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N.H. high court responds to criticism of secret docket

By The Associated Press

CONCORD, N.H. — After dealing with five days of outrage over a secret docket at the state's highest court, the Supreme Court said yesterday that it would change how confidential cases are handled.

"We knew questions had been raised and we wanted to answer some of them," said Eileen Fox, counsel for the court.

Earlier this week, court officials confirmed the existence of a special docket of cases labeled "Special Matters Confidential," or SMC, that long has allowed some cases never to be listed, heard or decided in public.

In a written statement, the court said it also would develop new policies about handling confidential cases.

"The guidelines will recognize the public's right to access court records ... ," the statement said.

The court also said decisions to put cases on the nonpublic docket no longer will be decided by Court Clerk Howard Zibel, but by one of the court's judges.

"We still have to iron out details as to how many justices or which justices will review the cases," Fox said.

The court said it would review files placed on the docket in the past and release to the public any cases that should not have been considered confidential. The review is expected to be finished by the end of the month.

The court also released a complete list of SMC docket numbers from 1992 to 2000, and a brief description of each case. Since 1992, 175 cases have been filed.

The court has filed occasional cases in secret since 1986, used primarily on issues involving professional conduct of judges and lawyers, Zibel said.

It has been the court's practice to seal cases or parts of cases that involve sensitive issues like child abuse or domestic violence, but such cases are listed on the regular docket. By law, all cases that are not sealed by court order must be open to the public.

The existence of the secret docket has outraged some lawmakers and lawyers, who say First Amendment rights are being violated.

"I think people are bothered about the way it was done," said Richard Uchida, a Concord lawyer who handles legal ethics cases. "In this instance, the public doesn't even have the opportunity to determine whether cases should be public because they don't even know they exist."

Uchida said one of his cases had been placed on the secret docket because of the sensitive allegations against a lawyer. But once resolved, he said, the case became public.

Four cases have been filed in secret this year, including one by former Justice Stephen Thayer, who resigned in March after being accused of participating in cases from which he had recused himself. He filed a petition on the secret docket, arguing the Judicial Conduct Committee had no jurisdiction to discipline him.

The court decided a week later the case should be public, and it then was placed on the public docket.

"The public has a right to know what happens in the state's highest court," said court-reform advocate Theo Kamasinski.

Some people say outrage over the secret docket has much to do with when they found out about the practice. The court has been under scrutiny since Thayer's resignation. Later this month, Chief Justice David Brock is to face impeachment charges that include allowing judges to comment on cases from which they were recused.

"I think the timing is bad," Uchida said. "This is a time when the public is skeptical of the court. Many of the court's detractors are going to use this [...] to show that the court has operated in a manner that has been inconsistent. I think this wouldn't have been viewed in such a sinister fashion if it didn't happen on the heels of the court crisis."

James DeHart, administrator of the Professional Conduct Committee, which handles complaints against lawyers, said he didn't realize the public was not aware of the secret docket.

"I never thought the existence of that file was a secret, or that there were large groups of people that didn't know about it," he said.

On Sept. 6, Gov. Jeanne Shaheen joined a growing list of critics who want the docket explained.

"I can't imagine any reason why it would be there," she said.

"That practice should be ended immediately."


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The public is denied effective scrutiny of the courts when access to records is restricted, says activist. 04.28.98

N.H. courts drop fees for unsealing case records
Move eases public access to court files that once were routinely sealed by judges. 03.27.07

Judicial secrecy: a case of hubris in the court
By Paul K. McMasters What's going on in the nation's courtrooms? 02.26.98

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