Under New Hampshire law the legislature may ask the state supreme court to offer advisory opinions on proposed legislation. The legislature petitions the supreme court to answer questions about the proposed statute, such as whether the proposed legislation would violate the New Hampshire Constitution if passed.

In a decision issued May 30, 2007, the supreme court was asked to offer an advisory opinion regarding a statute that dealt with the scope of authority invested in a marital master. In many courts throughout the state, divorce and custody actions are heard by marital masters.

A marital master is not a judicial officer within the meaning of the New Hampshire Constitution because they are neither nominated nor appointed by the Governor and Council. Under current law, a marital master serves an initial term of three years. Their reappointment is governed by the Judicial Branch Family Division Rules. During their appointment terms, the Family Division has the authority to conduct performance reviews and terminate the master if necessary. In essence they are removable by the court at will.

When a marital master hears a case, he or she will make a recommendation to the court as to how the case should be decided. The recommendation is not binding upon the court and has no effect unless it is countersigned by a judge.

The supreme court concluded that a statute which would make a marital master's recommendation final within ten days of issuance unless a party requested that it be reviewed by a judge would grant the marital master the authority of a judicial officer. Therefore, such a statute would violate the New Hampshire Constitution.

Even though a marital master is not an appointed judge, they perform a tremendous service to the judicial branch. Without their services, the processing of custody and divorce cases would grind to a halt. They are experienced family law practitioners and should be afforded the same level of respect that one would show to a judge in our judicial system.

Andrew J. Piela is an associate attorney at Hamblett & Kerrigan, P.A. His legal practice includes civil litigation, family law, land use litigation and probate. You can reach Attorney Piela by e-mail at: apiela@hamker.com

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