In re Estate of Dionne , 128 N.H. 682 ( 1986 )

King, C.J.

The disputants in this will contest case argue that RSA 547:23 (Supp. 1985), which requires the payment of fees to the probate court for special sessions, is unconstitutional, and that because they were required to pay such fees, the proceedings below are null and void. We hold that RSA 547:23 (Supp. 1985) is unconstitutional, vacate the decision below, and remand for new proceedings to be conducted in accordance with this opinion.

RSA 547:23 (Supp. 1985) states:

“Contested and Special Sessions. Whenever the judge, at the request of the parties, shall attend an uncontested hearing, on days other than those fixed by the statute as the legal days for the sitting of the probate court, he may be allowed $20 for his service, plus his expenses. In the case of a contested hearing, he shall be allowed the same per diem compensation for his service as is generally allowed to masters by the superior court plus his reasonable expenses. Such compensation and expenses shall be paid by the party applying for the hearing unless the judge orders otherwise. If the parties are indigent, the court, in its discretion, may assess such charges against the state.”

Hence, the probate judges under this statute are permitted $20 in payment for judicial services at special sessions, and when the session involves a contested matter, they are allowed the same per diem compensation as masters, which at the present time is $175 per day. It should be noted that in the instant case the probate judge in the first instance required a payment of the $175 in advance, but later returned to the petitioner all but $20 towards each of the two sessions required in this case.

In addition to the special session fees they collect, the probate judges are paid an annual salary, see RSA 491-A:1 (Supp. 1985), for services rendered on a statutorily-set number of “general session” court days, during which they are required to sit. See RSA chapter 549. Since June 6, 1986, the annual salary for probate judges has been $19,100. RSA 491-A:1 (Supp. 1985). The number of required general session days varies from county to county, from 52 days per year in Hillsborough County, see RSA 549:6, to 11 days in Coos and Grafton Counties, see RSA 549:9 and :10. This results in the anomalous situation wherein the probate judge in Coos County is required to sit in regular session eleven days and receives a pro-rated salary of approximately $1,736 per day, while the judge in Hillsborough receives in effect $360 per day for the 52 days he is required to sit in regular session.¹

It is clear that the statutorily-set general session days are insufficient to handle all of the matters which need to be dealt with by this State’s probate courts. This is borne out by the fact that in calendar year 1985 probate judges received nearly $172,000 in special session fees. Thus, it appears that it has become customary for many of those having business in this State’s probate courts to pay for the holding of special sessions.

There is no doubt that the probate courts must be readily available to those citizens who need their services. Nor is there doubt that the probate judges deserve adequate compensation for their work. However, neither of these truths changes the fact that the current method of compensating probate judges for special sessions smacks of the purchase of justice, and is therefore anathema to the New Hampshire Constitution.

The payment scheme set out in RSA 547:23 (Supp. 1985) violates the provision of part I, article 14 of the New Hampshire Constitution which states that:

“[e]very subject of this state is entitled ... to obtain right and justice freely, without being obliged to purchase it —”

The Magna Carta sealed by King John at Runnymede on June 15, 1215, was the first approach in European history that endeavored to institute political and social reform, and to ensure the birth of a basic form of democracy in Britain. A generalized translation of its contents declared, “To no one will We sell, to no one will We deny or delay, right or justice.” As we have held, the provision of the New Hampshire Constitution does not prohibit the payment of reasonable filing fees in connection with the filing of cases and appeals in our courts. See State v. Basinow, 117 N.H. 176, 178, 371 A.2d 458, 460 (1977) (upholding as constitutional an eight-dollar filing fee for an appeal in superior court). It does, however, forbid the payment of a fee to a judge in consideration of his holding a special session and rendering a judicial decision for a party. Cf. Christy & Tessier v. Witte, 126 N.H. 702, 495 A.2d 1291 (1985) (upholding practice of compensating special masters when parties have genuine choice in using such master’s services). In an era of heightened sensitivity to appearances of impropriety, the spectacle of a citizen or attorney giving cash in one hand and receiving a judicial hearing and decision in the other is one that can no longer be tolerated. See Sup. Ct. R. 38 — Code of Judicial Conduct, Canon 2.

The contemporary injustice to litigants and petitioners having to pay money to a probate judge in consideration for a judicial service to be rendered is compounded by the fact that those citizens whose business is capable of transaction at a regular session of the probate court pay no fee to the judge at all, because his or her judicial services on that day are in return for a portion of the salary which is paid from the public fisc. It must be stressed that this case concerns payments to the judge for judicial services as distinguished from payment of filing or other administrative fees such as those sanctioned in Basinow supra. This case presents an issue more akin to the requirement of a fee for a jury trial in a criminal case which this court struck down in State v. Cushing, 119 N.H. 147, 399 A.2d 297 (1979).

