d), relative to membership of the guardian ad litem board.

\t\tII.  RSA 494, relative to the judicial council.

\t\tIII.  RSA 651-E:2, I(p), relative to the membership of the interbranch criminal and juvenile justice council.

\t11  Effective Date.  This act shall take effect January 1, 2017.

 

\t\t\t\t\t\t\t\t\t\t\tLBAO

\t\t\t\t\t\t\t\t\t\t\t16-2059

\t\t\t\t\t\t\t\t\t\t\t11/2/15

 

HB 1677-FN- FISCAL NOTE

 

AN ACT\tabolishing the supreme court general counsel position and the judicial council.

 

 

FISCAL IMPACT:

The Department of Justice, the Judicial Branch and the Judicial Council state this bill, as introduced, will increase state expenditures by an indeterminable amount in FY 2017 and each year thereafter.  There will be no fiscal impact on state revenue or on county or local expenditures and revenue.

 

METHODOLOGY:

The Department of Justice states this bill would abolish the Judicial Council and transfer all of the Council’s administrative duties to the Department of Justice.  The Department would be responsible for administering the indigent defense delivery system, the civil legal services fund, the provision of legal and guardian ad litem services in child protection cases, and legal service for indigent proposed wards in guardianship proceedings.  The Department assumes the funds currently budgeted to the Judicial Council would be transferred to the Department’s budget.  To fulfill the administrative responsibilities, the Department assumes it would require two full-time Criminal Justice Program Specialists, LG 24 and one full-time Administrative Assistant, LG 16.  The Department estimates the costs would be as follows:

 

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Department of Justice Estimated Budget

FY 2017*

 FY 2018

FY 2019

FY 2020

Assigned Counsel

$450,000

$900,000

$900,000

$900,000

Guardian Ad Litem

        250,000

      508,050

      513,131

      518,262

Contract Council  

         800,000

   1,799,600

   1,799,600

   1,817,596

Public Defender Program

      9,777,855

  20,127,961

 20,731,799

 20,731,799

Full-time Personnel

       64,448

      131,694

      137,378

      143,287

Benefits

       38,287

        80,913

        86,125

        91,684

Current Expense

         4,750

        10,599

        11,500

        12,000

Transfers to DoIT

            978

          1,717

          1,717

          1,717

Shared Services Support

         1,448

          2,969

          2,969

          2,969

In-State Travel Reimbursement

            750

          1,500

          1,500

          1,500

Civil Legal Services Fund

     600,000

   1,200,000

   1,200,000

   1,200,000

Court Appointed special Advocates 

     268,000

      639,000

      686,030

      734,052

Abuse & Neglect Non- CASA

       37,000

        50,000

        50,000

        50,000

Ancillary Non- Counsel Services

     465,000

      930,000

      930,000

      930,000

Totals

$12,758,516

$26,384,003

$27,051,749

$27,134,866

* FY 2017 represents one-half of the amount budgeted due to the effective date of January 1, 2017.    Growth in future years is based on actual trends. 

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The Judicial Branch states the proposed bill would amend RSA 592-B:2, VI part of the felonies first legislation passed by the 2015 legislature, to change the obligation to report on the implementation of the legislation from the Judicial Council to the Supreme Court.  That obligation includes surveying the municipalities and counties affected by felonies first.  The data to be reported includes the number of probable cause hearings requested, waived, denied, and held, and the final disposition of each probable cause hearing held.  In addition, the Supreme Court would be required to evaluate the number of discovery dispositions requested, denied and approved.  These requirements span over four years from 2017 until 2020.  The Branch is not able to determine the cost to implement these provisions.  Concerning the change of responsibility for the expenses of appointed counsel from the Judicial Council to the Attorney General, the Branch states it has worked cooperatively with the Judicial Council regarding the mechanics of indigent defense and other assigned counsel systems.  The Branch indicates it is not known whether there will be a fiscal impact related to working with the Attorney General’s office.  Concerning the change of responsibility for indigent criminal defense from the Judicial Council to the Attorney General, the Branch assumes there will be additional litigation.  The Branch expects the issue of the attorney general, responsible for the prosecution of criminal cases, also having responsibility for administering the indigent criminal defense will likely be litigated as a conflict of interest.  That litigation could occur in many cases, resulting in appeal to the New Hampshire Supreme Court.  The cost of such litigation cannot be determined, but would result in a fiscal impact in excess of $10,000.

 

The Judicial Council states under this bill, all of the responsibilities of the Judicial Council would be transferred to the Department of Justice and the operating expenses would be duplicated in the Department.   The Council assumes substantial conflicts of interest would be created by conjoining the office responsible for prosecuting homicides and overseeing all prosecution in the State with the office responsible for providing indigent defense representation in most criminal cases.  The Council assumes the cost of any conflict avoidance would be an expense of the Attorney General’s Office.  The Council assumes on January 1, 2017, the Council would cease to exist and have no financial responsibility for transferring equipment, data files, records and documents, or locating new office space and those costs would be borne by the Attorney General’s Office.  The Council assumes it would continue to make payments to providers and contractors through the effective date of this bill, remaining balances as of January 1, 2017 would lapse to the general fund, and the Department of Justice would assume responsibility for all existing obligations as of that date.  There would be additional unknown costs associated with termination of the Judicial Council staff such as accumulated leave, unemployment compensation and the continuation of health care coverage under COBRA.  It is assumed the remaining appropriations to the Judicial Council, including those for salary and benefits, would offset a portion of the appropriations made to the Department of Justice.

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