2007-263, OPINION OF THE JUSTICES (Recommendation of Marital Masters)

added); and defense by a joint committee of both houses of the legislature.’ (emphasis

shall be expressed in their respective commissions, and

be so removed unless he shall have had an opportunity to be heard in his

‘The tenure that all commissioned officers shall have by law in their offices

sufficient ground for impeachment, and provided further that no officer shall majority of the council agree thereto.’ (emphasis added); and fully and substantially in the address and shall not be a cause which is a the legislature, provided nevertheless that the cause for removal shall be stated commissioned officer for reasonable cause upon the address of both houses of constitution. The governor with consent of the council may remove any behavior except those for whom a different provision is made in this appointed, commissioned and sworn, shall hold their offices during good

“Whereas, part II, article 73 of the New Hampshire constitution states:

days prior to such appointment; and no appointment shall take place, unless a governor and council; and every such nomination shall be made at least three and field officers of the militia, shall be nominated and appointed by the ‘All judicial officers, the attorney general and all officers of the navy and general “Whereas, part II, article 46 of the New Hampshire constitution states:

by a judge;’ and of the recommendation, a party requests that the recommendation be reviewed shall become final unless within 10 days of the date of the clerk’s written notice “Whereas, SB 112 provides that ‘all recommendations of marital masters

masters,’ is presently pending in the senate; and “Whereas, SB 112, ‘An Act relative to recommendations of marital

2007, and filed it with the supreme court on April 17, 2007: The New Hampshire Senate adopted the following resolution on April 12,

No. 2007-263 Request of the Senate

THE SUPREME COURT OF NEW HAMPSHIRE the New Hampshire constitution?

p. 2 court, violate the requirements of part II, article 46 and/or part II, article 73 of

marital masters in both the judicial branch family division and in the superior recommendation be reviewed by a judge, as applied to recommendations of notice of the recommendation unless a party requests that the

as expeditiously as possible on the following questions of law: 2

marital masters to become final within 10 days of the date of the clerk’s written

the justices of the supreme court be respectfully requested to give their opinion

marital master is in any way contrary to the New Hampshire constitution; and “1. Would the enactment of SB 112, authorizing all recommendations of

“That, pursuant to part II, article 74 of the New Hampshire Constitution,

Resolved by the Senate:

consideration and action in the New Hampshire senate; now therefore, be it “Whereas, SB 112 raises an important question of law awaiting further no binding force upon the court;’ and

whether only the opportunity for review by a judge of a recommendation of a was laid upon the table because a question has been raised concerning recommendation of ought to pass and, upon second reading before the senate, committee on SB 112, and the bill was reported out of committee with a “Whereas, a public hearing was held before the senate judiciary

490-D:7, III; see also Super. Crt. Admin. R. 12-6; and confirmed such new marital master is appointed for a specific term, see RSA to the executive council for confirmation, see RSA 490-D:7, II, but that once and that upon acceptance by the governor, such nominee would be submitted authorized to make recommendations, which, though normally approved, have division shall submit to the governor the name of a marital master nominee, provided that henceforth the administrative judge of the judicial branch family “Whereas, in 2005, 177:14 (later codified as RSA 490-D:7), the legislature

and all their power from the appointing judge or from the agreement of the parties;’ marital masters in New Hampshire ‘have no inherent power, but rather derive (1987), the United States Court of Appeals for the First Circuit held that “Whereas, in Witte v. Justices of the N.H. Superior Court, 831 F.2d 362

council, nor enjoyed tenure during good behavior, and that such masters ‘are because they were neither nominated and appointed by the governor and within the meaning of part I, article 46 of the New Hampshire constitution Hampshire supreme court held that marital masters were not judicial officers “Whereas, in Opinion of the Justices, 128 N.H. 17 (1986), the New p. 3 3

be commissioned to hold office during good behavior.”

question in the affirmative.

“[a]ll recommendations of marital masters shall be signed by a judge.”

provision is made in this constitution.” Opinion of the Justices, shall hold their offices during good behavior except those for whom a different definition, be nominated and appointed by the governor and council, and must “[A] judicial officer within the meaning of part II, article 46 must, by

appointed by the governor and council.” officers, even though they are not tenured as such, we answer your first navy, and general and field officers of the militia, shall be nominated and Constitution. Because SB 112 would grant them the authority of judicial officers within the meaning of Part II, Articles 46 and 7 p. 3 3 of the New Hampshire branch and the citizens of the state, we conclude that they are not judicial Although marital masters provide invaluable service to the judicial recommendation be reviewed by a judge.” RSA 490-D:9 currently provides that written notice of the recommendation, a party requests that the masters shall become final unless within 10 days of the date of the clerk’s respectfully decline to answer the second question. inquiries on constitutional infirmity and, in keeping with that practice, we pertinent part: “[A]ll judicial officers duly appointed, commissioned and sworn, Hampshire constitution.” We have historically declined to answer general Part II, Article 73 of the New Hampshire Constitution provides, in whether enactment of SB 112 would “violate any other provision of the New and/or part II, article 73 of the New Hampshire constitution,” and second,

pertinent part: “All judicial officers, the attorney general, and all officers of the Part II, Article 46 of the New Hampshire Constitution provides, in

first question. Justices (Weirs Beach), 1 p. 3 34 N.H. 711, 717 (1991). We turn, therefore, to the

enactment of SB 112 would “violate the requirements of part II, article 46 We have been asked to give our opinion on two questions. First, whether

Senate Bill (SB) 112 proposes to amend RSA 490-D:9 (Supp. 2006). As

The following response is respectfully returned:

To the Honorable Senate:

New Hampshire constitution?” “2. Would the enactment of SB 112 violate any other provision of the by the court at will.” p. 4 Pursuant to this provision, marital masters “have no tenure and are removable

administrative judge of the judicial branch family division.” RSA 490-D:7, III.

May 30, 2007

in accordance with judicial branch family division rules” and “[d]uring Richard E. Galway

“serve an initial term of 3 years.” “Subsequent reappointments shall be made § 636(b) (2000). masters to enter final decisions upon nondispositive motions, see 28 U.S.C. 28 U.S.C. § 636(c) (2000), or by amending it to limit the authority of marital parties to consent in advance to marital masters entering final judgment, see constitutional infirmity could be eliminated by amending SB 112 to permit We have not been asked and therefore do not opine upon whether this

of the State Constitution. See id. at 21. Vesting marital masters with this authority violates Part II, Articles 46 and 73 determine issues that are properly raised before the judicial branch.” Id. at 19. characteristic[s] of a judicial officer”: “the authority to render judgment to SB 112, however, proposes to vest marital masters with one of the “necessary meaning of the State Constitution. Under RSA 490-D:7, III marital masters which, though normally approved, have no binding force upon the court.” Id. office during good behavior, and, therefore, are not judicial officers within the the State Constitution, they are authorized only “to make recommendations, appointed by the governor and council, they are not commissioned to hold Because marital masters are not judicial officers within the meaning of

to RSA 490-D:7 (Supp. 2006), marital masters are now nominated and initially 128 N.H. 17, 19 (1986) (quotation and citations omitted). Although pursuant p. 5 5

answers to the questions. Hon. Edwin W. Kelly, of Plymouth, filed a memorandum in support of negative