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Secret docket for disciplinary cases shocks public, legislators

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    NMU         NEW HAMPSHIRE         Secret Courts         Sep 12, 2000    

Secret docket for disciplinary cases shocks public, legislators

  • A secret docket of the state Supreme Court was exposed, causing criticism and concern among the public and New Hampshire state legislators, who condemned use of the docket for its inconsistency with the tradition of open courts.

A citizen activist in early September learned of a secret court-within-a-court used by the New Hampshire Supreme Court to deal with cases involving the discipline or investigation of lawyers and judges. The docket, labeled “Special Matters Confidential,” was so secret that even members of the Judicial Oversight Committee were unaware of its existence.

The docket was exposed by Peter DeVere, a highway safety activist, who learned of the docket after a trial court dismissed his civil complaint against New Hampshire Supreme Court Justice Linda S. Dalianis. DeVere alleged Dalianis had a vehicle with an improperly low-digit license plate.

In addition to dismissing the case, the court issued a protective order to keep DeVere from publicly disclosing his complaint. DeVere appealed the gag order, and the appeal was assigned to the secret docket, labeled SMC-003. DeVere learned that “SMC” was a secret docket unavailable to or known by the public until the New Hampshire Sunday News revealed its existence in its Sept. 3 editions. Court records are public documents, but a case flagged for the “SMC” would not be made available upon request.

The state Supreme Court has agreed to review all files contained in the secret docket to see whether such cases should be made public. The purpose of the docket, according to the court, was to have separate, private proceedings for cases challenging the competence of attorneys and involving judges. In the midst of public criticism, one state representative pointed out the docket was created in 1986, the same year Chief Justice David Brock became chief. Brock is currently the subject of impeachment proceedings for his implementation of allegedly improper policies.

State legislators were shocked by the news and some vowed to take action. State Rep. Tony Soltani (R-Epsom), both a member of the House Judiciary Committee and a governor-at-large of the state bar association, had never heard of the secret docket and predicted the legislature would deal with court secrecy if the court failed to correct its own problems. Gregory Robbins, president of the New Hampshire Bar Association, said he did not know about the secret docket and observed “there would have to be limits on that kind of a docket or else there would be First Amendment issues.”

One legislator, however, was surprised by his colleagues’ shock. As a minority member of a legislative committee charged with investigating Judge John C. Fairbanks in 1997, state Rep. Richard Kennedy (R-Contoocook) revealed the use of the secret docket. The report stated, “The Committee report does not address the SMC docketing system used to shield judicial officers and lawyers from public scrutiny. This system should be scrapped entirely or severely restricted by legislative action.” No action was taken as a result of Kennedy’s report.


© 2000 The Reporters Committee for Freedom of the Press

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