The legislature to date has determined that the probate affairs of our citizenry can be accommodated by a part-time court where the judges may engage in private law practice or other private sector pursuits as distinguished from the full-time judges of this court, the superior court, and the full-time district courts who are precluded by law and canons of judicial conduct from most private sector endeavors. The part-time aspect of the probate courts makes judicial remuneration a difficult task for the legislature. Apparently, the legislature has conceded the fact that the probate judges’ salaries are inadequate; otherwise, there would be no need for fee-supported supplements to such salaries to be paid by citizens directly to the judge if their business is not susceptible of consideration at a regular session. In fact the legislature in the 1983 session increased the fees by 100% by an increase from $10 to $20 per special session. A fair reading of part I, article 14 of the constitution in modern times tells us that the system under attack is flawed in a constitutional context. The line so carefully drawn by our brother Souter in his dissent has in fact been crossed.

As a now retired Rockingham County Probate Judge, William W. Treat, stated in his introduction to the 1980 biennial report of the New Hampshire Judicial Council:

“[TJhere still lingers a so-called special session fee in our Probate Courts which is paid by litigants who choose to have matters heard on days other than on regular session days. While this system has survived with remarkably few complaints, it is inconsistent with a professional judiciary. It is no longer tolerable in a modern court system where court costs are paid out of general funds. The New Hampshire court system cannot be considered as having joined the twentieth century until the fee system has been totally abolished.”

N.H. Judicial Council, Eighteenth Biennial Report 3 (1980).

Additionally, we think that RSA 547:23 (Supp. 1985) violates the spirit, though not the letter, of the provision of part I, article 35 which states:

“It is therefore not only the best policy, but for the security of the rights of the people, that the judges of the supreme (or superior) judicial court should . . . have honorable salaries, ascertained and established by standing laws.”

The same concern for “an impartial interpretation of the laws, and administration of justice,” N.H. Const, pt. I, art. 35, which led the framers to call for “honorable salaries, ascertained and established by standing laws,” for the judges of this court and the superior court, applies equally to the other courts of this State and the judges who serve in them.

We hold, therefore, that in this case and in every case requiring a special session in the probate court after today, the probate court may not require the payment of fees for special sessions under RSA 547:23 (Supp. 1985). We find that the unconstitutionally-required payment in this case tainted the proceedings in this case, vacate the decision below and remand for new proceedings consistent with this opinion. In light of our constitutional holding, we need not consider the other issues raised on appeal.

The legislature at the session which will begin within 90 days will undoubtedly be called upon to fill the void in the remuneration for probate judges created by this decision. The probate court is an integral and important part of New Hampshire’s judiciary performing highly specialized and important tasks for which it is peculiarly suited and adapted, involving such things as the administration of estates of deceased or impaired persons, as well as passing upon involuntary commitments to the New Hampshire Hospital. Any diminution in remuneration sustained by the probate judges during the intervening period from the date of this decision to legislative action is properly a matter for consideration by the legislature in making any salary adjustment. Because diminution of judicial salaries is constitutionally suspect and undoubtedly violative of the contract clause of the United States Constitution, we deal in this case only with fees collected by the probate judiciary for judicial services and not in any way with their pre-existing salary scheme. See Jeannont v. N.H. Personnel Comm’n, 118 N.H. 597, 392 A.2d 1193 (1978).

The fact that the unconstitutional arrangement embodied in RSA 547:23 has perpetuated itself for almost 100 years is attributable solely to the fact that this is the first case in which its constitutionality has been challenged in this court. That we now have the opportunity to decide its constitutionality results only from the fact that counsel in this case pursued his client’s cause with a vigor that is a credit to attorneys generally.

Vacated; remanded.

Souter, J., dissented; the others concurred.

1 Salary and Special and Contested Session Fees by County for Calendar Year 1985

Sctla7-y Fees Total Compensation

Belknap 19,100 8,022 27,122

Carroll 19,100 7,386 26,486

Cheshire 19,100 5,572 24,672

Coos 19,100 10,770 29,870

Grafton 19,100 23,734 42,834

Hillsborough 19,100 32,035 51,135

Merrimack 19,100 30.280 49,380

Rockingham 19,100 27,366 46,466

Strafford 19,100 16,316 35,416

Sullivan 19,100 10.280 29,380

$171,761