Opinion: ‘Justice delayed is justice denied’


By Mark Fernald

“Justice delayed is justice denied.” This old expression has becoming increasingly true in New Hampshire due to cutbacks in the court system.  Plans by the newly elected Republican majority in the state legislature to cut the state budget by 10% should be of concern to all citizens.

Let me try to put a human face on the cost of court cutbacks.

In the not-so-distant past, Cheshire County Superior Court had two full-time judges, and a full-time marital master (hearing officer.) Now the court has one full-time judge, and a half-time marital master. The delays in scheduling hearings have been significant.

Consider the story of Laurel (not her real name). Laurel and her ex-boyfriend each had equal parenting time with their daughter. In June 2007, Laurel’s ex-boyfriend claimed she had neglected their daughter. She was faced with a sudden ‘temporary’ hearing to address the allegations, she had no attorney, and lost all contact with her daughter except for three hours of supervised visits.

What followed was a two-year effort to regain her parental rights.

The “final hearing” was scheduled for December 2007, but only fifteen minutes were allotted, which was woefully inadequate. The next available time for a hearing was not until March 2008. The four hours allotted were reduced because of other hearings that day, and the time remaining was not enough to complete the hearing. Another hearing was scheduled for June 2008.

After the hearing was completed in June 2008, the parties had to wait for the decision of the Court. The judge was scheduled in other counties for half the months of the year. When the judge was not in Keene, the file was not available for him work on the decision.

When the Court’s decision finally arrived, the good news was that the allegations of the ex-boyfriend had been rejected by the court. The bad news was that the decision arrived in December 2008, eighteen months after Laurel had lost custody.

The Court’s decision ordered the parties to transition back to equal parenting time. The ex-boyfriend objected to any transition, so another hearing was required, which could not be scheduled until May 2009. When the two hours allotted at the May hearing proved inadequate, the parties had to travel to Dover in June to complete the hearing, because the judge was temporarily assigned there, and would not be back in Keene until the fall.

The United States Supreme Court has ruled that parental rights are a fundamental right under the U.S. Constitution. It took Laurel 24 months to regain her parental rights, and much of the delay was due to cutbacks in our court system. Because of the shortage of judge time, Laurel’s case was scheduled for less time than was needed. When time ran out, Laurel’s hearings had to be continued to the next available date, which was always several months later. This contributed to the inefficiency of the Court, as time was needed in the second hearing to recap what had happened in the first hearing.

In recent months, the situation has worsened for people like Laurel. Due to budget cutbacks, several Superior Court judge positions have been left vacant. Jury trials have been canceled during certain months. All courts are being closed for twelve business days during this budget cycle.

The reason we have a court system is to resolve disputes. Timely resolution of disputes is an essential part of justice, but is often impossible in the current budgetary environment. The new legislature needs to understand that if we are to deliver ‘liberty and justice for all,’ the court system cannot suffer further cuts.

Mark Fernald is an attorney in Peterborough at the firm of Fernald, Taft, Falby

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